HM Attorney General v Associated Newspapers Ltd & Anor

Under section 2(2) of the Contempt of Court Act 1981, the question is whether a publication created a substantial risk that the course of justice would be seriously impeded or prejudiced. The risk must be assessed at the time of publication and separately for each publisher. Earlier prejudicial publicity does not prevent a later publication from creating an additional or increased risk. Material withheld from a jury does not automatically constitute contempt, but may do so where it creates the statutory risk. The test is informed by whether continuation of the trial would have given rise to a seriously arguable ground of appeal. The publication of highly prejudicial allegations concerning a defendant’s sexual interest in and rape of young girls created such a risk, notwithstanding the jury’s existing knowledge of his serious criminality.

The Attorney General brought contempt proceedings against Associated Newspapers Limited and MGN Limited concerning articles published in the Daily Mail and Daily Mirror on 24 June 2011, while the jury in the trial of Levi Bellfield was still considering an attempted kidnapping charge. The jury had convicted Bellfield of the kidnapping and murder of Milly Dowler, but was discharged after extensive publicity about matters not placed before it.

The defendants accepted that the proceedings were active and that the articles were publications. The central issues were whether, given the evidence already heard and the preceding television broadcasts, each newspaper’s publication created a substantial risk that the continuing course of justice would be seriously prejudiced.

1. Applicable principles. The stay or discharge of the jury was not itself determinative. The relevant question under section 2(2) of the Contempt of Court Act 1981 was whether publication created a substantial risk of serious prejudice. The question was to be assessed at the point of publication, separately in relation to each publisher, and to the criminal standard of proof. A seriously arguable ground of appeal if the trial had continued was the appropriate approach.
2. Publication of material withheld from the jury did not, by itself, breach the strict liability rule. The material had nevertheless to be assessed in its factual context, including what the jury already knew, the issue remaining for decision and the effect of other publicity.
3. The jury knew of Bellfield’s convictions for murder and attempted murder and had convicted him of the kidnapping and murder of Milly Dowler. The articles nevertheless introduced material going materially beyond that evidence, particularly allegations of his sexual interest in and rape of girls. There was a real risk that the jury would regard that material as relevant to the remaining allegation that he had attempted to abduct a schoolgirl.
4. The preceding broadcasts created no further or additional prejudice in respect of the Daily Mail’s material concerning the Russell murders. They did not, however, contain the allegations of sexual interest in or rape of girls. The newspaper articles therefore significantly exacerbated the risk of serious prejudice.
5. Each publication created a substantial risk that the course of justice would be seriously prejudiced. If the jury had not been discharged, there would have been a seriously arguable point that any resulting conviction was unsafe. Submissions on penalty were invited.