Contempt of court Flashcards
What is contempt of court?
Avoid trial by media
Contempt is where the media prejudices a trial before it has begun, usually swaying the public to one party’s side
What is s 1 of CCA 1981 and it’s definition?
Strict liability
- defined is s2(2) and regards any active publication that creates substantial risk of prejudice
Where is active defined and what does it ensure?
Schedule 1
Ensures strict liability only applies for a limited time which helps with balance under art 10
Motive? “Regardless of intent to do so”
Motive is irrelevant
Quote is open to interpretation
- if it means where there is no intent then the CCA cannot be used if there is intent
- if it means whether or not there is intent then it is broader and would allow the CCA even where there is intent
Are there any limitations on the scope of strict liability?
Private communications are excluded
And possibly intent depending on interpretation
Active proceedings?
S2(3)
CCA tried to bring clarity to common law through this
Media happy as provided certainty
Meaning of substantial risk? Case?
HMA v Scotsman 1999 - don’t have to prove prejudice only risk of it
What is the fade factor? Any cases?
Fade factor - length between article and trial date, memory tends to fade and thus not prejudicing - unless super memorable case
- HMA v SMN 2000
What is common law contempt?
Runs alongside statutory due to s6
Occurs when proceedings aren’t active e.g., pending
Requires intent and must be beyond reasonable doubt
Defences to common law contempt?
- Honest mistake = complete defence
2.
Defences to statutory contempt?
- S3 - innocent publication
- S4- contemporary reports of proceedings
- S5 - public interest (technically)
What is s3 CCA 1981?
Defence of innocent publication
1. Arrest made after paper has been printed but not distributed (not active for print but active for distribution)
2. To succeed, must prove all reasonable care was taken e.g., checking with police
What is s4 CCA 1981?
Defence of contemporary reports of proceedings
1. Not guilty as fsir and accurate report of legal proceedings held in public
2. Good faith and published at the same time
3. Cannot be used months later, must be in the moment
What is s5 CCA 1981?
Technically not a defence as the BoP is on the prosecution to prove the publication is not:
1. In good faith
2. Related to public affairs
3. risk of prejudice was incidental
What case relates to s 5?
Sunday times v UK 1979
1. ECtHR concerned as common law paid little attention to competing public interest elements that might support publication - reason why s 5 was introduced
Is s5 satisfactory?
Arguable either way
1. Does not expressly require balancing of art 6 and 10
2. Possible that the use of s6 HRA would lead to more expansive interpretation
What is s 10?
Protecting journalistic sources
Points of s 10?
- not to be read in isolation - HRA 1998 requires court to be compatible with ECHR
- art 10 led parliament to provide additional measures or protection through s 10
Importance of s10?
Acknowledged importance of protecting sources for press freedom
- without it, sources would be deferred from informing press about public interest matters
How can a 10 be overturned?
Party must satisfy the court that:
1. Disclosure order is necessary
2. Case fits into one of the exceptions set out under 10(2)
Order for disclosure must be necessary?
- high threshold
- must override public interest in protecting the source
Case fits in to one of the exceptions?
4 exceptions under article 10(2)
- interest of justice (most common)
- national security
- prevention of crime or disorder
Goodwin v UK 1996?
Leading eu authority on source disclosure
- merely establishing you’ve been wronged is not enough to persuade court to overturn article 10 - balancing act needed
- forcing source disclosure may seriously undermine press’ role as public watch dog due to chilling effect on flow of info
Ashworth v MGN 2004?
Court of appeal considered the balancing act
- M’s conduct was illegal so scope widened
- MGN identified as wrongdoer - lord Woolfe
- court did not like sale of confidential info
When is disclosure acceptable?
Only in exceptional circumstances (Ashworth)
- courts have no trade clear what there circumstances are
ECtHR on source disclosure?
Protection of journalistic sources is basic condition of free press
