The right to a fair trial can override free expression, says Carl Gardner

Few of us believe in absolute free speech. That we should be free to make threats to kill, say, or to incite violence, without any comeback beyond the disapproval of our peers. Freedom of expression brings with it duties and responsibilities, article 10 of the European Convention on Human Rights tells us, and however passionately we favour free speech, most of us recognise it has necessary boundaries. Once we acknowledge that, we must be prepared to guard those boundaries.

We know of course that Jon Venables, the notorious killer of James Bulger, has been recalled to prison because of “extremely serious allegations”, in Jack Straw’s words. But we don’t know exactly what those allegations are. Many of those who argue they have a right to be told do so on the basis that the issue here is open justice on the one hand, against, on the other, the need to protect Jon Venables. It’s true that in 2001, Dame Elizabeth Butler-Sloss issued an injunction preventing anyone, anywhere, from publishing information about Venables’s identity, whereabouts or appearance, and that she did so in order to protect him. But that’s only part of the story.

If the police have evidence that Venables has committed a serious offence, then he must be tried, and if convicted, punished like anyone else. But trying him fairly is a formidable task. However fair juries are – and I believe they are – a jury faced with a defendant they know is Venables might not be able to give a true verdict based on evidence. But a fair trial is his right: the alternative is not to try him at all, meaning he would not be convicted and would go unpunished – even if guilty. How would they feel, those who’ve cried out to know what Venables has (or has not) done, if he went free precisely because of what newspapers have already published? That is the risk Ed Balls has rightly drawn attention to. Simply to know what offence he is suspected of might well, depending how rare the offence and how often or rarely people are tried for it, lead a jury later this year to suspect they are trying Venables – a situation the CPS must avoid if it wants any conviction to stand. And what if some jury suspects wrongly that Venables is in the dock? Publishing what he is suspected of means any young man charged with a similar offence is at risk of serious injustice, and perhaps even harm.

So newspapers tempted to publish details about Jon Venables risk being in double contempt of court – for breach of the injunction and, under the Contempt of Court Act 1981, for creating a substantial risk of serious prejudice to a criminal case. For both these reasons – to ensure Venables can be prosecuted and to protect him from mob justice – it is important newspapers act responsibly. If I were Attorney General, I’d already be warning newspapers that they risk legal action. I dare say Baroness Scotland is weighing her options as I write. But can she hold the line? It’s often said that injunctions cannot hold in this internet age, either because websites abroad can publish without fear of the British courts or because details may be widely shared on sites like Facebook – as apparently happened in spite of reporting restrictions in Tracey Connelly’s case. Dame Elizabeth recognised this problem when she issued the injunction back in 2001.

The Venables case, though, may require the law to be tested. We know the power of the internet to unleash the madness, as well as the wisdom, of crowds – consider the “human flesh searches” that have been reported in China. Worryingly, #findandkillvenables has been used as a hashtag on Twitter. But the injunction binds everyone. I would not advise anyone in the UK to post or tweet anything in breach of it, or to publish anything about any offence Venables may have committed. There seems to me no reason why the Attorney General should not take action against them. As far as the mainstream media are concerned, the injunction even binds the media here from disclosing Venables’s new identity and appearance even if they do appear on the web. There are things the government and courts can do, and if the line can’t be held here, it can’t be held in any case. The stakes are potentially high, and not just for Jon Venables.

Free expression must be exercised responsibly when an ill-judged article may be a death sentence. In a perfect world, editors would act accordingly rather than indulging in the kind of legal brinkmanship that gives our free press a bad name. But if the Attorney General has to prosecute or seek someone’s committal to prison in order to enforce their responsibility, then we should back her.

Carl Gardner is a former government lawyer, he writes about law at Head of Legal