The Spectator and the jury

A clear breach of the law does not mean that the law was right to begin with.

Rod Liddle was an idiot to seek to publish an article which anyone with the slightest  knowledge of media law would tell you risked a prosecution for contempt.   Whoever at the Spectator took the decision to publish the article was an even greater idiot.  For, as Brian Cathcart rightly points out, the publication posed a genuine threat to a trial which Stephen Lawrence’s family and many others had worked so hard to achieve.  In the end the Spectator was prosecuted for a breach of a specific court order rather than under the general law of contempt; but either sanction would have applied in this situation.


I am afraid there is a but, for as stupid as the Spectator and Liddle were in publishing the article, it does not make the general law of contempt - which polices publicity in criminal proceedings - correct.  A trial is a matter of public importance; and so in a free society, journalists and the public should be able to discuss the case in court in open and robust terms.  An exception to this should be when such exercises of free speech undermine that other great liberal value of a right to a fair trial.

And here lies a significant problem.  For whilst judges and lay magistrates can, it seems, be trusted to block out adverse publicity when there is a case before them to adjudicate, such respect is not accorded to juries.  Indeed, the law of England and Wales is extremely paternalistic in respect of juries, and often jurors themselves will be punished for seeking further information on the trials on which they have to decide.  Some may say that such protection is unrealistic and ask if the worldliness of jurors is not wanted then why do we have juries in the first place.  On the other hand, however, any defendant should be allowed to answer only the case put against them in court.  It would be wrong for a defendant’s fate to be based on something on which they have not had an opportunity to make a case (and this applies to justices of the Supreme Court in the Julian Assange appeal as much as any hapless juror caught surfing the internet).

Furthermore, the general  law of contempt serves a useful service in regulating the conduct of the press when someone is arrested or charged.  It is not perfect, as the examples of Christopher Jefferies and Robert Murat demonstrate; but it is likely that such prejudicial coverage would be worse if there was no enforcement of contempt law at all.  If we lost the law of contempt generally then the monsterings of suspects would face no real check.

But the paternalistic attitude towards jurors is also creating artificial situations.  The last decade or so has seen it possible for anyone to publish on the internet.  It has also made it possible for jurors to research at ease, regardless of their clear duties to the court.   It is not enough for the law to pretend this will not happen, even if it continues to punish severely those jurors who transgress.

How the competing rights to free expression and to a fair trial should balance is a difficult, if not impossible, question to answer satisfactorily.  Neither liberal principle will always trump the other.  The courts therefore need to find a sensible approach which accords with the habits and expectations of the citizens who will serve as jurors, and those who will discuss live cases using social media.

Just because Liddle and the Spectator should have known better on this occasion, it does not make the general law relating to discussing and reporting cases in the news appropriate in all circumstances.  Justice and free speech are two pillars supporting a free society, and we need to soon work out a way that they do not readily collide.


David Allen Green is legal correspondent of the New Statesman

The Spectator magazine, of which Rod Liddle is an associate editor and columnist.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Grant Shapps on the campaign trail. Photo: Getty
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Grant Shapps resigns over Tory youth wing bullying scandal

The minister, formerly party chairman, has resigned over allegations of bullying and blackmail made against a Tory activist. 

Grant Shapps, who was a key figure in the Tory general election campaign, has resigned following allegations about a bullying scandal among Conservative activists.

Shapps was formerly party chairman, but was demoted to international development minister after May. His formal statement is expected shortly.

The resignation follows lurid claims about bullying and blackmail among Tory activists. One, Mark Clarke, has been accused of putting pressure on a fellow activist who complained about his behaviour to withdraw the allegation. The complainant, Elliot Johnson, later killed himself.

The junior Treasury minister Robert Halfon also revealed that he had an affair with a young activist after being warned that Clarke planned to blackmail him over the relationship. Former Tory chair Sayeedi Warsi says that she was targeted by Clarke on Twitter, where he tried to portray her as an anti-semite. 

Shapps appointed Mark Clarke to run RoadTrip 2015, where young Tory activists toured key marginals on a bus before the general election. 

Today, the Guardian published an emotional interview with the parents of 21-year-old Elliot Johnson, the activist who killed himself, in which they called for Shapps to consider his position. Ray Johnson also spoke to BBC's Newsnight:


The Johnson family claimed that Shapps and co-chair Andrew Feldman had failed to act on complaints made against Clarke. Feldman says he did not hear of the bullying claims until August. 

Asked about the case at a conference in Malta, David Cameron pointedly refused to offer Shapps his full backing, saying a statement would be released. “I think it is important that on the tragic case that took place that the coroner’s inquiry is allowed to proceed properly," he added. “I feel deeply for his parents, It is an appalling loss to suffer and that is why it is so important there is a proper coroner’s inquiry. In terms of what the Conservative party should do, there should be and there is a proper inquiry that asks all the questions as people come forward. That will take place. It is a tragic loss of a talented young life and it is not something any parent should go through and I feel for them deeply.” 

Mark Clarke denies any wrongdoing.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.