HM Attorney-General v MGN Ltd & Anor

Under section 2(2) of the Contempt of Court Act 1981, the relevant question is whether publication created a substantial risk that active criminal proceedings would be seriously impeded or prejudiced. The assessment is predictive and must be made at the date of publication. Impediment and prejudice are distinct concepts. A publication may impede justice by influencing the conduct of witnesses, parties or the accused, even where a future jury could probably disregard the publicity. Vilification of an accused person under arrest may therefore create contempt by discouraging defence witnesses or damaging the preparation of the defence. The later collapse of the proceedings, or the accused’s eventual exoneration, is irrelevant to the risk assessed at publication.

Her Majesty’s Attorney-General brought proceedings against the publishers of the Daily Mirror and The Sun under the strict liability rule in the Contempt of Court Act 1981. The proceedings concerned articles published while Christopher Jefferies was under arrest for the murder of Joanna Yeates. The articles linked him with sexual misconduct, a convicted paedophile, an earlier murder and troubling conduct towards women and tenants.

The defendants argued that the publicity would have faded before any trial and that ordinary judicial directions would have protected the jury. The central issue was whether the publications created a substantial risk that the active proceedings would be seriously impeded or prejudiced, including through effects on the preparation and conduct of the defence.

1. Statutory test. Section 2(2) of the Contempt of Court Act 1981 requires proof to the criminal standard that a publication created a substantial, rather than remote or theoretical, risk that the course of active proceedings would be seriously impeded or prejudiced. The assessment is predictive and is made at the date of publication. Impediment and prejudice are distinct concepts.
2. Separate publications and defendants. Each publication must be assessed separately, and the case against each defendant must be considered separately. Where the same defendant is responsible for more than one publication, their combined effect may be considered.
3. Meaning of impediment. The course of justice extends beyond the eventual verdict. Publicity may impede it by influencing witnesses, parties or the accused, including by discouraging witnesses from coming forward or causing helpful evidence to remain undisclosed. The existence of jury safeguards and the likely operation of the fade factor do not answer that risk.
4. Application. The two Daily Mirror publications vilified Mr Jefferies and created substantial risks to the preparation of his defence and to the fair progress of any trial. The Sun publication similarly created a very serious risk of damage to the preparation of his defence. Each publication therefore constituted contempt under the strict liability rule.
5. The fact that Mr Jefferies was later exonerated and never tried was irrelevant. The court also observed that adverse publicity concerning an innocent person might affect a later prosecution of another suspect, but that issue fell outside the Act where proceedings against the later defendant were not active.