When I saw Deputy Assistant Commissioner Sue Akers give evidence to the Leveson inquiry last week, I did wonder for half a moment whether it could be sensible or right for her apparently to make statements about what had happened at the Sun as though it were fact – when people had reportedly been arrested and presumably prosecutions were possible.

I wish I’d tweeted my concerns at the time. But to be honest they subsided almost instantly: I vaguely assumed, as I’m sure most observers did, that her evidence had been supplied in writing in advance and had been advised on by everyone’s lawyers, perhaps negotiated in long discussions and in any case cleared by the police’s own lawyers, by the CPS and by the inquiry team. I assumed she gave her evidence – and that Lord Justice Leveson heard it – quite confident that any possible prosecution could not be prejudiced.

Now, though, the Guardian is reporting that a complaint has been made to the Attorney General; and the Attorney’s spokesman is saying:

Evidence given during the Leveson inquiry has been drawn to the attention of the Attorney General’s Office. The Attorney General will consider the concerns raised.

It’s important to be a bit cautious about this: all my earlier assumptions may have been correct, and there may be no difficulty with this evidence at all. It may be simply that someone without full knowledge of all the background Sue Akers is aware of has thought there might be a problem, and that the Attorney’s Office must say it’s “considering” the matters raised, but will very soon say there’s no problem. There may not be anything to see here. Avoiding the risk of prejudicing prosecutions was always a crucial problem for Leveson, and I find it incredible anyone can possibly have taken their eye off the ball.

But if lawyers at the Attorney’s Office really do fear a possible contempt of court here – either under section 2(2) of the Contempt of Court Act 1981 or at common law as a statement calculated to interfere with the administration of justice – it would be truly astonishing news, and could throw the entire Leveson process into disarray.

There are interesting legal issues involved here: whether Sue Akers’ evidence was a “publication to a section of the public” for the purposes of the strict liability rule under the 1981 Act; whether, if not, she could be said to have the required state of mind to commit common law contempt; and the legal position of the media in reporting her evidence.

The Attorney, Dominic Grieve, has shown real anxiety to clamp down on contempts of court, and in the Chris Jefferies case last year succeeded in establishing contempt even where there was (as it turned out) no trial to prejudice – because the course of justice was impeded or put at risk as at the date of publication.

I’m waiting for further news from the Attorney General’s Office.

2012-03-06T23:44:29+00:00Tags: , |