Her Majesty’s Attorney General v The Conde Nast Publications Ltd

Reference: [2015] EWHC 3322 (Admin)

Court: High Court, Administrative Court

Judge: Lord Chief Justice and Davies J

Date of judgment: 18 Nov 2015

Summary: Contempt

Download: Download this judgment

Appearances: Andrew Caldecott QC - Leading Counsel (Claimant)  Aidan Eardley (Claimant)  Adrienne Page QC - Leading Counsel (Defendant)  Adam Wolanski QC (Defendant) 

Instructing Solicitors: Treasury Solicitor for Attorney General,

Facts

The Attorney General applied for committal of the Defendant in respect of an article published in the April 2014 edition of GQ magazine concerning the “phone hacking trial” (R v Edmondson & Ors) while that trial was still in progress.

Issue

The application was brought under s.2(2)  Contempt of Court Act 1981 (the ‘strict liability rule’). It was common ground that the relevant proceedings were “active” at the time of publication and there were no significant disputes as to the applicable law. The ultimate question for the court was whether the Attorney General had proved to the criminal standard of proof that there had been a “substantial risk” that the course of justice “will be seriously impeded or prejudiced”.

Lord Thomas identified three relevant factual questions:

What was the risk of the publication coming to the jurors’ attention?

Was there a risk of serious prejudice? Did the article itself contain material that was seriously prejudicial?

Could a jury have been relied upon to use their common sense to ignore it?

Held

The Court (Lord Thomas of Cwmgiedd CJ and Nicola Davies J) found the contempt proved.

On the first question, the court noted that, although the edition was withdrawn when a complaint was made about it in the criminal trial, it had been on display at newsstands and had been available in waiting rooms and the like, and the front cover flagged the offending article prominently, in a way that would have attracted the attention of anyone involved in or knowing of the trial. In those circumstances there was a significant risk that the article would come to the attention of a juror.

On the second question, the court found that the content of the article was prejudicial in four respects: it suggested that Rupert Murdoch had been a participant in the phone hacking but that neither the prosecution nor the defence wanted this aired in the criminal trial; it suggested that Mr Murdoch was paying the costs of the criminal defence for a base motive; it implied that one of the criminal defendants (Andy Coulson) knew all about phone hacking and was simply carrying out Rupert Murdoch’s orders by hacking phones and then concealing the truth; and it implied that another defendant (Rebekah Brooks) was a disreputable woman who would do whatever was required by Mr Murdoch. It was relevant that Mrs Brooks and Mr Coulson were well known and that there had been hostile pre-trial publicity but this did not diminish the risk of prejudice; on the contrary, these factors pointed to the real danger of reigniting the prejudice during the trial and bringing back memories of what had faded.

On the third question, jurors had been directed to ignore any comment that they might come across about the case and could be expected to follow those directions. However, the article was presented on the cover as an ordinary court report and there was nothing to alert a juror, until s/he began to read it, to the fact that the article was not conventional, fair and balanced reporting. It was unrealistic to expect a juror who read the article to be uninfluenced by it or to put it out of their mind. It was immaterial that there was no application to discharge the jury; there would have been a seriously arguable ground of appeal that the jury should have been discharged.

The court noted that the author of the article believed he had written it within the rules relating to contempt; that the Defendant took advice from a competent source; and that the editor of GQ had apologised that the court’s time and public resources were being expended and assured the court that the Defendant would never deliberately or recklessly have published matter that would prejudice court proceedings.

There is to be a hearing to determine penalty in due course.