When they publish, damn them

The tabloids have impaired the ability of the judicial system to dispense justice, says Henry Porter

One aspect of yesterday's coverage of the decision to abandon the trial of Geoff Knights because of wide-ranging press breaches of the contempt law stood out: the rank arrogance of the responses by newspaper editors. When you read Richard Stott, editor of Today, saying that Judge Roger Sanders' remarks were "hysterical", you know that the tabloid press has quite simply lost its ability to function within the law and that the moment for action has arrived.

"If he is saying," blustered Mr Stott, "that nobody can report a crime in case somebody is later charged with it, it is nonsense." Of course Judge Sanders was not saying that. What he did say was that the coverage after Mr Knights had been charged was so damaging to the defendant that it would be impossible for him to receive a fair trial.

Perhaps Mr Stott does not understand the law of contempt, but this seems unlikely. There is very little room for ambivalence in the law: once somebody is charged a newspaper may not publish anything which is likely to affect the course of the trial, and that includes interviews with witnesses and remarks about defendants - or, for that matter, the judge. The point that Mr Stott disingenuously ignores is that the preponderance of prejudicial coverage came after Knights was charged.

Just a few weeks before the committal proceedings Lynda Lee Potter, the Daily Mail's star columnist, published an interview with Mr Knights' girlfriend Gillian Taylforth, who was to be one of the main prosecution witnesses. Other newspapers were just as careless of the law: the Sun, the Daily Express and the Daily Mirror were singled out for referring to allegations against Knights when they knew that a trial date had been set.

In total eight national newspapers were said to have openly flouted the law, which does not suggest a misunderstanding in the newspaper world so much as a tacit conspiracy to erode one of the most important principles in British justice. This issue is not about the freedom to report, it is about the freedom of the judicial system to operate justly and of defendants to be tried in as neutral a climate as possible. There is no public interest principle at stake here - other than the protection of the legal system - and no argument about freedom of speech; just plain and simple law-breaking.

Newspapers are on the whole rather more mindful of the safety of their positions than this behaviour seems to indicate, certainly newspaper lawyers are, and it seems unlikely that these papers would have broken the contempt law if their in-house lawyers had advised that they risked proceedings in doing so. But the lawyers have been reading the signals given out by the Attorney General, Sir Nicholas Lyell, who has shown a distinct reluctance to persecute the tabloids for contempt.

The lawyers must have advised that the risks were slight, and, given the intense competition between tabloids over stories concerning soap stars, the newspapers published, probably drawing a certain comfort from the idea that no Conservative Attorney General would dare to bring proceedings against so many national titles.

It is the scale of the defiance that prompts action against the newspapers now, but it is astonishing that the situation was allowed to get so out of control, for no law officer could possibly fail to see the value of the principle of contempt.

And yet there were these encouraging signals. In 1993 a case against three police officers accused of perjury in the trial of the Birmingham Six collaped because of press coverage, but no action against the newspapers followed. In July Michelle and Lisa Taylor attempted to bring contempt proceedings against the Sun, Daily Mirror, Daily Mail and Daily Express for the prejudicial and sensational reporting of their murder trial three years ago. Their convictions were quashed by the Court of Appeal and they decided to pursue the newspapers responsible for the coverage, but were prevented from doing so by the Soliticor General, who in operating on behalf of Sir Nicholas Lyell's office said that contempt proceedings were "not appropriate".

When the sisters challenged this decision in the High Court the judges backed the law officers, although one did concede that the behaviour of the newspapers had "crossed acceptable limits".

It now appears, however, that the judiciary has become frustrated by the Attorney General's lack of enthusiasm in this area. Anthony Scrivener QC, former chairman of the Bar, said that judges thought the Attorney General had not been doing enough and that his laxity was directly responsible for falling newspaper standards. Clearly Sir Nicholas Lyell could not ignore Judge Sanders' remarks about the press yesterday and ordered the Solictor General, Sir Derek Spencer, to launch an inquiry. If proceedings follow - and we must hope that they do - then the Government must take its share of the blame for the ambiguity of Sir Nicholas's stance. There has been very little in the way of clear guidance in the past three years.

There is one other thing in all of this that should not be forgotten, and that is the increasing recklessness of the tabloid press. This case is not just about the contempt of court; it is about the general contempt for all institutions that exists among the popular newspapers. The success of the newspapers in exposing so many members of the political and judicial establishment these past years has meant that an understandable reluctance to offend the press has grown up within the establishment.

One must not accuse Sir Nicholas of bringing the next election into his considerations, but there are people in government who allow it to enter their calculations, and this is quite simply wrong.

There can be no doubt, when you hear editors like Mr Stott speaking, that newspapers today have a much greater sense of their own power than they did five years ago: they have taken on the highest in the land - royalty, judges, cabinet ministers, air vice marshalls - and they have usually won. And during this time there has, it seems, been very little to restrain them or to cause them to reconsider their behaviour.

This is an extremely unhealthy situation, and if you want to see where it leads, you have only to look to the United States, where television has acquired very much the same sort of pre-eminence as the tabloids have in Britain.

American television made the trial of OJ Simpson a farce, which is exactly what the tabloids did to the case of Geoff Knights. It is a development that should not go unchecked.