NCTJ DIPLOMA ESSENTIAL MEDIA LAW SESSION 2

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)

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. Judges trying Crown court cases have “inherent jurisdiction”to deal with contempt arising during proceedings but usually refer the matter to the Attorney General.

Criminal cases

In criminal cases, 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. 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.

In the preliminary stages of a court case there are strict reporting restrictions in order to prevent future prejudice – reference to previous convictions or bad character may be made. Once a trial has begun we can report freely – provided we are fair, accurate and contemporaneous – subject to other restrictions such as anonymity which we’ll see later.

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

·  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. See examples McNae p.222.

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 but may not be enough to prevent a prosecution for “impediment” (McNae p.225 - 6)

Clearly, once a case goes active, news websites run the risk of commiting 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. There have been examples of jurors looking up cases on the internet. One even asked friends on Facebook if they felt a defendant was guilty. It’s a growing source of concern. (McNae p.226)

Civil cases (McNae p.133

Under the 1981 Act, civil proceedings are deemed to be active from the time a date for the hearing or trial has been fixed. They cease to be active when the case is disposed of, abandoned, discontinued or withdrawn.

Generally speaking the risk is much lower than for criminal cases because most civil matters are heard by a judge without a jury and judges are deemed to be above prejudice. However, there is still the possibilty of witnesses in a civil case being affected by too much detail published in advance of the trial – their evidence could be coloured by what they’ve read. It’s important to remember that a case isn’t over until it’s over – when damages have been awarded.

A lawyer may tell you a case is “sub judice” – which means legal action has begun. This is not the same as the “active period” which begins when a date has been set.

Contempt defences and other matters

Section 3 defence

This is sometimes called “innocent publication” and is a defence if, having taken all reasonable care, you did not know, and had no reason to suspect, proceedings were active. This is why it’s important to keep checking with the police when covering a crime story to make sure there hasn’t been an arrest or charge as this could materially alter what you’re planning to publish/broadcast. McNae p.219.

Section 5 defence – “Discussion of public affairs”

This defence says that a publication in good faith of public affairs won’t be treated as a contempt under the strict liability rule if the risk of prejudice is “merely incidental”. This means that a general discussion of a matter of public interest at any given moment in time will not prejudice an on-going case where the subject matter is the same or similar. For instance, a debate about fire precautions in hotels should not be curtailed just because a prosecution of one hotel is on-going.

To obtain this defence we shouldn’t make reference to a specific active case in which the issue figures – or suggest the defendant is guilty or not guilty. See Dr Leonard Arthur case McNae p.230 - 232.)

Police appeals

If the police are appealing through the media for public helping in tracing a person wanted for a crime we have Qualified Privilege against a libel action, But, technically, we have no contempt protection – and such an appeal may well create a substantial risk of serious prejudice by, for instance, describing the man as armed and dangerous. However, in 1981 the Attorney General said that the press has “nothing to fear” from making such a publication in reasoned terms. It is of course, an important public service. Nobody has ever been prosecuted for this.

Juries

Under Section 8 of the CCA jury deliberations are confidential in both criminal and civil matters. It’s a contempt to obtain, solicit or disclose anything about statements, arguments, opinions or votes cast in the jury room. Once a case is over we can report a juror’s general impressions of his/her experience. (McNae p. 117 - 118.)

The media in court

We are banned from taking audio recording devices into court without permission and on broadcasting from them. We can’t make sketches, photographs, film or video in the courtroom or the “precincts” of the court. It’s also a common law contempt to do these things. “Precincts” is open to interpretation but generally it’s accepted the media will film/photograph people on and from the public pavement (though not jurors of course or anybody under an anonymity ban.) When jurors are taken out of court to visit crime scenes we need permission to film or photograph the visit – and of course it needs to be from a distance so that jurors are not identified. McNae p.113 - 116.

Failure to obey court orders

It’s an offence under the Contempt of Court Act to breach a court order or to breach an injunction which is in force to prevent certain material being aired.

Sometimes an order is made that a journalist, or a publication, should reveal confidential sources which have divulged information – it’s a contempt of court to refuse to do so.