Scrutator: Contempt law cloaks guilty

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The Independent Online
THE law is too often a cloak behind which those with power seek to duck responsibility for their actions - or lack of them.

The death of the ultra-litigious Robert Maxwell underlined the ease with which the libel laws could be used by wealthy plaintiffs to intimidate and impede revelations about their wrongdoings.

But there is another way in which 'justice' can be used to cloak misdeeds. The law in question is the law of contempt and ironically it is again Maxwell whose murky goings-on provide a pertinent example.

The theory sounds in the best traditions of British justice. No defendant should come to court and find members of the jury have already made up their mind as to his or her guilt. So a law has developed, the underlying principle of which is that a newspaper may be strung up by its bootlaces if it prints anything which may 'prejudice a fair trial'.

Expressed in this general fashion it sounds fine. But both the principle and the execution are deeply flawed.

Take the notorious Maxwell. As a result of what went on during his lifetime, proceedings have just been instigated against his two sons, Ian and Kevin. Whether or not these particular individuals were culpable, no one doubts that Maxwell was the hub around which a whirlwind of blame revolved, yet numerous individuals not already cited in legal proceedings have now been handed a perfect rebuttal to many enquiries; the law of contempt.

Listen to a sanctimonious- sounding John Major during Question Time in the House of Commons a fortnight ago, explaining why it was impossible to publish a report by the key pensions regulator, the Investment Management Regulatory Organisation, into what happened in relation to the Maxwell pension funds.

'The House will understand it will be essential to ensure that publication does not in any way jeopardise either civil or criminal proceedings in the Maxwell affair,' said the Prime Minister.

Given that proceedings against the Maxwell brothers are likely to take years to complete, by the time the detail is known, interest will have faded and any responsibility of others may be avoided.

The law may say that there should be a 'substantial risk of serious impediment or prejudice' to give rise to contempt proceedings. But in practice, both the courts and journalists interpret this widely to cover the reporting of more than the barest elements of an issue if they touch on a case under way.

Is it really necessary for the conduct of a fair trial that this gag should prevail? Most civil cases are decided by a judge who is deemed capable of clearing his or her mind of anything adverse he or she may have read. The issue of contempt rarely applies.

Are not juries equally capable of putting aside prejudicial facts, whether they be a defendant's class, sex or colour, or unsubstantiated claims in a newspaper? If not, are they capable of the mental gymnastics we require of them during a long and complex trial?

The British have an addiction to secrecy. The sooner the law stops aiding and abetting it the better.