Speak no evil

Unlike their American counterparts, newspapers, the broadcasting media and individuals in the UK have long been subject to the sub judice rule. Once legal proceedings are instituted, to ensure a fair hearing, press reporting should cease until the trial itself commences. The rule seems eminently sensible, but it has posed considerable problems about freedom of speech.

A week before the general election of 1979, Jeremy Thorpe, on appeal from a decision in the Divisional Court before the Lord Chief Justice, obtained an interlocutory injunction in the Court of Appeal, Lord Denning presiding. It restrained the publication of a fellow parliamentary candidate's election address on the grounds that the manifesto would travel beyond the confines of his north Devon constituency and possibly affect the minds of potential jurors in London. Thorpe had been the member of Parliament for Devon North since 1959, and latterly leader of the Liberal party until 1976 '“ he was being tried for conspiracy to murder his alleged former male lover, Norman Scott, whose dog had been killed in mysterious circumstances earlier on Exmoor. The fellow candidate in question was Auberon Waugh '“ Evelyn Waugh's first son '“ of the Dog-Lovers' party. Thorpe lost his Devon North seat at the election, but was acquitted at the Old Bailey, although a juror subsequently revealed that the jury would have convicted had the police brought lesser charges. Still, his punishment was obscurity and political disgrace thereafter.

Reforming the contempt laws

Sir Harold Evans, former editor of The Sunday Times, campaigned long and hard for reform of the contempt laws. He had good reason to. In Attorney General v Times Newspapers Ltd [1973] QB 710, the government successfully stopped the newspaper publishing its investigations into the thalidomide tragedy to ensure that the manufacturer of the drug, Distillers, was not prejudged in the legal actions it faced for negligence, which dragged on for years.

Two years later, the Phillimore Committee made its recommendations and in 1978 the government issued its reactions in the form of a Green Paper. In 1981, Parliament passed the Contempt of Court Act which very broadly followed Phillimore's recommendations.

The legislation was partly prompted by the fact that in 1979 the European Court of Human Rights decided that the judgment by the House of Lords against The Sunday Times in the thalidomide case, while correct technically in respect of the rules of English law, nonetheless ran counter to article 10 of the European Convention on Human Rights.

The Contempt of Court Act 1981 (sections 1 and 2) makes it an offence to publish material which would create a 'substantial risk' of

serious prejudice to legal proceedings which have already been instituted, that is with an arrest or an issue of a warrant, and in civil cases when the case is set down for trial. It has been held that there must be a notable risk of prejudice, and not merely theoretical (see Attorney General v Guardian Newspapers Ltd [1992] 3 All ER 38). And in 1994 The Mail on Sunday was found to be in contempt under section 8 of the 1981 Act when revealing the deliberations of a jury in a criminal trial (Attorney General v Associated Newspapers [1994] 2 WLR 277).

Discussion of moral issues involved in a forthcoming case would not amount to contempt if the arguments were conducted generally and in 'good faith' and were not actuated by malice. Liability for publication is strict '“ a journalist is still liable even if he did not intend to create a serious prejudice to the course of justice. Liability might be avoided if the innocent publisher can show he had no good reason to suspect that there were active proceedings which would run the risk of contempt.

Competing rights

Publication includes speeches and radio and television broadcasts as well as newspaper articles. Contempt extends to judicial tribunals and all appellate proceedings. Although judges alone try contempt cases, the Attorney General has to give consent for such proceedings to be instituted. The law is now more complex in this area since the passage of the Human Rights Act 1998, with resulting and thus competing rights under the European convention '“ particularly the right to privacy and family life and the right to a fair trial on the one hand, and freedom of speech and expression on the other.

Article 6 of the convention guarantees a right to a fair trial, while articles 8, 9 and 10 are in many ways related provisions and are structurally similar. These articles have caused difficulty for the British courts.

Article 9 covers the right to freedom of thought, conscience and religion and is repeated in effect under section 13 of the 1998 Act, while article 10 states that everyone has the right to freedom of expression, which is repeated under section 12 of the Act.

Article 8 is in effect a law of privacy by the backdoor, as Lord Irvine, the lord chancellor, recognised when the legislation was going through Parliament. But there is still no 'home-grown' domestic law of privacy as such.

Publicity in Payne

So, back to north Devon. In a recent unreported case, R v Payne (2010), the accused was charged with two offences of voyeurism contrary to section 67(1) of the Sexual Offences Act 2003. For sexual gratification, Stephen Payne observed a man doing a private act knowing that he did not consent to being observed, together with the man's young daughter and her friend in an adjoining changing room. The defendant, a keen tennis player, had gone to the steam room in the Barnstaple Leisure Centre for his bad back. He was a local plumber, and in his bag he had various plumbing equipment as well as his swimming gear. Among these was a rear view car mirror which the prosecution alleged was used for sexual observation and gratification in the changing rooms.

It is arguable that sections of the British press border on hysteria when it comes to anything that smacks of sexual perversion or deviation, not least paedophilia. It was perhaps unfortunate that Mr Payne's trial, in Barnstaple Crown Court, took place in April 2010, with all the previous attendant publicity, just at the time the media, and notably but belatedly the BBC, were covering the stories of child abuse in the Irish Republic. Those abuses were covered in immense detail in the Murphy and Daly reports of 2009, to which the Vatican was forced to react in the earlier part of 2010.

Preliminary issues in the Payne case had been heard at Exeter Crown Court but it was decided that the trial should take place some 40 miles away in Barnstaple Crown Court, in Payne's own local area. In fact, Payne lived and worked in Ilfracombe, a now decaying seaside resort with considerable social problems, which in any case has effectively become a suburb of Barnstaple a short distance away. Despite declining local newspaper sales generally, the local paper, the North Devon Journal, is widely read; it covered the case fully in both its Barnstaple and Ilfracombe editions.

The defendant's major difficulty was that he maintained he had been tying his shoelaces and the 'mirror' was really two metal joist plates used for his work. But he also had the rear view mirror. The complaining father summoned the lifeguard of the swimming pool in the leisure centre to observe the use of the mirror, for he had seen reflective lights on a cubicle wall. He said that as soon as Payne came out of the changing cubicle and noticed him, he said: 'It wasn't me, I didn't do it.' The father said: 'I replied to him: 'I saw you looking at my children with a mirror, the police have been called, you should wait here.' [Payne] said: 'I didn't, I didn't' and went to leave. I followed him down the stairs, furious, mouthing expletives and telling him to stay in the leisure centre.'

Later, Payne was followed to the Barnstaple Tennis Centre car park a little distance away and was seen depositing an object in a bush near his van. It was a rear view mirror. Later that day, after the police found Payne in Ilfracombe, he was interviewed at the police station where he denied he had the rear view mirror in the leisure centre, subsequently maintaining that he had panicked over his response.

The jury convicted Payne at his trial in Barnstaple Crown Court in April 2010, and the following month he was sentenced at Exeter Crown Court. Recorder Nicholas Hall fined him £500 and issued a sexual offences prevention order for five years and the accused was made to sign the sex offenders register also for five years. He was forbidden from going to communal or mixed gender changing facilities whether in public or private, and was also forbidden '“ and this seems somewhat superfluous, if only on the grounds of enforceability '“ from taking a mirror into any recreational facility open to the public.

A form of punishment?

His defence counsel, in mitigation, submitted that Payne's business had been badly affected by the publicity about the case in the local media. The recorder noted that he had been a man of hitherto exemplary character, but otherwise would have been considered for a custodial sentence; he also said that he was satisfied that the level of publicity itself was a form of punishment for him.

To what extent, therefore, is bad publicity a form of punishment? Is that and any further punishment disproportionate to a relatively minor crime where no real 'harm' has been done? How can courts at the junior level apply what in essence are conflicting liberties under the Human Rights Act? And where might be the most appropriate vicinity for cases such as Payne to be heard? Should there be guidelines on these matters?

The North Devon Journal, in its editorial of 27 May 2010, was quick to defend the extent of its coverage, emphasising the right to free speech and adding: 'After all, if Payne had not committed the offences he would not have featured in the paper at all.' The front page of the paper's edition of 29 April in its lead story had the headline, 'Used car mirror to watch girls undress'. The headline to another case (at Exeter Crown Court) was relegated to page two, 'Teenagers' savage attack left man for dead, court told'. Are the media always aware of their own need for proportionality?

Thirty years before Payne's trial, the former leader of the Liberal party and MP for Devon North was tried and acquitted in London of conspiracy to murder. His punishment, as stated earlier, was political disgrace. Payne, a mere plumber, was tried locally in north Devon and convicted of a lesser offence, but as a result of his wrong doing his life and career were in tatters in, it might be argued, a different and much harsher way.