The answer to the question is not usually straightforward. However, there are longstanding principles which must be borne in mind when coming to a conclusion.
In 2015, the Condé Nast case (which concerned the publication of an article relating to the phone hacking trial whilst the trial was still under way) helpfully reiterated those principles. Three important points to consider are:
- “Substantial risk” is taken to mean “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?
- The fact that previous publications have caused a risk of prejudice is not a defence to a contempt prosecution. It is enough that the publication “afforded an additional or further risk” or “exacerbated and increased the risk”. In other words, there is no safety in numbers when it comes to contempt.
Whilst the Condé Nast article was a commentary piece, it was still deemed to have crossed the “substantial risk of serious prejudice” threshold. The lesson from this case is that caution should always be exercised when it comes to publishing commentary pieces which are linked or relevant to active proceedings, their subject matter, or the Defendants. If in doubt, take legal advice.
It is also helpful to look at two 2012 cases: those concerning the trials of Levi Bellfield and Nicola Edgington.
Levi Bellfield was on trial for offences relating to the death of Millie Dowler, and the attempted kidnap of another teenage girl. The jury had reached its verdict in relation to Millie Dowler, but was still deliberating in relation to the other victim. At this point, the Daily Mail and Daily Mirror published former allegations that Bellfield had an interest in young girls in school uniform.
The information had been withheld from the jury during the trial, and the publications resulted in the jury being discharged before they reached a verdict relating to the second alleged victim. Both newspapers were given fines of £10,000 each, plus legal costs. This case acts as a warning not to open the floodgates and publish potentially prejudicial information until verdicts have been reached on all charges.
In the case of Nicola Edgington, the Times narrowly escaped prosecution for contempt. Edgington murdered her mother in 2005 and received a hospital order. She was released into the community in 2008. In 2011, Edgington was arrested for new offences of murder and attempted murder after she attempted to stab a woman at a bus stop, and then stabbed and killed a grandmother.
Following Edgington’s 2011 offences, the Times reported on Edgington’s 2005 conviction for murder. At the point of publication, it was not clear whether Edgington would face a trial for the 2011 offences.
The Times argued that the articles did not amount to contempt because Edgington would be bound to admit the killing and plead diminished responsibility, and then medical experts would refer to the previous killing in evidence. The Times also referred to limited circulation in the jury area, and time lapse between publication and trial, as factors in its favour.
The Court found that the disclosure of a previous conviction was potentially seriously prejudicial, but in the particular case, it found that it had not been proved to a criminal standard (beyond reasonable doubt) that “there was a significant risk that the potentially highly prejudicial articles would seriously prejudice the course of justice”.
However, the important line to take away from that case is: “articles….which make assumptions about the extent of the issues likely to be disputed in forthcoming criminal trials are published at their peril”.
There are cases where all publishers seem to throw caution to the wind and go to town on alleged defendants in advance of any criminal trial – the coverage of the deaths of Joanna Yeates and Lee Rigby are interesting examples. I won’t even begin to evaluate the coverage of these exceptional cases from a contempt point of view, but I will reiterate the point made above: there is no safety in numbers when it comes to contempt.