Respect for Contempt?: keeping speech free and trials fair

Following the failure of the jury to reach verdicts on some of the charges in the airlines liquid bomb plot there has been much media comment on the rights and wrongs of the outcome. This is interesting because, of course, the prosecution is still considering whether to pursue the case before a reconstituted jury. Thus, for the time being the matter remains 'active' for the purposes of the Contempt of Court Act 1981, and hence putatively sub judice.

In light of the media publicity, and the seemingly sanguine response of the Attorney General's Department, there has been an exchange of views between leading lawyers and the current Attorney General - Baroness Scotland - in the letters pages of The Times. Alun Jones QC asked "has the law of contempt ceased to apply to the media?... The times have gone when the Attorney-General enforced the law of contempt effectively. If she does not do so, what is the point of it?".

In response, Baroness Scotland explained that "the law on contempt involves a delicate balance between two vital public interests — on the one hand freedom of speech and of expression, and on the other hand the right of an accused person to a fair trial. Not every public comment about a particular case, however outspoken, will seriously interfere with the rights of the accused... Journalists and commentators should be in no doubt that I will continue to enforce the law on contempt fairly and robustly".

The upshot for journalists and editors is that the law and practice engenders something of a grey area in which the legality of stories - or perhaps the susceptibility to prosecution - is indeterminate.

From our perspective, its a timely re-emergence of a long-standing debate. Next month, the LSE Law Department - together with the BBC College of Journalism and Polis - is to host a public panel debate on the theme. The evening's discussion will be chaired by Maxine Mawhinney of BBC News 24, who was herself embroiled in the problems created for journalists by the current law during the breaking of the Suffolk Strangler story. Broadly speaking, Joshua Rozenburg (Legal Affairs editor at the Telegraph) and Mark Haslam (partner at BCL Burton Copeland who represented Steve Wright in the Suffolk murders case) will speak in favour of media caution, while Jonathan Kotler (US Attorney, and Professor at the USC Annenburg School of Journalism) and Nick Davies (Guardian, and author of Flat Earth News) will question the utility of the current regulatory regime.

We are preparing a set of background papers in support of this and a second event. These cover the current law in England and Wales, equivalent regulation in comparable jurisdictions, the state of the social-scientific evidence on the impact of media publicity on the fairness of trials, and an options paper. We're looking into how best to make this material more widely available.