In contempt
Last week two legal decisions were handed down which concerned the English law of contempt of court. In Strasbourg the European Court of Human Rights held that an injunction, granted in the English High Court and upheld by the House of Lords, preventing the Sunday Times from Publishing an article on the thalidomide affair, violated the European Convention of Human Rights, to which Great Britain subscribes. In London the Master of the Rolls and two other judges of the Court of Appeal, overturned a decision earlier the same day by the Lord Chief Justice and two other judges of the Queen's Bench, and held that Mr Auberon Waugh's election address to the voters of North Devon (which had incidentally been published in the Spectator) would constitute a serious risk of prejudice to Mr Jeremy Thorpe's trial on charges of conspiracy and incitement to murder, which begins at the Old Bailey next week. The fact that three of the most senior and learned judges m the land can take the opposite view to three other equally learned and scarcely less senior judges suggests most forcibly that the law of contempt is in disarray. That is not a conclusion which requires in any case much originality or Perspicacity. In July 1973 Mr Arthur Davidson MP asked in the House of Commons, 'Is not the law olcontempt even more of a shambles than it was before, which is saying something? The Attorney-General of the day replied that reform must await the report of the Phillimore -Committee, Which had been set up in 1971. The Cothmittee reported five years ago this month. It concluded that the law — or rather the uncertainties of the law — impeded and restricted reasonable freedom of expression; and recommended that the law of contempt should be amended by statute with the Object of allowing as great a degree of freedom of speech as was consistent with the objective of maintaining the right of the citizen to a fair system of justice. In March 1978 a Government Green Paper was published to promote discussion of the contempt laws. Other than that, none of Phillimore's recommendations has been implemented. The law of contempt did not grow from nothing, or with no reason. It stems partly from the courts' connections with the Crown (as their name, and such phrases as the 'majesty of the law' suggest). It is right and proper that citizens should approach the law with reverence, even if judges have sometimes confused the dignity of the court with the importance of their own persons. It is still more important that an accused man should not only be presumed innocent until found guilty but that he should enjoy a trial whose essential fairness of conduct must include the understanding that the court — especially the jury — will not be prejudiced in advance. There is in this notion an element of speciousness, if you prefer of platonic abstraction: all men are prejudiced in one way or another, or they would not be human. It would not be possible to find 12 men, whether good and true or not, who went into the jury box without any biases or preconceptions. However, it is to insult a man's intelligence to suggest that he is incapable of clearing his mind of such preconceptions — including things which he may have heard and read about the case before him — and of reaching a verdict on the evidence presented in court alone.
The way in which the anomalies and vagaries of contempt can operate was, then, most forcibly impressed upon us last week. Phillimare submitted that it should be a defence to an allegation of conte'rnpt to show that a publication formed part :Of a legitimate discussion of matters of general public interest and that it only incidentally and unintentionally created a risk of serious prejudice to particular proceedings. Had such a defence been available to the Sunday Times it would surely not have been necessary to travel to Strasbourg. It is a defence which Mr Waugh (and the Spectator, if it had been invited to appear) could have advanced before Lord Denning — had it been available. While Governments and Parliaments continue to drag their feet over the Phillimore recommendations that defence will not be possible; and we will be bound to go on thinking that the law is a shambles.
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