Lord Justice Stuart-Smith

JUDGMENT
Judicial Review - Contempt of Court - Committal for Contempt - Solicitor General on behalf of Attorney General declining to bring contempt proceedings - Whether court has jurisdiction to review the decision - Contempt of Court Act 1981 s 7 - R v Solicitor General ex p Taylor & anr - Divisional Court - Stuart-Smith LJ and Butterfield J - 31.07.95
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
31st July 1995
BEFORE:
LORD JUSTICE STUART-SMITH
MR JUSTICE BUTTERFIELD
BETWEEN:
R
and
THE SOLICTOR GENERAL
ex parte
(1) MICHELLE TAYLOR
(2) LISA TAYLOR
APPROVED JUDGMENT

LORD JUSTICE STUART-SMITH:

This is an application for judicial review which once again raises the important question whether, and if so in what circumstances, the decisions of the Attorney-General are amenable to judicial review.
The decisions under challenge in this case were taken by the Solicitor General in the absence of the Attorney-General himself, but nothing turns on that: he is empowered to do so by the Law Officers' Act 1944, section 1.
Two decisions are the subject of challenge; the first and most important was taken on 7th April 1994 whereby the Solicitor General decided that it was not appropriate to take proceedings for contempt of court arising out of the newspaper coverage of the trial of the Applicants in July 1992.
That decision was taken pursuant to section 7 of the Contempt of Court Act 1981 ("the 1981 Act"). The second decision is said to be the refusal to give any or any sufficient reasons for the first decision.

The background
On 24th July 1992 at the Central Criminal Court before Mr Justice Blofeld and a jury, the Applicants, who are sisters, were convicted by a unanimous verdict of the murder of Alison Shaughnessy on 3rd June 1991.
Alison Shaughnessy was stabbed to death at her home at 41 Vardens Road, London SW11 shortly after she returned from work on that day. She had received 54 stab wounds. The Applicants were questioned and charged with murder on 7th August 1991.
The prosecution's case was that the first Applicant (Michelle) was motivated by jealousy because she had a sexual relationship with Mrs Shaughnessy's husband, John. It was alleged that this relationship started in 1989 and continued after the marriage of Mr and Mrs Shaughnessy on 23rd June 1990.
So far as the second Applicant (Lisa) was concerned, it was the Crown's case that she disliked the way her sister had been treated by Mr Shaughnessy and went along with the plan to murder his wife.
On 3rd June 1991, Alison Shaughnessy left work at 5.02 p.m. in the evening. If she had gone straight home she would have arrived at about 5.37 p.m. The post mortem evidence indicated that she had died at around 6 p.m.
The body was found at about 8 p.m. when John Shaughnessy and Michelle went to the flat at Vardens Road to collect some flower pots prior to arranging flowers together, something they did once a week.
On finding the body he was distraught and so apparently was Michelle. There was no suspicion that John Shaughnessy was involved in the murder; he had an ample alibi for the whole day.
Michelle was seen by police that evening; she appeared distressed; she answered questions but did not mention her relationship with John Shaughnessy. That was not referred to until she was interviewed on 24th July 1991. Lisa also made a statement on the same day.
She said that she and Michelle had gone to Bromley at about 3 o'clock that afternoon and returned to the clinic where Michelle worked about five p.m. She said that she played Monopoly with a friend, J.J. Tapp, in her room until 7.30 p.m. She said she had never been to the flat in Vardens Road.
Michelle's "Speedlink" card was used at the Lambeth North Branch of the National Westminster Bank on the afternoon of 3rd June 1991. If it had been used by Michelle, the Crown's case was that the sisters could not have been in Bromley at that time. Michelle's evidence was that the card must have been used by J.J. Tapp, who knew the pin number.
There was no scientific evidence linking the Applicants with the crime. Fingerprints of Michelle were found on the bannister at the flat; they were explicable by her presence when the body was found. Two fingerprints of Lisa's were found on the inside of the front door of the flat.
Michelle gave an explanation for these when she gave evidence. She said that they had both gone to the flat two or three weeks before the murder to clean the windows. John Shaughnessy was not there and she had never told him about the visit.
They had lied to the police about Lisa not having gone there previously because Michelle had not wanted to get her family involved.
Nurse Healey gave evidence to the effect that she had seen Michelle (who she knew) driving out of the clinic between 4 p.m. and 4.30 p.m. Sitting beside her was a young, slight woman with a pony tail; that could have described Lisa. That evidence was also inconsistent with the alibi.
J.J. Tapp was an important witness. She was a friend of Michelle's and worked with her at the clinic. Initially she had supported the alibi that the sisters had been with her since 5 o'clock, and during the material time.
Later she retracted that. She said that she had not returned to the clinic until about 7.15 p.m., when she returned to her room. Lisa told her that she and Michelle had been there since 5 p.m. Her explanation for her earlier statement was that she had believed them when they said that they had been there since 5 p.m., and so she was prepared to say that they were.
Another important witness was Doctor Unsworth-White.
He cycled home to Vardens Road where he lived. He arrived there at 5.45 p.m., and he noticed two girls come down a flight of steps. He described them as in their late teens and early twenties with blond hair, one having it tied back in a pony tail.
He said they were running or jogging into the street and one was carrying a bulky bag. He also saw an older man coming down the steps after them. The house from which they came was No. 41.
There was no dispute that both Applicants were seen at the clinic about 6 p.m. Statements were read from two elderly witnesses, Mrs Wright and Mr Casey, who lived in flats at 41 Vardens Road.
Mr Casey said that the front door of 41 Vardens Road was still mortice locked at 5.40 p.m. to 5.45 p.m. when he arrived home; which if correct would mean that Alison had not yet arrived home. Miss Wright said that she saw Alison arrive home between 6 p.m., and 6.30 p.m., but she put Mr Casey's return at about 5.30 p.m.
The Crown put in evidence an entry in Michelle's diary for 2nd November 1990, which reads:
"My dream solution would be for Alison to disappear as if she had never existed, then may be I could give everything to the man I love."
Michelle gave evidence. She agreed that she had a sexual relationship with John Shaughnessy and that she had been bitterly hurt when she found out that he was engaged to Alison. After that the affair had been up and down. She had gone to Ireland for the wedding as the guest of both husband and wife who had paid for her trip.
At first she stayed with Alison's family; but on the night before the wedding she had gone to the hotel where John Shaughnessy was staying. There had been a party which lasted until 3 a.m. or 4 a.m.; after that she had spend the night in John's room and in the morning they had intercourse (though this was denied by Shaughnessy).
She agreed that in November 1990 she had feelings of hatred for Alison, but she said the affair was really over by December. Since the beginning of March 1991 she had sexual intercourse with Shaughnessy on one or two occasions, but the last of these was months before the murder.
She had been in Bromley on the afternoon of 3rd June, returning to the clinic about 5 p.m., and had been in the company of J.J. Tapp until after 7 p.m.
The trial, which lasted from 7th to 24th July 1992, perhaps not surprisingly attracted extensive media coverage, especially in the tabloid press.
In granting leave to appeal, the single Judge said that she was troubled by the unremitting, extensive, sensational, inaccurate and misleading media coverage and she thought that the full Court might wish to consider a reference to the Attorney-General with a view to possible contempt proceedings.
Shortly before the hearing in the Court of Appeal on 10th and 11th June 1993 it came to light that the police had in their possession information which, if it had been available to defending counsel at trial, might have cast doubt on the reliability of the evidence of Dr Unsworth-White.
The Court of Appeal held that the non-disclosure of that material was a material irregularity and that it was not appropriate to apply the proviso.
The Court also went on to consider the question of ordering a retrial and the second ground of appeal, namely that the press coverage at the trial did create a real risk of prejudice against the accused.
There is little detailed analysis in the judgment of the articles in the press; but reference was made to articles with headlines "Cheats Kiss" and "Judas Kiss" which were derived from a video taken at the Shaughnessy wedding, to which we shall have to refer in more detail later in this judgment, but the Court agreed with the single Judge's description of the media coverage and considered that it did create a real risk of prejudice and that accordingly the conviction was unsafe and unsatisfactory.
They also considered that the way in which the case was reported precluded a fair retrial now taking place.
Finally, they ordered that the case papers be sent to the Attorney-General for him to consider whether he thought it appropriate to take any action in respect of the newspapers concerned.
The consideration by the Law Officers of possible contempt proceedings.
Thereafter the judgment of the Court of Appeal, the trial judge's summing-up, the Applicants' perfected grounds of appeal in which reference was made to the press articles complained of and copies of some 37 articles which had been published between 6th and 21st July the subject of the complaint were sent to the Legal Secretariat to the Law Officers.
Senior Crown Prosecuting Counsel who conducted the trial, Mr Nutting, was consulted and counsel said to be experienced in contempt cases. Transcripts of some of the evidence was obtained and considered by these counsel.
Specialist counsels' written advice, together with the relevant documents, were then considered by the Attorney-General and copies were sent to the Solicitor General. Complaints against the press were considered under four heads: assumed guilt, prejudicial comment, factual inaccuracy, sensational wording and the photograph of the "Cheats Kiss".
The conclusion was that there appeared to be grounds for proceedings for contempt against the Sun, the Daily Mirror, the Daily Mail and the Daily Express in respect of the photograph of the "Stolen" or "Cheats Kiss", together with accompanying headlines and captions; but that otherwise proceedings for contempt would not be justified.
It is necessary to describe this photograph in more detail. Someone at the wedding had taken a video. This had come into the hands of the media; one frame had been frozen to produce the still photograph.
It shows Michelle giving John Shaughnessy a kiss either outside the church or at the reception line. It is said on behalf of the Applicants that it shows a mouth to mouth kiss, rather than in fact what it was, which is more accurately described as a peck on the cheek. For my part, having seen the original copy of the
"Sun" newspaper in which it was shown, I doubt whether many people would so interpret it; but I accept that some might, and I am prepared to assume that that may well have been the purpose. In the case of the "Sun", the front page headline was "Cheats Kiss" and then in slightly smaller type "Caught on wedding video... husband of murdered bride and his mistress".
Similar headlines accompanied the photograph in the other newspapers to which I have referred.
In accordance with the usual practice on 26th November 1993, letters were sent to the Editors of the newspapers concerned drawing attention to the relevant publication. The letters contain this paragraph:
"The Attorney General considers that these reports did not represent a fair and accurate report of the proceedings as neither the video recording of the wedding of John and Alison Shaughnessy nor any of the still photographs taken from it were presented to the jury in evidence during the course of the trial.
The Attorney General has concluded that they gave rise to a substantial risk of serious prejudice to the course of justice, and hence constituted a contempt of court. He considers that these pictures and accompanying captions provided a wholly unwarranted sense of emphasis to the secret relationship between Mr Shaughnessy and Miss Taylor and thereby to the motive alleged by the prosecution for the killing."
Over the next few weeks the Editors replied. They denied the allegation. It is only necessary to read part of one such letter, since they all took much the same line.
In a letter dated 24th January 1994, Mr Crane, the Legal Manager of the Sun said that the paper did not accept that the publication of the photograph and captions created a substantial risk of serious prejudice and did not accept that they gave an unwarranted sense of emphasis either to the secret Shaughnessy/Taylor relationship. The letter went on to make the following points:
"By July 10, when the pictures were published, the jury had already heard:
a) the prosecution opening to the effect that Shaughnessy and Michelle Taylor had conducted a secret sexual affair from Spring 1991 until the time of the murder and that jealous hatred was Taylor's motive;
b) Shaughnessy's own description of the affair and of the deception of his wife both before and after they were married, his evidence about Taylor's presence at his wedding and the fact that he had shared a room with her on the night before the ceremony;