The Lord Chief Justice has left the media, high profile alleged sex abusers and their lawyers in something of a quandary following the up-rating of UK broadcaster Stuart Hall’s prison sentence for 14 sex offences.
Lord Judge in the Court of Appeal criticised a “manipulative” Hall for attempting to influence potential jurors in his public comments reported in the media denying the charges before his eventual admissions in court.
Lord Judge is reported as saying: “Whatever legal advice the offender has been given, he knew the truth. He knew he was guilty of molesting these girls … This deliberate falsehood was a serious aggravating feature because here was an expert in the ways of the media, fully alert to the possible advantage of manipulating the media, at that point hoping to escape justice. He was attempting to use the media for the purpose of possibly influencing a potential juror.”
There has been a long tradition of people accused of offences denying in no uncertain terms any guilt before they come to trial and a tradition of full media reports of those denials – even though pre-trial reporting is, in law if not in practice, severely restricted by sub judice rules (broadly speaking to items such as name of accused, age, address and the charges – but not evidence, confessions). Indeed the media tends to make a practice of ensuring such denials are reported when they are made, even if only tacked to the end of the article.
The thinking of night lawyers who recommend the denial be reported may be in part be to avoid libelling the accused, an insurance in case charges are dropped or he is acquitted. Additionally there may be a fear of contempt of court – prejudicing the trial with anything that might suggest guilt before the matters have been tried.
But Lord Judge’s comments now expose this as fuzzy thinking. One man’s denial may be another woman’s (in this case) condemnation. For the accused to say “I am not guilty” is to imply that the accusers may well be guilty – of dishonesty, fantasising, vindictiveness or worse – before the matters have got to court. Lord Judge’s charge seems to be that Hall intended to get such an impression across in the media and hence intended that any jurors picked for the trial would have such impressions in mind before they started their work.
In the original trial Recorder Anthony Russell told Hall: “Instead of maintaining a dignified silence or stating that you would make no comment, you chose to make a public statement to the effect that the allegations were false, describing them as ‘spurious and pernicious’ as was widely reported.” (Pdf: Sentencing Remarks 17 June 2013)
He and Lord Judge may have been thinking of the denial outside Preston magistrates in February. The Daily Mail headlined its piece on Hall’s emotional statement: “Stuart Hall reveals the ‘living nightmare’ of being charged with 40-year-old sex offences” and reported he said he had “never gone through so much stress” and had been driven to the brink of suicide. It quotes him thus: “May I just say these allegations are pernicious, callous, cruel and above all spurious. And may I just say I am not guilty and will be defending these accusations.”
He added: “Like a lot of other people in this country today I am wondering why it has taken 30 or 40 years for these allegations to surface. The last two months of my life have been a living nightmare. I have never gone through so much stress in my life and I am finding it difficult to sustain.”
With further comments on his loving and supportive family who encouraged him to fight on and his heart illness there is plenty here that is certainly manipulative – given Hall was wholly guilty. It is this that Lord Judge was presumably criticising as part, in effect, of a media campaign “for the purpose of possibly influencing a potential juror”.
‘Instead of maintaining a dignified silence or stating that you would make no comment, you chose to make a public statement to the effect that the allegations were false, describing them as spurious and pernicious, as was widely reported’ – Recorder Anthony Russell
The media in these matters are in a strangely anomalous position. Once charges are laid they are supposed to report only minimal details for fear of prejudicing the trial – but they take this to mean, in general, that they should not prejudice the trial against the accused.
So any denials and coverage generally favourable to the accused is seen as fair game for publication given the interest in these stories. The Daily Mail felt able to present the story in the way it did, presumably, because it did not prejudice the case against Hall – even though, according to Lord Judge, such coverage might well have been the outcome of an attempt on Hall’s part to manipulate the press into prejudicing the case the other way – in his favour.
The BBC’s guidelines on such matters say: “Once a case is ‘active’, [certainly after charges have been laid if not before] anything which creates a substantial risk that the course of justice in those proceedings will be seriously prejudiced or impeded will be a contempt of court.”
It follows that anything of an emotional nature, pulling at the heart strings, claiming frailty on the part of the accused, any vehement denials and attacks on the victims of the alleged offences – all might prejudice a jury in favour of the accused thus putting the course of justice at risk. Lord Judge noted that one of the women considered withdrawing her complaint against Hall as a result of the denials.
The intention of the law is to ensure justice is not impeded. It is to ensure a fair trial meaning truth is arrived at and punishment administered or not, according to the facts. It is not to give the accused a sporting chance of getting off. The accused already has significant advantages in the process. The case has to be proved by the prosecution, not disproved by the defence; it has to be proved beyond reasonable doubt, not on a balance of probabilities; certain evidence is inadmissable.
So any pre-trial coverage to the advantage of the accused outside the court context is just as much covered by the Contempt of Court Act as material to his detriment – either way it may impede justice.
Lord Judge’s comments must be seen in the context of his and successive governments’ interest in protecting the position of victims in criminal cases. Dominic Grieve, the attorney general who brought the case to the Court of Appeal asking for Hall’s 15 month sentence to be increased, noted afterwards: “If someone is accused of a serious offence, it is in their interest to admit it. Individuals who don’t admit it and who attack their accusers, who are later found to be guilty, will not get very much sympathy from the court.”
One must assume that Lord Judge’s message is to lawyers as well as criminals. The implication is that lawyers would do well to advise their clients to plead guilty if they are guilty and not to suggest – certainly in public before the trial – that they will be acquitted.
And after the Stuart Hall case the media have been given fair notice that the statements of the accused may well be prejudicial – and publications and broadcasters may be held in contempt for reporting them. A “dignified silence” all round would seem to be best for the course of justice.
‘Whatever legal advice the offender had by then been given, he knew the truth. He knew that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a seriously aggravating feature.’ – Lord Judge
Lord Judge is shown to have said at Para 66-68: “We take the view that what we are about to describe is a serious aggravating feature of these crimes. The offender made a public statement to the media on the steps of the magistrates’ court. He proclaimed his innocence: ‘May I say these allegations are pernicious – callous, cruel and, above all, spurious. May I just say I am not guilty and will be defending these allegations.’
“Whatever legal advice the offender had by then been given, he knew the truth. He knew that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a seriously aggravating feature.
“The offender was an expert in the ways of the media. He was fully alert to the possible advantages of manipulating the media. At that date he was hoping to escape justice and he was, as we see it, attempting to use the media for the purpose of possibly influencing potential jurors. He was traducing thirteen adult women who had been sexually assaulted by him in different ways 20 to 30 years ago.”
Note: The Contempt of Court Act Section 1 notes: “In this Act ‘the strict liability rule’ means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”
So a media organisation can be regarded as guilty of a prima facie offence even if it is not actually attempting to prejudice a trial (just as the Daily Mail and others did not presumably purposely seek to get Hall off). The fact that they need to fill column inches and airtime with something would be unlikely to be accepted as “innocent publication” under Section 3(2), which says: “A person is not guilty of contempt of court under the strict liability rule as the distributor of a publication containing any such matter if at the time of distribution (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so.”
Note: Paradoxically the media are usually accused of prejudicing cases against the accused, notoriously in the case of a wholly innocent Christopher Jefferies briefly under suspicion of murder of Joanna Yeates.