Attorney General v Associated Newspapers Ltd & Anor [2011] EWHC 418 (Admin)

[2011] EWHC 418 (Admin)

Case No CO/7980/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/03/2011

Before

LORD JUSTICE MOSES

MR JUSTICE OWEN

Between

Her Majesty’s Attorney GeneralClaimant

Associated Newspapers Ltd1 st Defendant

News Group Newspapers Ltd2 nd Defendant

Mr Angus McCullough QC (instructed by the Treasury Solicitor) for Claimant

Mr Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for First Defendant and Mr Anthony Hudson (instructed by Farrer & Co) for the Second Defendant

Hearing Hearing dates: 2 nd February 2011

Judgment

Facts

[1]This is the judgment of the court to which we have both contributed.

[2]This is the first time, so we were told, that a court in this jurisdiction has considered whether a publication on the online news websites of two national newspapers, the Daily Mail and the Sun, is a contempt of court in breach of the Contempt of Court Act 1981.

[3]On Tuesday 3 November 2009 at Sheffield Crown Court a jury was sworn in to hear the trial of Ryan Ward for murder. Two other defendants were tried with him for other offences. The nature of the case is relevant to the issues in the application for a committal of the defendants for contempt. The case was notorious. It was alleged that the victim, a 39 year-old father, Mr Craig Wass, had intervened after Ward had head-butted a young woman. He was merely trying to keep the peace. Ward took hold of a brick and struck him on the head, fracturing his skull and causing other head injuries from which he died. The defence, it should be noted, was self-defence and lack of a murderous intent.

[4]The case had received considerable publicity. After the jury was empanelled, the judge, His Honour Judge Murphy QC, gave conventional warnings that the jury should not speak to anyone or allow anyone to speak to them about the case. He noted that there had been press reporting of the case and warned the jury:- “Also, I would imagine by the nature of this case, and you’ll see there’s obviously press interest in it there will be some reporting of this case. Again that’s a matter the press are free to report upon but you go on only the evidence you hear in this room, not the view other people may or may not have about it.”

[5]He added another warning:

“Please don’t try and get information from outside this room about this case. Don’t, for example, consult the internet, if there is anything out there on it. I’m not saying for one moment there is but don’t go there, don’t try and get it from anywhere else. Again the reason for that is the evidence in this case is evidence that the defence know about and the prosecution know about. It’s evidence that will evolve in this case in this room where all of us know what you’re basing your decisions upon. If one person decides to go off and consult the internet or something else about it, then we don’t have any control over that and you may be taking into consideration matters which have no relevance whatsoever to the case.”

Following the prosecution opening, the jury were sent home.

[6]At 5.04 p.m. an article was published on Mail Online accompanied by a picture which showed Ward holding a pistol in his right hand with his index finger on the trigger whilst he indicated firing a handgun with his left hand. Under the picture was the caption:

“Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV.”

The picture remained on Mail Online for 4 hours and 54 minutes, when it was removed at 9.58 p.m.

[7]The circumstances as to how the photograph came to be published establish that it was a mistake. A journalist employed by the first defendant for the Daily Mail had sent an e-mail with an article about the prosecution accompanied by the photograph we have described. To the journalist’s credit, he had made clear to a member of the Daily Mail’s picture desk that the handgun should not be included in any copy of the photograph as it would prejudice the trial. The editors of the website Mail Online decided that the article was suitable for online publication, but a freelance journalist prepared the story and added the photograph without obtaining any legal advice.

[8]Means of access to the online photograph are relevant to the issue as to whether the Attorney General has proved, so that we are sure, that there was a substantial risk that the empanelled jurors might see the photograph. This requires analysis of the links to the photograph. The first link was in the main body of the Mail Online’s home page. The link comprised a headline with five lines of text and a thumbnail image of the victim. It did not include the photograph. First access to the home page, on a typical computer monitor, would not have shown the link; it would have been necessary to scroll down the home page before that link came into sight. The link appeared between 6.00 and 7.00 p.m. on that evening of 3 November. In her evidence on behalf of the first defendant, Elizabeth Hartley, the first defendant’s in house solicitor, suggests there was a possibility of a second link in the “Today’s Headlines” box. But that would have been later in the evening.

[9]Access to the photograph could only have occurred if a conscious decision had been made to read the story about the trial. Anyone who accessed the story from the home page would have had to do so by clicking on that story and then starting at the top of the news story when it appeared. The photograph could not have been seen unless the reader decided to scroll down in order to read the entire article.

[10]Elizabeth Hartley gives evidence of data obtained, which may not be particularly reliable, showing that approximately 112 users in the Sheffield area obtained access to the article.

[11]After the error was noticed instructions were given to all Mail Online journalists to ensure that all articles relating to crime and the courts , including captions and photographs, are checked by a lawyer before publication. The first defendant has expressed its regret and apology for what occurred. We accept that the publication was an error and that the first defendant had in place a system which ought to have avoided the error and that after it occurred has taken steps to improve its system.

[12]Publication by the second defendant, News Group Newspapers Limited, occurred at 1.22 a.m. on Wednesday 4 November 2009 on Sun Online. The photograph had been supplied to the second defendants by a photographic agency from a social networking site, on the ‘page’ of a co-defendant. The picture was the same as that intended for use in the newspaper version on 4 November. The picture desk accepted that the picture of Ward should be cropped. Unfortunately, although the picture was carefully cropped for newspaper publication so as to exclude Ward’s left hand and any view of the gun, when the picture was cropped for publication online, the top part, the barrel, of the gun was visible. Those responsible for the website did not appreciate that they needed to ensure that the careful cropping of the picture used in the newspaper was repeated online (see letter from second defendant dated 12 February 2010). The picture remained online until the officer in the case contacted the Sun’s news desk and requested its removal. It was removed ten minutes after the request at 8.50 p.m.

[13]The second defendant asserts that there were some 4,766 unique visitors to the online article on 4 November 2009, with 3,078 in England and 78 located in Sheffield.

[14]The publication of the inadequately cropped photograph was plainly a mistake and those responsible for online versions of photographs have been warned by the second defendant of the need for care in the future.

[15]According to News Group’s online analysts, there would have only been a one-line reference to the article in the top right-hand corner of the home page in the boxed area headed “Just Published”. That reference would have remained for only about 5 minutes. Access to the article could have been obtained by clicking on “News” on the website. Thereafter it would have been necessary to scroll down an index page. It is not possible to know how far it would be necessary for anyone to scroll down to reach the article in question. Further, a teaser for the story appeared on the news index page and it was unlikely that the objectionable photograph would have appeared, even as a thumbnail image.

[16]Accordingly, in order to reach the photograph, it would have been necessary to click on the specific article. The second defendant contends that, in those circumstances, it is highly unlikely that any juror could have inadvertently come upon the article and offending photograph.

[17]The court learned of the publication on the Mail Online on the morning of 4 November 2009. Counsel made an application that the jury should be discharged. The judge deferred ruling until further enquiries had been made.

[18]The following morning, Thursday 5 November, the court learned of the publication on the Sun Online. Counsel for a second co-defendant joined in the application made on behalf of the other two defendants that the jury should be discharged. The judge asked the jury, that Thursday morning, whether they had been “going on to the internet, for example, to find out any information about this?” There was no indication from any member of the jury of a visit to the internet for that purpose. The judge then told the jury that there was no possibility of reaching the evidence on either Thursday or Friday and adjourned the case until the following Monday. On Friday 5 November, 2009 the judge rejected the defendants’ applications that the jury be discharged and ruled that the case should proceed. He recalled that he had reminded the jury at the close of the hearing on Tuesday 3 November 2009 that they:

“could not be affected by what they might hear or see in the press…I am quite satisfied that I gave the jury sufficient warning not to seek help or information from any external source about this case.” (Paragraph 8) He continued: “I am quite satisfied, from the answers they [the jury] gave to the matters I posed to them this morning, that they did heed the warning and the order that I made on Tuesday, and none of them have been near the internet. I fully accept it when they say they know nothing of anything that might have been on the internet. They were, after all, following my express instructions and I have no reason whatsoever to distrust what they say. I am satisfied that they know nothing at all of what has happened.”

[19]The judge observed that had it not been for what he described as the sharp observations of the police and counsel, problems could well have arisen (at that stage he was unaware that the journalist who had introduced the photograph which was to appear on the Mail Online had himself called for its removal). The judge observed that the photographs were not on the internet for very long and that a limited number of people would have visited them. He concluded that he was satisfied that no prejudice had been caused to the defendants but also observed that there was a “prima facie case of contempt of court”.

Relevant Legal Principles

[20]The application for committal is based upon the strict liability rules as defined in s.1 of the Contempt of Court Act 1981:

“1. The strict liability rule. In this Act ‘the strict liability rule’ means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent do so.”

[21]The strict liability rule applied to the publications in question because they were active within the meaning of s.2. There is no dispute but that the articles accompanied by the offending photograph were publications within the meaning of s.2(1). The dispute between the parties centred upon the question whether the publications created a substantial risk that the course of justice in the trial would be seriously impeded or prejudiced. Thus, the controversy in this case focussed on s.2(2):

“(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”

[22]There is no shortage of judicial paraphrase as to the degree of risk or the degree of impediment or prejudice which the Attorney General must prove. No one has improved upon the oft-cited passage in the speech of Lord Diplock in Attorney General v English [1980]AC 116 at 141H-142C, in which he described the word “substantial” as being intended to exclude a risk that is only remote. As to the extent of interference he warned that:

“If, as in the instant case, and probably in most other criminal trials upon indictment, it is the outcome of the trial or the need to discharge the jury without proceeding to a verdict that is put at risk, there can be no question that that which in the course of justice is put at risk is as serious as anything could be.”

Nowadays it is Schieman LJ’s list of principles in Attorney General v MGN Limited and Others [1997] EMLR 284,

[1997] 1 All ER 456

which is most frequently cited. The fourth principle, that the risk must be substantial (290) is explained by reference to Auld LJ’s comment in Attorney General v BBC [1997] EMLR 76 that the threshold of risk is not high but must be proved to be simply more than remote or minimal.

The Risk of a Juror Seeing or Looking At the Photograph

[23]The essential argument advanced on behalf of both defendants is that there was no substantial risk of any juror seeing or choosing to look at the offending photograph. The argument is founded on two features of the evidence: first, the difficulty of access to the photograph and second, the proposition that any juror who had managed to gain access to the photograph would have done so in defiance of the judge’s express prohibition against seeking any information about the case from the internet. The jury was instructed as to this prohibition before the story was published. Both defendants draw attention to evidence that in fact few people gained access to the story and no juror did so.

[24]Additionally, Associated Newspapers rely on the “comparatively brief” period the photograph remained online.

[25]To resolve these issues, it is necessary to reconsider further well-known principles which are relevant to this case. The statute enjoins the court to assess the risk at the time it was created (s.2(2)). The assessment of risk is a prospective exercise; it requires the court to look to the future effect of a publication at the time of the publication. In English the House of Lords said so (p.141F) (and see the second principle expressed in MGN). In those circumstances, that the jury did not in fact see the article does not demonstrate that there was no substantial risk that they would have done so. We are prepared to accept that evidence of the history of ‘hits’ on the relevant site is relevant evidence, in the same way that circulation figures may be used to demonstrate risk or its absence (see MGN principle(8)). That evidence suggests that few looked at the article, but that evidence is not determinative. Large numbers of readers could have had access, had they chosen to do so (we were not furnished with contemporary figures for the Mail Online, but by July 2010, the Mail Online had about 2.5 million viewers, the Sun’s figures for the home page were 2,027,720).

[26]Both defendants, particularly Associated Newspapers, rely upon the limited time during which the publication of the photograph remained available before it was removed. This raised a dispute, as a matter of legal principle, as to the point in time when the risk that a juror might have seen the photograph falls to be assessed. Mr McCullough QC, on behalf of the Attorney General, contended that the risk ought to be considered at the time of the original publication and that the length of time before the photograph was withdrawn was irrelevant.

[27]We reject that submission. In assessing the risk that a juror might see the photograph, the court should consider whether the appearance of the photograph was only fleeting or remained available for a substantial period. The longer it was available, the greater the chance that a juror might see it. It is true that publication occurred the moment that the photograph was originally posted. But in answering the statutory question whether a substantial risk was thereby created it is necessary to look at all the circumstances of the publication, including the time during which it was available for access and at what times of day it remained available.

[28]If, as it is accepted, it is necessary to consider a newspaper’s circulation, in order to assess the likelihood of a publication coming to the attention of a potential juror, it surely follows that the length of time a publication was available for access online is a relevant consideration. In Attorney General v Independent Television News Ltd. [1995]2 All ER 370Leggatt LJ drew attention to the shortness of the offending broadcast and its ephemeral nature (382-383). Our view is consistent with the approach of Lord Osborne in HM Advocate v Beggs (No. 2)

[2002] SLT 139

, in which the question was different, but the approach of the judge was that the ‘time of publication’ (for the purposes of considering whether the proceedings were active under s.2(3)) was a reference to the whole period when the publication was available.

[29]Accordingly, in assessing the likelihood that a juror would have come across the photograph, we must consider the fact that the photograph only appeared on the Mail Online on the evening of 3 November 2009 from about 5.04 p.m. until about 9.58 p.m., a period of about 5 hours and on the Sun Online from 1.22 a.m. on Wednesday 4 November 2009 to 8.48 p.m., on the same day, a period of about 19 hours.

[30]Both defendants rely upon the difficulty any reader would have in obtaining access to the photograph. It did not appear during the short time the article was heralded as recently published. Access would only be gained as a result of a deliberate decision to read the article, and not just the beginning of the article but as a result of scrolling down through the whole of the article. We reject any suggestion that a juror might have come across the photograph by chance; he would only have done so as a result of a deliberate decision to read the article about the trial online. The article could only be reached by taking a deliberate decision to scroll through the index of news items and click on the relevant article.

[31]Since access to the photograph would be the result of a deliberate decision to read the whole of the article, it follows, contend both defendants, that any juror could only have seen the photograph by disobeying the judge’s instruction, given before the photograph had been published, not to consult the internet, not to allow anyone to speak to them about the case and to rely only on the evidence they hear in court.

[32]This contention gives rise to two distinct questions on which we need to focus: whether choosing to read the relevant article would amount to disobedience of the judge’s instruction and, if it would, whether there was a substantial risk that the jurors would disobey. The jury was instructed not to consult the internet and not to seek information from outside the court. But the judge also told them, in his initial directions on 3 November (cited para. 4), that the press would report the case, that they were free to do so but that the jury’s view must be based on the evidence in court. These conventional and, we may add with respect, sensible instructions, created a blurring of the line between that which was, on the judge’s instruction, prohibited and that which was permissible. The jury was not instructed to avoid any newspaper report about the case they were trying. Indeed, the likelihood was that, if they were in the habit of reading a newspaper, they would look at any report of the case they were trying.

[33]If, then, they were in the habit of reading the news online, a reasonable juror, obedient to the instructions of the judge, might well regard reading the news online as being outwith the prohibition against “consulting” the internet. The judge does use the expression “don’t go there” (see warning, cited paragraph 3). But that was in the context of consulting or seeking information, not reading the news online. Once a juror regarded himself as being at liberty to read the news online, such a juror might well regard himself as being free to read about the case online. There was no prohibition against reading about the case in the newspapers. If he was permitted to do so in a newspaper, there would be no reason to think he was not permitted to do so online. He would have no reason to think that the news would be carried online in a way different from that which appeared in the newspapers. A juror might well draw a distinction between reading about the case in a news item published online and consulting the internet or seeking information about the case on the internet. We are satisfied so that we are sure that a juror, conscientiously seeking to comply with the judge’s instructions, would not have understood them to prohibit reading about the case in a contemporary news report online, published by well-known newspapers, the Mail and the Sun.

[34]For those reasons, we reject the defendants’ submission that, in assessing the likelihood that a juror would see the photograph, we should regard a juror’s decision to read the article as a breach of the judge’s prohibition.

[35]The Attorney General also suggests that there was a substantial risk that someone other than a juror might have read a report of the case online, seen the photograph and communicated that fact to a member of the jury, in the knowledge that that juror was trying the case. It must be recalled that publication occurred on the first day of the trial. We are not satisfied so as to be sure that knowledge that a particular member of the jury was trying this particular case would have become known to the extent that someone else would have bothered to communicate the online news item, with the photograph, to that juror, even though such online information may be transmitted with ease and in an instant.

[36]The next question, therefore, is whether, uninhibited by any prohibition, there was a substantial risk that a juror might read the news report and come across the photograph. We are sure that there was such a substantial risk. Jurors in the habit of reading a daily newspaper were likely to read about the case they were trying. Similarly, any juror in the habit of reading the news online was likely to choose to read an article about the case he or she was trying. The subsequent evidence of the number of ‘hits’, even assuming its accuracy (and the burden was on the Attorney to produce evidence to contradict it), does not undermine our assessment of the substantial risk that a juror would read the article online and see the photograph.

[37]Our approach obviates the need to consider the risk that a juror would disobey the judge’s instruction. In the instant case, had we reached a different conclusion as to the scope of the prohibition, we would have had to consider the effect of the judge’s directions in a different context to that in which the question usually arises. Courts are accustomed to consider the likely effect of the judge’s direction after, and sometimes long after the offending publication. The principle was expressed in MGN:- “10) In making an assessment of the residual impact of the publication on a notional juror at the time of trial the court will consider amongst other matters:(a) the length of time between publication and the likely date of trial,

(b) the focusing effect of listening over a prolonged period to evidence in a case, and

[38]Courts are guided by that principle for the purpose of considering the risk of such information influencing a jury, notwithstanding the judge’s instruction to decide the case only on the evidence heard in court. In the context not of a case of contempt, though it is often cited in such cases, but in relation to restrictions on publication of the details of the first of a series of trials, Lord Taylor C.J said in R v Central Criminal Court ex parte The Telegraph plc

[1993] 1 WLR 980

, 987E

(1994) 98 Cr. App. R.91

, 98:- “In determining whether publication of matter would cause substantial risk of prejudice to a future trial, a court should credit a jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them.”

[39]More recently, in R v Barot

[2006] EWCA Crim 2692

, [2007] EMLR 5, para. 31 Sir Igor Judge P said:- “We cannot too strongly emphasise that the jury will follow (appropriate directions), not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”

[40]In this case the directions were given very shortly before publication. Thus, the court would have had to judge the likelihood of disobedience almost immediately after the prohibition was laid down. In those circumstances, had there been a prohibition against reading the news online and any item about the case published online, we would not have been sure that there was a substantial risk that the jury would have disobeyed such an injunction. But, for the reasons we have given, we have assessed the risk of a member of the jury seeing the photograph on the basis that to have done so would not have been understood as defiance of the judge’s directions.

Serious Prejudice: the Impact of the Photograph

[41]Now that we have reached the conclusion that we are sure that there was a substantial risk that a juror would see the photograph, it is necessary to consider the impact of that photograph. Both defendants contend that the illustration of the accused with a gun was so remote from the factual issues in the case that the Attorney cannot prove that there was a substantial risk that a juror would be adversely influenced by it. We reject that submission. Visual images are designed for impact; that is why any editor would be keen to use them to add to the impact of the news story. The defence which Ward was running was self-defence. The image of the accused brandishing the pistol and apparently doing so in a brazen manner could not have failed to create an adverse impression of a young man who enjoyed demonstrating a propensity for violence. It was prejudicial in a manner directly relevant to the issues in the case.

[42]We were surprised that this point was in issue. Both defendants had written earlier apparently recognising the prejudicial nature of the uncropped photograph (Associated Newspapers on 1 February 2010 and News Group on 12 February 2010). News Group’s photograph was cropped, it is true, but the barrel of the pistol could be clearly seen. Associated Newspapers, in addition, relied on the provisions relating to bad character evidence in the Criminal Justice Act 2003 (sections 98 and following) in seeking to make good the contention that Parliament trusts the jury with highly prejudicial material. We reject that suggestion. On the contrary, the submission lends force to the Attorney’s case. Parliament does permit such material to be adduced in circumstances where it will assist the jury to reach a verdict, and in circumstances which are strictly controlled procedurally where it is fair to do so. The fact that the admission of such evidence, after giving a defendant a fair opportunity to resist, is controlled by statutory requirements, which it is for the judge to assess, shows how dangerous the risk of uncontrolled dissemination of such material may be. It would be startling if those responsible for publication of highly prejudicial material could pre-empt the decisions of courts and pre-judge issues of relevance and fairness.

[43]We conclude that the nature of the photograph created a substantial risk of prejudicing any juror, who saw that photograph, against the defendant Ward.

Serious Prejudice: the Ability of a Jury to Disregard Extraneous material and Obey Directions

[44]This conclusion gives rise to the final issue which we must consider, namely the effect of a judge’s directions and the course of the trial on the impact of the photograph. Both defendants contend that even if there was a substantial risk that a juror would see the photograph, and even if the photograph was prejudicial, there was no substantial risk that it would have seriously impeded or prejudiced the trial. To make good that submission, both defendants rely upon authorities such as ex parte Telegraph Ltd and Barot to remind the court of the robustness of the jury system. Any juror who had seen the photograph would not have been deflected from fairly reaching a just verdict but would have abided by the directions of judge to decide the case on the evidence heard and seen in court and on nothing else and would have focussed on that evidence.

[45]In relation to this issue, there arose the potential for controversy as to the approach this court should adopt. There is a line of authority which suggests that this court cannot conclude that a contempt has been proven, unless it would have concluded that the prejudice was such as to justify a stay or a successful appeal against conviction:- “To establish contempt it needs only be shown that there was a substantial risk that serious prejudice, which must in my view mean such prejudice as would justify a stay or appeal against conviction, would result from the publication” (Sedley LJ in Attorney General v Guardian Newspapers Ltd [1999] EMLR 904, 915).

[46]Accordingly, the views of the Court of Criminal Appeal, in conviction appeals, as to the ability of a jury to focus on the evidence and on the issues and to ignore extraneous prejudicial material are prayed in aid in cases of contempt to resist accusations of serious prejudice. For example, in R v Abu Hamza

[2007] QB 659

[2006] EWCA Crim 2918

, Lord Phillips CJ said (echoing what he had said earlier in the Maxwell trial, quoted in R v Stone

[2001] EWCA Crim 297

, para.49):- “only where the effect of the publicity has been so extreme that it is not possible to expect the jury to disregard it will it be appropriate to stay a trial on the grounds of abuse” (para.78). It is on the basis of that line of authority that the defendants submit that there was no substantial risk that the impact of the photograph, if seen by a juror, would have been so great as to cause that juror to ignore the directions of the judge and to have been deflected from returning a true verdict according to the evidence.

[47]There is an alternative line of authority which suggests that it is sufficient for a finding of contempt to prove that publication of the offending publication, on the assumption that it reached the notice of a juror, would have created a seriously arguable ground of appeal (Simon Brown LJ in Attorney General v Birmingham Post and Mail Ltd

[1999] 1 WLR 361

at 370G). Simon Brown LJ endorsed the view he had expressed earlier (in Attorney General v Unger

[1998] 1 Cr. App. R. 308

, 318-319) that there can be a contempt and a safe conviction. Illumination is provided in Birmingham Post by Thomas J :- “…the questions for the trial judge and the Divisional Court (in a contempt case)…are by no means the same. The trial judge has to ask himself the question whether, in the light of the matters set out in the publication and taking into account the directions that the jury can be given, there is a real danger that the defendant cannot have a fair trial and the jury cannot reach a just (and impartial) verdict. The Divisional Court has in effect to ask the question as to whether there was before the trial judge a seriously arguable issue as to whether the defendant could have a fair trial and the jury reach a just verdict in the light of the publication. I have used the words “seriously arguable issue” in the sense that, if the trial judge had gone on with the trial, there would be a seriously arguable ground of appeal.” (373H-374B).

[48]We, deferentially, endorse that approach. The statutory question for this court posed by s.2(2) of the 1981 Act is whether the publication created a substantial risk that the course of justice will be substantially impeded or prejudiced. It is not the statutory question posed by s.2 (1)(a) of the Criminal Appeal Act 1968, namely whether the conviction was unsafe. The Court of Appeal looks back and considers the impact of the publication in the context of the history of the trial, the nature of the evidence and the directions given by the judge. The Divisional Court is required to look forward and to assess risk. It must be acknowledged that both the Divisional Court and the Court of Appeal Criminal Division must be consistent in their recognition of the ability of a jury to put aside extraneous material (they should not speak with two voices, said Simon Brown LJ in Unger 318). But the trust which is placed on juries to do so cannot always be relied upon by those whose publications put the prospects of a fair trial at substantial risk. The publisher who has created such a risk cannot always rely upon the steps taken to allay the very risk it has created. Of the courts’ recognition of the robustness of juries Simon Brown LJ said:- “…if one carries this principle too far, there would be no need for a law of contempt in the first place, and on occasions it is quite unrealistic to expect the jury to disregard extraneous material, in particular when published contemporaneously with the trial ”. (Birmingham Post 371B) (our emphasis).

[49]The approach of Simon Brown LJ, Thomas J (and Collins J in Attorney General v Guardian Newspapers Ltd, although his disagreement with Sedley LJ has been bowdlerised by the omission of a ‘not’ in the third sentence of the paragraph after the third break at page 920) was endorsed by Tugendhat J in Attorney General v Random House

[2009] EWHC 1727 (QB)

, [2010] EMLR 9, para.25.

[50]But we need not resolve the controversy for this reason. We are sure that, even if we adopt the approach of Sedley LJ, the photograph, published whilst the jury was hearing the case, created such prejudice that no juror, who saw it, could reasonably have been expected to put it out of his or her mind, however stringent the injunction to do so. If the judge had learnt that a juror or jurors had seen the photograph but had nevertheless chosen to continue the trial with the same panel, relying on directions to disregard it, we are sure that that would have given rise not only to a seriously arguable ground of appeal but one that would have succeeded.

[51]The visual image of the defendant Ward was designed to have an impact. That is why it was published, in the exercise of the skill and judgment of the editors, who, as Lord Roger recognised are best placed to judge how to:- “capture the attention of readers”… as… “ a matter of reporting technique, and the European Court holds that art 10 protects not only the substance of ideas and information but also the form in which they are conveyed….. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.” In re Guardian News and Media

[2010] 2 WLR 325

[63]to[64]. How much more dramatic the impact would have been, after the first day of the trial in which the defendant sought to portray himself as acting in self-defence, when that image included the defendant holding a pistol.

[52]In reaching that conclusion, we recognise that the judge’s ruling was based on his finding that no juror had in fact seen the photograph, with the clear implication that he would have discharged the jury had he not been so satisfied. But that has had no bearing on our conclusions. For the reasons we have given we are satisfied so that we are sure that there was a substantial risk that a juror would see the photograph and that there was a substantial risk of serious prejudice, namely that the jury would have had to be discharged, had that occurred.

[53]We have not been assisted in reaching our conclusions by the reliance placed by both defendants, particularly the second defendant, upon the importance of unrestricted publicity of proceedings in a criminal trial, buttressed by

Art. 10 of the European Convention on Human Rights

and, for example, by the House of Lords in In re S (A Child) (Identification: Restrictions on Publication)

[2005] 1 AC 593

. The publication of a photograph of Ward with a pistol had nothing to do with a fair and unrestricted report of the criminal proceedings. It was a mistake. It was corrected as soon as that mistake was brought to the attention of the defendants. They have made it clear that they never intended to show the defendant carrying a pistol and have taken steps to improve their systems of control to avoid such mistakes in the future.

Online News

[54]The criminal courts have been troubled by the dangers to the integrity and fairness of a criminal trial, where juries can obtain such easy access to the internet and to other forms of instant communication. Once information is published on the internet, it is difficult if not impossible completely to remove it. Harvey J in New Zealand described the “viral nature” of information on the internet (Police v PIK and Others Manuku Youth Court, 25 August 2008, cited in Trying Times: The Right to a Fair Trial in the Changing Media Environment, Elvidge, University of Otago dissertation, October 2008). Whilst in this case we have not been satisfied that a juror could have been told about the photograph by someone who had obtained access to the article through ‘Twitter” or by registration to receive an “RSS feed”, the ability to obtain news by such means must be acknowledged. There are those who rely upon research to doubt whether juries obey the prohibition not to search the internet (Are Juries Fair? Professor Cheryl Thomas, Ministry of Justice Research series 1/10, published February 2010). The courts, while trusting a jury to obey a prohibition on consulting the internet, have been concerned to meet the problem. This case demonstrates the need to recognise that instant news requires instant and effective protection for the integrity of a criminal trial.

[55]But, since the statute imposes a strict liability, notwithstanding that publication of the image of the accused with a pistol was a mistake, both defendants were guilty of contempt. We shall hear, or read, such submissions as the parties wish to make concerning penalty and costs.