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The Contempt of Court Act of 1981 prohibits all but the most straightforward reporting in a crime case from the moment “proceedings are active”, in other words once someone is arrested. The idea is to ensure that coverage does not interfere with the course of justice, for instance by prejudicing the eventual jury. But for years, when a big, competitive story came along, many editors and reporters in national media simply ignored the Act and continued to publish often grotesque allegations about a suspect after arrest and even sometimes after they were charged. Think Colin Stagg, Barry George, Karen Matthews and others — and Stagg and George were later shown to be innocent.

That may be about to change thanks to the actions of the attorney-general, Dominic Grieve. Not normally a man to cut the figure of a hero — a lean, bookish type, he was last seen filibustering awkwardly in the Commons when the government was under pressure over its links with the Murdochs — Grieve has done something genuinely brave. He has prosecuted the Daily Mirror and the Sun for contempt of court in the Chris Jefferies case, and he has won.

The consequences could be significant. Not only might future reporting of crime be more restrained, but we could even see fewer miscarriages of justice. I reported the first trial of Barry George for the murder of Jill Dando in 2002 and I am convinced that his wrongful conviction was partly due to the influence on the jury of the grossly prejudicial press reporting about him after his arrest. George spent seven years in jail before the conviction was overturned.

Chris Jefferies, you may remember, is the retired teacher in Bristol who was monstered by the tabloids before and after his arrest in January in connection with the Joanna Yeates murder, and who turned out to be totally innocent. (Another man confessed to the killing.) On the morning of 28 July, in what is becoming a familiar ritual in our courts, eight newspapers serially confessed to libelling Jefferies and agreed to pay him substantial damages.

On the afternoon of the same day, however, something much less familiar happened: the Lord Chief Justice, Lord Judge, and two other judges found the Mirror and the Sun guilty of contempt of court. They upheld Grieve’s argument that, by publishing “exceptionally adverse and hostile” articles about Jefferies while he was in custody, the papers had breached section 2 (2) of the Act, which makes unlawful any publication about an individual who is under arrest “which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

In a way, what is surprising here is not that a contempt prosecution happened and succeeded, but that it was necessary at all. The law is reasonably clear, after all, and is very well known to journalists. The problem has been that Grieve’s predecessors, most recently Baroness Scotland and Lord Goldsmith, failed to show the press that they would uphold it. The rarity of prosecutions, despite apparently flagrant breaches in high-profile cases, led editors to behave as though the Act was a dead letter and they could do what they liked.

Grieve therefore deserves credit for taking on the tabloids where his predecessors would not, and it is worth noting that he did so before the revelation that Milly Dowler’s phone had been hacked, and thus before these papers lost a lot of their bullying power. He didn’t kick them when they were down, in other words; he kicked them when they were still up.

Grieve has to share the credit, however, with the judges, who were placed in a tight corner by this case and who found an ingenious way out. For as long as the press has flouted the contempt law, judges have been finding excuses to try the victims anyway. When a trial begins and the defence claims it can’t be fair because their client has already been brutally convicted in the press, judges have developed a list of arguments to justifying carrying on regardless. Here is what they say. Jury members don’t remember the adverse reporting by the time the trial comes around (the “fade factor”), they know to concentrate on what is said in court (the “focus factor”) and they heed the instructions of judges to ignore extraneous matters. These arguments are entirely unsupported by evidence but they have had the merit, from the judges’ point of view, that important trials don’t have to be abandoned because of the excesses of the tabloids.

However, in the brief trial of the Sun and the Mirror, the judges found these arguments turned back on them. In effect the papers said: “If, when trials begin, you judges always insist that hostile reporting at the time of arrest doesn’t make a difference, then you can’t turn around now and say the opposite. It follows that whatever we wrote about Chris Jefferies at the time of his arrest, no matter how hostile, can’t now be described as prejudicial or even potentially prejudicial.”

It was a tricky problem for the judges and they simply side-stepped it, finding the Mirror and the Sun guilty on other, rather creative grounds. The Act speaks of publication “which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. The judges avoided saying that in the Jefferies case potential proceedings might have been prejudiced; instead they concluded that they could have been impeded.

What this means is that they decided Jefferies had been painted in such an appalling light by these papers that if he had been charged he would have found it more difficult to construct a defence. Witnesses in his support, for example, might have decided not to come forward, either because they feared association with this supposedly monstrous person or because they believed his conviction was a foregone conclusion.

Both papers were undoubtedly surprised by this ingenious judgement — and the attorney-general probably was too. The point about “impedence” had not been prominent in the case he put forward in court — it was fourth on a list of five arguments and was presented rather tersely. Indeed he felt the need to reassure the judges it was not just a “makeweight” in his case.

The Mirror was fined £50,000 for contempt and the Sun £18,000. They were refused permission to appeal, though according to Jefferies’s solicitor, Louis Charalambous, they are considering petitioning the Supreme Court. On the whole it seems unlikely that a considered finding by the Lord Chief Justice and two other judges will be overturned.

Where does this leave us? Contempt law is back on the editors’ radar at a time when, with Lord Leveson’s inquiry beginning its investigation of press standards, those editors must already be minding their Ps and Qs. It might be argued that the fines were small — papers pay much more in libel damages and generally go on to libel again — but Grieve has put down an important marker and is free to use the impedance argument again if he wishes. If papers don’t heed this warning, moreover, he has it in his power to crank things up, notably by citing not only the newspaper but also the editor in person in a future case. That might concentrate minds.

We will have to wait and see, but there is a strong chance that in future sensational criminal cases we will see a return to what used to happen, generally, 20 years ago and more. So long as no one is in custody, papers will remain free to report what they choose (consistent with the libel laws), but from the moment proceedings are active, in other words normally from the moment someone is arrested, they must show restraint. And the same law applies to online reporting, bloggers and tweeters.

It is, without doubt, a constraint on free expression, and an important one. But it is surely better than locking up innocent people because, in effect, journalists don’t like the look of them.

Brian Cathcart teaches journalism at Kingston University London and is a founder of Hacked Off. He tweets at @BrianCathcart

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Sometimes, as in the case of Jefferies, the attorney general publicly draws editors’ attention to the Contempt of Court Act of 1981, but it never makes any difference. They know and he knows that that law, supposedly intended to protect juries from improper influence, contains a loophole big enough to render it meaningless.

To convict a paper of contempt in such a case the Crown would have to prove there had been a “substantial” risk of “serious” prejudice. This, successive attorneys general have decided, is both unmeasurable and unprovable, which means it is also unenforceable. It follows that reporting of suspects around the time of arrest is unfettered.

Several defences are normally offered for this miserable state of affairs. One is that jurors don’t tend to remember what they have read in the press at the time of arrest or charging. Another is that juries heed the instructions they receive from judges to put such matters out of their minds. And a third is that there is no hard evidence juries are influenced by press coverage.

The feebleness of all this is demonstrated by a simple question: if you were a defence barrister going into a trial, would you be more confident if your client’s name had never appeared in the press, or if he had received the full-on sick-weirdo-loner treatment accorded to, say, Barry George? I followed the George case from beginning to end, and for what it is worth there is no doubt in my mind that prejudicial press reporting was one of the reasons he was wrongly convicted of the murder of Jill Dando.

One reason nothing has been done about this is that the status quo, ugly as it is, favours prosecutors and with them the state and the police. Imagine it was the other way around, and that pre-trial reporting in some way tended to make convictions in high-profile cases harder to achieve, rather than easier: how long do you think the 1981 Act would remain as it is?

But this is, as I mentioned, an old argument, and events are conspiring to make it an out-of-date one. Nothing said on either side of the contempt debate has much meaning when jurors have it in their power to research defendants and cases online from their phones at court or from their laptops and PCs at home in the evenings.

This means that they can access not only press reporting but blogs, tweets, Facebook pages and all sorts of data, public and sometimes otherwise. A defendant’s criminal record, or his opinions, or the opinions of others about him, may be available. The same applies to information about victims, and about witnesses, including expert witnesses.

Thanks to the internet, in fact, the whole idea of inadmissible evidence will be hopelessly compromised because, whatever is out there, jurors will be able to read it, just as they will be able to Google all that prejudicial press coverage from the time of arrest.

On this basis anyone convicted of a crime once (or even charged) will be more likely to be convicted a second time, whatever the evidence. Even prosecutors and attorneys general know that: it’s why previous convictions are not normally disclosed in court today. So, more innocent people will be convicted and more guilty people will go unpunished.

If you are a judge or an attorney general you would now point out that jurors are warned in the strongest terms not to research cases online, and indeed that they are prosecuted if caught doing so. But this is no more enforceable than the present contempt law: it is simply not possible to deny jurors access to the internet for the duration of a trial, and once they are online no force on Earth will prevent them, or at least many of them, from indulging their curiosity about the cases they are trying.

Again, the test is a simple question: if you were a defendant, would you trust the jury to obey the judge’s instruction not to Google your name? Of course you wouldn’t. How many of us would trust ourselves not to do it?

This problem is so big and so scary — it calls into question jury trial itself — that we may rest assured nothing will be done about it until the present system is utterly and publicly discredited. And in the meantime, when the tabloids pick a sensational case, they will continue to abuse suspects or potential suspects to their hearts’ content.

Brian Cathcart is professor of journalism at Kingston University.
Follow him on Twitter: @briancathcart

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The law to protect the secrets of the jury room was enshrined in statute in section 8 of the Contempt of Court Act 1981. The idea was to protect jurors from being identified, so that they could not be blackmailed or bribed; and so they would feel free to express their opinions frankly when the verdict was under discussion and not fear subsequent dislosure by a fellow juror. Anything less than full and frank discussion would, it was said, impede the proper administration of justice.

But the Act casts its net widely, making it a criminal offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations in any legal proceedings.”

Even when it was debated in Parliament, both Lord Mackay of Clashfern, then Lord Advocate (and later Lord Chancellor), and the then Lord Chancellor, Lord Hailsham of St Marylebone, argued aginst it. The former said that “the jury system, great institution that it is, surely can stand up to properly conducted research”; while the latter added that he would not vote for “a new criminal offence which is to my mind thoroughly bad because it is too draconian.”

Yet the law was passed. Sir Michael Havers, then Attorney General, relaxed the position in 1982. In guidelines set out to the Sunday Times, he drew up an extensive list of information that might be obtained from jurors and, with impunity, be publicised. In practice, too, prosecutions under the Act have been extremely rare.

But the recent ruling in May by the Divisional Court in a case against a juror and Times Newspapers made clear that section 8, in its strictest interpretation, is alive and well. Lord Pannick QC, in The Times law pages, condemned the scope and application of section 8 as “absurdly wide”. The offence was an absolute one: the section did not require the newspaper to prove that its disclosures had damaged the administration of justice (nor could it have done, he adds). Nor does section 8 allow for a public interest defence. If it did, The Times could have “had a strong case” for arguing that any such damage was outweighed by the contribution made by the article to a debate on a matter of public concern: namely, how juries assess expert medical evidence in cases of alleged child cruelty.

As applied by the Divisional Court, he concluded, section 8 “is an embarrassment to the legal system”. Even though there is no “conceivable” damage to the administration of justice, and no naming of any juror, the court has punished publication of information in an important matter of public interest.

Other lawyers have voiced similar views. Mark Stephens, head of media law at Finers Stephens Innocent, has described the decision to prosecute “in a genuine case of conscience” as “surely a retrograde step” and the conviction (The Times was fined £15,000 and the juror £500) “disquieting”, if only “for its failure to address the balance necessary between Article 10 of the Human Rights Act (the juror’s right to speak) and Article 6 (the right to a fair trial).

Gary Slapper, professor of law at the Open University, has said there is now a “compelling argument to change the law”. He said: “The jury is probably a very good institution but we do not really know how it works and it is preposterous in 2009 for the law to be keeping its operation sealed off from investigation.”

Transparency is now all the cry — and should apply, with appropriate safeguards, where possible to the justice system as much as to the political one. As Professor Slapper put it: “We no longer accept that important parts of government should be operated on blind trust and in dark secrecy. We have a Freedom of Information Act and we expect openness in all parts of the justice system unless there is some compelling reason — like national defence secrets — to stop something being open to all.”

The jury remains an important feature of our democracy. With something that important, he said, we need to know how it works. Section 8 is an anachronistic law — and urgently needs reform.

Frances Gibb is legal editor of The Times

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