HM Attorney General v The Condé Nast Publications Ltd

For the strict liability rule under Contempt of Court Act 1981, the court assesses at publication whether the material created more than a remote or minimal risk that active proceedings would be seriously impeded or prejudiced. The practical question is whether publication gave rise to a seriously arguable ground of appeal, including a possible need to discharge the jury. Earlier prejudicial reporting does not remove liability: a later publication is sufficient if it creates an additional or increased risk. Jurors are credited with following judicial directions, but that does not make it realistic to assume that a juror who read a vivid and seriously prejudicial article during trial would remain uninfluenced. The statutory test generally accommodates the balance required by article 10 of the Convention.

During the phone-hacking trial at the Central Criminal Court, HM Attorney General brought committal proceedings against the publisher of GQ magazine. An article published while defendants were giving evidence portrayed senior figures as involved in the offending, suggested that the defence was funded and conducted to protect those interests, and attacked two defendants’ character and motives.

The Attorney General alleged a breach of the strict liability rule in section 2(2) of the Contempt of Court Act 1981. The central issues were the likelihood that the article would reach jurors, whether it created a substantial risk of serious prejudice, and whether the jury could realistically be expected to disregard it.

1. Outcome. The court held that publication of the April 2014 GQ article created a substantial risk that the course of justice in the criminal trial would be seriously impeded or prejudiced. The defendant was therefore in contempt of court under section 2(2) of the Contempt of Court Act 1981 (paras 43–44).
2. Applicable approach. “Substantial risk” meant more than a remote or minimal risk and had to be assessed at the time of publication. The relevant question was whether publication would have given rise to a seriously arguable ground of appeal if the trial had continued to conviction. The court adopted the approach in Attorney General v Birmingham Post and Mail [1999] 1 WLR 361, as applied in A-G v MGN [2011] EWHC 2074 (Admin), [2012] 1 Cr App R 1 (paras 7, 43).
3. Additional prejudice. Earlier prejudicial publications did not preclude liability. The later publication was sufficient if it afforded an additional or further risk, or exacerbated an existing risk, as explained in A-G v Independent Television News [1995] 2 All ER 370 (para 7).
4. Application. The circulation, London availability, prominent cover headline and likely readership created a significant risk that the article would reach a juror. Read as a whole, it conveyed clear and seriously prejudicial implications about the defendants and a person not on trial. The extensive earlier publicity did not lessen that risk; publication during the evidence of defendants made the timing particularly serious (paras 10–13, 20–27, 30–32, 34).
5. Jury directions. The court would credit the jury with the ability and will to follow directions, consistently with ex p The Telegraph Group plc [1993] 1 WLR 980 and R v B [2006] EWCA Crim 2692. Nevertheless, it was unrealistic to expect a juror who read this article during the trial to put its contents out of mind. The resulting seriously arguable ground of appeal was that the jury should have been discharged (paras 39–42).
6. The judgment was given by Lord Thomas CJ, with Mrs Justice Nicola Davies agreeing (paras 44–45).

First-instance committal proceedings in the Administrative Court. No earlier decision in the same proceedings is stated in the judgment.