Coverage of Joanna Yeates killing has left Contempt of Court Act in disarray

Attorney general's warning over Christopher Jefferies stories 'had little or no effect' on media

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• Josh Halliday and Steven Morris
• The Guardian, Monday 10 January 2011
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Chief Superintendent Jon Stratford addresses the media outside Joanna Yates's Bristol home

Thirty years after it went on the statute book, the legislation which seeks to deter the nation's media from being the cause of miscarriages of justice has rarely appeared more threadbare. A frenzied fortnight of "unprecedented" character assassination and fevered pre-trial speculation emanating from the suburbs of Bristol has left the Contempt of Court Act, set up to preserve the principle of innocence until proven guilty, looking increasingly inconsequential.

The man at the centre of the storm was Christopher Jefferies, a retired public school teacher who was arrested and later released as the first suspect in the investigation into the murder of 25-year-old Joanna Yeates. With unruly shoulder-length hair and an apparent taste for poetry and avant-garde films, the 65-year-old "eccentric" suited tabloid needs – and on his arrest he became the subject of intense reporting about his background and lifestyle.

With Jefferies pilloried in print and online, the attorney general was moved to warn newspaper editors about their coverage of the Yeates investigation. Yet Jefferies' lawyers say this warning had "little or no effect" on the media. "His name has been blackened, and his privacy invaded," says Rhys Mardon, one of Jefferies' representatives at The Stokoe Partnership. "This type and level of coverage in the media is, in our experience, unprecedented, particularly at this very early stage of the investigation."

However, on Fleet Street, far from the leafy suburb where the young architect died, editors on a range of tabloid papers feel they have fairly assessed the risks involved in publishing such material. After all, the risks do not often turn into the reality of an unlimited financial penalty.

"There needs to be a review," says one senior tabloid executive, who asked not to be named. "We have our own lawyers internally saying they don't know where the line should be drawn. And editors often overrule lawyers – at which point there is no comeback. We've always felt there shouldn't be a contempt of court act – but I can see you may feel differently if you've been dragged through the public prints unfairly."

To be in contempt of court, according to the act, a publication must create a "substantial risk" that the course of justice in active proceedings "will be seriously impeded or prejudiced". Proceedings become active once an arrest is made, or a warrant for someone's arrest has been issued. Those guilty of contempt of court could face prosecution by the attorney general or an unlimited fine, a prospect meant to concentrate editors' minds.

On the ground, competition is fierce and reporters, under huge pressure to generate new angles on the story, are told to leave the rest to the lawyers. "I don't think we even think about the contempt laws now, at least until someone has been charged," one tabloid reporter says. "The lawyers seem to be ever more concerned about libelling people but not so concerned about contempt of court until somebody is charged. When I was starting out we were taught that proceedings were active when an arrest was made. That seems to have changed now – in practice rather than in law – to when a person is charged. Until then it seems to be open season."

Avon & Somerset police know this all too well. The force issued a warning when Jefferies was released on police bail. "You are reminded of the contempt of court act. Some of the reporting has not been fair and anyone involved in a criminal investigation has the right not to be subjected to some of the reporting we have seen," it said.

However, while the police have been uneasy about aspects of the coverage, they cannot afford to dismiss the media. The press and broadcasters are vital for putting out appeals and keeping a case like Yeates's murder in the public eye. That creates further incentives to push the contempt rules as far as they can go.

Privately, some detectives will say it can sometimes be helpful if a suspect is named in the press – remember the police have never confirmed that Jefferies is the 65-year-old man they arrested. Sometimes if a suspect is named, it can flush out witnesses and prompt lines of inquiry.

Last week the police did not get in the way of the Sun when its crime editor, Mike Sullivan, produced one of the few genuine exclusives since Yeates's body was discovered – the fact that her body was missing a sock. Instead the police called a press conference, after the Sun had published, to confirm the story and appeal for information about the sock – ITV News was banned from that press conference for what the force deemed an "unfair, naive and irresponsible" report on its investigation the night before.

The speed of publishing since the advent of online and social media, means reporters can no longer get away with just having one solid line on how an inquiry is going. If the police hold an afternoon press conference, any line will be old news by the next morning. This explains why so much coverage is speculative and why, when a suspect is arrested, reporters try to dig up all the background they can.

Instantaneous media have pushed the law to breaking point. Scrapping the act is the "only way forward in the context of social media," the tabloid executive says. Kelvin MacKenzie, who, as editor of the Sun, was served a record fine in 1994 for causing the collapse of a murder trial by publishing a photograph, agrees, telling Radio 4's The Media Show: "If it wasn't inconsequential before, the online world makes it ridiculous now."

The social media commentary that circulates around already potentially prejudicial news reports presents the greatest challenge to the contempt of court act, experts say. "The 'chatter' that surrounds such publication on social media tends to amplify [news coverage] and make it assume a greater significance," says David Banks, a media law consultant and the author of McNae's Essential Law for Journalists. "Some [on Twitter] are not even in nodding acquaintance with the laws of libel, contempt or any other such constraints."

However, most reporters do not seem to think that social networking sites have unwittingly forced the press to be similarly carefree. "Obviously we look at Twitter and Facebook and pursue lines from it," one newspaper reporter says. "But I don't think it has changed the game as far as contempt goes. We were doing this before Twitter."

Local newspapers are bemused as the principle of innocent until proven guilty is stretched to breaking point. Peter Barron, the long-serving editor of the Northern Echo, counts himself as a responsible editor who is "genuinely confused" about where the excesses of the national media leave the "more accountable" local press.

"Editors don't see the contempt act as the threat they once did," says Barron. "How's a local editor meant to know where to draw the line when they see the nationals being so excessive? I understand it's never going to be black and white, but there's such a difference between the locals and nationals."

The temptation for local papers to engage in potentially prejudicial reporting is increasing. "I'm sure editors all around the country are licking their finger, putting it in the air and wondering whether they're going to get away with stuff," Barron says. "If the nationals are going to come on to your patch and push the boundaries there will also be a temptation [for the local papers] to push them, because you'll think, 'If I don't do this then the Sun will'. You don't want to be left behind."

Calls for reform of the worthily-intended act have rarely been louder. But while the premise behind the act – that jurors can be influenced by the media – remains the subject of little or no rigorous research, imminent reform looks highly unlikely. Meanwhile Jefferies, and many others before him, are privately left to pick up the pieces of their tarnished reputations.