Avoiding the pitfalls of reporting a retrial

How should the media treat the case of Sion Jenkins which recently returned to the headlines after Mr Jenkins’ conviction for the murder of his foster daughter Billie Jo was quashed by the Court of Appeal? Last month the Court of Appeal held that had fresh scientific evidence relevant to the key issue of the blood spattering on Mr Jenkins’ clothes been before the jury it might reasonably have affected their decision to convict Mr Jenkins. It ordered a retrial.

The case is of great public interest. The story made the front page of five national newspapers the day after the retrial decision was announced.

However the media must handle the reporting on such a high profile case carefully both before and during the new trial, to ensure that they do not breach the law on contempt.

The key issue is the strict liability rule in the Contempt of Court Act 1981, which applies to the case as the proceedings are “active” within the meaning of the Act.

A newspaper may be held to be in contempt for publications tending to interfere with the course of justice regardless whether it intended to do so.

The rule applies to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

The problem in the case of a retrial is that a great deal of potentially prejudicial information about the crime and the defendant has been put in the public domain since the original trial ended.

Newspapers must take care in the run-up to the new trial as well as during it, not to republish material that a Court may consider is likely to prejudice the minds of members of the jury.

A cautionary tale for newspapers comes from the trial in 2002 of certain Leeds United football players for assault on an Asian man.

The Sunday Mirror published an interview with the father of the victim while the jury was considering its verdicts in which he said he felt the attack on his son was racially motivated.

Throughout the proceedings the prosecution had made it clear that there was no allegation that the attack was racially motivated.

The trial collapsed because the Judge considered the defendants were no longer able to receive a fair trial on the basis that the article had revived the “misleading issue” of racial motivation which the prosecution, defence and Court had sought to exclude from the trial. The newspaper was fined £75,000.

The press must take care to report on the case of Sion Jenkins in a manner which does not impinge on his ability to receive a fair trial.

Material relating to the case and the manner in which it is presented must be carefully scrutinised before it is put before the public, even if it is information in the public domain.

Otherwise a newspaper may find itself facing costly legal action and a hefty fine.

Catherine Hurst Associate, Addleshaw Goddard

Catherine Hurst

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