Are The Sun and Daily Mirror in contempt over Yeates coverage?

In what can best be described as an unusual set of circumstances legally, the High Court has given permission to the Crown Prosecution Service to bring contempt proceedings against The Sun and Daily Mirror over their coverage of the hunt for the killer of Jo Yeates who was found murdered in Bristol on Christmas Day last year.

The papers had both splashed on the arrest of Yeates’ landlord, Christopher Jeffries with reports that went beyond the mere fact of his arrest. With front pages headlined: “Jo suspect is peeping tom” and “The strange Mr Jeffries” appearing without Jeffries even being charged, the papers as well as wider media were already skating on thinning ice as far as contempt of court laws are concerned.

The Attorney General, Dominic Grieve, had already voiced his concern over the way the investigation was being reported and prompted calls for pre-trial anonymity for suspects. The focus of reporting of the hunt for the killer shifted from splashing on suspects to the police investigation itself with broadcaster ITV being banned from a police press conference after it ran a report that criticised the police’s investigation.

Jeffries was released without charge and finally cleared in March after being left hanging on bail for over nine weeks – which was odd given that one of Yeates’ neighbours, Vincent Tabak was charged with murder in January.

Not surprisingly Jeffries is suing for libel and invasion of privacy with actions being brought against not just The Sun and Daily Mirror but also Daily Mail, Daily Express, Daily Star and others. He has instructed Louis Charalambous of Simons, Muirhead & Burton – the same lawyer who secured a £600,000 libel win for media manufactured McCann suspect Robert Murat.

Contempt of court

Why might the Sun and Mirror be in contempt? – the law provides for two layers of contempt of court:

Common law contempt – which applies in relation to the administration of justice in general and does not need to attach to specific or currently ‘active’ proceedings. Here, the intent of the publisher is relevant.

Statutory contempt - under the 1981 Contempt of Court Act which provides for ‘strict liability’ contempt – the intent of the publisher being irrelevant in relation to their liability.

There is also contempt in the face of court – this arises where there has been bad behaviour or disobedience in the actual court or court precincts or been reported to a judge in relation to proceedings.

In relation to the conduct of the Sun and Mirror:

Section 1 of the Contempt Act provides -
“In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

Section 2 qualifies this by stating there has to be:
Publication (speech, writing, broadcast or other communication e.g. Tweeting)
That creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
The proceedings in question have to be ‘active’ – as defined in Schedule 1 – the fact there was an investigation and someone (Jeffries) had been arrested rendered the proceedings active in relation to the Yeates murder.

What this week’s High Court decision means

The Attorney General instructed counsel to represent before Lord Justice Moses as to why he felt that the Crown Prosecution Service (CPS) should be permitted to bring contempt proceedings.

The basis for this was argued by Andrew Caldecott QC as being that the nature of the papers’ reporting of Jeffries was such that had he been tried in connection with Yeates’ murder, it would have posed a ‘substantial risk of serious prejudice’ (within the meaning of the Contempt Act) and that would have been in relation to ‘active’ proceedings.

Why Mediabeak thinks this action is unusual and if pursued could test the reach of contempt and the strict liability test

Certainly Jeffries was ‘monstered’ by the papers and had he been the one to be charged and tried the public perception of him would be such as to prejudice the perception of him BUT as it transpired it is Vincent Tabak who will stand trial later this year and he is the subject of the legal proceedings.

The question therefore arises as to whether the reporting by the Sun and Mirror does actually give rise to a ‘substantial risk of serious prejudice’ in relation to ‘the course of justice in the proceedings’.

The monstering of Jeffries will not affect the trial of Tabak so the CPS would have to demonstrate that what the papers published last December will reach through to later this year in their damaging effect and that effect would not just have to be a risk but a ‘substantial’ risk of ‘serious’ prejudice.

What could prove interesting and test contempt law would be if it were argued that the interpretation of ‘proceedings’ in relation to the Contempt Act does not merely fix to the trial but attaches to the whole process from time at which proceedings are ‘active’ until judgment and sentence are delivered. In line with this interpretation it could be argued that there was at an earlier stage in the proceedings a substantial risk of serious prejudice in relation to a potential suspect and that therefore related to ‘the course of justice in the proceedings’ – albeit an earlier part of the course!