Was Sue Akers in contempt at the Leveson Inquiry?

Posted: March 13, 2012 at 4:16 pm

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.

David Banks is a journalist, media law consultant and author. He tweets at @dbanksy

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  1. Mikey

    Let me spell out what people I know already think. The Leveson Enquiry is the best that We,The People are ever going to get. A grand washing of nastily stained linen is substitute for due process at law.

    Who, seriously, thought that all these nasty little people would ever see jail? The great and the ghastly have always go away with what We, The People are punished for – because they have m o n e y.. A bully is a person or faction that expects you to keep to rules they disdain – and society is full of them.

    For sanity’s sake, remember two things:

    1. These grubby little people have now been exposed – and it’s up to us, now, NOT to buy their flithy wares, and to jeer them wherever they go

    2. They kid themselves that they are in charge; even money is not in charge – the universe is even bigger than human egos

    ……….unless, of course, you want to be a bully, too.

  2. David Banks

    That’s an ‘interesting’ theory Referee.

    But to conduct a major criminal inquiry and then abandon all potential trials stemming from it because of a public inquiry which has been careful not to delve into matters which might come before the courts would be so unprecedented as to be incredible.

  3. Graeme Ford

    Sue Akers and the body that is Operation Weeting must have been invited to make a contribution when they did, i.e. before mostly retired Met Officers gave theirs. How do you describe proceedings ommitting an ongoing investigation, the contribution of which sounds more like “where the evidence has taken them” than previously stated? It was Brookes’ legal team who raised the question of prejudice, and only after Akers’ statement. They must have known she was going to appear, but their protestations bare little of principle.

  4. Referee

    If major players like Rebekkah Brooks have now been arrested and released without charge, in her case twice, the thought is beginning to surface that she and all the other suspects may never actually walk into the dock. And another awful thought is beginning to nag away (excuse the pun)…..namely that David Cameron deliberately set up the Leveson inquiry to run concurrently with the police investigation precisely in order to facilitate that result on the grounds the contempt argument would prejudice a fair trial.