The press
Contempt: as you were
Paul Johnson
The trial before the Lord Chief Justice and two other senior judges of the newspapers charged with contempt of court in reporting the Michael Fagan case was an important occasion both for Fleet Street and for the legal profession. It was the first °PPortunity to provide a thorough testing of the 1981 Contempt of Court Act, giving statutory footing to a long series of confus- ed judicial rulings which had left the law on contempt in a very ambivalent state. After the verdicts, which fined the Sunday Times 1.000 and judged the Daily Star guilty but unworthy of punishment, how does the law of contempt now look? Well, ambivalent. Fleet Street is not much wiser as to what it can or cannot do, and I doubt if its legal ad- visers will be able to give really confident rulings either.
Of course most members of the public will see the fuss about contempt in the Pagan case as a side-issue anyway. Two things struck them about the Palace break- In. First, they thought it shocking and scan- dalous that; in an age when London is the stamping-ground of all kinds of profes- sional terrorist groups, a solitary amateur Oddball should be able to get undetected in- to the private sanctum of the Head of State. The Queen is precious to us emotionally and important to us constitutionally, and it was monstrous that she should be so ill- guarded. People wanted and expected some TOP People's heads to roll and were disap- Pointed when almost nothing happened. Se- cond, they were not so much concerned about whether Fagan would get a fair trial as worried by the difficulty the police ex- perienced in charging him with any offence or bringing him to trial at all. Obviously the law is inadequate and ought to be changed as a matter of urgency. Instead of attending to these two central matters, the Govern- Merit, in the person of the Attorney- General, is seen having a go at the bearers of Ill-tidings, the newspapers, on an issue which the public regards as irrelevant. Of course one can't exactly blame the Attorney-General. He felt he had to get the new law tested, on a case which involved a wide diversity of newspaper disclosure and comment, and from this viewpoint the Fagan business was idea]. But he, like everyone else, is now left little wiser than before. After a careful reading of the Times Law Report of the verdicts, I find it hard to see any important difference of principle between the Sunday Times and the Star's. contempts, or the Mail on Sunday's article, which was not judged a contempt at all. But I don't blame Lord Chief Justice Lane either. He was given an impossible task. The case confirms my feeling that the law will fail in its purpose and that a statutory definition of contempt is a misconceived venture. I take the old-fashioned view that it is for the trial judge, and him alone, to decide whether his court has been treated with contempt and/or the jury prejudiced. Both defence and prosecution counsel should exercise the right of immediate com- plaint and the judge, with his eye on the ac- tual jury, should take prompt action, if possible on the spot, and at any rate before the trial ends. The whole idea of invoking the portentous machinery of a state pro- secution, months after the event, seems ab- surd. However, we are obviously stuck with the law and will have to make the best of it.
One good point did emerge from the ver- dict. The judges reinforced the specific wording of the Act that, to get a conviction, there must be 'substantial' risk of 'serious' injustice as a result of publishing offending material. In theory of course almost any material about a case published in a newspaper which goes beyond the fact of a man being charged and the wording of the indictment is a potential contempt. But real cases of prejudice are rare. In a sense all juries are prejudiced by the mere fact of a prosecution being brought. In the old days, in the Army, it was always assumed that someone before a court martial was guilty, 'otherwise the fellow wouldn't have been charged in the first place — stands to reason, doesn't it, old boy'. Juries are not so regimental, especially nowadays when doubts about police behaviour are wide- spread and they often contain people who are fundamentally suspicious of the whole system of law enforcement. Even so, I've been feeling sluggish recently.' most members of juries will tend to assume that the accused are more likely to be guilty than not, merely from the fact of being charged; and the more serious the case, the stronger this assumption will be. This in- evitable prejudgment, inherent in the very system of open justice and trial by jury, is likely to be much more influential than anything printed in the press, which in all probability the jurors have not read. In any case, it is striking, and a testimony to the soundness of the system, how open-minded and indeed fair-minded the overwhelming majority of juries are, how effortlessly they dismiss any pre-trial publicity from their minds, and how carefully they listen to both sides and reach their verdict solely from what they hear in court.
Lord Lane and his colleagues evidently share this robust view of how juries actually behave and gave their verdict and sentence accordingly. To this extent Fleet Street can take comfort. Newspapers editors, in the light of this case, need no longer fear pro- secution for marginal or fanciful con- tempts, which are technically capable of prejudicing a jury but in practice have no effect whatever. The Attorney-General may or may not, as the Guardian suggested, be 'nursing a slightly bloody nose' as a result of the verdicts. But it is a fair guess that prosecutions under the 1981 Act will be comparatively rare. What Fleet Street still lacks, however, is a straightforward answer to the question, which editors and their senior staff constantly ask: 'Is it Contempt or not?' Perhaps there is no straight answer. As in many case of potential libel, even the most expert and experienced can only give an informed opinion, with which the court — if it comes to court — may em- phatically disagree. Personally, I don't see that newspapers have any particular duty to publish a lot of detailed and possibly con- tentious material about a case, once a suspect has been charged, just as I don't think they have any particular duty to publish gossip columns. But so long as newspapers conceive these duties to be im- perative, then editors are going to have to accept a lot of risks. Risk is inherent in the business. The press is (to use a phrase of Hugh Cudlipp's) 'a dangerous estate'. It looks as though the chance of being found contemptuous will remain part of the danger and editors will just have to lump it.
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