HM Attorney-General v Express Newspapers

A publication may constitute contempt under section 2(2) of the Contempt of Court Act 1981 where, assessed at the date of publication, it creates a real, practical and more than remote risk that active proceedings will be seriously impeded or prejudiced.

Where another possible source of prejudice is raised, the Attorney-General must prove beyond reasonable doubt that the publication itself created the substantial risk. Speculation and multiple hearsay will not ordinarily establish that the affected witness already knew the information published.

The Attorney-General brought committal proceedings against the publisher of the Daily Star. The newspaper had identified two potential defendants in connection with an alleged rape, despite repeated warnings that identification was in issue and that suspects should not be named or pictured.

The central issue was whether the publication created a substantial risk that the criminal proceedings would be seriously impeded or prejudiced, or whether the complainant might already have known the men’s identities from other sources.

1. Liability. The court found contempt proved beyond reasonable doubt and imposed a fine of £60,000, with seven days for payment. The respondent was also ordered to pay the Attorney-General’s costs.
2. Under section 2(2) of the Contempt of Court Act 1981, the relevant risk must be assessed at the date of publication. A substantial risk means a risk that is more than remote or not insubstantial. It must be practical rather than theoretical.
3. The publication was capable of tainting the complainant’s identification evidence. The fact that the newspaper reached millions of readers and uniquely identified the possible defendants created a real and substantial risk of serious prejudice.
4. The court accepted that, if the complainant had already known the identities from another source, the publication would not itself have created the relevant risk. The Attorney-General therefore had to prove that the publication itself created a substantial risk.
5. The suggested prior knowledge rested on speculation, media reports, Internet material and multiple hearsay. The complainant had not identified either man by name or effective description in her police interviews or during the identification procedures. The court inferred that she did not know their identities when the publication appeared.
6. Lord Justice Rose expressed no concluded view on the admissibility of hearsay in contempt proceedings. The court proceeded on the assumption that it was inadmissible in the present case. Mr Justice Pitchford agreed with the result and emphasised that the alleged alternative source had to amount to a real possibility founded on acceptable evidence.
7. In fixing the penalty, the court considered the respondent’s procedures, absence of previous convictions, apologies and steps to mitigate harm. The repeated and immediately preceding warnings concerning identification were aggravating features. The publication could have caused a prosecution to be abandoned by tainting the principal witness’s evidence.