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Wednesday, 11 April, 2001, 08:30 GMT 09:30 UK
Top media lawyer Mark Stephens quizzed

The collapse of a high-profile jury trial has re-opened the issue of how far tabloid newspapers should be allowed to go in the reporting of court cases.

Leeds United footballers Lee Bowyer and Jonathan Woodgate denied charges of assault and affray against an Asian student.

But the trial was halted when the judge ruled that the publication of an article in the Sunday Mirror newspaper could unfairly prejudice the jury.

Top media lawyer Mark Stephens took your questions on the fall-out from the trial's collapse.


To watch coverage of the forum, select the link below:

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Transcript:


Matthew, London, UK:

How can a newspaper report prejudice a trial now and yet not prejudice it at a later date? Surely the huge publicity surrounding the case would mean that the two footballers and the other two who face charges would be unable to get a fair trial anywhere? Can you explain how the legal argument would show that these four men could get a fair trial even after all this adverse publicity?


Mark Stephens:

What one has to remember is that the jury had retired - the jury were actively twenty one hours into considering their verdict and in those circumstances it really is the most sensitive moment of a trial and any conviction that had followed that would have clearly been unsafe and unsatisfactory. The judge couldn't have relied on it and therefore he had no alternative but to discharge the jury.

But as to the second part of that in relation to why won't it affect it in several months time - of course by October, when the trial is rescheduled, this will have paled in the memory. The sorts of things that were covered in the paper have been covered over the last 48 hours, I think were the sort of things that people won't recall anymore - they won't be able to recall the detail and certainly won't be able to recall once they have heard barristers' cross-examination of sixty witnesses, perhaps the judge's summing up and so on and in those circumstances, I think, they can get a fair trial at that sort of distance.


Newshost:

Bearing that in mind though, one thing that arises from that is surely if a jury is always told to listen to the evidence and ignore anything else they may read, see, hear or anything that their friends or relatives might say. Why could they not have been told, even if you have read this offending article, put it out of your minds, you have heard the evidence over so many weeks, just carry on with your deliberations and ignore it.


Mark Stephens:

One of the problems is that there was more than one juror who had seen it, but also prejudice is an insidious thing. You don't know quite often when you were being prejudiced subliminally. I think it is for those sorts of reasons that you couldn't be completely satisfied, and I think you must be completely satisfied, that the verdict had been achieved fairly and for that reason it was important that the judge did discharge the jury on this occasion.


R A Baker, Eindhoven, Netherlands:

Is this not a test for the jury system itself? If one trusts the twelve to come to a just verdict, one must have faith in their ability to put such stories into the right context. Is it not the case that high court judges have ruled in the past that juries have sufficient intelligence to be able to put press coverage out of their mind?


Mark Stephens:

Yes they can put it out of their mind but they can only do that when they are directed to do so once the case is on-going and they actually put it into a proper perspective. You may come into a courtroom, you may have read information about a case but once you have actually heard it in some detail, then in those circumstances it is very likely that your focus will be on the judge's direction as opposed to any other extraneous information. But once you are considering the verdict and you get information from the outside - information you shouldn't have - then in those circumstances any verdict is going to be unsafe and unsatisfactory.


Newshost:

So if it had happened before a judge had summed up to the jury then that might have been OK and he could have addressed that but at this late stage in deliberations - that is the key to this.


Mark Stephens:

I think that is right.


Ed Howson, London, UK:

Wouldn't it make sense to place juries of such high profile cases in isolation, as they do in the US?


Newshost:

This is a point that is very interesting to me because I remember in most circumstances in days past juries were always sent to the hotel for the night or over a weekend if they failed to reach a verdict - they are not now. Why is that the case and is there an argument now for returning to the old practice?


Mark Stephens:

Of course they used to be sequestered in hotels. In the O J Simpson case in America, we saw jurors being sequestered for literally months on end with the newspapers being cut out so that they didn't see articles about the case. I think the idea was that you saved money if you didn't put jurors in hotels. Of course in one case like this means that 8 million goes down the drain overnight and you could buy an awful lot of hotel rooms for that sort of money. I think that probably we ought to be reconsidering right now, urgently, whether or not jurors should be sequestered - especially in high profile cases. In the ordinary run-of-the-mill cases it probably doesn't matter quite so much but in a high profile case that is really going to attract publicity then you perhaps ought to sequester the jury.


Newshost:

Because presumably as soon as you go home, if overnight, but even more so in the case of a whole weekend, it is very difficult to remove yourself from any publicity or any comments that friends or relatives might make to you.


Mark Stephens:

Even if you are not actively out there seeking information or discussing it with your family - if people know that your are involved in a high profile trial, it is just natural that people will comment to you or make comments to you about that trial. Whilst one hopes that jurors puts those sorts of things out of their minds, and I am sure they usually do, perhaps it would be better if they didn't have that temptation.


Chloe Drew, Leeds, England:

Would the jury have been told to avoid reading newspaper articles concerning the case? If they were, is there an argument that on seeing the article they should have simply ignored it and closed the paper?


Mark Stephens:

I don't think that they were warned in this particular case. Whether that sort of warning could come in the future is perhaps something that could be considered by judges in high profile cases.


Newshost:

It is done sometimes though isn't it?


Mark Stephens:

It is done on occasions but it is not a common practice by any means. But I think that most jurors are interested and curious about the way in which their cases are reported. I have been in a number of cases where jurors have actually walked into court with all seven newspapers tucked under their arm and it was clear that they were reading them. So I think one has to be fairly realistic about this.


Newshost:

And possibly lessons to be learned?


Mark Stephens:

Certainly lessons to be learned in those sorts of situations and I think the perfect counsel is of course to any juror, just close the newspaper if you see something about your case.


Newshost:

I. Stokes, London and Nick from Manchester were among many who wanted to know what could happen to the editor of the Sunday Mirror? Also under the law of contempt is it possible to recover the costs of the court case - we have said it is some 8 million or is a fine the only remedy?


Mark Stephens:

Sadly the costs are literally thrown away - they go to your and my tax bill. They can't be recovered against the Sunday Mirror or indeed anybody else. As regards the contempt proceedings that may be brought if the Attorney-General thinks it is appropriate - in those circumstances the two things that could happen to the editor of the Mirror are that he could go to prison if they really thought that he done this in a cynical and calculating way and the newspaper could be levied with up to an unlimited amount in fines. I think in reality we are likely to see that fine to be somewhere in the region of 10,000 - 50,000 if it was a genuine error and up to 100,000 if there was some culpability involved.


Daniel Wolfe, Melbourne, Australia:

The courts have shown great reluctance to jail editors and journalists who cause trials to be abandoned through publication of prejudicial articles. What factors do you think should or should not result in a custodial sentence for such behaviour?


Mark Stephens:

The last time an editor was incarcerated was in 1949 so I don't think that Colin Myler, the editor of the Sunday Mirror, has got much to worry about on that score - except if anyone persuades the court that Colin Myler deliberately set out to cock a snook at the judiciary deliberately to cause some prejudice to the trial, and there is no suggestion that that is the case, but if that were the situation then I think he would find himself in jail pretty damn quickly.


Newshost:

But presumably you can be prosecuted for contempt in these circumstances regardless of intent?


Mark Stephens:

I think that is right. The problem of course is that the Attorney-General has to give his permission and he is always dealt with it on the basis that if there is no real culpability or it was a genuine accident, then in those circumstances he tends not to allow the Director of Public Prosecutions to take a prosecution. What happens is - and it is almost unique in English law - that in order to commence contempt proceedings of this kind the Attorney-General himself must give permission before they can begin and he usually writes to the newspaper and says in advance - please tell me why this happens because I am considering whether or not to allow a prosecution against you - and at that point of course, the newspaper has the opportunity to say - it was all an error, this it is what happened and explain the circumstances and then of course the Attorney-General makes an appropriate decision.


Newshost:

It is fair to say that in many situations the Attorney-General does not authorise a prosecution even when a trial judge for example has said there was a clear contempt.


Mark Stephens:

That is right. Historically, certainly under the Conservative Government - and I don't think this is particularly party political, but certainly under the Conservative regime, the Attorney General invariably didn't prosecute and was considered fairly weak on this issue. This is of course is the first real test of the Labour Government - it will be very interesting to see the way in which Lord Williams of Mostyn who is the current Attorney-General responds to this particular case.


Paul Cooper, Cambridge, UK:

Why should we allow publication of any aspect of a trial while it is in court? Surely, the logical stance would be either to allow all material to be published or none. The present "you can publish, but if you get it wrong you'll be in trouble" doesn't help anyone.


Mark Stephens:

I think there is two opportunities being put there. Thankfully we have a free press in this country and I think it is important that we should know what is going on in our courts and therefore court reporting should be undertaken and it usually undertaken by skilled people who have been doing it for many years and understand the rules. It is only on occasions that these kind of slips occur and when they do occur they are very high profile and people get a lot of egg on their faces but that is one of the reasons it doesn't happen very often.

The sort of American approach where we have no contempt rule at all - you can publish anything you like - I think results in the person with the biggest PR budget tending to win the case and I think that is probably not in the interests of justice ultimately.

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10 Apr 01 | UK
Footballers face retrial


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