A 13,000-word article in The New Yorker magazine about convicted murderer Lucy Letby is blocked to UK online readers.
Conservative MP David Davis claimed preventing members of the UK public reading the essay seemed “in defiance of open justice” in parliament, and asked justice secretary Alex Chalk to look into the matter. Is he right?
The principle of open justice means courts in England and Wales must administer justice in public. Members of the public can observe and cases can be reported by the media. The Letby case is no different. However, there are laws to protect the integrity of criminal trials heard by a jury.
The presumption of innocence is a fundamental right of the justice system. Anyone accused of committing a crime is innocent until proven guilty, with the onus on the prosecution to prove guilt beyond reasonable doubt.
Convicted criminals, including serial killers and rapists, charged with new offences have this right. This includes Letby, who faces a retrial next month on one count of attempted murder on which the original jury failed to reach a verdict.
The original trial took place at Manchester Crown Court in 2023. The neonatal nurse was sentenced to 14 whole-life orders for the murder of seven babies and the attempted murder of six others between June 2015 and June 2016.
Given the forthcoming retrial, anyone reporting or publishing must take care not to breach the Contempt of Court Act 1981. This law applies as soon as criminal proceedings are active in England and Wales – when someone is arrested, a warrant is issued, they are charged, an appeal is lodged, or they face a retrial.
Under this law, the media must not publish anything which creates a substantial risk of serious prejudice or impediment to the proceedings. The central idea is that potential jurors should not see anything in the media which might give them a negative impression of the defendant. Non-contentious information such as the defendant’s name, age and address can be reported, along with the charges, the plea, and the names of the judge, court and barristers. The date of the hearing and whether or not the defendant is in custody can also be reported.
Sometimes, information is published which could prejudice jurors, so there are steps taken in court to minimise this risk. In criminal trials, jurors take an oath or affirmation to try each case only on the evidence presented to them in court. They are given a leaflet warning them of the consequences of breaking this oath.
Jurors are not told of defendants’ previous convictions in case it prejudices their decision, and are warned by the judge they should not read about the case or research it online. This is a criminal offence punishable with an unlimited fine or up to two years in prison, and jurors have been jailed.
The Letby case attracted huge publicity, so jurors at her new trial will likely know who she is. With this in mind, the trial judge made a special reporting restriction under the Contempt of Court Act, known as a Section 4(2) order. This further restricts what can be reported by the media to avoid “substantial risk” of prejudice. It is a temporary ban on reporting, lifted at the court’s discretion, usually at the end of a trial or series of trials.
The New Yorker piece, although unavailable online, can currently be accessed in the print edition of the magazine in the UK and on its app, and those who know how can find it on archived sites online. This could break the UK law, but no legal action has been taken against the publication.
It’s possible the judge will ask potential jurors at the start of the retrial if they’ve read the article – and if they have, they may not be selected to serve on the jury.
The law applies to all publishers, whether they’re trained journalists or members of the public, and generally works well in terms of protecting the integrity of jury trials. Professional journalists and news organisations with large followings know the rules.
However, we live in the age of the internet and social media, where everyone with a mobile phone is a publisher. This is problematic because many don’t know the law. Online links are easily shareable, so the reporting restriction may also be protecting members of the public from accidentally breaching contempt law.
Read more: Sarah Everard: social media and the very real danger of contempt of court
Temporary reporting restrictions are used all the time – for example, in the case of prolific rapist Reynhard Sinaga in 2020, and in the Victoria Station murder trials in 2013.
This is why the New Yorker piece is currently unavailable online in the UK. The publisher, Condé Nast, appears to be complying with this court order, to reduce the small chance a UK juror sitting in the retrial reads the article. (US laws are much more relaxed about reporting criminal trials, as is evident in the ongoing trial of former president Donald Trump.)
The question is, how likely is it that they will read the piece? While not every juror is likely to read through a 13,000-word article behind an online paywall, there is a risk of prejudice. Whether it’s substantial or not is another matter.
This is not an assault on open justice; quite the opposite – the aim is to ensure Letby receives a fair trial, as is her right under the Human Rights Act. Then, once the trial ends and the restriction is lifted, the New Yorker article will be available to everyone.
Polly Rippon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
