Publication by a newspaper of an article, arising out of an investigation by one of its reporters whom it must have been realised would be a witness at the subsequent trial, asserting that named persons were guilty of criminal offences and referring to their criminal backgrounds, was a contempt of court. The reporter should not, however, have been cross-examined about his conduct in relation to the article upon an application to stay the criminal proceedings.
The Divisional Court allowed the Attorney General's application under the Contempt of Court Act 1981 in relation to an article published in the News of the World on 11 September 1994, but found that there had been no contempt in the publication of an article in the same newpaper on 27 August 1995.
David Pannick QC and Mark Shaw (Treasury Solicitor) for the Attorney General; Andrew Caldecott QC (Farrers) for the respondents.
Lord Justice Pill said that the Attorney General had submitted that, applying the strict liability rule in section 2(2) of the Contempt of Court Act 1981, both articles created a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced.
The first application was based on an article entitled "We smash pounds 100m fake cash ring". Magher Mahmood, a News of the World reporter, had uncovered a large-scale conspiracy to distribute counterfeit money allegedly involving Tony Hassan and Anthony Caldori. He had told the police of his investigations. The newspaper having indicated that they intended to publish their investigations on 11 September, the police arrested Hassan and Caldori on 10 September.
The article constituted a detailed description of the investigations. It was submitted by the Attorney General that it described the alleged conspiracy as established fact. It also referred to the defendants' criminal records. When the case came on for trial on 24 July 1995, counsel for the defendants had successfully applied to the trial judge for a stay of the proceedings because of prejudice allegedly caused by the article.
The court's task was not to consider how other courts might react to the existence of the publication, but to form its own view as to whether the criteria laid down by section 2(2) had been satisfied.
The publication in relation to Hassan and Caldori had beyond doubt constituted a contempt of court under the strict liability rule. The article was well designed to make a big impact on the reader, and the portrayal of the men as career criminals was very likely to be remembered as a feature of it. It must have been realised by the respondents at the time of publication that Mr Mahmood would be a witness at the trial, which would increase the risk of a juror who had read the article remembering parts of its contents not admissible in evidence.
It followed that the judge had been correct to not to allow the trial to proceed. The effect upon the administration of justice had been very serious, and the newspaper would be fined pounds 50,000.
The respondents had expressed concern at the procedure followed upon the application for a stay. Mr Mahmood, having expected to be a prosecution witness in a trial, had found himself without warning cross-examined at length by defence counsel about his entire conduct in relation to the article.
That procedure had been unfair and irregular. Mr Mahmood should have been warned against self-incrimination, and should have been offered the opportunity to obtain legal advice and representation. Above all, the questioning could not have assisted the judge in deciding whether a fair trial was possible.
The second application concerned an article published in the News of the World on 27 August 1995 under the headline "New terror gang take on Triad thugs". Several of the features of the first article were either not present or were present to a more limited extent. There had been no contempt of court under the strict liability rule in that case.
Kate O'Hanlon, Barrister