A law the government is subverting

Instead of enforcing the Contempt of Court Act and protecting defendants from trial by headline, min

Imagine you are a judge about to try a man for an appalling crime and you know that at the time of his arrest the press published front-page stories portraying him as a monster, stories that were shocking but unproven. You have a choice: you can abort the trial on the grounds that it will be impossible to find a jury that is not prejudiced against the defendant, or you can simply tell the jury to put what they have read out of their minds and carry on.

The first option would eliminate the risk of a tainted verdict, but it would also be unsatisfactory and unpopular. The evidence would remain unheard and untested, justice would not be done and you might well face a lynch mob outside. It is the second option you choose, because judges always do. Prosecutions go ahead because it has become axiomatic in English courts that, no matter how lurid the stories in the papers have been, juries can be trusted to leave them out of their considerations.

I can't help feeling there is wishful thinking here, and that in reality there are cases where press coverage does influence verdicts. If that's true we shouldn't blame the judges or the journalists. We must blame the government.

Perfectly good legislation exists to prevent the press publishing inflammatory material about people arrested for crimes, but the government's law officers can't make up their minds whether to enforce it. The case of the recent Ipswich murders was only the latest in which reporters trained in the letter of the Contempt of Court Act have been amazed at what they were allowed to get away with. The act is falling into disrepute.

Now, however, somebody is proposing to do something about it and that somebody is, mirabile dictu, the government's chief law officer, Lord Goldsmith. Needless to say, his ideas and motives are not what they seem.

His plan, trailed in a speech at the Reform Club, does not involve the most obvious step: making it clear that from now on the law will be enforced. This might not be popular with journalists and editors and there would inevitably be lapses, but it would be accepted and it would be good for justice.

Lord Goldsmith doesn't want to enforce the law; he wants to weaken it. So he proposes instead a study of how far jurors are really influenced by press reports, and says similar studies in Australia and Canada have suggested it is not really a problem.

It is hard to argue against such an investigation here, but even if it reached the same conclusion, what difference would that make? Would it be an argument for allowing the press to report what it liked, up to and during a trial? Surely no one would want that. We would still need to draw a line beyond which reporting was restricted, and my guess is that we would end up drawing it exactly where it is supposed to be now: at the point of arrest.

But this is a distraction. Lord Goldsmith's anxieties about the Contempt of Court Act have their source, not in concerns about the good administration of justice, but in the police and MI5. His Reform Club speech echoed in important ways views expressed by Peter Clarke, head of anti-terrorism at the Metropolitan Police.

Clarke believes that the act undermines confidence in the police by obscuring both the scale of the terrorist threat and the scale of police success in meeting it. Delays in bringing suspects to trial mean the public is left in the dark, and even when there have been convictions the story often can't be told because the details of one trial might prejudice another trial that has yet to be held.

Surely, Clarke argues (and the Attorney General agrees), it would be in the public interest for selected information to be put in the public domain in a controlled way - which the act currently prevents.

Up to a point, Lord Goldsmith. Frustrating as it may be for the police, this law, like so many others the government does not like, is there to protect the innocent. It is meant to ensure that defendants, even those accused of terrorism, are not convicted by headlines. Please, just enforce it.

The Britney effect

Do come in. Sit down over there, make yourself comfortable and tell me what seems to be the problem. You're a psychologist? That's fine, we all need help sometimes. And you're feeling upset because . . .? When Britney cut all her hair off you were phoned by a reporter and you declared that she was deeply troubled and it was a cry for help. I see. And that was printed in the paper for millions to read. Right. With your name on it. Uh-huh. And why does that make you unhappy? Because Britney suddenly seems fine and the papers say she looks "sexy" (the Sun), "stunning" (the Star) and "wonderful" (the Sun again). But isn't that good news? Oh, you feel a bit of a mug now. I see. Used and duped by the celebrity PR machine. Of course you do. Yes, you go ahead and have a good cry. Here, take a hanky.

Brian Cathcart is professor of journalism at Kingston University

Brian Cathcart is Director of Hacked Off. He tweets as @BrianCathcart.