HM Attorney General v Associated Newspapers Ltd (First Defendant) MGN Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat :,President of the Queen's Bench Division |
| Judgment Date | 18 July 2012 |
| Neutral Citation | [2012] EWHC 2029 (Admin) |
| Docket Number | Case No: CO/9898/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2012 |
[2012] EWHC 2029 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
and
Mr Justice Tugendhat
Case No: CO/9898/2011
and
David Perry QC and Jonathan Hall (instructed by Treasury Solicitor) for the Claimant
Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant (Associated Newspapers Limited)
Pushpinder Saini QC and Kate Gallafent (instructed by Reynolds Porter Chamberlain LLP) for the Defendant (MGN)
Hearing date: 13 June 2012
President of the Queen's Bench Division:
Introduction
The trial of Levi Bellfield began before Wilkie J at the Central Criminal Court on 6 May 2011. He was charged on Count 1 with the attempted kidnap of Rachel Cowles, aged 11, on 20 March 2002 and the kidnapping and murder of Milly Dowler, 13, on 21 March 2002. As we shall explain, the judge made rulings about pre-trial publicity and as to the bad character evidence which was admissible; he gave the jury, as would be usual, clear directions at the outset of the trial and in his summing up as to deciding the case on the evidence and ignoring anything that was published outside the courtroom.
The jury retired to consider its verdict at 12.41 p.m. on Wednesday, 22 June 2011. At 2.30 p.m. on Thursday, 23 June 2011 the jury convicted Bellfield of the kidnap and murder of Milly Dowler. They continued their deliberations in relation to Count 1, the attempted kidnapping of Rachel Cowles.
The conviction of Bellfield for the murder and kidnapping of Milly Dowler was then extensively reported during the afternoon and night on the news channels of Sky, ITN and the BBC, as well as on their main news and on Channel 4.
At 5.53 p.m. that same afternoon, the assistant head of communications at the CPS sent e-mails to various media organisations reminding them that the jury was still deliberating its verdict, that the proceedings were therefore active and nothing should be published which might prejudice the jury in its ongoing deliberations.
The following morning all the main national newspapers carried reports of the convictions and the background to Bellfield's convictions. Articles in the Daily Mail published by the first defendant and the Daily Mirror published by the second defendant set out information about Bellfield that had not been put before the jury; some of that information had been broadcast on the TV channels the preceding evening. The Daily Mail had a circulation of 2,047,206 and The Daily Mirror a circulation of 1,170,541; the readership is assessed at two and a half times the circulation.
On 24 June 2011 counsel for Bellfield applied to the judge to discharge the jury from giving a verdict in respect of the attempted kidnapping of Rachel Cowles on the grounds that there had been an "avalanche of publicity adverse to the defendant" which contained material that had not been before the jury. It was submitted that the jury could not conceivably have avoided the material and that the material had contained matters which were excluded from evidence which made it impossible for the jury not to have been affected by it.
After hearing submissions from the Crown, the judge discharged the jury on the basis that there had been:
"… an avalanche of material which strayed far beyond either the facts of what happened yesterday or the facts of the offences for which he had been convicted, and in particular strays into territory of allegations being made … of a hugely prejudicial nature."
He added that it was "wholly unrealistic and quite hopeless" for the jury "to try to put that avalanche of material out of its mind, either individually or collectively."
On 15 August 2011 the Treasury Solicitor wrote on behalf of the Attorney General to the publishers of the Daily Mail and to the publishers of the Daily Mirror, stating he was considering whether the publication of material in each of those papers on 24 June 2011 contravened the strict liability rule under the Contempt of Court Act 1981. After considering their responses, the Attorney obtained the leave of this court to proceed against both defendants.
The issue
Under s.2(2) of the Contempt of Court Act 1981, the strict liability rule applies to:
"… a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
The Act provides that the proceedings must be active within the meaning of the Act. It is accepted on behalf of both newspapers that the proceedings were active and the reports complained of amounted to a publication.
The question therefore is whether the articles in The Daily Mail and the articles in The Daily Mirror each created a substantial risk that the course of justice in the trial of Bellfield would be seriously impeded or prejudiced.
The issue before the court was essentially one of fact. Indeed the following were common ground:
i) The fact that Wilkie J stayed the proceedings was not of itself determinative: see Simon Brown LJ in Attorney General v Birmingham Post and Mail [1999] 1 WLR 361 at 371. As was also said in Birmingham Post and Mail at 374 the trial judge was concerned with the risk of the defendant not having a fair trial and the jury not reaching a just verdict; s.2(2) was concerned with the risk that a serious issue might arise as to whether a judge should have to stay a trial or take some different course to avoid that.
ii) In considering the test under s.2(2) the question is whether the publication would have given rise to a seriously arguable ground of appeal if the trial had been allowed to continue and proceeded to conviction. (See Simon Brown LJ at page 371); this approach is the one to be followed (see A-G v MGN [2011] EWHC 2074 (Admin), [2012] 1 Cr App R 1. at paragraph 28).
iii) The question of risk must be looked at at the point of publication; the conduct of each publisher must be looked at separately: A-G v MGN Ltd [1997] 1 All ER 456 at 460; A-G v Express Newspapers [2005] EMLR 13. The case against each must be considered separately and the cumulative effect cannot be lumped together. It must be proved to the criminal standard of proof that the publication in question caused the substantial risk of serious prejudice.
iv) The fact that there is some risk of prejudice by reason of earlier publications is not conclusive; if several newspapers publish prejudicial material, they cannot escape by contending that the damage has already been done. It is sufficient that the latest publication has afforded an additional or further risk of prejudice or exacerbated and increased that risk: see A-G v Independent Television News [1995] 2 All ER 370 at 381 and A-G v Express Newspapers.
v) The test under s.2(2) generally satisfies the balance required under Article 10 of the Convention: see paragraph 32 of the decision in A-G v MGN.
In the light of that common ground, there were two factual sub-issues in the case which can be described as follows:
i) Could there have been a substantial risk of serious prejudice 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?
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?
It is convenient to consider these sub-issues first before answering the overall question as to whether the course of justice would have been seriously prejudiced or impeded.
Mr Perry QC on behalf of the Crown submitted that we should also consider whether the course of justice had been impeded, but on the facts of this case we do not consider that the question of impeding the course of justice adds anything further to the question of prejudicing the course of justice.
It was accepted also that ordinarily, as Simon Brown LJ pointed out in A-G v Birmingham Post and Mail, it was difficult to envisage a publication which has concerned the judge sufficiently to discharge the jury and yet is not properly to be regarded as contempt where the publication occurred during the trial. However he pointed out that his observation applied where there was no question of other prejudicial publications complicating the position. In addition, as Mr Caplan QC submitted on behalf of the Daily Mail and Mr Saini QC on behalf of the Daily Mirror, that this case was quite exceptional given what had been put before the jury about Bellfield and the jury's conviction of Bellfield on the counts relating to Milly Dowler.
Issue 1: Could there have been a substantial risk of serious prejudice by the publication of the articles in each of the papers, given what had been put before the jury about Bellfield in the course of the trial?
(a) What was made known to the jury about Bellfield?
It is necessary to set out what was made known to the jury and what was not.
(i) The other murders
Although the attempted kidnapping of Rachel Cowles and the murder of Milly Dowler had occurred in March 2002, Bellfield had been convicted on 25 February 2008 of:
i) The murder of Marsha McDonnell on 4 February 2003.
ii) The...
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