HM Attorney General v Random House Group Ltd

Publication may constitute contempt under Contempt of Court Act 1981 s.2(2) where it creates a substantial risk that the course of justice will be seriously impeded or prejudiced. Impediment includes a substantial risk of applications to discharge a jury, delay to the trial, or a ground of appeal based on prejudice. The court must assess the publication separately and consider its likely effect at the time of trial, including juror access, impact and residual effect. A publication concerning public affairs falls outside s.5 only where the risk to proceedings is merely incidental to the discussion. An injunction requires proof to the criminal standard that publication would create the relevant risk, followed by a necessity and proportionality assessment under Article 10 and the Human Rights Act 1998. In this exceptional case, an injunction restraining further sale was necessary and proportionate.

Her Majesty's Attorney General sought an injunction restraining Random House Group Ltd from further selling a book written by a former senior police officer involved in the investigation of an alleged airline bombing plot. Five pages referred, in an anonymised form, to matters said to concern the ongoing retrial of seven defendants before a jury. The Attorney-General relied on the strict liability rule in s.2(2) of the Contempt of Court Act 1981. The publisher relied on the absence of substantial prejudice, the jury's directions, the public-interest defence in s.5, and freedom of expression under Article 10. The central issues were whether renewed publication would create a substantial risk of serious impediment or prejudice, whether s.5 applied, and whether an injunction was necessary and proportionate.

1. Strict liability and risk. The court adopted the framework stated in A-G v MGN Ltd, treating each publication separately and assessing the likelihood of juror access, its likely impact on an ordinary reader, and its residual effect on a juror at trial. The threshold of risk is more than remote or minimal, but the court must be sure that the relevant substantial risk exists.
2. Prejudice. Renewed sale created some risk that jurors would identify the passages with the airline plot and that three passages would cause prejudice. The judge was not sure that the risk of serious prejudice was substantial. The existing directions to the jury remained relevant.
3. Impediment. The judge was sure that renewed sale would create a substantial risk that the trial would be seriously impeded. The likely consequences included applications to discharge or investigate the jury, substantial delay, interruption of the summing-up, and a possible ground of appeal if the jury were retained. Impediment under s.2(2) was distinct from prejudice.
4. Section 5. The book was a serious discussion of public affairs. However, the passages were not merely incidental to that discussion because they described the very acts which had led to the trial. The s.5 defence therefore failed.
5. Injunction. The American Cyanamid guidelines did not apply because no trial of the injunction application was realistically likely. The proper question was whether the court was sure that threatened sales would amount to contempt, followed by whether an injunction was necessary and proportionate. The public interest in a fair trial, the gravity of the charges, the late stage of the trial, the risk of jury discharge and the exceptional consequences of delay outweighed the publisher's Article 10 interests. The injunction was granted.

First-instance decision. No prior appellate decision is stated in the judgment.