Attorney General v Birmingham Post and Mail Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,Mr Justice Thomas |
| Judgment Date | 22 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0722-5 |
| Docket Number | CO/515/98 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1998 |
[1998] EWCA Civ J0722-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Simon Brown
and
Mr Justice Thomas
CO/515/98
MR J HYAM for MR P HAVERS QC (Instructed by The Treasury Solicitors) appeared on behalf of the Appellant.
MR D PANNICK QC (Instructed by Crockers Oswald Hickson, 10 Gough St, London EC4A 3NJ) appeared on behalf of the Respondent.
Wednesday, 22nd July 1998
By these proceedings the Attorney General seeks to have the respondents fined for contempt. He applies under the strict liability rule in respect of a newspaper article published in the Birmingham Post which caused a criminal trial then in progress at the Birmingham Crown Court to be halted and started afresh ten days later before a different jury at a different venue. The trial had begun on 9th April 1997. There were eight defendants. All eight were at that stage charged with conspiracy to rob and with the murder of Jason Wharton; five were charged also with possession of firearms with intent to endanger life, and two (Christie and Myles) with the attempted murder of Christopher Wayne Nicholas. Following the retrial (during which there was some alteration of those charges), all eight defendants were convicted of conspiracy to rob; Christie and Myles were convicted also of possessing firearms with intent to endanger life; Myles also of the murder of Wharton and of wounding Nicholas with intent to do him grievous bodily harm; Christie also of the attempted murder of Nicholas. The sentences imposed ranged from five years imprisonment to life imprisonment. Both trials were presided over by Harrison J.
The Birmingham trial began with two weeks of legal argument. The jury were not empanelled until 23rd April. On 24th April, leading counsel for the Crown, Timothy Raggatt QC, made his opening speech to the jury. On 25th April the Crown's principal witness began giving his evidence. On the next day, Saturday 26th April, appeared the article complained of. It was entitled: "When the Guns Took Over the Streets" and was introduced as follows:
"In the third and final part of a series looking at Birmingham's criminal underworld author John Davison looks at the heavy toll of the drug wars."
It occupied most of page 41 (the inside back cover of the Arts and Entertainments Section) of The Birmingham Post. The article described both the attempted murder of Nicholas (known also as President Sass) and the murder of Wharton (known also as Bubbler). It asserted that the attempted murder of President Sass had been carried out by "members of a notorious local gang", who were also described as "the home boys", and asserted that the murder of Bubbler had also been carried out by "the home boys". The article as a whole described how the "home boys" (mentioned ten times in the article, albeit once as "the home boy gangs") were involved in a "drug war" with the "Yardies" (Jamaican criminals), and it associated the gang with other very serious criminal offences arising out of drug dealing and related gangland activities. These other offences included the shooting of a Yardie known as "Junior Chaplin" and another known as "Yardie John" and "open gun play on the street." The article concluded with the description of an incident in November 1996:
"Yardie gunmen confronted a group of the home boys. Word on the street was that one youth took four shots to the chest as his friends ran away, but he survived. He was wearing a bullet-proof vest."
Mr Raggatt's opening had stressed as a central thread of the Crown case in relation to all four counts that the defendants were part of a "team" known to some as the "Johnson Crew" who had acted together in an escalating series of robberies and violence. The defendants throughout had denied belonging to any team or gang or group whatever. Mr Raggatt had referred to both Nicholas and Wharton by their other names too, "President Sass" and "Bubbler". It was, however, no part of the Crown's case and never suggested to the jury that the offences charged were in any way connected with drug dealing or drug wars or related gangland activities. The victims rather were suggested to be members of the public unacquainted with the defendants, merely unlucky enough to become their victims. The description given in the article of the murder of "Bubbler" was in a number of important respects quite different to that opened to the jury. The attempted murder of "President Sass" too was differently described. A striking feature of the Crown's evidence against both Christie and Myles was that on arrest (in Christie's case within ten minutes of Bubbler's killing) they were found to be wearing bullet-proof vests.
On Monday 28th April the article was brought to the Judge's attention and, following a short hearing (the transcript numbers only eight pages), the jury was discharged. The Birmingham Post is a leading Birmingham newspaper and it was quite plain to all (indeed, has never since been disputed by the respondents) that the article was likely to have been read by some at least of the jurors. Although none of the defendants were identified in the article, counsel for each regarded it as prejudicial to their trial and unanimously applied for the jury to be discharged. Mr Nigel Salts QC for Christie said:
"My Lord, never in all my years at the Bar have I read anything like this. It is quite unbelievable. It irreparably damages the trial. …"
Mr Raggatt too submitted:
"The article contains things which are quite indefensible in terms of the proper conduct of this trial and if that is the view of the defence, I take the view that it would be wrong to oppose the application."
Mr Raggatt had earlier said:
"… The problem is that the article is not only inaccurate as far as the evidence that I know about is concerned, it is highly inflammatory and although it does not name anybody in particular, it names events and deals with details of events, attributes motives and circumstances to them, that form no part of the proper deliberation of this case. It links these events with other events in Birmingham, and elsewhere, that, as far as I am aware, have no evidential connection with this case whatsoever. But it has the plainest implication that all the people concerned, whoever they may be, are linked with each other. … I am, frankly, shell-shocked."
Unsurprisingly in those circumstances, (but nevertheless, submits Mr Pannick QC for the respondents, unneccessarily), Harrison J thereupon discharged the jury.
To complete the history, the following day, 29th April, the editor of the newspaper attended before the Judge in person and through counsel explained the circumstances in which, mistakenly, the article had come to be published. Its connection with the trial had not been made by those responsible for its publication:
"It is a case where simply, very regrettably, it fell through the net."
The Judge then referred the matter to the Attorney General.
On 8th May 1997 the trial recommenced at Leicester Crown Court. On 25th July 1997, after fifty-five working days, the jury returned their verdicts. On 28th July 1997 the defendants were sentenced.
The critical issue before us is plain enough: did this publication offend against the strict liability rule? Was it, in other words, "a publication which creates a substantial risk that the course of justice in the proceedings in question were seriously impeded or prejudiced" within the meaning of s.2(2) of the Contempt of Court Act 1981?
Clear it is that a "substantial risk" is a risk which is more than remote and not merely minimal —see A.G. v English [1983] 1 AC 116 at 142 and A.G. v News Group Newspapers Limited [1987] QB 1 at 15. Clear too that the assessment of the risk falls to be made as at the date of publication —see English at 141. Clear finally that the burden lies on the Attorney General to prove his case to the criminal standard —see A.G. v Independent Television News Limited [1995] 1 AER 370 at 375.
But what in this context is to be regarded as seriously impeding or seriously prejudicing the course of justice in proceedings, and what is the relationship between the two? The approach and answers to these questions are altogether less clear and are by no means agreed between counsel.
Mr Pannick submits that in the present context the word "impeded" adds nothing to the scope or proper understanding of the strict liability rule and that it is for this court to judge for itself whether the publication gave rise to a substantial risk that the defendants' trial at Birmingham Crown Court was seriously prejudiced. We should, he submits, attach only limited importance to the decision in fact taken by the trial judge to discharge the jury and change the venue. These submissions are, I should note, fully consistent with concessions expressly made by Mr Pannick when acting for the Attorney General in comparable proceedings respectively in A.G. v Morgan [1998] EMLR 294 and A.G. v Associated Newspapers Limited (unreported 31st October 1997).
In Morgan at page 301 Pill LJ said this:
"It was at one time contended on behalf of the applicant that by reason of … Lord Diplock's speech in English …, the task of this Court was to consider whether there was a risk of a trial judge discharging the jury by reason of the publication. It was however conceded, rightly in my view, that the task of this court is not to consider how other courts might react to the existence of the publication but to form its own view as to whether the publication has satisfied the criteria laid down by s.2(2) …...
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