Nigella's trial by media makes mockery of contempt and defamation law

While the past weeks have supplied the media with ample headlines and the behind-the-scenes legal and PR advisers with handsome fees, there is a serious question that lies beneath the perfectly executed PR veneer of trial by media.

Is it right that what is ostensibly a criminal prosecution can be hijacked to seek to defame by shielding comment under the veil of legal privilege while at the same time see contempt laws ignored as evidence that could be prejudicial to the case for the defence (or the administration of justice in the fraud trial itself) gets paraded in public.

While he was careful to retract comment in his actual testimony, it has been suggested that Charles Saatchi was behind the allegations (hungrily adopted by the Mail and helpfully reported by the Mirror and most other media outlets) that Nigella was an 'habitual drug user'. This headline served Saatchi's attempt to sully Nigella's character well. The headline was also of use to the Grillo sisters who claimed that Nigella had let them 'blow £685,000' as she sough to cover up her coke habit. To the extent this all seems to mutually self serving and convenient in a PR sense, it should also ring alarm bells in terms of its legal implications. Interestingly it has, as yet, not. So I am ringing that bell.

The question here is where does one draw the line between orchestrated PR and abuse of legal process?

First, if one wanted to sully the character of Nigella (as we are told Charles Saatchi wanted to do), what better way to do it than feed it into the public domain and then have it be translated into a point of discussion as to a witness's (Nigella's) character in court? This neatly gets around defamation law in that the discussion of her alleged drug use is played out in court under the cloak of legal privilege. Here we have the defamatory allegations fed from a convenient blog site through to the courtroom meaning the media can freely publish what is said in court with regards to Nigella's drug use.

Second, whether viewed from a strict liability or common law perspective, the resulting coverage created by trial by media is skating on thin ice in regard to the criminal proceedings around the Grillo sister's spending habits. To the extent the fact of their spending is not in issue then their means of doing so are fairly central to the case being heard at Isleworth Crown Court.

In this regard a YouGov poll now seems pivotal to proving  not just the 'lessening of character' (of Nigella) in terms of defamation but, insofar as Nigella's character or evidence is not lessened, then in terms of the criminal proceedings, it is the defence based on the same allegations of drug taking that could potentially be harmed. It is here that contempt law becomes engaged. How far and to what extent can the trial by media play out before it actually impacts the criminal case? Even if the jurors were all very well behaved and read no newspapers, watched no TV and resisted the temptation to browse on their smartphones, it would be naive to suggest the theatre that has played out in court would be lost on them.

What started as fraud trial could turn out to be a trial that tests the strength of the legal system's resilience to trial by media.