HM Attorney General v The Times Newspapers Ltd

For strict-liability contempt, the question is whether, at the date of publication, the material created a substantial risk that active criminal proceedings would be seriously prejudiced or impeded. The assessment is predictive and practical. Publishers must not assume that an apparently strong case will result in a guilty plea or that the issues at trial are known. Publication of a defendant’s previous conviction may be highly prejudicial, particularly where it concerns similar violence, but prejudice must still be proved on the facts. Relevant factors include circulation, prominence and presentation, the time before trial, likely fading of memory, and the jury’s directions. The public interest in reporting matters of concern must yield where publication realistically threatens a fair trial. The alternative impediment limb requires a seriously arguable case for a stay or appeal based on the publication.

The Attorney General sought findings of contempt against The Times under the strict-liability rule in Contempt of Court Act 1981. The proceedings against Nicola Edgington for murder and attempted murder were active when The Times published prominent articles reporting the charges, her previous manslaughter conviction for killing her mother, her hospital order and her release.

The central issues were whether publication of the previous conviction created a substantial risk of serious prejudice under section 2(2), and whether it created a substantial risk of impeding the proceedings by giving rise to an argument for a stay or a ground of appeal.

1. Strict-liability test. The court held that the issue under section 2(2) of the Contempt of Court Act 1981 was a question of fact assessed as at publication. The inquiry was predictive and concerned practical realities, not theory. The proceedings had to be active at the time.
2. Previous conviction and assumptions about trial. Publication of a previous conviction, particularly for similar offending, could create serious prejudice among potential jurors. Editors and advisers should not assume that an apparently strong case would produce a guilty plea or that the issues at trial could safely be predicted. Following the approach in Attorney General v Unger, the court treated such pre-judgment as imperilling the fairness of a possible trial. In this case there was a real possibility, at publication, of a trial on all issues.
3. Admissibility. It could not be assumed that the previous conviction would inevitably be admitted. Section 101 of the Criminal Justice Act 2003 conferred a broad discretion on the trial judge, whose decision was for that judge alone.
4. Risk on the facts. The articles were potentially highly prejudicial, but the Attorney General had to prove an actual substantial risk of serious prejudice. The court considered circulation, prominence, photographs, factual presentation, the uncertain interval before trial, the fading effect of time, the limited notoriety of the events, and the jury’s duty to follow the judge’s directions. The risk was very small but not negligible. The primary case nevertheless failed because the risk was not proved to the criminal standard.
5. Serious impediment. The alternative case also failed. The relevant question was whether the publication would create a seriously arguable case for staying the proceedings on fair-trial grounds or for an appeal. On the facts, it would not.
6. The court emphasised that crime reporters and editors should exercise great caution. If publication creates the statutory risk, the defendant, victims and their families may be deprived of access to justice.