At the end of last week Police Constable Simon Harwood was cleared of the manslaughter of the newspaper seller Ian Tomlinson at a G20 demonstration in London in April 2009. 

During at least part of the trial two articles appeared in the archive section of the Mail Online website, both dating to 2010, detailing previous allegations of misconduct against PC Harwood.

After orders were made and correspondence sent in the build up to trial, in the course of the trial, Mr Justice Fulford issued an injunction ordering the Mail to remove the two stories from its website.  At the end of last week the Judge handed down his written judgment giving reasons why he granted that injunction.

The Judge’s view was that in considering whether any contempt of court had occurred under the strict liability rule, there were two questions to be considered:

• whether the articles appearing in the archive were “publications” for the purposes of the Contempt of Court Act 1981; and
• whether the articles appearing in the archive created a substantial risk of serious prejudice.

On the first issue, the Judge did not accept that there was any distinction between contemporary and archived reports, saying:

“I remain of the view that the words ‘at the time of the publication’ in [the Act] encompasses the entire period during which the material is available on a website from the moment of its first appearance through to when it was withdrawn.”

and

“Anyone looking for contemporary reports of an ongoing trial will often do so by typing in search terms that are likely to reveal a mix of contemporary and earlier information”.

The Judge appears to have been swayed by the fact that the articles could have been found by anyone carrying out an internet search for PC Harwood.  As a result, his view was that the two articles continued to be published whilst the proceedings were active.

As to the second question, the Judge considered that the details of alleged misconduct in the previous articles was damaging material that went to the heart of one of the two key issues in the case.

He concluded: “a juror looking for contemporary articles on the trial (which is entirely permissible) could, with little effort or by accident, have come across either of these articles, and accordingly I am of the view that their publication constituted a substantial risk of impeding or prejudicing the course of justice.”

All newspapers and established news outlets will be well aware of the strict liability rule for contempt, and the need to be careful about reporting active proceedings.  However, it appears that this is the first time that archived material relating to a Defendant in a trial has been ordered to be removed.  

Publishers will find it difficult to agree with the Judge’s reasoning that the words “at the time of publication” means  the entire period during which the material is available on a website”, because:

•  The internet would not have been in the mind of the legislators in enacting the Contempt of Court Act 1981
• A newspaper would not have incurred liability for “publishing” a story historically if it simply appeared within a paper archive.
• There is a great difference between actively running prejudicial material on a front page of a paper or website, and passively maintaining an archive that the public can access if they pro-actively seek it out. 
• Why should technological improvements that make it easier to search an archive fundamentally change the position?
• The libel reform bill is pushing the law of defamation in exactly the opposite direction by proposing that there be a single limitation period of one year from the publication of an article and no separate liability for each republication of the same or materially similar article.
• Jurors can be given sensible guidance, as indeed happened in this case, and trusted to comply with it.

More important are the practical considerations.  If, following Mr Justice Fulford’s ruling in this case, the impact of archived material on active proceedings is to become a new target for orders by Judges, more thought and guidance is clearly necessary. 

In this case the injunction was granted following prior contact between the CPS and the Mail about specific articles.  The importance of newspaper archives is undoubted, so is the answer temporarily to suspend potentially prejudicial archived material while proceedings are active?  Certainly, the technological step of suspending material is, as the Judge identified, not beyond the wit of man. 

However, the idea that the newspapers themselves should be tasked with identifying any potentially prejudicial historic material within their archives, when proceedings become active is not palatable, either as a matter of principle or practicality.  It would be time-consuming and burdensome to identify all historic material relevant to active proceedings, to analyse whether it could cause a substantial risk of serious prejudice to those proceedings (when the issues in the proceedings are not always known or transparent), and to decide whether to suspend access to it.

Before going further down this path, more thought must be given to where the balance should be struck in ensuring that proceedings are not prejudiced  In other words, how far ought publishers really be expected to go to save jurors from themselves?