For the second matter it must be established what the impact of the publication would be on an ‘ordinary reader at the time of publication.’ Here one looks at the ‘prominence of the article in the publication’ , and ‘the novelty of the content of the article in the context of likely readers of that publication.’

Finally, ‘the residual impact of the publication on a notional juror at the time of trial’ was named as a crucial matter by the judge. For the assessment of this criteria, the judge created three factors that must be taken into consideration; ‘the length of time between publication and the likely date of the trial, the focusing effect of listening over a prolonged period to evidence in a case, and the likely effect of the judge’s directions to a jury.’ The first two criteria are also known as the ‘fade-factor’; which is the assumption that possible prejudicial publication will have a smaller impact if there is more time between the publication of the article and the start of the trial.

Active proceedings
The proceedings become active when someone becomes a key suspect. This means that the case can be active before the suspect has officially been charged with a crime. Criminal cases, are generally active from the moment a suspect is arrested or a warrant has been issued.

In AG v MGN & Newsgroup the question arose whether there could still be a case of contempt of court if a publication was published when the trial was active, but the case never went to court. The case concerned a Christopher Jefferies who had been arrested for the murder of Joanna Yeates. He was depicted as a possible paedophile and murderer and the article suggested him as the Joanna’s murderer. The publications were published after Jefferies had been arrested, however he was released and another man was arrested and convicted for the murder. The question was whether there could still be a serious risk of prejudice to the proceedings, despite the fact that Jefferies’ case had never gone to court. The judge held that the ‘vilification of a suspect under arrest’ still fell within the ambit of section 2(2) of the CCA 1981, due to the fact that it could discourage possible witnesses from stepping forward with information. The integr