28. The first case we were asked to consider was R v Savundra  52 Cr App R 637 where the complaint was in relation to publicity 11 months prior to trial, before criminal proceedings had actually begun. There the Court of Appeal found that in the particular circumstances of the case there was no real risk that the jury would be influenced by that publicity and referred, as Mr Clegg pointed out, to the case for the Crown being overwhelming. But of course in that case this court could properly express a view as to the strength of the Crown's case because it had all the relevant material before it. There was no possibility of the shape of the case changing on re-trial.
29. In R v Kray  53 Cr App R 412 Ronald Kray had been convicted of murder on 4th March 1969, and on 15th April 1969 he and a number of others were facing a second indictment charging them with murder and other offences. His counsel sought to challenge prospective jurors for cause on the ground that the previous trial had been extensively reported, and that prejudice to Kray resulting therefrom would be likely to influence the minds of the jurors in the second trial. At 414 Lawton J. upheld the right to report the first trial and said -
"What is more, the mere fact that a newspaper has reported a trial and a verdict which was adverse to the person subsequently accused ought not in the ordinary way to produce a case of probable bias against jurors empanelled in a later case."
30. Then at 415 the judge continued -
"The situation, however, is, in my judgment, entirely different when newspapers, knowing that there is going to be later trial, dig up from the past of the convicted who have to meet further charges discreditable allegations which may be either fact or fiction, and those allegations are then publicised over a wide area. This does, in my judgment, lead to a prima facie presumption that anybody who may have read that kind of information might find it difficult to reach a verdict in a fair-minded way. It is, however, a matter of human experience, and certainly a matter of the experience of those who practise in the criminal courts, first, that the public's recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try the case impartially."
31. In R v Coughlan and Young  63 Cr App R 33 there was publicity following an unsuccessful plea of autrefois convict which tended to disclose the earlier conviction. Lawton LJ giving the judgment of this court said at 37 -
"It is our experience that juries in general understand the responsibility which rests upon them. They know that they have to be sure of guilt on the evidence before returning a verdict of guilty. The fault with juries nowadays lies not in convicting when they should acquit but in acquitting when they should convict. Juries are capable of disregarding that which is not properly before them. They are expected to disregard what one accused says about another in his absence. If they can do that, which is far from easy, they can disregard what has been said in a newspaper."
32. As Mr Clegg points out, if that proposition is taken to its extreme an application to stay for abuse of process based on adverse publicity could never succeed, provided that the jury was warned to disregard the offending material, but the point being made in the judgment is that to a very large extent juries are trusted by our system to concentrate on what is relevant and to ignore irrelevant and prejudicial matters even when they know of them.
33. In R v McCann and others  92 Cr App R 239 the defendants were allegedly members of the IRA who had been found near to the home of Secretary of State for Northern Ireland. They were charged with conspiracy to murder. They did not give evidence. After
34. closing speeches the Home Secretary announced the Government's proposal to change the law so as to permit adverse inferences to be drawn when defendants choose to remain silent, and there was then widespread publicity in relation to that proposal which included comments in favour of it from the Secretary of State for Northern Ireland and a former Master of the Rolls. The judge declined to discharge the jury, but in this court Beldam LJ said at 253 -
"We are left with the definite impression that the impact which the statements in the television interviews may well have had on the fairness of the trial could not be overcome by any direction to the jury, and that the only way in which justice could be done and be obviously seen to be done was by discharging the jury and ordering a retrial."
35. The important things to note in relation to that case are first, that the court was dealing with a sudden tide of publicity at a critical moment during the trial. It was not dealing with pre-trial publicity. Secondly, the court considered that if the jury had been discharged then it would have been possible to conduct a re-trial in a matter of a month or two. At that time this court could not order a re-trial.
36. In October 1989 the Court of Appeal allowed the appeals of three men and a woman convicted of the notorious IRA offences at Guildford and Woolwich (the Guildford Four). The court was satisfied that certain investigating police officers "must have lied". They were then prosecuted, but proceedings against them were stayed as an abuse of process in the Magistrates' Court. The Director of Public Prosecutions challenged that decision in the Divisional Court in R v Bow Street MSM ex parte DPP  95 Cr App R 91, where Neill LJ said at 14 -
"The freeing of the Guildford Four and the comments made by the Court of Appeal attracted immediate and very wide spread publicity. We have seen, as did the magistrate, copies of the press reports. We have also been provided with video-recordings of television programmes and television news reports which were shown on October 19, 1989 and in the succeeding weeks. In addition we have had an opportunity to see video-recordings of later programmes broadcast in the course of 1990. It is right to say that much of the contemporary publicity was sensational, critical of the police and in some cases clearly hostile to the police. The comments that the respondents were liars provided headline news. I shall have to return later to consider the possible effect of this publicity on the prospects of a fair trial."
37. At page 18 Neill LJ said -
"In my judgment a clear distinction can be drawn between the publicity in the period immediately after the release of the Guildford Four and the reports and broadcasts after December 1989. The earlier material could have been prejudicial to a trial in, say, the first part of 1990. The later material on the other hand could not be regarded in my view as prejudicial in a relevant sense. Even in relation to the earlier material, however, I am quite satisfied that none of the publicity which I have seen could affect a fair trial in, at the earliest, the Autumn of 1992. A jury would be perfectly capable of deciding the case on the evidence without regard to what they might have seen or read three years or so before."
38. Mr Sweeney submitted that we should adopt a similar approach. No doubt it would not have been appropriate to order a re-trial in late 1998, soon after the tide of publicity which followed the verdicts, but that is now well over two years ago. In our judgment there is force in that submission.
39. In R v Central Criminal Court ex parte the Telegraph plc and others  98 Cr App R 91 this court considered an application to vary a judge's order restricting reporting in relation to series of related drugs trials, and at page 98 Lord Taylor CJ giving the judgment of the court said -
"In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of the trial is to focus the jury's mind on the evidence put before them rather than on matters outside the courtroom: see Kray ......"
40. Other authorities as well as Kray were cited. The case is of significance because it shows that the approach adopted by Lawton J cannot be discounted as being out of date.
41. That brings us to a decision upon which Mr Clegg places considerable reliance, namely R v Taylor and Taylor  98 Cr App R 361. In June 1991 Mrs Shaughnessy was stabbed to death at home. In July 1992 the Taylor sisters were convicted of that murder. The main ground of appeal was that an investigating police officer had suppressed an inconsistent statement made by a highly material witness, but there was also complaint about press coverage during the trial, which this court accepted was "unremitting, extensive, sensational, inaccurate and misleading". The judge gave appropriate warnings to the jury to decide the case on the evidence alone, but this court found it impossible to say that the jury were not influenced by what they read in the press. Surprisingly there had been no application to discharge the jury because of the press coverage. Prosecuting counsel explained that in this court by saying that -
"Asking for a re-trial puts defence counsel in a hopeless situation, where young girls had spent considerable time in custody, and where to dispel the publicity, it would be necessary to postpone the trial for a further long period."
42. This court accepted that explanation, but does not explain why it found the explanation acceptable. We can understand the reluctance of defence counsel to subject his young clients to a further period in custody, but if the press coverage was such as to render unsafe any convictions that might be recorded against them, then, as it seems to us, counsel's first duty must have been to ask the court to stop the trial. Thereafter it would have been possible to consider whether there could safely be a re-trial, if so when, and what should happen to the defendants meanwhile. The decision in McCann was referred to, but not what was said in that case about the possibility of a re-trial, and as to that issue this court in Taylor said simply -
"Moreover, by reason of the view we take of the way in which this case was reported, we do not think that a fair trial could now take place. Hence we do not order a re-trial."
43. The Court of Appeal gave its decision in June 1993, nearly 11 months after the trial. If a re-trial had been ordered it would not in reality have taken place until, at the earliest, the Autumn of 1993. We recognise that we have only a very limited knowledge of the publicity which occurred during the original trial, but the Court of Appeal does not explain why that publicity would have made it impossible for the defendants to have a fair trial 15 to 18 months later. Perhaps the true explanation is that, as may be gleaned from the explanation given by prosecuting counsel to which we have referred, the prosecution in that particular case was not really pressing for a re-trial.
44. Plainly the decision in Taylor is authority for the proposition that this court can, in an appropriate case, regard past press coverage as a sufficient reason not to order a re-trial, but otherwise, as it seems to us, it must be regarded as a decision on its own facts. That of course is true of all of these cases, of which R v Reade and others, 15th October 1993 (unreported) is another example. Police officers were prosecuted following the release of those convicted of the Birmingham bombing and Garland J granted a stay of the criminal proceedings against those officers, pointing out that publicity, although a powerful factor, did not stand alone. As the judge said, prejudice engendered by publicity is usually local and temporary, but if the impossibility of having a fair trial becomes national and continuing then there is "quite literally, nowhere to go". That we accept. The question for judgment in each case is whether that point has been reached, bearing in mind, as Scott Baker J said in ex parte B,17th February 1994 (unreported) that -
"In most cases, one day's headline news is the next day's firelighter. Most members of the public do not remember in any detail what they have seen on television, heard on the radio or read in the newspaper except for a very short period of time."
45. The same point was made in the Divisional Court in Attorney General v ITN and others  1 Cr App R 204 in relation to contempt proceedings against ITN and certain newspapers for disclosing immediately after an arrest that one of those arrested on a charge of murder of a special constable was a convicted IRA terrorist who had escaped. Nine months were going to elapse before the murder trial, and at 218 E Leggatt LJ said -
"During the nine months that passed after anyone had read the offending articles, the likelihood is that he no longer would remember it sufficiently to prejudice the trial. When the long odds against the potential juror reading any of the publications is multiplied by the long odds against any reader remembering it, the risk of prejudice is, in my judgment, remote."
46. In the present case that may be said to apply not to the offence or even to the identity of the appellant, but to the sort of details about him which were released in some widely read newspapers in late 1998.
47. In 1995 Phillips J, as he then was, had to consider the adverse publicity accorded to Kevin and Ian Maxwell before they appeared for trial. The judge said -
"No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the extent and the nature of the pre-trial publicity he will suffer serious prejudice to the extent that no fair trial can be held. I would accept this test, so far as it goes, but it remains necessary to identify the essential aspects of a fair trial for the purpose of the test. If it were enough to render a trial unfair that publicity has created the risk of prejudice against the defendant our system of criminal justice would be seriously flawed. There will inevitably be cases where the facts are so dramatic that almost everyone in the land will know of them. There will be circumstances when arrests are made of defendants whose guilt will, or may, appear likely. Intense media coverage may well take place before a suspect is identified or apprehended. If in the most notorious cases defendants were to claim immunity from trial because of the risk of prejudice public confidence in the criminal justice system would be destroyed."
48. After referring to two authorities the judge continued -
"Our system of criminal justice is founded on the belief that the jury trial provides the fairest and most reliable method of determining whether guilt is established. This belief is based on the premise that the jury will do their best to be true to their oath and to try the case according to the evidence. The ability of the jury to disregard extrinsic material has been repeatedly emphasised by judges of great experience."
49. Phillips J then cited from Kray and concluded -
"It seems to me that the court will only be justified in staying a trial on the ground of adverse pre-trial publicity if satisfied on a balance of probabilities that if the jury return a verdict of guilty the effect of the pre-trial publicity will be such as to render that verdict unsafe and unsatisfactory. In considering this question the court has to consider the likely length of time the jury will be subject to the trial process, the issues that are likely to arise and the evidence that is likely to be called in order to form a view as to whether it is probable that - try as they may to disregard the pre-trial publicity - the jury's verdict will be rendered unsafe on account of it."
50. That seems to us to be a valuable approach, and Mr Clegg did not suggest otherwise, although he did question the suggestion that there is any burden of proof upon the defence. Given that this is a case where but for the publicity we would certainly order a re-trial, we should do so unless satisfied on a balance of probabilities that if at the re-trial the jury returns one or more verdicts of guilty the effect of the publicity to which we have referred will be such as to render that verdict or those verdicts unsafe.
51. The application of Rosemary West for leave to appeal  2 Cr App R 374 was also concerned with massive adverse press coverage prior to trial, and at 386 A Lord Taylor, CJ, said -
"The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd."
52. The judgment goes on to refer to Kray and other cases we have considered. Mr Clegg submits that West is not really of assistance because the court was only considering sensational publicity which foreshadowed what the jury was going to hear, but that is not quite right. For example, some reports referred to Rosemary West as a nymphomaniac and a prostitute. Mr Clegg submits that in the light of decisions such as McCann, Taylor, and Reade it must now be accepted that there can be situations where an appropriate direction will not suffice. It is unreasonable to expect a jury to put the adverse publicity out of their minds. We agree, but that can only happen rarely, and usually in relation to adverse publicity which occurs during the course of the trial.
53. Our attention was also invited to the decision of the Divisional Court in Attorney General v MGN Ltd and others  1 All E R 456 where Schiemann LJ noted at 461 E the ability of a jury "not to accept as true the contents of a publication just because it has been published."