The two newspapers fined for contempt of court over their coverage of the arrest of Christopher Jefferies by police investigating the death of landscape architect Joanna Yeates are to appeal to the Supreme Court.
The Daily Mirror was fined £50,000 and The Sun £18,000 after the Divisional Court – Lord Judge, the Lord Chief Justice, Lord Justice Thomas and Mr Justice Owen – found that articles in the Daily Mirror on 31 December and 1 January and in The Sun on 1 January were contempt.
One Daily Mirror front page carried the headline “Jo Suspect is Peeping Tom” beneath a photograph of Jefferies, and another front-page headline read “Was Killer Waiting In Jo’s Flat?”, with sub-headings below reading “Police seize bedding for tests” and “Landlord held until Tuesday”.
The Sun’s front-page headline read “Obsessed By Death”, next to a photograph of Jefferies, and below the words: “Jo Suspect ‘Scared Kids'”.
The Divisional Court’s finding of contempt came on the same day Jefferies collected “very substantial” libel damages from a total of eight newspapers over their coverage following his arrest.
Some sources have indicated that he could have won something approaching £500,000 in total from the publishers of The Sun, Daily Mirror, Sunday Mirror, Daily Mail, Daily Record, Daily Express, Daily Star and Scotsman.
The newspapers are expected to challenge the Court’s finding that the coverage in both newspapers “impeded” the course of justice in the proceedings because the articles had the effect of “vilifying” Mr Jefferies.
Lord Judge said: “At common law material which would deter a witness from coming forward to give evidence was capable of constituting contempt of court.”
He then went on: “In our judgment, as a matter of principle, the vilification of a suspect under arrest readily falls within the protective ambit of section 2(2) of the Act as a potential impediment to the course of justice.
“At the simplest level publication of such material may deter or discourage witnesses from coming forward and providing information helpful to the suspect, which may, (depending on the circumstances) help immediately to clear him of suspicion or enable his defence to be fully developed at trial.
“This may arise, for example, because witnesses may be reluctant to be associated with or perceived to be a supporter of the suspect, or, again, because they may begin to doubt whether information apparently favourable to the suspect could possibly be correct.
“Adverse publicity may impede the course of justice in a variety of different ways, but in the context we are now considering, it is not an answer that on the evidence actually available, the combination of the directions of the judge and the integrity of the jury would ensure a fair trial. The problem is that the evidence at trial may be incomplete just because its existence may never be known, or indeed may only come to light after conviction.”
The newspapers are expected to argue that this conclusion is little more than supposition or inference, because the Attorney General, Dominic Grieve QC, failed to produce any evidence to show that any witness or potential witness was deterred from coming forward.
They will point out that there has been no evidence to suggest that witnesses have failed to come forward to assist either the prosecution or defence in other high-profile cases.
The second leg of the appeal is expected to be based on what the newspapers will argue was the Divisional Court’s failure to give sufficient weight to the so-called “fade factor” in considering whether the coverage could have caused a substantial risk of serious prejudice to any proceedings.
Jefferies, who was Ms Yeates’ landlord, was arrested on 30 December last year on suspicion of her murder, released from custody on unconditional police bail on the evening of 1 January, and finally released from police bail on 4 March.
No charges were ever brought – and, as the Divisional Court made clear, he was an innocent man.
But the newspapers will argue that the Divisional Court’s approach failed to take into account the fact that, had there been a trial, it would not have taken place at least until the October following Jefferies’ arrest – a 10-month gap during which the coverage would have been forgotten.
In addition, they will argue that the courts have accepted that jurors can be relied on to follow a trial judge’s directions, and that the process of the trial itself has the effect of involving jurors to the extent that potential external influences are effectively neutralised.
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