A bellyful of contempt

It is time the Attorney General did his job and sent some editors to jail, writes Nick Cohen
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The Independent Online
LAST week was a bad one for Martin Davies, a victim of crime. Mr Davies was the driver hired by Gillian Taylforth, the EastEnders actress, and allegedly beaten up outside her house on Easter Sunday.The newspapers, which profess to be on the victim's side and which howl for more prisons and tougher penalties, wrecked the trial of his alleged assailant. Geoffrey Knights, Ms Taylforth's lover, walked away from charges of grievous bodily harm because, the judge ruled, the "unlawful, misleading, scandalous and malicious" reporting was so prejudiced against Mr Knights that it was unsafe to allow the case to go before jurors.

Abandoned trials are the worst of all possible worlds: the innocent, who could include Mr Knights, do not have the chance to clear their names, and the guilty are left untouched.

The behaviour of the British press in bringing about this state of affairs is all the more remarkable when you consider its coverage of the end of the OJ Simpson trial in Los Angeles, also last week. "America in the dock ... Justice was not served" ran the Daily Mail headlines. But, said Roger Sanders, the judge in the Knights case, one reason why justice could not be served in Britain was that the Mail had run a double-page interview with Miss Taylforth. Mr Knights' previous convictions (which would have been hidden from any jury) were mentioned and the actress gave a graphic description of her side of the story.

The Daily Mirror called the Simpson trial a "circus", the Daily Star said it was a "sick joke". Both were strongly criticised by Judge Sanders, the latter for coverage he described as "complete invention".

Perhaps a fellow journalist shouldn't be too priggish about it all. Viciousness, stupidity and hypocrisy have always been found by the tanker-load in the British press. Tabloids and, indeed, broadsheets will push the law to the limits if they think a rival might steal a competitive advantage.

What is new is that they - we - seem to be getting away with it. If the OJ Simpson trial was indeed a circus, it was largely because America has no strong contempt laws. Journalists can write almost anything they like - and interview almost anyone they like, including witnesses - both before and during a trial. In Britain, contempt laws, backed by the Attorney General's powers to call for the fining of newspapers and jailing of editors, are supposed to ensure fair trials, in which jurors' minds are uncontaminated by preconceptions as to the guilt or innocence of the accused. But the law is being pushed to the limit by British newspapers and the Attorney General is refusing to act.

For the most part, civil liberties campaigners dislike restrictions on press freedom. They tend to regard libel law as a racket for the protection of the shady rich. They hope one day to dance on the grave of the Official Secrets Act. But they still cherish the 1981 Contempt Act, and rightly so.

In some respects, such affection for the contempt laws is strange. They can be and are used by repressive governments, powerful tycoons and incompetent local authorities to stop the reporting of embarrassing material of public interest.

They were used in the mid-1980s to stop newspapers printing details of MI5's illegal activities from Peter Wright's Spycatcher. In the early 1970s, they stopped papers revealing that the Distillers corporation was failing to compensate the victims of its Thalidomide drug. Robert Maxwell obtained gagging orders against anyone who published unfavourable stories about his business interests and threatened them with contempt of court if they repeated the charges. Councils use the courts routinely to prevent journalists covering the cases of children in care who may well be the victims of bureaucratic injustice. A television film about a handicapped child and the treatment she received in a foreign country (made with the full consent of the mother who wants to force more action from British local authorities) has recently been banned because of an old contempt order that prevents the girl being identified.

When it comes to apolitical, adult criminal trials, however, the case for using contempt law has always seemed overwhelming. If you doubt this assertion, imagine we went the way of America and allowed anything newspapers thought was interesting or entertaining to be published before a trial. Do you believe the British press would behave honestly and calmly, without malice or bias? Look out of the window. Is that a pig flying by?

But the battle to preserve uncontaminated juries may be all but lost. Geoffrey Robertson QC, Britain's leading media lawyer, thinks that unless something is done quickly we will have to allow prosecution and defence to vet potential jurors for prejudice, American-style, in the dozen or so cases that attract intense media interest each year. The resulting juries, which will have been the victims of legal nobbling (as each side will try to pack them), will then be kept in a hotel at night and prevented from having any contact with the outside world.

These drastic and dangerous steps - would you want to have your liberty determined by people who don't even read the papers? - would have to be taken not because Parliament or the public has decided to allow the press to run riot, but because the Attorney General, Sir Nicholas Lyell, is simply not using his power to punish newspapers.

There are many examples. Last year the Court of Appeal overturned the murder convictions of the sisters Michelle and Lisa Taylor, jailed after being convicted of killing the wife of Michelle's former lover. "Unremitting, extensive, sensational, inaccurate and misleading'' reporting had prejudiced the case, it said, and added that the Attorney General should prosecute four newspaper editors. He did not. In January, Rosemary West's lawyers said the detailed coverage of the allegations against Frederick West after his suicide prejudiced her trial and that it was the responsibility of Sir Nicholas to take action. But he did not.

Mark Stephens, the Taylor sisters' solicitor who is making an unprecedented attempt to get the House of Lords to force the Attorney General to prosecute editors, said: "Newspaper lawyers have got the message. When there is someone involved in a sensational case or when celebrities like Gillian Taylforth or Bruce Grobelaar are caught up by in the legal system, the press think they can be treated as fair game."

Why is Sir Nicholas so reluctant to act? Because, like all attorney generals, he is both an MP and a lawyer. Somehow, he is meant to separate his legal duty to act in the name of the law from the political imperative to act in the interests of the Conservative government. Sir Nicholas has never been very successful in maintaining these Chinese walls in his mind. He advised ministers to suppress evidence in the Matrix Churchill case which could have led to the defendants, accused of sending arms to Iraq, being acquitted. So it is not at all fanciful for Anthony Scrivener QC, a former chairman of the Bar who speaks for many barristers, to suggest last week that Sir Nicholas's legal laxity flowed from his fear of offending the largely Conservative owners of newspapers by fining them and jailing their editors.

There are three possible responses. First, that Sir Nicholas should go. Perhaps when Lord Scott's inquiry into the Matrix Churchill scandal is published, he will. But although his resignation may finally prove that ministers are accountable for their decisions and will gladden the hearts of many democrats, it will not deal with the fundamental problem. Any future attorney general will also be a party politician making party political decisions about the law, and what is more he is likely to be another mediocrity.

In the 19th and early 20th centuries the best lawyers - the Scriveners and Robertsons - became MPs. Now they do not. This is partly because politicians are becoming professionals who do not or should not have time to nurture a lucrative legal practice by skiving off from their duties as elected members. There is nothing wrong with this modern development - a professional politician is preferable to a part-time lawyer cum part-time MP. But taking a political career seriously does mean that there are no great lawyers left in Parliament on either side who can assume the authoritative role of Attorney General.

This leads us to the second solution - that the Attorney General should be stripped of his exclusive power to bring actions for contempt against the media. Mr Stephens is inviting the law lords to do just that in the case of the Taylor sisters.

If the law lords refuse to contemplate such an attack on the Government's powers, the third and most forlorn hope is that Sir Nicholas will do what he is meant to do and threaten to jail the editors of newspapers which prejudice criminal trials which would otherwise be fair. That's his job. But there is no hint yet, even after the fiasco of the Knights case, that he's up to doing it.