Page 213 - Law and the Media

Law and the Media
The defendant’s character and record
It is a basic rule of criminal law that a defendant’s bad character or previous convictions
cannot be used against him. Evidence of bad character or previous convictions is only
admissible in exceptional circumstances. Since this rule of evidence would be meaningless
if the jurors or magistrates were to learn of such matters through the media, their publication
usually amounts to contempt.

However, not every derogatory feature about a defendant will create a substantial risk of
serious prejudice. In 1983 the publicity following the arrest of an intruder called Michael
Fagan inside Buckingham Palace led to five national newspapers being charged with
contempt. Stories published in the Sun and the Sunday People alleged that Fagan was a liar and
had been ‘a junkie’. In the circumstances of the case, the court found that the risk of serious
prejudice to Fagan’s trial was not substantial (A-G v Times Newspapers Ltd (1983)).

In 1997 Geoff Knights, the boyfriend of the well-known television actress Gillian Taylforth,
was charged with assault. Shortly thereafter, the Daily Mirror, Daily Star, Sun, Today and Daily
Mail newspapers published articles referring to Knights’ violent past and previous convictions.
The court held that Knights could not have a fair trial, and the criminal proceedings against him
were dropped.

Contempt proceedings were brought against the newspapers. However, the court held that it
was difficult in the circumstances of the case to find that any one of the tabloid headlines had
created a greater risk of serious prejudice because Knights’ criminal past was already public
knowledge as a result of a libel trial brought by Taylforth some months earlier. The court found
that although it had been proper to discontinue the criminal proceedings because Knights could
no longer receive a fair trial, no individual newspaper was guilty of contempt (A-G v MGN
(1997)).

In 1999 the artist Anthony-Noel Kelly was charged with theft of body parts from a hospital,
which he used to make moulds for works of art. During the course of the trial, the Observer
published an article comparing the defendant to well-known mass murderers. Although the
article was a criticism of the work of the defendant, it also amounted to a scathing attack upon
his character. The trial judge held that the article was highly prejudicial. In fact, only one juror
had read the article, and she informed that court that she would disregard it when reaching her
verdict. The Observer was prosecuted for contempt. The court hearing the contempt
proceedings held that there had been a risk of prejudice. However, it took the view, albeit
reluctantly, that there was insufficient evidence to establish a substantial risk of prejudice,
bearing in mind the ‘unusually responsible’ reaction of the juror (A-G v Guardian Newspapers
(1999)).

Although these cases demonstrate that the court may be prepared to interpret the strict liability
rule liberally, the media should think carefully before publishing details of the defendant’s bad
character. Anything that shows he is the type of person who would commit the crime with
which he is charged or suggests he should not be believed is likely to attract a charge of
contempt.
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