Leading Article: No justice in the media's lynch law

One thing Britain usually does better than the United States is ensuring that verdicts in criminal cases are not prejudiced by newspaper and broadcast comment. If the US had something like our 1981 Contempt of Court Act, a good deal of the American media's saturation bombing on the trial of Mr OJ Simpson might perhaps have been struck down as unlawful.

The prospect of that kind of press speculation ought to frighten us. But perhaps Britain is closer to that abyss than we like to admit.

Yesterday the sisters Michelle and Lisa Taylor, who were eventually acquitted of murder on appeal, began their judicial review of the Attorney-General, Sir Nicholas Lyell, in an effort to overturn his decision not to prosecute five tabloid newspapers which had published material that was found to have prejudiced their original trial. The appeal court judge held their coverage to have been inaccurate, misleading sensationalist and unfair.

Trial by media is not, thankfully, the norm in Britain. But when it happens, it matters enormously, and we ought to be worried. Of all the sins of which the media are regularly accused, from invasion of privacy to outright invention, surely the worst is influencing a court's finding of guilt or innocence.

The media have a legitimate, if limited, role in commenting on criminal allegations. Their gadfly role is to press the authorities to take action where journalists have evidence indicating that someone has a case to answer, but the state appears to drag its feet. However they must, rightly, fall silent as soon as charges are being contemplated.

The appeal court found that the tabloids had violated these ground rules, and a miscarriage of justice was exposed. But the Taylor sisters' case raises important questions about the enforcement of these rules. Courts must be - and generally are - vigilant during a trial, but problems arise before and after the court case, when it is the responsibility of the Government law officers.

The Attorney-General's excuse for refusing to prosecute in the Taylors' case is that no single article or newspaper alone would have been prejudicial, and that therefore he could not prosecute any of them. Certainly, there is a real difficulty in our legal system. Where no individual editor or newspaper can be shown to have done wrong, but their collective behaviour amounts to common wrongdoing, it is difficult to prosecute or penalise anyone. Nevertheless, if the High Court supports Sir Nicholas, there should be a review of the law to find a way to proceed against newspapers contributing to a body of prejudicial comment.

Newspapers are tempted to break the rules because they fear that their rivals will steal their readers by publishing everything they can find. Nevertheless, readers' fascination is not the same as the public interest. That way lies institutionalised lynch law. Freedom of the press cannot mean licence to override the right to a fair trial.

Vigilant courts and a self-disciplined press may be enough to prevent the appearance in Britain of American-style wall-to-wall tastelessness and prurience and of any more miscarriages of justice, but until the Taylor sisters' judicial review is decided we cannot relax. The case is welcome because it will open the debate about whether the Contempt of Court Act strikes the right balance between press freedom and impartial justice.