Avoiding liability for contempt and costs orders

In
March this year, Desmond Noonan, a notorious gangland boss, was stabbed
to death outside a pub in Manchester. The following week, Five was due
to broadcast Gangsters, a documentary on Britain’s mob scene, featuring
Noonan and his brother.

Shortly after the killing, the police
arrested a suspect. They applied for and got an injunction under the
Contempt of Court Act 1981 to stop the broadcast of Gangsters.

Under
the “strict liability” rule in the Contempt of Court Act, conduct can
be a contempt whether or not there was intent to damage the course of
justice. The rule applies only to “a publication which creates a
substantial risk that the course of justice in the proceedings in
question will be seriously impeded or prejudiced”.

The police
argued the risk was that the programme could deter witnesses from
coming forward. They got their injunction and Five appealed.

The
Court of Appeal noted that interference with witnesses by violent
offenders was not unknown iCn Manchester and that Noonan was from a
family of violent offenders in that city. What the police had to show
to keep their injunction was that the “reinforcement”

the
programme would give to those already unwilling to cooperate with the
investigation was sufficient to create a substantial risk that the
proceedings would be prejudiced or impeded.

The standard of proof
is high in contempt cases and the court held it was not satisfied here.
Allowing the appeal, the appeal judges made reference to the general
notoriety of such interfering behaviour, to the notoriety of the family
and to the wide publicity that the killing of Noonan had generated.
These factors meant there was already a risk.

In Attorney-General
v MGN (1997) (to which the judge at first instance and appeal judges
referred), Schiemann LJ said that even where there was already some
risk of prejudice, this didn’t prevent a finding that a subsequent
publication created a further risk. However, the appeal judges held
that this was not the case here. They held that broadcasting the
programme would not add substantially to the risk that was already
present.

The case highlights the problems inherent in reporting
high-profile criminal investigations. The media has always had to heed
the law on contempt. More recently, the introduction of the Courts Act
2003 has brought with it the added risk that the media may be ordered
to pay the costs of criminal trials if they are guilty of “serious
misconduct”. Serious misconduct is not defined in the Act.

It does not, however, have to be conduct that constitutes a contempt of court.

The penalties for falling foul of either the Contempt of Court Act or the regulations made under the Courts Act can be severe.

Newspapers
and broadcasters must scrutinise carefully any material relating to the
case and the manner in which is it presented, before it is published.

Following
the Noonan case, where the information is already in the public domain,
the court may be less inclined to find that further publication by the
media will increase the risk that any pending criminal proceedings are
impeded or prejudiced.

Catherine Hurst is an associate in the Media and Internet Litigation Group at law firm Addleshaw Goddard

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