The Divisional Court refused an application by the Attorney General under section 2 of the Contempt Court Act in respect of an article published in the Observer newspaper.
Anthony-Noel Kelly was an artist who had used body parts acquired from the Royal College of Surgeons to make casts which he then exhibited. He and an accomplice were subsequently tried for theft of the body parts. The prosecution case had been completed and defence submissions made by 27 March 1998. The only issue which the jury had to consider was whether it had been proved that either defendant had been dishonest.
On 29 March 1998 the Observer published in its review section a full page article headlined in bold type: "This bust was cast from a decaying corpse. Whose work does it most resemble: Damien Hirst's or Jeffrey Dahmer's?" The article compared Kelly's use of dead body parts more to the obsession with dead bodies and their parts displayed by serial killers such as Dennis Nilson and Jeffrey Dahmer than to the use of the dead body by artists.
The following day, enquiries revealed that only one of the jurors in Kelly's trial had read the article. The judge's immediate reaction, having read the article, was that he would accede to any application to discharge the jury. When the juror was questioned, she said that she would be able to put the article from her mind and promised not to mention its contents to any of her fellow jurors. No application was made to discharge either the one juror or all the jury, and in due course the judge directed the jury as to their approach to press or media comment on the case. The defendants were convicted.
The Attorney General brought an application against the respondent under the strict liability rule in section 2 of the Contempt of Court Act 1981. The test for strict liability was set out in section 2(2), i.e. "the strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced".
Philip Havers QC (Treasury Solicitor) for the Attorney General; Andrew Nicol QC (Lovell White Durrant) for the newspaper.
Lord Justice Sedley said that the single standard to be applied in considering prejudice in the context both of contempt applications and criminal appeals was that of a substantial risk of prejudicing the fairness of a criminal trial. The self- evident difference was that the risk had ordinarily to be gauged prospectively in a contempt case, without regard to the outcome of the trial, but retrospectively in a criminal appeal, where ex hypothesi there had been a conviction.
If an appeal on the ground of prejudice would fail, the publisher should not be guilty of contempt. The prospective risk of serious prejudice could not be greater that the actual possibility, in the assumed situation, that it had occurred.
That formulation looked to the existence of grounds for allowing or dismissing an appeal against conviction rather than for granting or refusing leave to appeal. That was because, the test on appeal now being the safety of the conviction (under s 2(1) of the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995), any substantial risk that a conviction had been contributed to by a prejudicial publication would ordinarily make it unsafe. To reduce that threshold to the leave stage, requiring only an arguable case of risk, might be to set the threshold of contempt unduly low.
In the present case, the risk created by the publication had undoubtedly been one of serious prejudice to the course of justice, but it was simply not possible to be sure that it was a substantial risk.