Phone hacking and the trials, convictions and acquittals which followed have been matters confined to the national newspapers. However, the recent conviction of Condé Nast Publications Limited for contempt of court has highlighted issues which need to be noted by all publishers and journalists, whether national or regional, online or print.
In March 2014, whilst the phone hacking trial of Andy Coulson, Rebekah Brooks and others was in full swing, GQ magazine published an article headlined “The Court Without A King”. The magazine’s Editor took legal advice relating to contempt, and was advised that the article could be published during the trial.
The article contained descriptions of Brooks’ and Coulson’s roles, as well as implying that Rupert Murdoch knew about the phone hacking, and his role was being withheld from the jury as it suited the prosecution and the defence. The article was also found, by the Lord Chief Justice, to imply that as “Mr Murdoch was paying the defence costs, this served his agenda of protecting his interests to the detriment of the public good”.
The article was drawn to the attention of the trial Judge, who said at the time, that the article “appears…to be a prima facie contempt”. Nearly 100,000 copies of the magazine were withdrawn from sale as a result of the concerns. Almost a year later, in March 2015, the court granted permission for the Attorney General to bring contempt proceedings against Condé Nast.
As we all know, it is a contempt of court to publish “a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.
Condé Nast was found guilty of contempt in November last year, and the penalty was decided earlier this month. In finding the publisher guilty, the Lord Chief Justice noted that there was a significant risk that the article would come to the attention of a juror, and that previous coverage (which was still available online) in no way “lessened the seriously prejudicial effect of the article in GQ”.
Condé Nast Publications Limited was fined £10,000 for the contempt, and also agreed to pay the Attorney General’s legal costs of nearly £50,000.
In making the guilty finding, the Lord Chief Justice outlined some important points on contempt:
• “substantial risk” means a risk which is “more than remote or not merely minimal” and must be judged at the time of publication;
• a key question is: if the trial proceeded to prosecution, would the publication give rise to a seriously arguable ground of appeal? and
• the fact that previous publications have caused a risk of prejudice is not a defence.
These are all points which we already know, but which are always worth reiterating. The third point, in particular, is important.
The Judgment in the case stated that you cannot try and escape a contempt prosecution on the grounds that other publications have already created a real risk of prejudice. It is enough that the publication in question “has afforded an additional or further risk of prejudice or exacerbated and increased that risk”.
It is clear, therefore, that every editor needs to assess a contempt risk for his or her self, and simply following the lead of other publications offers no protection whatsoever.
In this case, the Judge stated unequivocally that taking legal advice prior to publication was relevant to the penalty which would be imposed. If GQ had not sought advice, the implication is that the fine would have been rather more.
It is common knowledge that, in the absence of a court order to the contrary, a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith, cannot be a contempt of court.
But, mere commentary which is linked, or relevant to, active proceedings, their subject matter, or the defendants themselves, is a far riskier business, and should be treated with the utmost caution.
As the GQ case shows, there are 60,000 reasons why comments about on-going criminal cases need to be handled with care.