Full case report

Attorney General v Associated Newspapers Ltd

Reference [2012] EWHC 2029 (Admin)
Court Queen's Bench Division (Administrative Court)

Judge President of the Queen's Bench Division; Tugendhat J

Date of Judgment 18 Jul 2012


Summary

Contempt of Court – strict liability contempt


Facts

C was the Attorney General, D1 was Associated Newspapers Ltd and D2 was MGN Ltd. C’s prosecution of the Ds followed the trial of Levi Bellfield (B), beginning in May 2011. B was charged with the attempted kidnap of Rachel Cowles, and the kidnap and murder of Milly Dowler. At 2:30 pm on Thursday 23 June 2011, the jury convicted B of the kidnap and murder of Milly Dowler, but they continued their deliberations in relation to the kidnap of Rachel Cowles.

The Milly Dowler conviction was extensively reported on the main TV news channels during the afternoon and evening of 23 June. The CPS emailed media organisations to remind them that proceedings were still active, and that they should not publish material which might prejudice the jury in its deliberations.

On the following morning, 24 June, all national newspapers carried reports of the convictions and of the background to B’s offending. D1 and D2 carried articles with information that had not been put before the jury, some of which had been broadcast on TV the previous evening.

On the same morning counsel for B applied to discharge the jury from giving a verdict on the attempted kidnap of Rachel Cowles because of the “avalanche of publicity adverse to the defendant” which featured material not before the jury at trial. The submission was that the jury could have avoided neither the material, nor being affected by it. The J discharged the jury, referring to the hugely prejudicial nature of the allegations made against B, adding that it was unrealistic and hopeless for the jury to try to put the material out of its mind.

The correct approach to be taken to s.2(2) of the Contempt of Court Act 1981 was common ground between the parties


Issue

Had D1 and D2’s articles incurred liability under s.2(2) of the Contempt of Court Act 1981 by creating a substantial risk that the course of justice in B’s trial would be seriously impeded or prejudiced?

This was to be determined following consideration of two factual sub-issues:

i) Could there have been a substantial risk of serious prejudice created by the publication of the articles in each of the newspapers, given what had been put before the jury about Bellfield in the course of the trial and the jury’s decision to convict him in respect of the murder and kidnapping of Milly Dowler?

and

ii) Was what had been broadcast the preceding evening on the news channels such that the particular publications could not have given rise at the point of publication of the morning of 24 June 2011 to a substantial risk that the course of justice would be seriously prejudiced?


Held

Giving judgment for C and finding the Ds guilty of contempt on the basis that each publication did create a substantial risk of serious prejudice:

i)

Evidence was allowed to go to the jury of B’s previous convictions for murder and attempted murder. His ex-wife and ex-girlfriend also gave evidence as to his movements at the time of Milly Dowler’s disappearance. The J excluded evidence of B’s interest in schoolgirls in uniform, and of an attempted kidnap in 2005.

The allegations which were not before the jury set out in D1’s articles were of B’s involvement in the murders of Lin and Megan Russell, and of his drug induced rape of girls aged between 14 and 16.

The allegations which were not before the jury which were set out in D2’s articles were of B’s violent and sexually abusive behaviour towards former partners, and of his sexual interest in and rape of young girls.

The material was highly prejudicial to B, going way beyond what the jury had been told about him. There was a real risk that the jury would have thought the material was relevant to the remaining count of attempted abduction of a schoolgirl.

ii)

There had been pre-trial publicity, but not to the extent that a fair trial could not take place. Following the verdict on 23 June, there had been TV news coverage which referred to his abusive behaviour towards previous partners. However, none carried the allegations about young girls. There was a further and additional risk of prejudice created by the Ds articles in relation to B’s interest in and rape of young girls.


Comment

The facts here were, as was submitted by D1’s counsel, extremely unusual. B was already known by the jury to have been convicted of three murders and one attempted murder at the time they were discharged. Nevertheless, the jury was still out and considering the final count on the indictment when the defendants published their extensive coverage of B and his background. The Attorney-General’s decision to bring proceedings on this basis indicates how seriously strict liability contempt may be taken.