“To create a seriously arguable ground for appeal is a sufficient basis for finding strict liability contempt,” said Mr Justice Collins in Attorney General v Guardian Newspapers in 1999.
In a conspiracy to defraud case last September, the trial judge discharged the jury on the ground of the “prejudicial publicity” he had identified in a local newspaper. He decided that careful warning to the jury about coverage by the newspaper would be insufficient and he ordered a retrial in a different venue outside the paper’s ordinary circulation area. The trial will take place later this year.
He may have been seeking to avoid giving the defence an opportunity to appeal on grounds of prejudice if the trial had proceeded and led to convictions. In that situation, can a newspaper ever avoid a reference to the Attorney General and a prosecution for contempt? The answer is yes, if it can persuade the judge that the defendants would be unlikely to have obtained leave, on the basis that they had seriously arguable grounds, to appeal convictions because of what had appeared in newspaper articles.
In other words, the newspaper must show that stopping a trial to avoid the appearance of prejudice does not necessarily amount to the same thing as a finding that there has been a substantial risk of serious prejudice.
In Attorney General v Unger (reported in 1998), Lord Justice Simon Brown said: “I am certainly not saying that in respect of one and the same publication there cannot be both a contempt (of the present, outcome, sort) and a safe conviction.
Plainly there can, most obviously perhaps in cases where the trial has had to be moved or delayed to minimise the prejudice occasioned by some publication. But generally speaking it seems to me that unless a publication materially affects the course of trial in that kind of way, or requires directions from the court well beyond those ordinarily required and routinely given to juries to focus their attention on evidence called before them rather than whatever they may have read outside court, or creates at the very least a seriously arguable ground for an appeal on the basis of prejudice, it is unlikely to be vulnerable to contempt proceedings under the strict liability rule.”
The local paper in question strongly believed that what it had published was not prejudicial. Even so, it was fortunate to have persuaded the judge (who had moved the trial) that he should not refer the matter to the Attorney General for possible prosecution. This is a rare event.
Richard Shillito is a partner in the media team at Farrer & Co