Attorney General v Associated Newspapers Ltd & Anor  EWHC 418 (Admin) – Read judgment
For the first time a court in England has convicted two newspapers, the Daily Mail and the Sun, of contempt of court in breach of the Contempt of Court Act 1981, for the publication of a photograph relating to an ongoing criminal trial on their websites.
The judgment contains an important warning for bloggers, tweeters and journalists who use instant news to report on criminal trials: “instant news requires instant and effective protection for the integrity of a criminal trial“.
On Tuesday 3 November 2009 at Sheffield Crown Court a jury was sworn in to hear the trial of Ryan Ward for murder. The case was notorious. It was alleged that the victim, a 39 year-old father, Mr Craig Wass, had intervened after Ward had head-butted a young woman. He was merely trying to keep the peace. Ward took hold of a brick and struck him on the head, fracturing his skull and causing other head injuries from which he died.
At 5.04 p.m. an article was published on Mail Online accompanied by a picture which showed Ward holding a pistol in his right hand with his index finger on the trigger whilst he indicated firing a handgun with his left hand. Under the picture was the caption:
Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV.
The picture remained on Mail Online for 4 hours and 54 minutes, when it was removed at 9.58 p.m.
The court made clear that the circumstances as to how the photograph came to be published establish that it was a mistake:
A journalist employed by the first defendant for the Daily Mail had sent an e-mail with an article about the prosecution accompanied by the photograph we have described. To the journalist’s credit, he had made clear to a member of the Daily Mail’s picture desk that the handgun should not be included in any copy of the photograph as it would prejudice the trial. The editors of the website Mail Online decided that the article was suitable for online publication, but a freelance journalist prepared the story and added the photograph without obtaining any legal advice.
Publication by the Sun occurred at 1.22 a.m. on Wednesday 4 November 2009 on Sun Online. The photograph had been supplied to the second defendants by a photographic agency from a social networking site, on the ‘page’ of a co-defendant. The picture was the same as that intended for use in the newspaper version on 4 November.
The picture desk accepted that the picture of Ward should be cropped. Unfortunately, although the picture was carefully cropped for newspaper publication so as to exclude Ward’s left hand and any view of the gun, when the picture was cropped for publication online, the top part, the barrel, of the gun was visible.
This case involved a contempt of court through breach of the ‘strict liability rule’, which relates to publications during the time that court proceedings are ‘active’, and which create a risk of prejudice to those proceedings. The liability is strict, in the sense that the publisher’s intention is irrelevant: i.e. liability is unaffected by whether or not there was an intention to prejudice the proceedings. The rule thus applies in cases where
a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. (s.2(2))
The test has been long-established, and was stated by Lord Diplock in Attorney General v English AC 116 at 141H-142C:
- If, as in the instant case, and probably in most other criminal trials upon indictment, it is the outcome of the trial or the need to discharge the jury without proceeding to a verdict that is put at risk, there can be no question that that which in the course of justice is put at risk is as serious as anything could be.
The newspapers were therefore found guilty of contempt of court. In recent years the Attorney General has brought contempt proceedings based on the strict liability rule relatively rarely. It remains to be seen whether the present case is an indication that a more proactive approach to potential press contempts may be seen from the present Attorney, whether in internet publications or more generally.
Broader concerns arising from the use of the internet by jurors that have been expressed by the Lord Chief Justice (see my earlier post) recently have been expressed.There is more of interest in the judgment, for instance in relation to human rights (see para 53 – the court gave the defendants’ free speech arguments short shrift) and we will follow this up with a more substantive post. In the meantime, the court’s final warning in respect of online news should be of interest to anyone who publishes it, including bloggers and tweeters:
The criminal courts have been troubled by the dangers to the integrity and fairness of a criminal trial, where juries can obtain such easy access to the internet and to other forms of instant communication. Once information is published on the internet, it is difficult if not impossible completely to remove it. Harvey J in New Zealand described the “viral nature” of information on the internet …
The court also emphasised the fact that articles published online can be easily shared using social media tools:
Whilst in this case we have not been satisfied that a juror could have been told about the photograph by someone who had obtained access to the article through ‘Twitter” or by registration to receive an “RSS feed”, the ability to obtain news by such means must be acknowledged. There are those who rely upon research to doubt whether juries obey the prohibition not to search the internet.
Finally, and ominously:
The courts, while trusting a jury to obey a prohibition on consulting the internet, have been concerned to meet the problem. This case demonstrates the need to recognise that instant news requires instant and effective protection for the integrity of a criminal trial.
With the rules on online posting from courts potentially being relaxed, this case should provide a useful reminder that those reporting from trials should be very careful indeed that what they publish (including tweets) is accurate and does not risk prejudicing the trial. It is worth remembering that a person cannot be prosecuted in a case where reporting has been allowed if they produce:
a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith (s.4 of the Contempt of Court Act)
The instant nature of online publishing means that, unlike publication in traditional newspapers, it is almost impossible to contain them once they have been published. The judge in this case rejected one of the defendant’s argument that the photo had been online for a “comparatively brief” amount of time. So an instant message quickly posted may lead to lasting consequences, including a conviction for contempt of court, which may carry with it a substantial fine and/or up to two years in prison.
Angus McCullough QC, who is an editor of this blog, represented the Attorney General in this case. He is not the writer of this article.
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