The attorney general, Dominic Grieve, will meet with members of the committee on Monday and it is understood he will talk to them about the issue of contempt of court and the possibility that their report may cause prosecutions to be abandoned because of prejudicial pre-publicity.
This comes after it was revealed in the Guardian that parliamentary clerks, nervous about a possible miscarriage of justice, had been applying pressure to committee members to restrain themselves in their criticism of News International witnesses.
These fears of a miscarriage of justice come despite the fact that, as yet, no one has been charged with any offence and any potential trial will be months away. Some members of the select committee feel they are being leant upon and they are concerned that the wool is being pulled over their eyes over contempt risks.
A spokesman for the attorney general’s office said: “We can confirm that the attorney general is meeting the committee but we cannot comment on what will be discussed.”
Dominic Grieve, since becoming attorney general, has brought more contempt prosecutions against the press than his predecessors over 10 years. However, in most of those cases the offending material has been published either during, or very close to the proceedings being in court, when a jury is most in danger of undue influence.
If the committee is persuaded to censor the report, it will effectively have rewritten the rules on what is allowed in advance of a trial.
The Contempt of Court Act was enacted in response to a ruling of the European court of human rights that common law contempt as applied by the UK courts did not sufficiently acknowledge the right to freedom of expression.
It may be tempting to err on the side of caution and forbid all but the barest of facts in advance of a trial, but in a free society where rights compete that would be wrong. The ECHR protects the right to a fair trial and freedom of expression: contempt law is about finding a balance between those two rights.
Grieve, shortly after he became attorney general, expressed concern that this balance had gone too far in favour of media publicity and that he would act where such publication causes a substantial risk of serious prejudice. He has been true to his word and has authorised a number of prosecutions, with more pending.
Contempt does not, however, require that jurors come to court with absolutely no knowledge of the case they are about to try. Even in Scotland, where contempt laws have been applied much more rigorously, the judiciary long ago accepted that it was wrong to expect a jury to exist in a “germ-free environment” when it came to material that might be prejudicial.
There are some arguing that the mass of publicity being generated by the phone hacking revelations; the Leveson inquiry; the ongoing police investigations and now the media select committee report all mean that senior News International staff cannot possibly have a fair trial.
To give credence to these claims though flies in the face of a substantial weight of case law where judges have consistently trusted jurors to ignore what has been published previously and concentrate of the evidence presented at trial.
This argument is frequently made by defence teams in trials that have attracted significant publicity – for example, in the trial of Rose West (prosecuted, incidentally, by Brian Leveson when a practising barrister). The response to this argument by lord chief justice Taylor was:
“The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd.”
A similar case was advanced before the trial of Kevin and Ian Maxwell, sons of Robert Maxwell, for conspiracy to defraud. Here Mr Justice Phillips (now Lord Phillips, president of the supreme court) said:
“Our system of criminal justice is founded on the belief that the jury trial provides the fairest and most reliable method of determining whether guilt is established. This belief is based on the premise that the jury will do their best to be true to their oath and to try the case according to the evidence. The ability of the jury to disregard extrinsic material has been repeatedly emphasised by judges of great experience.“
It is worth pointing out that Kevin and Ian Maxwell were both unanimously acquitted at that trial.
David Banks is a journalist, author and media law consultant. His media law consultancy website is here.
This post originally appeared in Guardian Law and is reproduced with permission and thanks.