It was a routine briefing on board Air Force One en route to Iowa for another stop on George Bush’s campaign trail. The White House official spokesman, Scott McClellan, described an ‘alarming picture’ of al-Qaeda threats – and how they related to the arrest in Pakistan of an alleged al-Qaeda operative supposedly plotting against America.
McClellan insisted he could not discuss the arrests that day of 13 terror suspects in Britain. But not everyone was so discreet. Over the next few days, anonymous officials in the US and Pakistan obligingly joined up the dots, unleashing a stream of information about an alleged breakthrough against al-Qaeda connected with the raids. It was all faithfully reported in British newspapers – including claims that photographs of Chancellor Gordon Brown had been found in seized computer files and allegations that one of the Britons arrested, Abu al-Hindi, was a highly regarded al-Qaeda recruiting sergeant. The Daily Mail ‘s front page on the Saturday before last subsequently declared: ‘Bin Laden’s UK general captured.’
Such headlines have opened a major new fault line in the strict rules governing pre-trial reporting – the provisions under the Contempt of Court Act 1981 that are supposedly the bedrock of Britons’ right to a fair trial.
The act says nothing should be published once proceedings are active – effectively post-arrest – that poses ‘substantial risk’ of serious prejudice to a trial. But the case of the 13 suspects – nine of whom are still, at the time of writing, being questioned – demonstrates that in an age of global threat, with counter-terrorism agencies staging raids in several countries simultaneously and anxious to trumpet successes, information is no longer easily controlled.
The Bush administration, which regards terror crackdowns as an electoral trump card and is accustomed to American journalists’ freedom to report what they like about defendants in the run-up to a trial, has proved hard to silence – despite fears it could unwittingly prejudice any attempted extradition of terror suspects to the US . One Whitehall source admits that the Americans ‘don’t seem to realise’ how the British system works.
The threat of foreign intervention wrecking British trials has certainly worried the Attorney-General, Lord Goldsmith. He issued a warning note to editors two days after the arrests advising against using information ‘not emanating from official UK sources’ that might be ‘striking and/or memorable’ but potentially inadmissible in court – a clear hint at overseas intelligence material.
However, there is little incentive for restraint in British newspapers, whose readers can easily read the stories by surfing American websites or watching CNN. While the fact that something is available online is not a defence to contempt of court for those reprinting it, the Attorney-General’s spokeswoman admits that ‘you could say if it was everywhere anyway, you are going to have a better argument against it’.
And the defiant American response to British criticism – national security adviser Condoleezza Rice retorted it was ‘unconscionable’ not to warn Americans about terror threats – suggests an alternative way forward. What if, rather than trying to halt the torrent of information, Britain simply scrapped the restrictions and placed its faith in jurors’ common sense and ability to discount what they read or hear before entering court?
Dan Tench, a media partner at law firm Olswang, argues that contempt laws should at least be interpreted more liberally over issues of national security, where there are strong public interest grounds. If members of the public can understand the complexities of a criminal trial, then they should also be trusted to treat media coverage with scepticism.
Contempt rules should not be used to prevent the press reporting background information months or even years ahead of a trial, he believes. Almost any information about a defendant could technically be adjudged prejudicial by an unsympathetic judge. The fact that fewer than a fifth of those arrested on terrorist charges have so far been charged may encourage risk-taking.
Tench argues lawyers ‘might have more sympathy if government ministers didn’t say things that could be prejudicial themselves’.
The advent of the internet has also complicated the picture: the Law Commission pointed out recently that while publishing a defendant’s past convictions constitutes contempt, curious jurors can now Google the name of defendants to check their past. Given the impossibility of sweeping the internet for potentially prejudicial information, the commission suggested judges could direct jurors to ignore online material if necessary.