APPENDICES
¶5.91 In Her Majesty's Attorney General v MGN Ltd and another, the Divisional Court heard
proceedings for contempt brought against the publishers of the Daily Mirror and The Sun newspapers in respect of articles published relating to Mr Christopher Jefferies. Mr Jefferies was arrested on suspicion of the murder of Joanne Yates in December 2011 and subsequently released from police bail without charge. Another man was subsequently charged with the murder of Miss Yates. The Divisional Court considered whether the newspapers were guilty of contempt on the basis that the criminal proceedings in which Mr Jefferies was involved at the date of publication were at serious risk of being prejudiced and/or impeded. The Divisional Court noted that the vilification of a suspect under arrest readily falls within the protective ambit of s2(2), as such publication may discourage witnesses from coming forward to provide information helpful to the suspect, and that in this case the impact of the articles on any potential defence witnesses would have been extremely damaging to Mr Jefferies. The impugned articles were held to have created substantial risks to the course of justice and to constitute contempt under the strict liability rule. The Daily Mirror was subsequently fined £50,000 and The Sun £18,000.501
¶5.92 More recently, in Her Majesty's Attorney General v Associated Newspapers Ltd and MGN Ltd
the Divisional Court determined that the publication of material withheld from the jury in relation to the activities of Levi Bellfield but published after the jury had convicted him of kidnap and murder of Milly Dowler but while it was continuing to deliberate in relation to an outstanding charge of attempted kidnapping of another girl created "a separate and distinct risk of serious prejudice" which was substantial and over and above that which had been the consequence of television broadcasts.502
¶5.93 Sections 3 and 5 set out defences in respect of innocent publication/distribution and fair and
accurate reports of proceedings respectively. Section 3 provides that a publisher is not guilty of contempt of court under the strict liability standard if, at the time of publication, having taken all reasonable care, they do not know and have no reason to suspect that relevant proceedings are active; and that a distributor of the publication is not guilty of the offence if, at the time of distribution, having taken all reasonable care, they do not know that it contains such matter and have no reason to suspect that it is likely to do so. Section 4 provides that a person is not guilty of contempt of court under strict liability in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and made in good faith. Section 5 provides that a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.
¶5.94 Section 6(a) preserves any defences available at common law; for example fair and accurate
1943report of proceedings of a public body, R v Payne and Cooper.503 Section 6(b) clarifies that no one can be found guilty of contempt who would not have been found guilty under the common law prior to the 1981 Act.
¶Appendix 4 | Legal Materials
¶5.95 Any proceedings for contempt of court under the 1981 Act require the consent of the Attorney
General, or for the proceedings to be instituted on the motion of a court having jurisdiction to deal with it.
¶5.96 Pursuant to s4(2) of the Act, the court has the power to order that the publication of any
report of proceedings or any part of the proceedings be postponed for a period the court thinks necessary where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings pending or imminent. The court has a discretion to hear representations from the press regarding the making of an order under s4(2), although it has been held that it would generally be right to hear from the press who represent the public interest in publicity which the court has to take into account in performing the necessary balancing exercise.504 The relevant practice direction is Practice Direction (Criminal Proceedings: Consolidation). Para I.3 notes that when considering whether to make an order under s4(2) it is likely that the court will wish to hear from representatives of the press.505
¶5.97 All orders made under s4(2) must include: a) the precise scope of the order, b) the time at which it shall cease to have effect, and c) the specific purpose for which it was made.506
¶5.98 In ex parte MGN Ltd Lord Judge CJ summarised the principles as follows. The first question
is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order made under s4(2) would eliminate that risk. If not, there would be no necessity to impose such a ban. If the order would achieve the objective of eliminating the risk the court has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no way of eliminating the perceived risk of prejudice, it does not follow that an order necessarily had to be made – the court's approach should be that unless it is necessary to impose an order it is necessary not to impose one and it if is necessary to impose an order at all it must go no further than necessary. A section 4(2) order should be a last resort.507
¶5.99 Section 4(2) is designed to enable the court to postpone the reporting of proceedings where
the publication during the course of proceedings would prejudice those proceedings. The need for postponement cannot extend beyond the proceedings.508
¶5.100 The interplay between Article 8 (respect of private and family life) and Article 10 (freedom of
1944expression) in this context was analysed by the House of Lords in Re A (a child) (identification: restriction on publication).509 Lord Steyn emphasised that full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice and promotes the values of the rule of law. The Court of Appeal in Re Trinity Mirror plc stated that it was:510 "impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials … this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed".