Attorney General v Associated Newspapers Ltd & Anor

Publication during a criminal trial, before all verdicts have been returned, may create a distinct and substantial risk of serious prejudice even where much of the material is already publicly available. Publishers must analyse background material with particular care at that stage. A difficult editorial judgment and legal review may mitigate penalty, but do not excuse a failure to identify the risk under the strict liability rule. The court may impose a fine at the bottom of the scale where the contempt resulted from an error of judgment and substantial costs have been paid.

The Attorney General brought contempt proceedings against Associated Newspapers Limited and MGN Limited after the publication of articles in the Daily Mail and Daily Mirror during the trial of Levi Bellfield, before the jury had returned verdicts on all counts. In an earlier judgment, the court found both defendants in breach of the strict liability rule and in contempt of court. This judgment concerned penalty and the defendants’ application for permission to appeal.

The court considered aggravating and mitigating features, including the risk of jury discharge, the public interest, legal review, the CPS advisory, and the defendants’ contributions to the Attorney General’s costs.

1. The defendants were in contempt because their publications went beyond what was permissible and created a separate and additional substantial risk of serious prejudice to the defendant in the criminal trial. The court emphasised that publication before all verdicts have been returned is particularly sensitive.

2. Publishers must conduct a careful and detailed analysis of background material before publication where some verdicts have been returned but others remain outstanding. The existence of material already reported by other media does not remove the need to assess what a further publication adds to the risk of prejudice.

3. The court treated the failure properly to analyse the articles as an error of judgment. The defendants’ legal review, the unusual public-interest circumstances, the CPS contact and advisory, the absence of reference to the articles when the jury was discharged, and the agreed payment of £25,000 each towards the Attorney General’s costs were mitigating factors. They did not eliminate the contempt.

4. Each defendant was fined £10,000. The court stated that, after this case, lack of appreciation of the need for careful analysis could no longer be relied upon as an excuse.

5. Permission to appeal was refused because the issues raised involved the application of well-known principles to the facts and disclosed no point of law. A reporting restriction under section 4(2), with liberty to apply, was continued until the conclusion of the criminal proceedings and the verdict.

The judgment states that the court’s earlier findings of contempt were given in