HM Attorney-General v Express Newspapers
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE PITCHFORD |
| Judgment Date | 25 November 2004 |
| Neutral Citation | [2004] EWHC 2859 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1131/2004 |
| Date | 25 November 2004 |
[2004] EWHC 2859 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
Mr Justice Pitchford
CO/1131/2004
MR HAVERS QC (instructed by TREASURY SOLICITORS) appeared on behalf of the CLAIMANT
MR CALDECOTT QC (instructed by LEWIS SILKIN) appeared on behalf of the DEFENDANT
The Attorney-General, with the leave of the Divisional Court, differently constituted, on 11th March 2004, seeks an order for committal for contempt against Express Newspapers, publishers of The Daily Star.
The proceedings relate to a news item on page 7 of the Daily Star on 23rd October 2003 under the headline "Bramble's Bail. "The "Bramble" in question is Titus Bramble, who plays football for Newcastle United. Another footballer, mentioned in the same item, was Carlton Cole, who was on the books of Chelsea but at the time played for Charlton. The news item identified them by name, club and, in Bramble's case, age. A partly pixilated photograph of Bramble headed the piece. Both, according to the report, answered bail at London police stations in connection with allegations of gang rape.
This item was, for present purposes, the culmination of a series of media pieces published in England and Wales by newspapers and television, on an almost daily basis, from 30th September 2003. They related, frequently in florid terms, to the alleged rape of a 17-year old girl at the Grosvenor House Hotel by up to eight footballers on 27th September 2003. The piece to which the Attorney-General takes exception was unique among all these publications because it identified two potential defendants in the way which I have described.
The Contempt of Court Act 1981 imposes strict liability on publications addressed to the public at large. It is common ground that the Daily Star is such a publication. Conduct may be treated as contempt of court, as tending to interfere with the course of justice, regardless of intent to do so. By section 2(2):
"The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
By section 2(3):
"The rule applies only if proceedings are active."
It is common ground that at the time of publication proceedings were active. The burden of proving contempt to the criminal standard rests on the Attorney-General.
There is no material issue between the parties as to the relevant legal principles to be applied in relation to the statutory test. The risk of impediment or prejudice has to be assessed at the date of publication (Attorney-General v English [1983] 1 AC 116 at 141F per Lord Diplock). "Substantial risk" in section 2(2) means a risk which is more than remote ( Attorney-General v English at pages 141H to 142C per Lord Diplock) or "not insubstantial" ( Attorney-General v News Group [1987] QB 1 at 15C per John Donaldson MR) or, as Mr Caldecott prefers to express it, "real". The risk must be practical and not theoretical ( Attorney-General v The Guardian [1992] 1 WLR at 881C per Mann LJ0.
It is accepted by the respondent that, in publishing this item, they did not heed the guidelines, requests and advice repeatedly issued in relation to this case from 30th September to 22th October 2003 by the Attorney-General and the Metropolitan Police. These stated that identification was in issue and requested that suspects should not be named nor any photograph or likeness of them published. It is conceded that there was a systemic failure at The Daily Star on the night in question and the guidelines were "overlooked". The article would not have been published if the guidelines had been considered. At 2.20 pm yesterday Mr Caldecott QC, for the respondent, publicly apologised to the Court for what he described as "a bad mistake". I should point out, in fairness to those named earlier in this judgment, whose identification is central to these proceedings, that no criminal charges were brought against them or anyone else in relation to the events of 27th September. There was insufficient evidence and an announcement to that effect was made on 8th January 2004.
It has been debated before us whether hearsay is admissible in proceedings for criminal contempt and we have been referred to a number of authorities and writings which are by no means conclusive. In my judgment, bearing in mind that such proceedings are sui generis, that in civil proceedings there has been, in recent decades, a progressive relaxation of the old exclusionary rule in relation to hearsay, that in criminal proceedings hearsay will be admissible when section 114 of the Criminal Justice Act 2003 comes into force and that there is no jury involved in contempt proceedings, there is a respectable argument that hearsay is or should be admissible and its weight should be assessed by the court in the circumstances of the particular case. But I express no concluded view. In the present case, I shall proceed on the basis that hearsay is inadmissible.
Almost all of the other argument to this Court has been directed to the question whether, before the publication on 23rd October, the complainant may have known the identity of these two men from other sources. For the Attorney-General, Mr Havers QC submits that he does not have to prove the complainant did not know the identity, provided he can prove that there was a risk that she did not, as section 2 is concerned, only with creation of the risk of prejudice. But, in any event, he submits that it is fanciful to suggest that she may have known the identities from other sources. She told police on 29th September that she had been told that they played for Newcastle, which of course is only true of one of them, and that one of them said their name was "Carl" or "Carlton something", beginning with a "K". On 9th October she complained that the Carl/Carlton one had engaged in a particular sexual activity to which she took exception. She also said on 9th October that one of those involved was black, quite tall, quite slim but she was unaware of any surname.
Press coverage, Mr Havers submits, rightly, was in many respects inaccurate and Internet sites incorporated at least 12 names (most of those persons having nothing to do with the case). Mr Max Clifford, the publicist who represented the complainant's family from 30th September would not, even if he knew the names, have wanted to tell the complainant lest he contaminated her evidence, thereby imperilling the value of a story which would be enhanced by conviction of the suspects.
For the respondent, Mr Caldecott submits that the Attorney-General must prove the creation of a substantial risk of prejudice, not merely a risk that a risk would be created. No risk would be created if the complainant knew the identities before 23rd October and, in view of the criminal burden of proof, a reasonable doubt as to whether she knew would suffice for the respondent's acquittal. There is, he submits, more than a strong possibility that the complainant knew the identities because of a number of pointers and because of the activities of Mr Clifford. Mr Caldecott took us to the...
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