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Human Rights And Civil Liberties > Contempt of Court > Flashcards

Contempt of Court Flashcards

1
Q

What are the competing values at the centre of contempt of court?

A

There are 3 competing human rights issues:

  1. art. 10 - right to freedom of expression
  2. art. 8 - right to privacy (of the accused)
  3. art 6 - right to a fair trial
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2
Q

How does press reporting of trials aid the justice system?

A

“press reporting of court cases enhances public knowledge and appreciation of the workings of the law, it assists in the deterrent function of criminal trials” - Robertson & Nicol (1992)

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3
Q

What does Bentham state about the interception of Justice and Expression?

A

“where there is no publicity there is no justice, it is the very soul of justice” (1839)

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4
Q

What are the two sides of the media?

A

Royal Commission on the Press states that “journalism advance public interests … which enhances democracy”
— vs. —
Robertson and Nicol (1992) state that journalism can be shallow, sensational or just plain incompetent.

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5
Q

How can freedom of expression impact the administration of justice?

A

Negatives:

  • it impacts the jury and the judgement
  • may lead to unfair prison attacks
  • it is an invasion of privacy (art 6)

Positives:

  • can help with the administration of justice (through things like crimewatch)
  • accused may want press freedom to encourage witnesses to come forward (however the reverse can also happen)
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6
Q

R v. Bolam (1949)

A
  • Murder trial
  • Daily Mirror described the accused as a vampire, and accused him of committing other murders
  • Editor was jailed for contempt of court
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7
Q

Taylor v. Taylor (1994)

A
  • 2 sisters were on trial for murder of the wife of a man with whom one sister had previously had an affair with
  • the tone of the news papers favoured guilt, and via creative editing depicted an image of one of the sisters kissing the husband of the deceased
  • the sisters were convicted, however it was then quashed due to lack of a fair trial (no re-trial)
  • court of appeal held that there was a real risk of prejudice of the trial
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8
Q

Cullen, McCann and Shanahan (1991)

A
  • media interview with Tom King was the SofS for Northern Ireland and Lord Denning about changing the law relating to staying silence in terrorism trials (IRA)
  • during this interview they heavily implied that those who remain silent are guilty
  • 3 terrorists who were being convicted with attempted Murder (of Tom King), had remained silence
  • C of A held that this interview had prejudice the trial and therefore their convictions were quashed
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9
Q

HM A-G Claimant v. Newsgroup Newspapers Ltd (2011) [the Jefferies case]

A
  • Murder of Jo Yates
  • The initial suspect was her landlord
  • media reported him as a paedophile, stalker and obsessed with death (who liked blonde girls)
  • Court fined the Daily Mirror and The Sun £50,000 and £18,000
  • J was realised without charge
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10
Q

What are the main statutory provisions preventing the disclosing of information during a trial?

A
  • Sexual Offences Act 1976 s.4
  • Children and Young Person Act 1999 s.49
  • Official Secrets Act 1911
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11
Q

Sexual Offences Act 1976, s.4?

A

the disclosure of the name of a complainant in a rape case in their life time is prohibited without the courts permission

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12
Q

Children and Young Persons Act 1999, s.49?

A

Cannot identify a child charged with a criminal offence

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13
Q

Official Secrets Act 1911?

A

Certain spying trials may be held in camera to protect national security

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14
Q

What is the purpose of Contempt of Court?

A

“to prevent publications that might realistically bias the tribunal”

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15
Q

What is the USA approach to contempt of court?

A

The 1st Amendment governs contempt, this means that freedom of the press can be lawfully interfered with when there is a clear and present danger to the fair administration of justice in pending litigation.

The courts will seldom find this as such a ruling requires a serious substantive evil.

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16
Q

An example of a US approach to contempt of court?

A

Sheppard v. Maxwell (1966)

  • The court held there was contempt in this case, and what should have happened was that the judge should have:
  • postponed the trial
  • transferred the trial to another state/ venue
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17
Q

What is the process of re-trial in the US to avoid contempt of court?

A
  • they can transfer the case to another state (impossible in the UK due to the national press)
  • Court controls the participants to prevent the realise of prejudicial information (the court does this in the UK)
  • Press self-regulation (not really effective)
  • Postponement of the trial (not always fair for the defendant)
  • Voir Dire - Juror selection (what happened in OJ Simpson)
  • Jury Sequestration during the trial (this is what happened in OJ as well)
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18
Q

What are the problems with the US methods of prevention of contempt of court?

A

art. 6 calls for justice within a reasonable amount of time - postponement of the trial does not comply with this, and Voir Dire may result in a more lengthy process

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19
Q

What is the Australian/ New Zealand approach to contempt?

A

“The alternative measures of adjourning trials … should not … be regarded as adequate protection in this country against the intrusion of potentially prejudicial material into the public domain”

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20
Q

What is the UK approach to the contempt of court?

A

There is a duel system in the UK of statutory protection (through the Contempt of Court Act) and the common law offences

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21
Q

What amounts to a court in the Contempt of Court Act?

A

s.19 states that any tribunal or body exercising the judical power of the state, civil and criminal as well as any quasi-courts, tribunals etc.

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22
Q

What are the penalties under the Contempt of Court Act?

A

up to 2 years imprisonment

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23
Q

What was the case concerning the origin of the Contempt of Court Act 1981?

A

AG v. Times Newspapers [Thalidomide case]

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24
Q

AG v. Times Newspapers [Thalidomide case]

A
  • this was a drug to combat morning sickness, which resulted in the babies of the woman taking the medication being born with abnormalities (missing limbs and the such)
  • Litigation was at the stage of negotiation and not much was happening therefore the Times got involved and published two articles
  • the first article was criticising the defendants for relying on their strict legal rights in this case (it was held that this did not amount to contempt)
    -the second article was an appraisal of the evidence and issues in the case (the AG held that this was contempt and issued an injunction)
    -The House of Lords upheld the injunction
    This case then went to the ECHR, as Sunday Times v. UK
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25
Q

Sunday Times v. UK [Thalidomide Case]

A
  • in this case the applicants argued that this injunction was a violation of their article 10 rights
  • ECtHR held this went beyond what was necessary in a democratic society
    “there is a general recognition that the courts cannot operate in a vacuum… it is incumbent on them to impart information and ideas concerning matter that come before the court just as in other areas of public interest. Not only do the media have the task of impacting such information and ideas the public also has a right to receive them” - Para 65
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26
Q

Contempt of Court Act 1981, s.1?

A

“In this act the strict liability rule means that the rule of law whereby conduct may be treated as contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so”

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27
Q

Contempt of Court Act 1981, s.2?

A
  1. ) this rule applies to publications including speeches writings or other communications in whatever form addressed o the public at large or any section of the public
  2. ) the strict liability rule applies only to a publication which creates a substantial risk that the course of justice or proceedings in question will be seriously prejudiced or impeded
  3. ) this rule only applies in active cases
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28
Q

When are criminal proceedings active under the Contempt of Court Act?

A 
CCA 1981 s.2(3) Schedule 1:
Criminal proceedings are active when:
a.) An arrest
b.) Issue for a warrant of arrest
c.) Service of an indictment 
d.) An oral charge
29
Q

When are civil proceedings active under the Contempt of Court Act

A

CCA 1981 s.2(3) Schedule 1:

Civil proceedings are active when an arrangement is made for the hearing in action

30
Q

What is the actus reus and mens rea of Contempt of Court?

A

actus reus: publication which creates a substantial risk that the course of justice proceedings in question will be seriously prejudiced
mens rea: it is a strict liability offence therefore there needs to be no mens rea

31
Q

What amounts to a substantial risk in CCA 1981?

A

AG v. English held that a substantial risk does not have to be a very big risk, it relates to the proximity of the risk as the time may have blunted its impact- it is a risk that is not too remote (this can be seen in the Botham Case)

32
Q

AG v. Newsgroup Newspapers [Botham Case]

A
  • B brought a liable claim against the Mail on Sunday over allegations of his misconduct
  • Civil proceedings were active, 10 months before the trial (NoW threatened to print similar allegations)
  • AG filed an injunction to prevent the publication of that information, however the Court of Appeal there was no threat of substantial risk as the trial was 10 months away
33
Q

AG v. BBC (1996) [Have I got News for you Case]

A
  • murder of Maxwell, his 2 sons were on trial for fraud
  • Ian Hislopp called them “heartless scheming bastards”, thus implying they were guilty
  • Auld LJ “these remarks created a risk of prejudice to the brothers pending trial, the comic nature did not excuse the remarks”
  • the 6 month gap between the publication and trial could still create a substantial risk of prejudice
34
Q

Prejudgement of a case?

A

Prejudgment will only arise when a case s heard by a magistrates or a jury. Judges are said to be able to ignore such publications (probably because a judge has to give reasons for their judgement, whereas a jury do not).

35
Q

What are case law examples of prejudgment?

A

R v. Bolam (vampire case), AG v. MGN Ltd [2011] [Jefferies Case], AG v. MGN Ltd [1997] [Geoff Knights- Case]

36
Q

AG v. MGN [1997] [Geoff Knights Case]?

A
  • Kathy Beale from Eastenders and Geoff Knights had failed in a libel action (about them having sex in a car)
  • There was much press coverage about the alleged incident and claims that GK was involved in violence
  • GK was then arrest on a separate account of assault, and claimed that for this he could not get a fair trial
  • the AG brought contempt proceedings against the newspapers however Schieman LJ ruled that none of the individual publications could amount to a contempt charge
37
Q

Judgement in the AG v. MGN [1997] [Geoff Knights Case]?

A
  1. ) Each case must be decided on its own facts
  2. ) The court will consider each publication separately
  3. ) The publication in question must create some risk that the course of justice in the proceeding in question be impeded or prejudiced by the publication
  4. ) That risk must be substantial
  5. ) The prejudice of justice must be seriously impeded
  6. ) The court must be sure the publication caused substantial risk before it convicts of contempt
  7. ) When coming to this conclusion the court will consider:
    (a) the likelihood of the publication being seen by a juror
    (b) the impact on the ordinary reader
    (c) the residual impact on a notional juror at the time of the trial:
    - predominance of the article
    - circulation of the publication
    - length of the time of the publication and trial
38
Q

Publications that may prejudice a jury against a party?

A

where a photo has been published and the identity of the defendant is alikened to suspect or past life is published inciting a crime.

39
Q

Example of case law surrounding publication that may prejudice a jury against a party

A

AG v. Associated Newspapers (gun case), AG v. Times Newspapers [2011] [The Fagan Case]

40
Q

AG v. Assocated Newspapers

A
  • Daily Mail published a photo of the defendant holding a gun with his finger on the trigger in the context of his murder trial
  • This was published online
  • In this case the judge warned the jury not to look at online information
  • however it was still held to be in contempt and were fined
41
Q

AG v. Times Newspapers Ltd [1983] [The Fagen Case]

A
  • Fagen broke into Buckingham Palace, in reports he was depicted to be a druggy and a bit dodgy, and a thief
  • The claim that he was a thief were held to be in contempt of court
  • there was also allegations of a homosexual relationship with one of the Queens body guards
  • The court held this was not contempt as the protection of the queen falls under s.5
42
Q

Improper criticism of a party to a legal action

A

This is where a party is criticised in the press, to what point does it go past fair criticism to humiliation and disgrace, thus amounting to contempt

43
Q

House of Lords statement regarding improper criticism of a party to a legal action?

A

“fair and temperate criticism was lawful but seeking to humiliate and disgrace amounts to contempt”, this is due to the need to balance the public interest with the right to a fair trial. - AG v. Times Newspapers [The Thalidomide Case].

44
Q

Case law example of improper criticism of a party to a legal action?

A

AG v. Hislop [1991] - Sonia Sutcliffe (wife to Peter) had brought a libel action against private eye, who had claimed she knew of her husbands activities . They continued to publish 2 more articles defaming Sonia. The court held this was improper criticism to a party under an action and therefore imposed a fine on the editor and publishers of £10,000

45
Q

Statutory Contempt of Court is a ___ ___ offence?

A

Strict Liability, meaning that no intent needs to be proved

46
Q

What are the defences are there to the strict liability offence?

A

Innocent Publication, Innocent distribution, Contemporary reports of proceedings and Discussion of Public Affairs

47
Q

Innocent Publication?

A

s. 3(1) “he does not know, or has no reason to suspect that relevant proceedings are active”
s. 3(3) “the burden of proof is on the publisher [in this instance]”

48
Q

Innocent Distribution?

A

s. 3(2) “he was unaware, having taken all reasonable care, that the material contained such matter”
s. 2(3) “the burden of proof is on the one who wishes to rely on the defence”

49
Q

Contemporary reports of proceedings?

A

s.4(1) “in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”

50
Q

Discussion of public affairs?

A

s.5 “a publication made as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental discussion”

51
Q

Case law surrounding the discussion of public affairs?

A

AG v. English [1982] [Dr. Arthur case] and AG v. Times Newspapers [1983] [The Fagen Case].

52
Q

AG v. English [1982] [Dr. Arthur Case]

A
  • Dr. Arthur was on trial for murder for allowing Downs Syndrome babies to die
  • The Daily Mail published an article relating to a By-Election in Croyden and a Pro-life candidate stating “today the chances of such a baby (with no arms) would be very small, people would save her” - the article did not explicitly mention Dr. Arthur
  • Dr. Arthur was acquitted
  • AG brought contempt proceedings and the Daily Mail argued s.5
  • The court held in this case that any risk of prejudice was merely coincidental (Lord Diplock)
53
Q

What is the main difference between the statutory protection for contempt of court and the common law protection of contempt of court?

A

the main difference between the two offence is the role of intention. Statutory contempt is strict liability, however common law takes into account intention, and therefore can award a higher fine/ prison sentence

54
Q

What case highlights the test for common law contempt of court?

A

AG v. News Group Newspapers [1988] (Dr. B Case), AG v. Sport Newspapers (15 year old girl rape case), AG v. Hislop (Sonia Sutcliffe case) and AG v. Punch Ltd (MI5 case).

55
Q

AG v. News Group Newspapers [1988] (Dr. B Case)

A
  • A Doctor was accused of raping an 8 years old girl, the sun campaigned to get Dr. B convicted however there was no conviction due to insufficient evidence to do so
  • the Sun published a series of emotive interviews with her family and agreed to fund a private prosecution
  • The Sun was then charged with common law contempt
56
Q

What was the judgement in AG v. News Group Newspapers [1988] (Dr. B Case)?

A

Watkins LJ: although proceedings had not formally began, they were clearly imminent at the time of publication. therefore there was a real risk and perhaps intention that publication would interfere with the course of justice

“common law is not some worn out piece of jurisprudence and it is still important in this area”.

57
Q

AG v. Sport Newspapers (1992)

A
  • Case involved a missing 15 year old girl, who police believed to be abducted by a known sexual offender
  • Police realise details to the press however with strict instructions to not publish information about his previous convictions
  • Daily Sport released an emotive piece about his previous convictions, however they could prove that this was not with intent to be in contempt of court
  • this case highlights that for the common law offence there must be intent (otherwise it is statutory)
58
Q

AG v. Punch Ltd

A
  • D was an ex MI5 officer disclosing information about government, therefore an injunction was brought against him
  • D wrote an article for Punch, and Punch’s publication of this was in direct contempt of court (with intent)
59
Q

s.4 Contempt of Court Act (1)

A

(1) a person is not guilty of contempt of count under the CCA of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith
(2) The court can make an order to postpone publication of legal proceedings if its necessary to avoid substantial risk of prejudice to the administration of justice

60
Q

What is meant by s.4(2) and what is a case example?

A

s.4(2) concerns the delaying on reporting of one trial until another trials completion to avoid any contempt. An example of this R v. Beck ex parte Daily Telegraph

61
Q

R v. Beck ex parte Daily Telegraph

A
  • a social worker was accussed of abusing children and this resulted in 3 trials
  • court make an order to postpone the publication of trial one under the completion of all trials
  • C of A reverse this decision as the publication of the results of the trial are in the public interest, therefore this outweighs the risk to justice
62
Q

s.11 Contempt of Court Act (and case example)

A

this gives the court the power to prevent an individuals names form being published to encourage a witness to testify in court
An example of this power was seen in the case of R v. Evesham Justices ex parte McDougah, however it is rare for the court to do this

63
Q

R v. Croyden Crown Court ex parte Trinity Mirror

A
  • D was convicted of being in possession of child pornography
  • He did not want his name to be realsed as he did not want his children to experience bully as a result
  • Court granted a s.11 in this case
  • However this was overturned by C of A, and it was allowed to be published (as there was a public interest)
64
Q

s. 10 Contempt of Court Act

A

“no court may require a person to disclose, nor is any person guilty of Contempt of Court for refusing to disclose, the source of information contained n a publication for which he is responsible, unless it be established to the sanctification of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime”

65
Q

s.10 of the CCA states (with case example)

A

that there is protection of the journalists sources. An example of this is Ashworth Hospital v. MGN Ltd and Financial Times v. UK (2010)

66
Q

Ashworth Hospital v. MGN Ltd

A
  • a newspaper published reports containing Ian Bradeys medical reports, through a leak in the hospital
  • Court held this was an exceptional case where the leak must be revealed in the interest of justice
67
Q

Financial Times v. UK (2010)

A
  • anonymous source leaked a copy of a document and the press published an article on this
  • company wanted to gain access to the origin of this article, UK courts allowed this
  • ECtHR held that protection of journalistic sources is part of art. 10
68
Q

Contempt of the jury?

A

ss.67-77 Criminal Justice and Courts Act 2015 creates a specific criminal offence of contempt of the jury to:
i.) research details of the case
ii.) share details of the research with the jury
iii.) disclose jury deliberation
iv.) other prohibited conduct
An case law example of this can be seen in the case of AG v. Scholcher.

69
Q

What is an area of reform for the contempt of court act?

A

it was passed in 1981, therefore the way news in consumed today has evolved currently and it should be reformed to reflect this (this was considered by the law commission in 2013), this was then considered by Cram and Taylor (2013)

Human Rights And Civil Liberties (10 decks)

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