by David Banks
The testimony by the Met’s Deputy Assistant Commissioner, Sue Akers, at the Leveson inquiry raises two questions – was she in contempt and if she was, can journalists facing possible trials expect a fair hearing?
One does not necessarily follow from the other if we look at past cases. Just because a journalist published something which caused a substantial risk of serious prejudice, that did not mean that the trial affected was abandoned.
Sometimes cases have been relocated, or delayed, but the courts have only very rarely accepted that prejudicial material in the media has rendered a fair trial impossible and therefore dropped the case entirely.
One only has to think of some of the high-profile cases in recent years to realise just what judges feel jurors are capable of ignoring when they come to weigh up the evidence in the case. Rose West, Harold Shipman, Huntley and Carr – all cases that were accompanied with reporting beforehand that played fast and loose with the laws of contempt, yet when it came to trial, not only were there no prosecutions of papers, the trials went ahead as if nothing had happened.
Even when a trial is brought to a shuddering halt by prejudicial publicity, it does not follow that the defendant can never have a fair trial. The case of footballers Lee Bowyer and Jonathan Woodgate for example – derailed by the Sunday Mirror running an interview with the victim’s father as the jury were deliberating, but heard in another court at a later date rather than being abandoned altogether.
This view of the robust juror, capable of ignoring prejudicial newspaper material, goes back a long way. In the trial of the Kray twins, the judge said that jurors have got the press weighed up, and the effect of a trial meant they would set aside what they had read before and focus on the evidence alone.
Of course, at the time of the reign of the Kray twins there was less media out there to influence a juror. However, it could be argued that the multiplicity of outlets now dilutes the effect of an offending article in any one publication.
Then there is the question of whether Sue Akers testimony actually amounted to serious prejudice. She talked of a network of corrupt contacts that NI journalists had fostered at the Met. Any prosecution for this will have to show times, places and people who have been corrupted and exactly how that happened, beyond reasonable doubt.
For this to amount to a contempt, what Akers said would have to amount to a substantial risk that any juror at any subsequent trial would be incapable of viewing the evidence fairly and, because of what she said, would have been seriously prejudiced in their view of any evidence. I am not sure that what she said could be said to have that effect.
Of course then there is the cumulative effect of all the testimony to consider. That one piece of testimony at Leveson does not amount to a substantial risk of serious prejudice, but the body of evidence taken together does. This was one of the grounds for the quashing of the conviction of the Michelle and Lisa Taylor, jailed for the murder of Alison Shaughnessy in 1992.
It does not take a particularly well-developed sense of irony to raise an eyebrow at tabloid journalists using arguments about contempt of court first raised in cases their papers were guilty of prejudicing.
They are suggesting that their characters have been traduced in the way that, say Chris Jefferies was by the same papers when he was arrested, but later released without charge, during the investigation into the murder of Joanna Yeates.
The present situation and previous contempts do not equate. The level of detail, prejudicial material and circumstance, are not there in the reporting of Operation Weeting and Operation Elveden.
One hesitates in second guessing an Attorney General like Dominic Grieve who has been so aggressive in prosecuting contempt cases, but in these cases I do not believe the test for contempt has been satisfied… just yet.