NCTJ DIPLOMA

COURT REPORTING SESSION 3

CONTEMPT OF COURT

The Contempt of Court Act 1981 exists to ensure the course of justice is not impeded or perverted and to ensure fair trials. The greatest risk is of that of influencing potential jurors. (McNae chapter 18). (The COCA also applies to inquests which become “active” when they are “opened”.)

Contempt of court is a “strict liability” offence – media organisations can be prosecuted for creating “a substantial risk of serious prejudice” whether or not they had intended to create such a risk. It’s the Attorney General – the Government’s top law officer – who brings prosecutions for contempt and a conviction can bring up to two years’ jail sentence.

We, the media, are at risk under the Act as soon as a case becomes “active”. This means when:

·  A person has been arrested

·  An arrest warrant is issued

·  A summons is issued

·  A person is charged orally with a crime

It ceases to be active when:

·  The arrested person is released without charge (unless on police bail)

·  No arrest is made within 12 months of the issue of a warrant

·  The case is discontinued

·  The defendant is acquitted or sentenced

·  He/she is found unfit to be tried

Note: The period between verdict and sentence is technically active but since the jury has been discharged and it’s the judge who decides sentence it’s unlikely we’d be held liable for contempt if we published our “backgrounders”. Judges are deemed to be above prejudice.

Note2: A case becomes active again once an appeal has been lodged. However, appeals are heard by judges and not jurors so the danger is lessened. BUT if a re-trial is ordered it’s back to first base as far as prejudice is concerned – there’s going to be another jury trial.

So what is substantially and seriously prejudicial?

·  Mention of any previous convictions the defendant may have

·  Anything suggesting they’re dishonest or of a bad character in any other way. “vilifying the person” as with Chris Jeffries

·  Any evidence which seems to link him/her directly to the crime

·  Any other suggestion that he/she is guilty

Photographs or descriptions may also be a problem if identification is likely to be a major plank of the trial.

So what can we say?

·  Basic details of the crime which are unlikely to be contested – where it took place, where a body was found, the nature of injuries, etc.

·  The name of the accused – and the charge

·  Basic background about the defendant – non-prejudicial stuff such as occupation, school attended, etc.

·  If it’s a murder, tributes to the victim, memorials, etc.

It’s commonly accepted that the nearer you are to the trial, the more risk you run since the material complained of would more easily come to the minds of jurors. The “fade factor” – the length of time between the risky material and the trial – is often taken into account. However, recent cases such as Christopher Jefferies show that even long length of time may not prevent prosecution for “impediment” of the trial rather than straight prejudicing of a jury. McNae p.220 and 225.

Clearly, once a case goes active, news websites run the risk of committing contempt of court because their previous stories about the crime remain available. Most online providers will take down the “side bars” which point users to previous stories. However, they are sometimes ordered to remove the material altogether. And if a media organisation’s attention is drawn to archive material which may cause substantial prejudice the safest course of action is to take it down. There have been examples of jurors looking up cases on the internet. It’s a growing source of concern.

Section 4 (McNae p227)

We have protection under Section 4 of the Contempt of Court Act if our reports are fair, accurate and contemporaneous. This means we must ensure balance in our reports between prosecution and defence sides, we need to ensure everything we report WAS said in court and that we attribute everything to the person in court who says it. “Joe Bloggs, QC, prosecuting said…..” “the jury was told…..” etc. Contemporaneously means at the first available opportunity.

Under Section 4(2) of the Act, a court may pass an order postponing all or part of a case in order not to prejudice a future trial. This may happen if a defendant is facing more than one trial - it could be that no media report at all of the first trial is allowed in case the future jury hears and remembers it. In these cases you often hear, at the ending of a trial, that the same man had previously been convicted some months earlier of a different offence. (This was the reason why Baby P remained anonymous prior to the trial of his stepfather some weeks later for raping one of Baby P’s siblings). (McNae p228)

Even if there is no Section 4(2) order, we must not report anything said during a trial in the absence of the jury.

It’s a contempt offence to breach any order passed by a court. A major trial involving Leeds footballers charged with assault was aborted after a newspaper ran a story saying the the assault was racially motivated despite the fact that the judge had ordered the jury NOT to consider it as a racial offence.

Filming and recording

It’s an offence under the COCA make any audio recording of court proceedings, to take audio devices into court. Under the Criminal Justice Act 1925 it is an offence to make photographs, film or sketches in the precincts of the court. Even court sketch artists mustn’t make their sketches in the court itself. “Precincts” of the court is an area open to interpretation – courts differ in their customs. Generally, the public pavement outside the court is where the media takes pictures and does its filming or people coming and going. Think of cases from the Old Bailey or the High Court. It is an offence to film jurors. (McNae p113 – 116). You also need permission to film/photograph when juries go out to visit crime scenes.

Section 11 orders

Section 11 orders allow a court to ban publication of a name or any other matter. It’s generally used in blackmail cases where the alleged victim is kept anonymous, in cases of national security (those these may be held in camera – in private – anyway) and in cases involving commercially sensitive information. The order can’t be made if the name, etc, has already been mentioned in open court (see Arundel Justices case) and it must be necessary for “justice to be seen to be done”. It’s not simply for the “comfort and feelings” of defendants (see Evesham Justices case) – there must be a “real and immediate” risk if they fear attack or harassment. Sometimes defendants such as serving police officers will ask for Section 11 anonymity because of something like local public opinion being against them – often they are refused. (McNae p119 – 120, 172 – 173 and 175 – 176.) **Arundel and Evesham justices cases are well worth memorising as this frequently comes up in your exams.

Section 46 orders

Section 46 of the Youth Justice and Criminal Evidence Act protects the identification of vulnerable or intimidated adult witnesses and has a wide-ranging scope – it lasts for their lifetime. It’s passed if being named would limit their evidence or co-operation in the case due to their level of fear or distress. Simply being reluctant to give evidence is no reason for the order. It is possible for us to challenge such an order on the grounds of public interest and that it would seriously hamper reports of the case. There are also “special measures” for certain witnesses – such as giving evidence from behind a screen but these don’t always carry anonymity. (McNae p. 123 - 124).

Jurors

In addition to not photographing or naming jurors, we need to remember that jury deliberations are confidential – we must not, even when the case is over, ask jurors about their opinions on the case, how the debate and arguments went or votes cast. McNae p117 – 119)

Tweet tweet

The Lord Chief Justice has granted permission for journalists to use computers or mobile phones in court in order to report by “live text-based communication” – including e-mails, texts and tweets. This is provided they are silent and not-disruptive. However, judges can - and do – ban them in specific cases. McNae p. 116.