An article has been published in the New Yorker about the trial of Lucy Letby. It has been geoblocked in the UK, but it can still be accessed by some, or read in print copies of the US magazine. It has been raised in parliament, written up by news providers and discussed on social media. I shouldn’t link to it, describe its contents or tell you anything else about it.
By the letter of the law, I also shouldn’t give you more specific detail about why I shouldn’t give you more specific detail, except to say that Letby has a retrial on one charge of attempted murder scheduled for June. But I can at least tell you about the law in England and Wales that has created this surreal situation: the Contempt of Court Act 1981.
You will be familiar with the laudable concept behind this law, which exists to stop anything that will prejudice a court case and prevent a fair trial. That might mean sanctions for unruly behaviour in court, or for refusing to answer questions as a witness – or, as in this case, it might mean the publication of information that has not been part of the evidence presented to a jury. The legal test for the media is whether the publication creates “a substantial risk of serious prejudice”.
In 1981, that was pretty easy to adjudicate. I will not be the first to tell you that there was no internet back then, and certainly no social media. Publication generally meant TV or radio news bulletins and articles in newspapers or magazines available where the trial was being held from the time that a suspect was arrested or charged.
That looks like a charmingly quaint framework in 2024, when jurors in high-profile cases can access global archives of journalistic material with a few taps on their phones – as well as any number of snarky judgments on a defendant’s suspicious demeanour from anonymous social-media users.
The result is that a framework intended to insulate juries from undue influence can instead create chaos: news providers standing well back or barging over the line depending on mercenary risk-benefit analyses, international publishers running pieces that would be slam-dunk breaches if they were British, and a tombola of prejudicial posts online from people who really ought to know better. A personal hobby of mine is watching celebrities and journalists tweet hot-headed takes on court cases and guessing how long it will be until they are deleted.
The ironic result of all this is that irresponsible coverage is sometimes easier to bump into than the other kind. If a law causes such predictable bedlam, we ought to at least know that it’s achieving what it’s supposed to – but the truth is that how all of this plays out with juries is anybody’s guess. In any contest that pits the law against reality, the law is going to lose.
In fairness, there have been attempts to catch up with the ways the world has changed, such as making juror research a criminal offence, and a campaign seeking to make people aware of the legal risks of posting prejudicial information on social media.
But these are patchwork solutions to a much deeper problem. Two years ago, the Law Commission announced a major review of the whole sphere of contempt, saying that the regime “is often disordered and unclear”. You might think that Richard Danbury, a lawyer and investigative journalist, had a point when he warned in a Reuters Institute report that “because the internet is outside the jurisdiction of the court, easily searchable and historical in nature, the law of contempt risks becoming unenforceable”. But surely someone should have figured out a solution by now: he wrote that in 2007.
Meanwhile, it now takes an average of more than 300 days from the time of charge to the completion of a case, and if an arrest is publicly known the contempt clock starts even earlier. Last year, astonishingly, the attorney general, Victoria Prentis, even warned that coverage of allegations against Russell Brand could amount to contempt even though no arrest had taken place.
For many high-profile cases, the period of purdah will be longer still, meaning that matters of obvious public interest may be shielded from investigative journalism for years – a serious blow to prosecutorial accountability. (Reporters may also be contending with the UK’s almost uniquely onerous privacy and defamation laws.) And because none of this is ever really explained – because doing so will quite often increase the risk of contempt – a space opens up for conspiratorial suspicions that the mainstream media’s reticence is an establishment stitch-up.
That isn’t true, but there is a kind of self-censorship at play. Because the law doesn’t set out exactly what is or isn’t allowed – it will vary in each case – but relies on interpretation of that broad definition, a “substantial risk of serious prejudice”, many news organisations will be squeamish about those judgments when the penalty for getting it wrong might be an unlimited fine, the collapse of a trial and even, theoretically, the imprisonment of the editor. That is the definition of a chilling effect.
If it feels vaguely distasteful to even raise these questions, that is probably because the contempt law is so venerable, and the right to a fair trial so prized as a democratic necessity. But the law’s age is exactly the problem, and many countries seem to think they manage to treat court cases fairly without placing such draconian restrictions on the press. Americans, who revere free speech almost as much as they do their enormous fridges, think all of this is insane. We might be happy to avoid the wall-to-wall speculation that accompanies any prominent criminal case in the US. But there is a whole universe of options beyond this binary. It seems parochial not to at least entertain the possibility that we could do things better.
There is no appetite for a wholesale revolution in contempt law, and the Law Commission will not be recommending one. Still, it should think about some significant changes that could maintain the fundamental purpose of the law and mitigate some of the accompanying chaos. The law could kick in at the start of a trial, or when a date is announced, instead of at the time of arrest. The threshold could be raised from “substantial” risk to “very high”. And we might adopt a feature of the US system by routinely questioning jurors about their news consumption and social-media habits, and rooting out those who seem likely to be amateur detectives.
In the meantime, we will maintain the curious legal fiction that articles such as the one that prompted all of this don’t exist, but also shouldn’t be read. When will the archaic system that underpins all this finally get an upgrade? Well, the Law Commission’s review has already been delayed by more than a year. So I shouldn’t tell you that, either.
Archie Bland is the editor of the Guardian’s First Edition newsletter
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