LAW: Trial by media: watching for prejudice

After the Geoff Knights fiasco, can we trust the press to allow the accused a fair hearing? After OJ, can we trust the jury?

Strict contempt of court rules are supposed to prevent British justice sliding into US-style "trial by media" where freedom of expression takes precedence even over the right to a fair trial. Some British media lawyers are warning, however, that constant challenges to the limits on what can be reported are threatening the "due process" of the law in this country.

They say the situation is being exacerbated by the failure of the Attorney General to curb increasingly flagrant breaches of the Contempt of Court Act 1981, which bars the publication of material which causes "substantial risk of serious prejudice" to a trial. This applies from the moment of arrest.

The need to balance the rights of a free press with the right of an individual to a fair trial was brought into focus last week with the acquittal of OJ Simpson in California and the collapse here of the case against Geoffrey Knights after the judge ruled "unlawful, misleading, scandalous and malicious" reporting meant he could not get a fair hearing. At the same time, the world's media descended on Winchester for the start of the Rosemary West trial, with journalists reporting for an overseas audience unfettered by the reporting restrictions in place here.

The contempt legislation dates from the early Eighties, when the flow of information could largely be controlled. The development of computer networks and satellite TV news are accentuating concern that the law is lagging behind technology.

Television documentaries pose further challenges to the contempt rules. ITN, for example, plans to screen a live crime documentary called Police Action Live next month showing street brawls and vice squads in action in London, Hampshire and the North. ITN claims a 13-second delay will give it a brief chance to cut potentially prejudicial material, but lawyers have warned that this could be a legal minefield, likely to breach contempt, libel and intrusion laws.

Lawyers will be watching carefully the handling of the Knights case by the Attorney General, Sir Nicholas Lyell. Eight tabloid newspapers were referred for possible contempt proceedings by Judge Roger Sanders. He said that their pre-trial coverage of the charges of wounding with intent against Knights, the boyfriend of the EastEnders actress Gillian Taylforth, amounted to a "hate" campaign. The Solicitor General, Sir Derek Spencer, Sir Nicholas's deputy, ordered a police investigation into claims of "improper collusion" between journalists and some witnesses.

Mark Stephens is a solicitor who represents Michelle and Lisa Taylor, whose murder convictions were quashed by the Court of Appeal partly because of prejudicial newspaper coverage. They areattempting to get the House of Lords to force the Attorney General to prosecute the editors involved.

Mr Stephens says: "The Attorney General is charged with the responsibility of drawing the line between the rights of a free press and the rights of an individual to have a fair trial. But in clear cases of contempt, he hasn't prosecuted. Why? I think it is because he is not prepared to face off the Conservative press. The message he is sending to the media is, 'Coverage of this kind is OK.' So I have some sympathy for them now that he has been politically embarrassed and has given them the rough end of his tongue."

Anthony Scrivener QC, former Bar Council chairman, says: "The current Attorney General has steadfastly refused to take any action against newspapers and they began to think they could get away with anything. In the Knights case, some of them published his previous convictions, which is indefensible."

Mr Scrivener says he is "very pro-press". But the Knights case is "way over the top. I should have thought some swingeing fines against the papers involved may be needed to get back to fairer reporting.

"To have a case which is untriable is almost anarchy. It leaves the person accused in limbo, neither proved innocent nor guilty."

The case astounded media lawyers in Scotland, who said it would not have happened north of the border, where the Lord Advocate, the Scottish equivalent of the Attorney General, was more proactive in monitoring possible contempt and where the courts were strict on pre-trial publicity. Alistair Bonnington, secretary of the Scottish Media Lawyers Society and the BBC's lawyer in Scotland, says: "In that case, we cannot understand why the Attorney General did nothing. Here, if you breach reporting restrictions, you just get told you are going to court.

"The other reason why we would not get into such a mess here is that Scottish law allows the accused person to bring a case of contempt himself.

"It is bizarre that I can advise journalists here on contempt while colleagues in London faced with the same set of circumstances would give different advice. I don't think there is any other statute where one finds this disparity of enforcement."

One of the problems of the Contempt of Court Act 1981 is that it does not allow for the cumulative effect of publicity. The Attorney General has to consider each report individually to see whether he believes it caused a substantial risk of prejudice. This creates a situation where no individual editor or newspaper can be shown to have done wrong, even though their collective behaviour amounted to prejudice.

The issue of whether television cameras should be allowed in British court rooms is also being examined anew. Jonathan Caplan QC, who headed the Bar Council's study on the likely effects of televising trials, says: "The OJ Simpson trial taught a lot of people about the shortcomings of the Californian justice system and it allowed people to follow far more accurately for themselves the strengths and weaknesses of the case. The problem is the debate always centres on sensational cases and never gets broadened out to the vast array of other court business, such as judicial reviews, which is of great public interest."