The High Court recently gave the go-ahead to the attorney general, Lord Goldsmith, to launch proceedings for contempt of court against the publisher of the Daily Star.
The newspaper had revealed the identities of two footballers (Newcastle United defender Titus Bramble and Chelsea’s Carlton Cole), who were arrested after a teenager alleged she was raped at the Grosvenor House Hotel on London’s Park Lane.
The Crown Prosecution Service decided not to prosecute the footballers (and two other men interviewed) on the basis that there was insufficient evidence to prove that the complainant did not consent to sex.
Lots of newspapers had covered the story, but the Daily Star and its then editor Peter Hill were singled out because it had run an article when the question of identification was an issue.
The attorney general’s counsel argued before the court that the Star article “created a substantial risk that the Court of Justice would be seriously impeded or prejudiced”. Leave from the court is required to prosecute – a valuable safeguard against any over-eager attorney generals.
As all journalists know, contempt of court is a “strict liability” offence. The editor’s intention when he published the article is irrelevant. The players had been arrested so proceedings were active under the Contempt of Court Act 1981. If the newspaper has created a substantial risk of serious prejudice then it can be given a significant fine (the Sunday Mirror received a fine of £75,000 plus costs for a report towards the end of the trial of Leeds United footballers Lee Bowyer and Jonathan Woodgate) or an editor can be jailed (which has not happened in England for generations of editors). “Substantial” sounds like a high threshold, but it just means “real risk” in practice (not an imagined one).
If identification is an issue (usually visual identification, but it could be a name) then the police can set up an identification parade. This becomes pointless if those being asked to identify an alleged criminal have seen his photograph in the papers in the hours or days before.
The Daily Star might appear to be on a bit of a sticky wicket, but the attorney general should remember that particular newspaper’s impressive track record when it comes to skirting contempt.
In 1983, the Daily Star was found culpable over its reporting of the arrest and background of Michael Fagin, who broke into Buckingham Palace and chatted to the Queen, but it escaped penalties while The Sunday Times was fined £1,000.
In 1996, the court was invited to fine the Star, and other newspapers, after the trial judge stopped the prosecution of Geoff Knights, then boyfriend of EastEnders actress Gillian Taylforth (now ironically, in Footballers’ Wives). Judge Roger Sanders halted the trial on the basis that coverage had been “unlawful, misleading, scandalous and malicious” and “so unfair, outrageous and oppressive” that Knights, who had a chequered past, could not have had a fair trial. However, the High Court dismissed the attorney general’s claim and the newspapers went unpunished.
But the newspapers’ reporting of the footballers’ sexual antics may prejudice a free press in a less expected way: the Home Office and Conservative Party still want men accused of rape to have their identity concealed until the time they are charged (and some Tories want a ban until conviction). If Labour objections are swamped, this could put a real brake on the media’s ability to report the antics of those whom we pay to play the beautiful game.
Duncan Lamont is a partner in the media group of city solicitors Charles Russell
by Duncan Lamont