Sunday, January 02, 2011

Molecular chemistry, contempt of court and the reporting of the Joanna Yeates case

Let me introduce you to the optical isomer, also known as a mirror image molecule.
Fascinating things. The one on the left has a sedative, hypnotic and anti-inflammatory effect. The one on the right has a teratogenic effect.

With me so far?

The diagram is the thalidomide molecule. The sedative, hypnotic effect cured the symptoms of morning sickness. The teratogenic molecule - caused birth defects. Both molecules were in the drug given to pregnant women worldwide, causing terrible birth defects in children they were carrying.

The drug caused the death of 100,000 unborn children. The families of the children who survived, some 10,000 globally wanted to know how this had happened and here in the UK some of the families were talking to the Sunday Times Insight team - at the time one of the world's very best investigative journalism teams (sadly disbanded in 2005) The ST started running articles on thalidomide and its manufacturers, Distillers (later acquired by Guinness and now part of Diageo)

Because compensation cases were still being dealt with in courts the ST could not properly investigate the origins and testing of the drug (it had been invented by accident in Germany) The Sunday Times, under the legendary editor Harold Evans decided to challenge the law that was preventing their investigations - common law contempt - which would punish publication of material which was seriously prejudicial to proceedings that were 'pending or imminent.'

They took the case all the way to the European Court of Human Rights, where it was held that UK common law contempt was not in keeping with the UK's oblihations under the European Covention on Human Rights. A country in this position has a choice - either withdraw from the ECHR (and take a seat at the back next to North Korea) or amend the law.

And so, eventually, we got the Contempt of Court Act 1981, which is, in effect, a liberalisation of the law. Gone is the old woolly 'pending or imminent' - now to be in contempt you have to create a substantial risk of serious prejudice or serious impediment to active proceedings. For proceedings to be active an arrest needs to have been made or a warrant issued for someone's arrest. It also includes a defence of discussion of public affairs, to reflect the Sunday Times situation - which means that just because there is an ongoing court case, it does not follow that all discussion of the issues involved in that case is forbidden.

On the downside, it is a strict liability offence, which means that the the prosecution do not have to prove intent on the part of a publisher. So you can't claim that yo accidentally published something prejudicial if you are prosecuted for contempt - you've done the deed, you're guilty. This forces publishers to take care not to publish contempts - you train your reporters, newsdesk, subs (if you've still got them) to know the law and abide by it.

There is also an unlimited fine for contempt of court - which ought to concentrate editors' minds.

It has to be said that since 1981 contempt of court proceedings against newspapers and broadcasters are relatively rare. You have to make some effort to fall foul of it. The Sun managed it when they published the photo of a man accused of murder before he was due to take part in an ID parade, causing the collapse of the case (the ID witnesses could not longer be relied upon to use their memory of the offence when picking a suspect out of the line-up) The Sun was fined £80,000 and Kelvin MacKenzie, its then editor was fined £20,000 personally - this remains the record fine for contempt by publication in the UK.

The Sunday Mirror did it by running an interview with an assault victim's father in the Bowyer and Woodgate trial. The father talked about racist attacks he had suffered when the issue of race had been excluded from trial. This was published during jury deliberations and caused the abandonment of the first trial.

But the Contempt of Court Act was enacted long before the internet was invented. The most powerful media in potentia jurors and witnesses lives were newspapers, TV and radio. The legislators of 1981 cannot possibly have envisaged the effect the internet firstly, and social networks latterly, would have on pre-trial publicity.

Which brings me to the reporting of the Joanna Yeates case. The Attorney General, Dominic Grieve, has warned the media about some of the coverage. Some, it has to be said, has been excessive, and its cumulative effect, some might say, has been prejudicial.

Then we have Twitter and the court of public opinion expressed there, where some are not even in nodding acquaintance with the laws of libel, contempt or any other such constraints. The boyfriend of Ms Yeates criticised the press and internet coverage of the case yesterday.

The difficulty is that Twitter and Facebook simply carry the sort of conversations that might be going on in homes, office and pubs across the UK. But Twitter amplifies these conversations. The only way I can see a Tweet resulting in a contempt action is if it perhaps links to longer prejudicial material and is tweeted or retweeted by someone with significant numbers of followers. Whether the Attorney General wants to take this step of going after Twitterers is another matter. At the moment he seems more concerned with what the mainstream media, especially the redtops, are doing.

I would advise those openly speculating on this case both in mainstream and social media to keep their powder dry. As well as any person's fundamental right to a fair trial I have seen enough criminal trials to know that predicting their outcome on the basis of very preliminary 'evidence' is folly.