LAW REPORT v 8 July 1997: Publication of articles was not contempt

Attorney General v Unger & ors; Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Owen) 3 July 1997

Newspaper articles in which an alleged thief was said to have confessed after being caught on videotape, published whilst proceedings against her were still active, did not constitute a contempt of court.

The Divisional Court dismissed contempt proceedings brought against the editor of the Manchester Evening News, its publishers, and the Daily Mail in respect of two newspaper articles published in July 1996, which the Attorney General contended constituted a contempt of court under the strict liability rule. By section 2(2) of the Contempt of Court Act 1981 that rule applies to publications which create "a substantial risk that the course of justice . . . in . . . proceedings . . . will be seriously impeded or prejudiced."

Rabinder Singh (Treasury Solicitor) for the Attorney General; Andrew Caldicott QC (Cobbetts, Manchester) for the first and second respondents; Jonathan Caplan QC (D J Freeman) for the third respondent.

Lord Justice Simon Brown said that the article in the Daily Mail appeared on 10 July 1996 under the headline "The home help who was busy helping herself". It described how the son of an 82-year-old woman had installed a secret video camera in his mother's home to discover who was stealing money from her. He had captured the thief, his mother's home help, twice on video which he had shown to the police.

When confronted by reporters the woman, Mrs Gilluley, had said that she would not be denying the allegations. The article was flanked by two photographs captioned respectively "A video picture of the thief reaching for cash hidden in a fridge" and "Seconds later, she pockets the money". The article in the Manchester Evening News, published on 9 July, was to substantially the same effect.

At the time that the articles were published, proceedings were "active" within the meaning of the 1981 Act: Mrs Gilluley had been arrested on 3 July 1996 and charged with two offences of theft. Having been shown the video she had admitted the first offence, but not the second.

The Daily Mail consulted leading counsel, who advised them that, since Mrs Gilluley had confessed and had in any event been caught "red- handed" on video, there was no substantial risk of prejudice to her case. On 4 September 1996 she pleaded guilty at the magistrates' court to two charges of theft.

The case against the respondents was that as at the date of publication there was a real chance that Mrs Gilluley might have elected trial by jury in which event there was a substantial risk that her trial would have been seriously prejudiced.

The issue to be addressed concerned the relevance of Mrs Gilluley's clear intimation to the respondents that she would be admitting the charges. Counsel's advice to the Daily Mail had been based almost entirely on the fact that she had confessed and had been caught red-handed. Much the same thinking appeared to have coloured the approach of the Manchester Evening News.

That approach was wholly misguided and indeed pernicious. It was not to be assumed that because someone had "confessed" to a crime that they would necessarily plead guilty to it, nor indeed that they necessarily were guilty of it. Still less was it for the newspapers to assess the strength of the evidence against an accused and to second-guess a jury's verdict.

The respondents had submitted that even if the case had ultimately gone for trial before a jury, that trial would not have been compromised by the publication of the articles. It seemed, generally speaking, that unless a publication materially affected the course of trial by causing it to be moved or delayed to minimise prejudice, or necessitated special directions to the jury, or created at the very least a seriously arguable ground of appeal on the basis of prejudice, it was unlikely to be vulnerable to contempt proceedings under the strict liability rule.

In the present case it seemed plain that Mrs Gilluley, had she been convicted by a jury, would not have obtained leave to appeal on the basis of the articles. In the result, the allegation of contempt had not been made good.

Articles such as those under consideration undoubtedly, however, exposed their publishers to a real risk of being found in breach of the strict liability rule. All those, therefore, in the business of crime reporting should recognise that such articles were published at their peril, and should exercise great caution.