Attorney General v Associated Newspapers Ltd & Anor

Under the strict liability rule, the relevant risk is assessed prospectively when the publication is made. For online material, the court must consider accessibility, circulation or likely readership, the period and times for which the material remains available, and the circumstances in which a juror might encounter it.

A juror’s deliberate decision to read a contemporary online news report is not necessarily disobedience of a direction not to consult the internet. The publication of a highly prejudicial image during a criminal trial may create a substantial risk of serious prejudice even though publication was accidental and the jury ultimately saw nothing. The contempt inquiry is distinct from the later question whether a conviction would be unsafe.

The Attorney General sought committal orders against Associated Newspapers Ltd and News Group Newspapers Ltd for contempt of court under the strict liability rule. During the first day of a murder trial, photographs showing the defendant holding or apparently holding a pistol were mistakenly published on Mail Online and Sun Online.

The trial judge found that no juror had seen the photographs and refused applications to discharge the jury. The Administrative Court considered whether the publications created a substantial risk that the course of justice would be seriously impeded or prejudiced, including the effect of online accessibility, publication duration, jury directions and the prejudicial impact of the images.

1. The court found both defendants guilty of contempt under sections 1 and 2 of the Contempt of Court Act 1981. The publications were active publications, and the issue was whether they created a substantial risk that the course of justice would be seriously impeded or prejudiced.

2. The risk had to be assessed prospectively at the time of publication. Evidence of actual online visits was relevant but not determinative. The court had to consider the size of the potential readership, the way in which the material could be accessed, and the period during which it remained available. The longer online availability continued, the greater the potential risk.

3. The photographs could be reached only by deliberately opening and scrolling through the relevant articles. That did not mean that a juror who read a contemporary news report online had necessarily disobeyed the judge’s directions. The directions prohibited consulting the internet or seeking information, but did not clearly prohibit reading ordinary online news reports about the trial.

4. There was a substantial risk that a juror accustomed to reading newspapers or online news would read a report about the trial and see the photograph. The image was directly prejudicial to a defendant advancing self-defence because it conveyed an impression of a propensity for violence. The statutory test concerned risk, not proof that a juror had actually seen the material.

5. The court endorsed the distinction between the prospective contempt inquiry and the Court of Appeal’s retrospective assessment of whether a conviction was unsafe. It was unnecessary to resolve the competing approaches because, even applying the more demanding approach, a juror who had seen the photograph could not reasonably have been expected to disregard it. A direction to the jury could not cure that risk.

6. The publications were mistakes, but the strict liability rule applied regardless of intent. The defendants’ reliance on unrestricted publicity and article 10 of the Convention did not assist: the accidental publication of a highly prejudicial image was not a fair and unrestricted report of the proceedings. Penalty and costs were reserved.