Attorney General v Associated Newspapers Ltd & Anor

We gave judgment on 3 March 2011 concluding that both these defendants were guilty of contempt. We have now had written submissions from all the parties as to the appropriate penalty and as to costs.

As we accepted in our previous judgment, the offending pictures published by both defendants were the result of the accidental inclusion within the photograph. Mail Online published the uncropped photograph of Ryan Ward for a period of just under five hours. The picture desk was informed that the photograph had to be cropped but failed to do so. As soon as the journalist who had provided the photograph noticed the error, the News Desk took the photograph from the online publication.

The photograph published by the second defendants in the Sun Online newspaper version was available for much longer, between 5.04 p.m. and 9.58 p.m. on 3 November 2009. But the photograph was cropped, although insufficiently to conceal the fact that Ward was holding a pistol.

Both defendants have now taken steps to avoid repetition. In particular, Mail Online now require their staff to have all articles regarding crime and the courts, including photographs and captions, to be checked by a lawyer prior to publication. News Group Newspapers, the second defendants, has taken action to ensure that all members of staff working on the online edition of The Sun use pictures only as they appear in the newspaper.

Both defendants apologised to the Attorney General. Any fine must take into account our acceptance that the publications were the result of a genuine mistake.

In those circumstances, many of the authorities to which we have been helpfully referred by the Attorney General, consisting mainly of examples of penalties imposed since 1981 in the third edition of Arlidge & Eady and its supplement, reflect far more serious contempts. For example, the publication of a defendant’s previous convictions on the first day of trial, causing a trial to be postponed, attracted a fine of £25,000 (AG v ITV Central [2008] EWHC 1984). Whilst we must acknowledge that no juror saw the offending image, nevertheless the risk, as we have found, was created by an avoidable mistake. In our view, an appropriate penalty would be £15,000 for each of the defendants. We pass the same sentence in respect of both defendants because although The Sun Online’s image was available for a substantially longer period, those responsible for producing it had attempted to crop the image as it appeared in the newspaper edition, but had failed to do so. Associated Newspapers’ Mail Online showed the image for a substantially shorter period but no steps had been taken to crop the image.

Both newspapers submit that it was difficult to access the particular image. We reject that as a point of mitigation. We have already explained, in our judgment, that there was a significant risk that a juror might choose to read an article in relation to the very case they were trying (see in particular paragraph 33 of our earlier judgment).

We shall grant 14 days to pay the sum from handing down this judgment.

Both defendants accept that they should pay the Attorney General’s costs but submit that it should not be on an indemnity basis and, if summarily assessed, the costs are excessive. They draw attention to the fact that substantial costs were incurred in respect of attendances on “client” at 14.3 hours and attendances at counsel at 14.0 hours.

We have received no response from the Attorney General but we take the view that this is an appropriate case for summary assessment of costs and we see no reason to reduce the figure of £28,117.23 claimed. Despite their apology, both defendants chose to dispute this case. We see no reason why the taxpayer, rather than the newspapers, should bear part of the expense which flowed directly from the errors of both these newspapers. Accordingly, we shall summarily assess the costs in the figure requested, £28,117.23.