Contempt of court

RECENT
reporting of the arrests of terrorists over the London bombings drove
home the fact that contempt laws are far from straightforward.

Following
widely-publicised appeals by police, who wanted the public\’s help in
targeting specific individuals, the media was suddenly expected to
maintain a stony silence on the case.

After front-page coverage
of the arrests, civil liberties campaign group Liberty wrote to urge
the Attorney General to remind the media of the contempt of court laws.

But how much of a danger is there generally for editors and reporters?

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\”.

In other
words, is it likely to sway the jury, or cause the trial to be
abandoned or re-tried? This guide should make the position a little
clearer.

When am I at risk of being in contempt?

Under the Contempt of Court Act 1981, proceedings activate in criminal cases when:

■ Someone has been arrested;

■ Someone has been charged;

■ A warrant for arrest has been issued;

■ A summons has been issued;

■ An indictment of charges has been served.

Proceedings activate in civil cases when:

■ A case has been set down for trial;

■ A date for the trial has been fixed;

■ If neither of the above has happened, when the trial starts.

Inquest proceedings activate when the inquest opens, but there is little risk of prejudicing a coroner sitting alone.

Proceedings activate in an appeal when:

■ The appeal is lodged at the crown office;

■ Notice of appeal is given;

■ Leave to appeal is sought.

However,
there is virtually no risk of prejudicing an appeal, because it is not
heard before a jury. But if the appeal judges order a re-trial, then
the risk of prejudice returns – proceedings remain active until the
re-trial is concluded.

Under common law contempt, the risk of prejudice begins when proceedings are pending or imminent.

But there must be intent to prejudice, or recklessness as to what is published.

How great is the risk with different cases?

There are no hard and fast rules, but these are some of the factors that can raise, or lower, the risk level:

■ The trial is a long way off – the \”fade factor\”.

However, this can be weakened if:

– The defendant is well known


a juror is more likely to remember details of a pre-trial story
involving a celebrity, even if they are charged with a minor offence;

– The story is handled in a sensational manner

– jurors are more likely to remember it;

– The crime is highly memorable.

■ The type of trial, that is:

– A trial by jury runs the highest risk of prejudice from the media;

– A trial before magistrates runs a slight risk of prejudice;


A trial before a judge in a civil case runs little risk of prejudice,
unless a jury is involved. But there may be a risk that media reports
could influence or affect the parties or witnesses;

– An appeal hearing runs no risk of prejudice.


The place of the trial – local media may be able to publish more
details of cases that are to be tried outside their circulation or
transmission area.

What are the dangers before the trial starts?

■ Saying that the person arrested is the same person who committed the crime – or using details implying that he is.

■ Mentioning previous convictions, or other details that are likely to be inadmissible in court, but which a juror may remember.


Using photographs, e-fits or detailed descriptions of a suspect, if he
has to appear on an identification parade, or identity is likely to be
an issue at the trial.

Pictures used as part of a police appeal
for help are safe, but should not continue to be used once a defendant
has been arrested.

■ Reports that assert, or assume, guilt – even
in cases that seem to be open and shut, or where it seems certain the
defendant is going to plead guilty.

■ Reports that assert, or assume the outcome of preliminary matters – for example, the fitness of a defendant to stand trial.

■ Detailed reports of the crime – juries must try the defendant on the evidence, not on what they might have read in the media.


Using statements that are presented as, or are based upon, assertions
of fact in advance of the evidence – for example, describing the
defendant as a rapist or a murderer.

■ Using details of other proceedings that a defendant, or a witness, has been involved in – including previous acquittals.

■ Stories that might undermine witnesses\’ integrity or the credibility of their evidence.


Detailed witness statements – in case the witness feels obliged to use
that version of events in court, even if they later realise it was
wrong.

■ Reports that breach a court order.

■ Detailed reports of the defendant\’s lifestyle, state of mind, etc – these could sway a juror.

■ Criticism of the decision to prosecute – a campaign against ‘injustice\’

may be treated as contempt, as they may sway a jury in favour of a defendant.

■ Payment to witnesses – these are covered by Clause 15 of the PCC Code of Practice.

What are the dangers during the trial?

All the above risks still apply, and the risk level is greater, because the trial has started. Other factors are:

■ Reporting material that the jury has not heard – legal arguments, submissions, etc.


Mixed pleas – if the defendant has pleaded guilty to some charges and
not guilty to others, the guilty ones may not be reportable until the
jury has delivered its verdict on the not guilty ones.

■ Background material that the jury has not been told in evidence – this must wait until the verdict has been delivered.


Interviews with jurors – it is contempt to seek, or disclose,
information about statements made, opinions expressed, arguments or
votes cast by jurors.

It is also contempt to conduct research into juries\’ reasons for their verdicts.


Interviewing witnesses – they should not be interviewed after giving
evidence until the prosecution has begun its closing statement, in case
the witness is recalled.

■ Inaccurate or unbalanced reporting of the trial – this can influence jurors who read it.

■ Comment about the progress of the case or the credibility of evidence.

What are the defences if I\’m prosecuted?

Three
defences can be used to defend a contempt prosecution, other than
arguing that the publication did not cause substantial risk of serious
prejudice.

■ Section 3: Innocent Publication – that having taken
all reasonable care, we did not know and had no reason to believe
proceedings were active. In other words, we were misinformed by the
police about the stage of the investigation.

■ Section 4: Contemporary Reports of Proceedings


this protects court reports from contempt actions, provided they are
fair, accurate, published contemporaneously and in good faith. This
usually covers circumstances where one defendant is facing several
trials. Good faith means that we voluntarily leave out material that is
substantially prejudicial.

The defence is sometimes overridden by the Section 4 order, which delays publication of prejudicial cases or material.

■ Section 5: Discussion in good faith of public affairs


this allows backgrounders on issues that arise from active court
proceedings, provided any risk of prejudice is incidental. It is
usually safe to mention the basic details of the case, but not the
evidence.

Cleland Thom is legal adviser to
the Manchester Evening News, Trader Media Group, Greater Manchester
Weekly Newspapers and The Local Radio Company, and delivers law
training to newspapers and radio stations all over the UK.

Case study

THE LEEDS FOOTBALLERS\’ TRIAL

Myler
pays the ultimate price for contempt Sunday Mirror editor Colin Myler
lost his job in 2001 after the collapse of a trial in which two Leeds
United football players were accused of assault.

The judge
sensationally stopped the trial on a Monday after claiming that a
background feature on the case published in the Sunday Mirror the
previous day was in contempt of court. His decision focused on an
interview with Mohammed Najeib, the father of one of the men who had
accused England stars Lee Bowyer and Jonathan Woodgate of attacking
them outside a night club.

The Sunday Mirror was fined £75,000
plus costs for the offending publication, although Mr Justice Poole
came in for considerable criticism for his handling of the case.

Many
doubted that the article amounted to the substantial risk of serious
prejudice specified by the Contempt of Court Act and felt the trial
should not have been stopped.

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