Anthony Scrivener QC: Publicity may jeopardise fresh trial

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The Independent Online

For many centuries, the law was that a person who was acquitted could not be tried again for the same offence; then came the Criminal Justice Act 2003.

This gave a prosecutor power to quash a person's acquittal and order a retrial. Such an application could be made only with the written consent of the Director of Public Prosecutions and was subject to stringent conditions: the two most important are that it had to concern a serious criminal offence, and the evidence relied upon must not have been available at the time of the first trial.

There was a fierce debate in Parliament about the reversal of the double jeopardy rule but it was argued that it was likely to be invoked only where DNA evidence had become available since the first trial.

So far, the procedure has worked well, and several convictions have been achieved with the help of DNA not available at the first trial. In a week where the Metropolitan Police and its Commissioner have been the subject of much criticism, it is suggested there has been a diversionary leak to the media that this procedure may be used in the case of the Stephen Lawrence suspects.

One factor that the DPP and the court must take into account is whether a fair trial can now be held. There can be no fairness in a media trial. The newspaper can put forward a case in headlines which will attract the attention of millions and the accused has no real chance of challenging it.

As in the present instance having published the accusation in glaring headlines the newspaper will boldly invite the accused to sue for defamation. This invitation is a farce because everybody knows an ordinary person does not have sufficient funds to bring defamation proceedings. The media are free to wage a one-sided war against any accused they choose.

A series of attorney generals has refused to take contempt of court proceedings where there has been adverse publicity against an individual prior to a trial. There has been a reluctance to take on the media.

The courts have provided little assistance, and have consistently held that in such a case it is sufficient for the trial judge to warn the jury to ignore what has appeared in newspapers because everything they read in the newspaper may not be accurate.

There has already been a huge amount of adverse publicity against the suspects in the Stephen Lawrence case. Some newspapers have already drawn attention to the fresh evidence consisting of fibres which have been discovered through a new technique. The usual challenge to sue for defamation has been made by at least one newspaper and we can expect reams of adverse publicity to continue.

The time may have come where the interests of justice demand that there can be no fair trial in the teeth of such extravagant publicity. There is good reason for the Lawrence family to be concerned at this outbreak of publicity, knowing what the consequences could be. The Attorney General must protect the fairness of the trial procedure or we shall be confronted with a new phenomenon, an acquittal by the media where the adverse publicity is held to make a fair trial impossible.