Contempt of court

Question 1

What is contempt of court?

Answer 1

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

Question 2

What is s 1 of CCA 1981 and it’s definition?

Answer 2

Strict liability
- defined is s2(2) and regards any active publication that creates substantial risk of prejudice

Question 3

Where is active defined and what does it ensure?

Answer 3

Schedule 1
Ensures strict liability only applies for a limited time which helps with balance under art 10

Question 4

Motive? “Regardless of intent to do so”

Answer 4

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

Question 5

Are there any limitations on the scope of strict liability?

Answer 5

Private communications are excluded
And possibly intent depending on interpretation

Question 6

Active proceedings?

Answer 6

S2(3)
CCA tried to bring clarity to common law through this
Media happy as provided certainty

Question 7

Meaning of substantial risk? Case?

Answer 7

HMA v Scotsman 1999 - don’t have to prove prejudice only risk of it

Question 8

What is the fade factor? Any cases?

Answer 8

Fade factor - length between article and trial date, memory tends to fade and thus not prejudicing - unless super memorable case
- HMA v SMN 2000

Question 9

What is common law contempt?

Answer 9

Runs alongside statutory due to s6
Occurs when proceedings aren’t active e.g., pending
Requires intent and must be beyond reasonable doubt

Question 10

Defences to common law contempt?

Answer 10

1. Honest mistake = complete defence
   2.

Question 11

Defences to statutory contempt?

Answer 11

1. S3 - innocent publication
2. S4- contemporary reports of proceedings
3. S5 - public interest (technically)

Question 12

What is s3 CCA 1981?

Answer 12

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

Question 13

What is s4 CCA 1981?

Answer 13

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

Question 14

What is s5 CCA 1981?

Answer 14

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

Question 15

What case relates to s 5?

Answer 15

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

Question 16

Is s5 satisfactory?

Answer 16

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

Question 17

What is s 10?

Answer 17

Protecting journalistic sources

Question 18

Points of s 10?

Answer 18

• 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

Question 19

Importance of s10?

Answer 19

Acknowledged importance of protecting sources for press freedom
- without it, sources would be deferred from informing press about public interest matters

Question 20

How can a 10 be overturned?

Answer 20

Party must satisfy the court that:
1. Disclosure order is necessary
2. Case fits into one of the exceptions set out under 10(2)

Question 21

Order for disclosure must be necessary?

Answer 21

• high threshold
• must override public interest in protecting the source

Question 22

Case fits in to one of the exceptions?

Answer 22

4 exceptions under article 10(2)
- interest of justice (most common)
- national security
- prevention of crime or disorder

Question 23

Goodwin v UK 1996?

Answer 23

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

Question 24

Ashworth v MGN 2004?

Answer 24

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

Question 25

When is disclosure acceptable?

Answer 25

Only in exceptional circumstances (Ashworth)
- courts have no trade clear what there circumstances are

Question 26

ECtHR on source disclosure?

Answer 26

Protection of journalistic sources is basic condition of free press