Legal Affairs Correspondent
Lawyers believe that the Geoffrey Knights case - abandoned by a judge because of pre-trial stories in newspapers - will lead to a redefinition of the law on contempt.
Eight newspapers have been referred to the Attorney General, Sir Nicholas Lyell, by Judge Roger Sanders, for publishing various stories about Mr Knights after the case had started. If the Attorney General decides to prosecute any or all of the eight, it will set new case law.
The contempt laws are apparently clear - there must be no publication of material which causes a "substantial risk of serious prejudice" to a trial. This applies from the moment of arrest. Unlimited fines and imprisonment of editors are the possible punishments.
But the words "substantial" and "serious" are the sort which lawyers will take as a licence to argue about definition. A cautious lawyer can use the Act to say nothing may appear; a bullish one that almost nothing would stop a jury weighing up the evidence fairly.
Sir Nicholas is aware of the two sides. "There is a careful balance to be struck between two public interests - the interest of free speech, and the interest in a free trial," he said yesterday.
In other countries, even with a similar legal tradition, judges put freedom of speech much higher. Some states in America, including California, take it to the extreme where freedom of speech is absolute and juries have to be locked away from television and newspapers.
Sir Nicholas, during a interview on BBC Radio 4's Today programme yesterday, hinted that he was among those lawyers who see this as a test case provoked by what is thought to be the first case of adverse publicity alone causing a judge to halt a trial.
The Attorney General said he would review all the articles. "We shall examine those carefully and then we shall write to the editors concerned asking them any reason why the matter should not be referred to the Divisional Court as a potential criminal contempt. We shall then decide whether to refer [any] to the court. It is my job as attorney general to enforce the law firmly but fairly."
On one level Sir Nicholas was doing no more than explaining his position in law. But he will have to make a public ruling on specific alleged abuses of process which between them cover most of the possibilities.
Between them the tabloid newspapers are accused of influencing the jury with varying degrees of blatancy from detailing previous convictions to interviewing witnesses and giving detailed and wrong accounts of the alleged crime.
The first level of new guidelines will come from the alleged breaches Sir Nicholas decides to refer. The second will come from the case law set down in the High Court's verdicts. Sir Nicholas said: "If the court finds the newspapers have broken the law or committed a criminal contempt, they will give such punishment as they see fit."
If he refers none, it is giving editors virtual carte blanche to push the boundaries towards greater freedom of speech.
Newspapers rely on a judgment by Lord Denning in 1977, which was bullish about the resilience of juries which he thought took very little notice of what appeared in newspapers. Those editors and newspapers who have commented on the Knights ruling have all said they will argue their articles did not jeopardise a fair trial.
Charles Collier-Wright, legal manager of Mirror Group Newspapers, which owns three of the titles accused of contempt, did not accept that newspapers were deliberately risking prejudicing a jury, although they might be publishing more background information now than in the past.
Yesterday, the Daily Mirror published interviews with Mr Knights and the man he had been charged with attacking, but stressed both had been interviewed after the case ended.
While it must be tempting for the Attorney General to try to shift the boundaries back, he will be aware there is a danger in defining the law too tightly.Reuse content