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Rebekah Brooks can’t get a fair trial? Tell it to the judge

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It would be enough to make a Sun leader writer’s blood boil. If a gang embarked on illegal activities (allegedly); if it had at the centre of it (allegedly) a heartless flame-haired “criminal-in-chief” (as a former associate put it) allegedly linked (according to a deputy assistant commissioner of the Metropolitan Police no less) to “a network of corrupted officials” within an alleged “culture of illegal payments”; if this happened and they all got off on the basis of a loophole in the law, think how the Currant Bun would fulminate. You couldn’t make it up!

Unfortunately someone has, let’s say, been somewhat free with the legal actualité, throwing into doubt the chances of former Sun editor Rebekah Brooks (for it is she allegedly*) and her colleagues ever receiving a fair trial for their (alleged) misdemeanours in the (so-called) hacking scandal.

The issue is that there has been “huge, dramatic and sensational” press coverage of the hacking story and particularly of the Leveson inquiry at more or less the same time as police have been stumbling towards the conclusion (one hopes) of their investigations into the matter. Anyone reading that coverage will be seriously prejudiced against Brooks et al. There is no jury in the land that would be able to give them a fair trial. This is the argument of Stephen Parkinson, Brooks’s solicitor

There is, of course, one jury that might have missed the “huge, dramatic and sensational” coverage: one made up from the many millions of good men and true (and women too) who read the Sun, since its coverage has been rather modest, restrained and unsensational. But leaving that aside, given the Leveson inquiry, can Rebekah Brooks get a fair trial?

The Attorney General, Dominic Grieve, has apparently been studying the Contempt of Court Act 1981 to see if he can work out what he must do in these tricky circumstances. It won’t help him because this is a situation without parallel and not one in which the answer lies in an Act of Parliament.

To the extent that the Contempt Act is enlightening, it tells us at what point the media must stop reporting the details of criminal allegations against individuals for fear of prejudicing their trial. The press risks being in contempt of court when the legal proceedings become “active”, which basically means when the alleged perpetrators have been arrested (see wording below). Arrests may occur because police are ready to charge the suspects or because further inquiries are necessary. In the latter case they may be bailed with conditions imposed. (How long bail can continue without charge has been muddied by the case of Paul Hookway but that’s another issue.)

On this reading the proceedings became active when Brooks and various others were arrested and bailed (as of 13 March). Actually Brooks was previously bailed as long ago as last July. In theory that means since then the media were restricted as to what they could say about the cases – name, ages, job, address and similarly unsensational facts – and no pictures.

But the Contempt of Court Act was passed when being on bail actually meant something. There was at least the social stigma plus the fact that a criminal charge could be “hourly expected”. Now it seems to be little more than an irritating interruption to the racing calendar. Or a chance to go down the nick for a periodic update on how the investigation is going from the lads you probably call friends (allegedly).

Before proceedings became active it would have been perfectly correct for anyone having evidence of any wrongdoing by Rebekah Brooks or her associates to tell someone about it – preferably the police, and certainly, if called upon, an inquiry chaired by a learned Lord Justice. Even, believe it or not, one of the popular prints that retail such sensational material.

The newspaper editors would take a view on which part of it was true and publish accordingly. The media are also wholly free to report the proceedings of the Leveson inquiry, held under privileged conditions.

Brooks and her lawyers must know this, not least, of course, because the papers of the sort she was in charge of regularly rely on exposés of paedophile priests, bung-ridden sportsmen and corrupt practitioners of all kinds, none of whom, when their cases come to court, can say “My case has been prejudiced by the ‘huge, dramatic and sensational’ coverage in the press.”

‘I have enough confidence in my fellow countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice’ Mr Justice Lawton

Mr Grieve should not waste his time with the Contempt of Court Act. Who would he prosecute? DAC Akers, Charlotte Church and all the other witnesses required to tell the truth (as they see it) at the Leveson inquiry? The media organisations throughout the country and around the world that published reports of what was said at the inquiry? The Guardian, whose doggedness brought these important matters of public interest to light (and thus, circuitously, to the attention of the police)?

So even if there were an issue of prejudice, it would be no different from any situation in which public exposure of scandal has ultimately led to court proceedings.

Judges are aware of these things and do their utmost to ensure trials go ahead and to minimise the possibility of prejudice in the jurors’ minds. They are interested in the actual risk of prejudice in the context of the case to be presented before them in the courtroom, not in any theoretical breach of the Contempt of Court Act.

The view of judges is generally that of Mr Justice (later Lord Justice) Lawton in R v Kray (1969): “I have enough confidence in my fellow countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in the newspaper.” So newspaper reports per se won’t prompt a judge to halt a trial even if on the face of it they look prejudicial.

It’s not always the case, of course. The murder conviction of Michelle and Lisa Taylor in 1992 was quashed by the Court of Appeal in part because “extensive, sensational and inaccurate press coverage of their trial had created a risk of prejudice”.

One front page headlined “Cheat’s Kiss” included a still from a wedding video showing an apparently lingering kiss between Michelle and the murdered woman’s husband – actually a mere passing wedding peck. Who was responsible for this egregiously bad example of prejudicial drama and sensationalism? It was the Sun what done it (of course).

*Note: Since this posting Brooks and her husband have been cleared of all charges against them.

Michael Mansfield has also published a piece on the Guardian website on this issue. He writes: 

“There have been many such occasions, particularly where famous or notorious individuals have been involved. Clearly, the mere fact of favourable or unfavourable publicity is not enough [to halt a trial]. If it were, this would create a class of people immune to prosecution. On the whole, the UK courts have regarded the trial process itself as providing sufficient safeguards – for example, by warnings to jurors to ignore what they may have read, seen or heard in the media or on the internet. They take an oath to try defendants on the evidence presented to them. In exceptional cases at the start of proceedings, a judge may pose a question to establish whether a potential juror feels able to return an impartial verdict.” Rebekah Brooks needn’t worry about her right to a fair trial

Contempt of Court Act 1981

Proceedings are “active” according to Schedule 1 to the Act:
3 Subject to the following provisions of this Schedule, criminal proceedings are active from the relevant initial step specified in paragraph 4 [F1or 4A] until concluded as described in paragraph 5.

4 The initial steps of criminal proceedings are:—
(a) arrest without warrant;
(b) the issue, or in Scotland the grant, of a warrant for arrest;
(c) the issue of a summons to appear, or in Scotland the grant of a warrant to cite;
(d) the service of an indictment or other document specifying the charge;
(e)except in Scotland, oral charge.

Among events that conclude proceedings are the end of the court case and also:
7 (c) in the case of proceedings in England and Wales or Northern Ireland commenced by arrest without warrant, if the person arrested is released, otherwise than on bail, without having been charged.

Note: Media law writer David Banks has now made similar points to this posting here and quotes Lord Chief Justice Taylor in the Rose West case where media prejudice was argued:
“The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd.”

About alrich

Journalist and blogger on legal and financial/economics issues

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