Attorney General v Associated Newspapers Ltd & Anor

In fixing a penalty for contempt arising from the publication of material capable of affecting a criminal trial, the court must assess the seriousness of the risk created, while allowing for genuine mistake, the duration and nature of publication, apology and remedial measures. An avoidable error remains culpable even where no juror actually saw the material. Comparable penalties must be adjusted where the other authorities concern more serious contempts. Where defendants accept liability for the Attorney General’s costs but persist in disputing the case, the court may summarily assess the costs claimed in full where the expense was caused directly by their conduct.

The court had previously found Associated Newspapers Ltd and News Group Newspapers Ltd guilty of contempt following the online publication of an inadequately cropped photograph connected with a criminal case. The photograph published by Mail Online was available for just under five hours. The Sun Online image was available for nearly five hours and still showed that the person depicted was holding a pistol.

The court was required to determine the appropriate penalties and the liability and amount of costs. Both defendants accepted that they should pay the Attorney General’s costs, but disputed indemnity costs and the amount claimed.

1. Penalty. The court treated the publications as accidental mistakes, but found that each created an avoidable and significant risk that a juror might read an article concerning the case being tried. The fact that no juror saw the offending image did not remove the risk or provide sufficient mitigation.
2. The court took account of the defendants’ apologies and subsequent measures designed to prevent repetition. Mail Online introduced legal checking of crime and court articles, photographs and captions before publication. News Group Newspapers required staff working on The Sun’s online edition to use pictures as they appeared in the newspaper edition.
3. The authorities relied upon by the Attorney General, including AG v ITV Central [2008] EWHC 1984, concerned more serious contempts and therefore did not dictate the penalty. The appropriate penalty was a fine of £15,000 for each defendant. The fines were equal because the longer availability of The Sun image was accompanied by an attempted, though inadequate, crop, whereas no crop had been made for Mail Online.
4. The defendants were given 14 days from hand-down to pay the fines.
5. Costs. Summary assessment was appropriate. Although both defendants had apologised, they had chosen to dispute the proceedings. The court saw no reason why the taxpayer should bear costs flowing directly from the newspapers’ errors and summarily assessed the Attorney General’s costs at £28,117.23, without reduction.

The court had previously found both defendants guilty of contempt in judgment given on 3 March 2011. This judgment determined the consequential penalties and costs.