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