Following the arrests of 23 terror suspects on 10 August, the Home Secretary, Attorney General and Scotland Yard issued warnings to the media to exercise restraint in reporting, highlighting the risk of compromising any subsequent trials with potentially prejudicial coverage. However, photographs of the suspects and details of their families, personal lives and the alleged plot continue to be published unabated in the interests of keeping the public informed in a climate of heightened alarm and urgency.
The Contempt of Court Act 1981 enables the Attorney General to prosecute the media if a story is published once a case is "active" (after an arrest or the issuing of a warrant for arrest) which "creates a substantial risk that the course of justice will be seriously impeded or prejudiced".
The key words "substantial" and "serious" are both open to interpretation, and subject to the question of timing — the trials of the terror suspects who have been charged are unlikely to take place for at least a year, by which time the potentially prejudicial effect of media coverage would arguably have faded in the minds of jurors. The contempt can be committed irrespective of intent, and a classic example would be to publish a defendant's previous convictions before a trial.
Lord Goldsmith is the first Attorney General to have given detailed guidance to the media on the law of contempt, exercising his powers to intervene in the public interest. In 2003, he issued warnings to newspaper editors after David Blunkett made potentially prejudicial comments in relation to the arrest of a terror suspect. In March 2004, he obtained an injunction preventing the publication of photographs of eight men arrested under the Terrorism Act 2000, and the reporting of Kamel Bourgass's two trials for stabbing a police officer and plotting a terrorist attack was banned until the trials were concluded in 2004. Lord Goldsmith also sought to prevent publication of details of a trial in the Netherlands, which he considered might prejudice a pending trial of different terror suspects in England.
If the Attorney General were to impose reporting restrictions on the media coverage of the recent alleged terrorist plots to bomb aircraft, this might only serve to divert the attention of the public towards international news sources in countries with less stringent contempt laws. A further difficulty faced by the Attorney General in bringing contempt proceedings would be to point the finger towards a particular culprit within the media, given how widespread the coverage has been. It might be difficult to demonstrate that the reporting has had a prejudicial impact on every member of such a large group of suspects.
Despite the appeal by Scotland Yard to the media to exercise restraint in reporting, the police have acknowledged the right of the public to be kept informed by taking the unusual step, on 21 August, of issuing a statement of the "type of evidence that will be presented in support of the prosecution". Detailed evidence of bomb-making equipment and video recordings was presented to the media, despite the fact that 11 suspects had been charged. Although Peter Clarke, the deputy assistant commissioner reading the statement, refused to give any information regarding individual suspects, it remains to be seen whether their defence teams will later suggest that their trials have been prejudiced as a result.
As the Government, editors, police and the judiciary all grapple with the consequences of terrorism and public fear, a delicate balance needs to be struck between the law of contempt and the potentially prejudicial impact of media coverage on one side, and freedom of expression and the right of the public to be kept informed on the other.