To protect the innocent

Barry George was wrongly convicted in 2001 after the press, with the implicit blessing of the govern

Among the many consequences of Barry George's acquittal, there is one that has been neglected: this remarkable event poses a direct challenge to the government's policy of refusing to enforce the law of contempt of court. More, there are strong grounds to believe that, unless there is a change in that policy, more people will end up in jail as a result of unsafe verdicts. Ministers will try to duck this, but they should not be allowed to.

Why was George convicted, back in 2001? The verdict looked strange to many at the time and has seemed ever odder as the years have passed. The prosecution could offer no motive, no confession, no weapon and no credible modus operandi, while the identification and forensic evidence was wafer thin and George even had a passable alibi. What could have persuaded the jury to convict?

The personal popularity of the victim, Jill Dando, may well have played a part, but if the government's law officers really care about justice they should now be looking hard at another likely factor: that the views of jury members were decisively influenced by what they had read and heard about the defendant in the news media.

It is a simple matter to go back to the newspapers of the year 2000 and examine the coverage of Barry George from 25 May, the day of his arrest, to 28 May, the day he was charged. You find a range of lurid material, most of it prominently displayed, characterising Barry George as a twisted loner and fantasist who posed a threat to women - a perfect fit, in other words, for the suspect the police had declared just a month earlier that they were seeking.

More than that, the tone of the coverage tended strongly to suggest that the year-long hunt for the killer was over. The trial, it must have seemed to many readers, would be a mere formality.

Flick forward now to February 2001 and the formal opening of George's first trial: the words in the papers were more restrained, but the pictures reinforced the same ideas. George appeared in handcuffs, though the jurors would never see him that way. And old photographs of him were printed that again suggested weirdness, even though those images would not form part of the prosecution case.

As recently as ten years ago, most journalists believed this kind of reporting was expressly forbidden under the law of contempt, not least because the government's law officers used to warn them in stark terms that it was. From the moment an arrest warrant is issued, the relevant Act says, no one must publish anything likely to create a substantial risk of serious prejudice.

But things have changed, and the George case was one of the turning points. Such was the excitement at the supposed breakthrough that reporters and editors chanced their luck with risky copy. When they got away with it they chanced their luck a bit further. Eight years on, they have still to find the place where the attorney general will draw the line. Ask Karen Matthews, the mother of Shannon.

The government has a number of excuses for this, of which one is that "substantial" risk of "serious" prejudice is hard to prove. This is pathetic. They aren't even trying, and meanwhile editors are rubbing their eyes in disbelief at what they are suddenly allowed to do.

Another is that the internet makes it all too complicated. This, too, is pathetic: there is a world of difference, in terms of potential prejudice, between offending material that appears on the front of a national newspaper and what is published on the sort of website the government has difficulty calling to account.

A third excuse is that, while newspapers may be a bit reckless at the time of an arrest, memories of what is written have usually faded by the time the case comes before a jury. Now that is marvellously easy to say, providing you are not the person in the dock.

Ask yourself this: if you were facing trial for a serious offence of which you were innocent, which would you prefer: to know that the media had respected your rights under the contempt law at the time of your arrest, or to rely on the members of the jury to forget a lot of sensational innuendo?

Put it another way, if you were the prosecuting barrister, wouldn't it be comforting to know, before the trial has even begun, that the defendant's reputation has been torn to shreds in the press, as Barry George's was?

Excuses aside, the best explanations I can think of for the government's failure to enforce the law are a desire to please editors, and so curry political favour, and a desire to please the police, some of whom chafe at the finicky constraints of contempt law.

Nowhere in the reckoning, so far as I can see, is a desire to protect the innocent - one of the first duties of the government's law officers. It looks very much as though they let Barry George down; how many more must follow?

Brian Cathcart is professor of journalism at Kingston University

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

This article first appeared in the 11 August 2008 issue of the New Statesman, Spies for hire