Courting trouble?

Picture exclusive: The Daily Mirror story from May 18

The storm surrounding the Daily Mirror’s publication of fake pictures of Iraqi prisoners being abused by British soldiers cost editor Piers Morgan his job.

Its on-the-scene report and pictures of the arrest of seven members of a gang involved in an attempted £100m gold bullion raid at Heathrow airport last month was a more successful exclusive.

The Daily Mirror’s photographer had been promised access to the Flying Squad’s “next big job” after an earlier surveillance operation fell through.

It is unusual for a newspaper to have such striking images of an arrest, so much so that some have questioned whether, in publishing such photographs and details of the foiled raid, the paper might have been courting problems with the law of contempt.

The fact that the police had presumably expressed no reservations about publishing would certainly be encouraging to the Daily Mirror’s lawyers.

Advisors might have been inclined to take a less robust approach had they given more weight to comments made in the divisional court in the 1977 case of AG-v-Unger.

That case concerned newspaper articles in the Manchester Evening News and the Daily Mail about a home help who had been caught red-handed stealing money by a concealed video camera.

The newspapers explained in their defence that they had interviewed the home help and that she had said that she would be pleading guilty.

On this basis they had been advised by their lawyers that it was safe to publish.

Although the editors were found not guilty of contempt as the risk of prejudice was light, it was held that the home help’s declaration that she would plead guilty was of limited substance.

Lord Justice Simon Brown warned the media that they should not take the view that, because a person was caught red-handed, there was no possibility of a not guilty plea being entered at trial.

In a case involving a regional newspaper recently, a judge expressed concern about the publication of pictures of defendants being brought to court in handcuffs. In that case it was suggested there were potentially issues of identification.

In the case of the Heathrow arrests, not unless the Daily Mirror had been the victim of a hoax more elaborate than the Iraq torture pictures, could the pictures reveal anything other than those who had been arrested at the scene.

It might be possible that one or more of those arrested will claim they were coerced into taking part in the raid or were the victims of entrapment, but even such defences would not be prejudiced by the photographs.

So if the pictures are highly unlikely to give rise to “a substantial risk of serious prejudice”, as required by the Contempt of Court Act, what about the words? Certainly the description of the raid was detailed and striking. The men arrested were variously described as the “gold bullion raiders” and “gun raiders”.

It was said they had been “masked and armed with pistols, metal truncheons, razor-edged box cutters and even a hockey stick”.

Again, no defence could conceivably be prejudiced, so long as there could be no argument about the weaponry and equipment masked men had available.

One must not forget the remarks of Mr Justice Lawton in a trial of a criminal of more than a little notoriety in 1969. In R-v-Kray he said: “…the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before.”

He added: “I have enough confidence in my fellow countrymen to think that they have got newspapers sized up and they are capable, in normal circumstances, of looking at the matter fairly and without prejudice, even though they have to disregard what they may have read in a newspaper.”

Nicholas Alway is a partner in the media department of Farrer & Co

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