Free expression Flashcards
What are the requirements for statutory criminal contempt of court?
(1) Proceedings are active
(2) There is a publication, which
(3) Creates a substantial risk that proceedings will be seriously prejudiced, and
(4) No defence applies
NOTE: No intention to prejudice proceedings needs to be shown - the offence is strict liability
When do criminal proceedings become “active” for the purposes of criminal contempt of court?
Usually when a person is arrested
(Or, when they’re charged, if that’s earlier)
Attorney-General v NGN (1987)
A newspaper publishes on a trial which is 10 months away - it is held that this is far enough in the future that the risk of prejudicing the trial was not substantial
What are the defences to criminal contempt of court?
(1) Innocent publication (e.g. not knowing proceedings are active)
(2) Reporting what’s happening in court
(3) Discussions in good faith of public affairs or matters of general public interest, if the risk of prejudice is merely incidental
When does common law criminal contempt of court apply?
When there is an intention to interfere with or prejudice the course of justice
In Naomi Campbell v MGN (2004), which five categories of information did the newspaper publish (in the trial judge’s distinction), and which ones were held to hold a reasonable expectation of privacy?
- That she was a drug addict
- That she was receiving treatment for drug addiction
- That she was attending NA
- Details of her NA treatment - frequency, how she was responding, etc.
- Covert photographs of her leaving NA meeting
They would all be private usually, but her public statements meant 1-2 were not in her case
When information about a person is published, what needs to be the case for Article 8 to be engaged?
There needs to be a “reasonable expectation of privacy” about the information
When does the defence of “innocent publication” apply?
(1) The person honestly doesn’t know proceedings are active
(2) The person has distributed material but honestly isn’t aware, having taken all reasonable care, that it contains the material in question
NOTE: Burden of proof is on defendant
