Contempt for justice?

PM's comments on the Osnabrück court martial contradict Government actions

The Osnabrück court martial may yet come to vindicate one former Fleet Street editor.

The Osnabrück court martial may yet come to vindicate one former Fleet Street editor. Certainly, it is proving as controversial as its progenitor, the war against Iraq. But whatever the verdict reached by the panel of seven officers on the three men accused of abusing Iraqi prisoners, the trial has already cast in an unfortunate light a less-publicised area of contradiction, concern and, in the layman's sense of the word, contempt. What Osnabrück graphically illustrates is just how arrogant the government is in relation to the law of contempt.

Last week, during Prime Minister's Question Time, Tony Blair lost no time in condemning the photographs of alleged abuse of Iraqi prisoners following Operation Ali Baba. The pictures appear to reveal how British squaddies forced prisoners to simulate oral and anal sex and otherwise humiliated them. Mr Blair denounced the pictures as "shocking and appalling," adding, for good measure, that there were "simply no other words to describe them." Perhaps optimistically, he also said the allegations of abuse should not be allowed to "tarnish the reputation of the British army."

Mr Blair's comments were not greeted enthusiastically by the Judge Advocate presiding over the Osnabrück court martial. Michael Hunter, a civilian judge, promptly urged the government to refrain from making any further statements over the case dubbed as "Britain's Abu Ghraib." Despite acknowledging that there are times when the government has to make a statement on the record, Judge Hunter made a plea that "greater care be taken by those who find it necessary to make public statements, not to say anything that might prejudice the fairness of this trial". Seemingly also falling prey to Mr Blair's optimism, Judge Hunter also suggested that legal advice be taken before any further comments were made about the trial, and even asked that "if possible, no further public statements be made".

Judge Hunter is likely to be disappointed. While the law of contempt of court ­ which aims to avoid the risk of prejudice to legal proceedings caused by media coverage ­ does apply to court martials, there is nothing to restrict public statements about ongoing trials, in the absence of an express reporting restriction imposed by the court. The Osnabrück trial is being conducted largely without any restrictions imposed. This, to many media observers, is commendably in keeping with the British principle of open justice. But the irony of Mr Blair expounding so passionately on a live case is irresistible, given his own Attorney General's attitude to the contempt laws.

Lord Goldsmith, the Attorney General, has spent much of his time moulding the contempt laws after his own restrictive fashion. The media has become accustomed to the flow of letters from the Attorney General's office, as he seeks ­ contrary to his predecessors ­ to give ever more detailed guidance on the law of contempt. He has issued warnings to editors in cases such as the Soham murder trial, and following the arrests of terrorism suspects. Little escapes Lord Goldsmith's forensic glare: he sought also to prevent publication of details of a trial in Holland, for fear of prejudicing the trials of terrorism suspects in England, and felt it necessary to craft another missive to the media after the arrest of a Premiership footballer following an allegation of rape.

The sentiments underlying Lord Goldsmith's regime may have been ignored by Mr Blair in the House of Commons last week, but legislation recently in force highlights just how restrictive court reporting is becoming. There are now "section 46 orders," under the Youth Justice and Criminal Evidence Act 1999, by which the court can prohibit the identification of a witness in a criminal trial if their evidence or co-operation might be diminished "by reason of fear or distress" following identification in the media. The order lasts for the witness's lifetime. Similarly, in employment tribunals orders can be made gagging identification of witnesses if they are likely to be "affected" by allegations of sexual misconduct.

As Joanne Cash, a media barrister at 1 Brick Court chambers, says: "The government has shown an increasing tendency to restrict court reporting. The way that section 46 orders are made, together with gagging orders at employment tribunals, offends one of the cornerstones of our democracy ­ the open justice principle."

This principle says that the public has a right to be informed by the press about proceedings in the courts, and that the courts should make restraining orders sparingly. Cash believes that the pendulum is swinging too far in favour of prior restraint. "Vigilance by the media is more than ever necessary to safeguard those important principles at the heart of our democracy and system of open justice," she says. Where, though, does this leave the Osnabrück court martial? Louis Charalambous, a media lawyer with Simons Muirhead & Burton, says that "the Judge Advocate is right to call for restraint. The defendants are entitled to a fair trial which includes accurate and comment-free reports". And Charalambous draws parallels with the arrest of Lotfi Raissi after September 11th: "He was tried, convicted and executed ­ metaphorically speaking ­ at the outset. There is a danger that defendants never escape the taint in cases of high-profile saturation coverage ­ even if they are acquitted."

Charalambous is, no doubt, right, but in the immediate circumstances of the Osnabrück court-martial, the risk of prejudice appears small. As Nigel Tait, a partner at media specialists Carter-Ruck, says: "In my experience, once a case is underway, juries tend to focus on what's going on in court, even if there has been prejudicial reporting. Here the jury is a panel of serving officers and I would doubt very much whether they will take any notice of what's being said beyond the confines of the court martial."

Whatever the outcome, we will have the memory of the Prime Minister riding roughshod over the contempt laws, and the prospect of warning letters from Mr Blair's own appointee, Lord Goldsmith, in the near future. Given the implications for democracy in Britain, this is a state of affairs every bit as unsavoury as the events that have given rise to the Osnabrück trial.