CO/3685/2011
Neutral Citation Number: [2011] EWHC 2383 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  29  July  2011

B e f o r e:

THE  LORD  CHIEF  JUSTICE  OF  ENGLAND  AND  WALES
(Lord Judge)

LORD  JUSTICE  THOMAS

and

MR  JUSTICE  OWEN
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B E T W E E N:

HER  MAJESTY'S  ATTORNEY  GENERAL
	Claimant
and

(1) MGN  LIMITED
(2) NEWS  GROUP  NEWSPAPERS  LIMITED
	Defendants
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Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
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Mr Dominic Grieve QC (Her Majesty's Attorney General)
and Miss Melanie Cumberland
(instructed by the Treasury Solicitor)
appeared on behalf of the Claimant

Mr Jonathan Caplan QC (instructed by Reynolds Porter Chamberlain)
appeared on behalf of the First Defendant

Miss Adrienne Page QC and Mr Anthony Hudson
(instructed by Farrer & Co) appeared on behalf of the Second Defendant
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J U D G M E N T
Friday  29  July  2011

THE LORD CHIEF JUSTICE:
1.  The penalty for both respondents is a fine.  In fixing the fine it is irrelevant that Mr Jefferies has successfully pursued a civil remedy for damages for defamation and that damages have been agreed and that an apology has been and will be made to him.  His claim was unanswerable.

2.  These contempts created substantial risks to the course of justice.  Fortunately, in the end justice was not prejudiced or impeded.  That was simply good fortune.  It had nothing to do with efforts by the two newspapers with which the case is concerned to mitigate the contempts.  It no doubt depended on some further good police work and the acceptance in open court by Tabak of his responsibility for this dreadful crime.

3.  The Contempt of Court Act 1981 is concerned with substantial risks that justice will be impeded or prejudiced.  As we have explained, the concepts are distinct, but in most cases where a trial actually takes place, there is likely to be an overlap.  In the end, in this particular case the risks to justice did not eventuate.

4.  One aggravating feature of these cases is that in a broadcast on 31 December 2010 the Attorney General gave a clear and salutary warning of the risks to the administration of justice.  Unsurprisingly, he did not spell out precisely what coverage might or might not constitute a contempt.  We find it impossible to accept that no one in either newspaper knew that the warning had been given, or failed to understand its terms.  In the end it was decided nonetheless to publish the articles which we have found to constitute a contempt.  That is a significant aggravating feature.

5.  Even now, it is implicit in the submissions certainly by Mr Caplan QC that the coverage proceeded, and was entitled to proceed, on the basis that as a result of the "fade factor" and the robust independence of the juries, virtually anything could be published.  That was, and is, a serious misapprehension.  For the reasons given in the judgment, in every case where an individual has been arrested on suspicion of committing a crime, he must not be vilified.  There is nothing new in that principle.  It is a perfectly simple one.

6.  The issue which must therefore be addressed is the risk to the administration of justice, whether by impeding its proper course, or prejudicing the process.  We do not think that any editor can misunderstand the true position.

7.  The two newspapers are in different positions.  There were two articles in the Daily Mirror and one article in The Sun.  The articles in the Daily Mirror were more extreme, and their combined effect on the risks to justice was therefore greater.  

8.  This case did not involve any guilty plea, or equivalent, or acknowledgement of the contempt by either newspaper.  Even now, it is maintained on behalf of the Daily Mirror that this was an issue which it was entitled to contest.  So it was.  The Sun contested it, but in the light of the judgment that has been given The Sun has offered an apology for what the court has held to be a contempt.

9.  Having reflected on the various different decisions which have been drawn to our attention in the written submissions on both sides, we have come to the conclusion that in relation to the Daily Mirror the fine should be fixed at £50,000.  In relation to The Sun, making an allowance even for the very late apology, the fine will be fixed at £18,000.

10.  The respondents will pay the Attorney General's costs on a standard basis.  They will be shared equally between the two respondents. 

11.  As to the question of an appeal, we take the view that the judgment involved the application of clear statutory language to an unusual factual situation in which a person under arrest has been vilified.  We therefore decline to grant leave.

MR CAPLAN:  My Lord, may I raise one matter?

THE LORD CHIEF JUSTICE:  Yes.

MR CAPLAN:  Under the Administration of Justice Act -- I think it is section 2 -- any application for leave to appeal to the Supreme Court should be made within 28 days of your Lordships refusing an application in this court.  But your Lordships do have the power under section 2(3) to extend the time within which such an application could be made.

THE LORD CHIEF JUSTICE:  Yes.

MR CAPLAN:  Could we respectfully ask your Lordships to agree to extend time to us to make an application on or by 16 September -- that is a further two weeks?

THE LORD CHIEF JUSTICE:  Of course, Mr Caplan.