Attorney General v Associated Newspapers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses |
| Judgment Date | 03 March 2011 |
| Neutral Citation | [2011] EWHC 418 (Admin) |
| Docket Number | Case No: CO/7980/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 2011 |
[2011] EWHC 418 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Moses
Mr Justice Owen
Case No: CO/7980/2010
Mr Angus McCullough QC (instructed by the Treasury Solicitor) for the Claimant
Mr Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for the First
Defendant and Mr Anthony Hudson (instructed by Farrer & Co) for the Second Defendant
Hearing dates: 2 nd February 2011
Lord Justice Moses :
Facts
This is the judgment of the court to which we have both contributed.
This is the first time, so we were told, that a court in this jurisdiction has considered whether a publication on the online news websites of two national newspapers, the Daily Mail and the Sun, is a contempt of court in breach of the Contempt of Court Act 1981.
On Tuesday 3 November 2009 at Sheffield Crown Court a jury was sworn in to hear the trial of Ryan Ward for murder. Two other defendants were tried with him for other offences. The nature of the case is relevant to the issues in the application for a committal of the defendants for contempt. The case was notorious. It was alleged that the victim, a 39 year-old father, Mr Craig Wass, had intervened after Ward had head-butted a young woman. He was merely trying to keep the peace. Ward took hold of a brick and struck him on the head, fracturing his skull and causing other head injuries from which he died. The defence, it should be noted, was self-defence and lack of a murderous intent.
The case had received considerable publicity. After the jury was empanelled, the judge, His Honour Judge Murphy QC, gave conventional warnings that the jury should not speak to anyone or allow anyone to speak to them about the case. He noted that there had been press reporting of the case and warned the jury:-
"Also, I would imagine by the nature of this case, and you'll see there's obviously press interest in it there will be some reporting of this case. Again that's a matter the press are free to report upon but you go on only the evidence you hear in this room, not the view other people may or may not have about it."
He added another warning:
"Please don't try and get information from outside this room about this case. Don't, for example, consult the internet, if there is anything out there on it. I'm not saying for one moment there is but don't go there, don't try and get it from anywhere else. Again the reason for that is the evidence in this case is evidence that the defence know about and the prosecution know about. It's evidence that will evolve in this case in this room where all of us know what you're basing your decisions upon. If one person decides to go off and consult the internet or something else about it, then we don't have any control over that and you may be taking into consideration matters which have no relevance whatsoever to the case."
Following the prosecution opening, the jury were sent home.
At 5.04 p.m. an article was published on Mail Online accompanied by a picture which showed Ward holding a pistol in his right hand with his index finger on the trigger whilst he indicated firing a handgun with his left hand. Under the picture was the caption:
"Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV."
The picture remained on Mail Online for 4 hours and 54 minutes, when it was removed at 9.58 p.m.
The circumstances as to how the photograph came to be published establish that it was a mistake. A journalist employed by the first defendant for the Daily Mail had sent an e-mail with an article about the prosecution accompanied by the photograph we have described. To the journalist's credit, he had made clear to a member of the Daily Mail's picture desk that the handgun should not be included in any copy of the photograph as it would prejudice the trial. The editors of the website Mail Online decided that the article was suitable for online publication, but a freelance journalist prepared the story and added the photograph without obtaining any legal advice.
Means of access to the online photograph are relevant to the issue as to whether the Attorney General has proved, so that we are sure, that there was a substantial risk that the empanelled jurors might see the photograph. This requires analysis of the links to the photograph. The first link was in the main body of the Mail Online's home page. The link comprised a headline with five lines of text and a thumbnail image of the victim. It did not include the photograph. First access to the home page, on a typical computer monitor, would not have shown the link; it would have been necessary to scroll down the home page before that link came into sight. The link appeared between 6.00 and 7.00 p.m. on that evening of 3 November. In her evidence on behalf of the first defendant, Elizabeth Hartley, the first defendant's in house solicitor, suggests there was a possibility of a second link in the "Today's Headlines" box. But that would have been later in the evening.
Access to the photograph could only have occurred if a conscious decision had been made to read the story about the trial. Anyone who accessed the story from the home page would have had to do so by clicking on that story and then starting at the top of the news story when it appeared. The photograph could not have been seen unless the reader decided to scroll down in order to read the entire article.
Elizabeth Hartley gives evidence of data obtained, which may not be particularly reliable, showing that approximately 112 users in the Sheffield area obtained access to the article.
After the error was noticed instructions were given to all Mail Online journalists to ensure that all articles relating to crime and the courts, including captions and photographs, are checked by a lawyer before publication. The first defendant has expressed its regret and apology for what occurred. We accept that the publication was an error and that the first defendant had in place a system which ought to have avoided the error and that after it occurred has taken steps to improve its system.
Publication by the second defendant, News Group Newspapers Limited, occurred at 1.22 a.m. on Wednesday 4 November 2009 on Sun Online. The photograph had been supplied to the second defendants by a photographic agency from a social networking site, on the 'page' of a co-defendant. The picture was the same as that intended for use in the newspaper version on 4 November. The picture desk accepted that the picture of Ward should be cropped. Unfortunately, although the picture was carefully cropped for newspaper publication so as to exclude Ward's left hand and any view of the gun, when the picture was cropped for publication online, the top part, the barrel, of the gun was visible. Those responsible for the website did not appreciate that they needed to ensure that the careful cropping of the picture used in the newspaper was repeated online (see letter from second defendant dated 12 February 2010). The picture remained online until the officer in the case contacted the Sun's news desk and requested its removal. It was removed ten minutes after the request at 8.50 p.m.
The second defendant asserts that there were some 4,766 unique visitors to the online article on 4 November 2009, with 3,078 in England and 78 located in Sheffield.
The publication of the inadequately cropped photograph was plainly a mistake and those responsible for online versions of photographs have been warned by the second defendant of the need for care in the future.
According to News Group's online analysts, there would have only been a one-line reference to the article in the top right-hand corner of the home page in the boxed area headed "Just Published". That reference would have remained for only about 5 minutes. Access to the article could have been obtained by clicking on "News" on the website. Thereafter it would have been necessary to scroll down an index page. It is not possible to know how far it would be necessary for anyone to scroll down to reach the article in question. Further, a teaser for the story appeared on the news index page and it was unlikely that the objectionable photograph would have appeared, even as a thumbnail image.
Accordingly, in order to reach the photograph, it would have been necessary to click on the specific article. The second defendant contends that, in those circumstances, it is highly unlikely that any juror could have inadvertently come upon the article and offending photograph.
The court learned of the publication on the Mail Online on the morning of 4 November 2009. Counsel made an application that the jury should be discharged. The judge deferred ruling until further enquiries had been made.
The following morning, Thursday 5 November, the court learned of the publication on the Sun Online. Counsel for a second co-defendant joined in the application made on behalf of the other two defendants that the jury should be discharged. The judge asked the jury, that Thursday morning, whether they had been "going on to the internet, for example, to find out any information about this?" There was no indication from any member of the jury of a visit to the internet for that purpose. The judge then told the jury that there was no possibility of reaching the evidence on either Thursday or Friday and adjourned the case until the following...
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