Media Law: 6 Contempt of court Flashcards
ways journalists can be held in contempt of court
[6]
- publishing previous convictions
- publishing prejudicial background information
- publishing photograph (if identity an issue)
- publishing something in breach of court order
- taking photographs / recordings
- publishing (or just talking to) juries
who deals with contempt of court cases?
[1]
- Attorney-General
Scotland v England
[2]
- dealt with in same way
- Scotland stricter
types of contempt (+ origins)
[2]
- ‘strict liability’ contempt (Contempt of Court Act 1981)
- ‘intentional contempt’ (common law)
who brings actions under CCA 1981? Why?
[2]
- Attorney-General
- protect journalists from frivolous/embittered cases
main elements of CCA 1981 rule
[3]
- strict liability
- ‘active’ proceedings
- substantial risk of prejudice
DEF: strict liability
[1]
- you are liable, whether you intended to prejudice proceedings or not
- other factors taken into account when sentencing
- motive (i.e. public interest) doesn’t matter
only escape from strict liability
[1]
- ‘innocent publication’ (didn’t realise proceedings were still active)
when case becomes active
[5]
- suspect arrested without warrant
- warrant for arrest is issued
- summons to appear in court issues
- indictment or other document specifying the charge is issued
- suspect is orally charged
when cases stop being active
[7]
- arrested person is released (except on bail)
- 12 months pass since issue of warrant, no arrest
- charge / summons is withdrawn
- defendant found unfit to be tried / to plead
- defendant is acquitted
- defendant is sentenced
- any other verdict ends case (e.g. case to ‘lie on file’)
gap between verdict / sentencing
- if judge: probably fine (considered able to ignore press)
- if magistrate: more care needed
reporting arrest
[4]
- anyone held against will by police has been ‘arrested’ (meaning case active)
- voluntarily talking to police is not arrest, but libel laws can intervene when reporting this
- CAN report person’s arrest, their background, general description of crime
- CANNOT link them to specific crime in a report
police appeals for information
[3]
- case active, so technically threat of contempt… but…
- CCA encourages press to help police with appeals
- after suspect found/arrested, same rules don’t apply
reporting AFTER arrest (watch out!)
[6]
- CAN report ‘a man’, CANNOT report ‘the man’ the police were looking for
- can name person arrested (plus background of crime), but detail must not implicate them
- avoid statements by witnesses
- never mention previous criminal convictions
- careful reporting what suspect says (contempt applies for innocence as well as guilt!)
- do not assume info is ok to publish if issued by police
when civil case becomes active
[2]
- arrangements for trial are made (case is ‘set down for trial’)
- trial begins
pre-trial hearings
[5]
- determine whether there’s a case
- decide whether injunctions possible
- begin when hearing arranged
- end when hearing over
- low chance of contempt (heard by judges)
when civil cases end
[4]
- settled by the parties
- decided by judge/jury
- discontinued
- withdrawn
when appeals become active
[3]
- party applies for leave to appeal
- appeal is lodged
- time between sentencing and appeal NOT covered by strict liability
2000 Ulster TV case
[3]
- 2 men convicted murder
- TV show adding info not in court
- injunction denied (no certainty of appeal)
contempt in appeals and retrials
- appeals: unlikely because top judge hears
- retrial: more careful because jury used
test for ‘substantial risk of prejudice’
[2]
- will court case be affected?
- is there high risk of prejudice?
factors determining risk of prejudice
[5]
- who case tried by
- timing of publication
- location of trial
- circulation of the publication
- content of the report
key case where judge allowed trial to go ahead despite media furore
[1]
- R v West (1996) - Rosemary West
rules/considerations when considering timing of publication
[2]
- GENERALLY: earlier before trial, less likely to contempt
- other factors: circulation, content, celebrity, etc.
A-G v Unger (1998)
[2]
- Daily Mail ‘trial by newspaper’ thieving housekeeper
- judge ruled 9 months long enough
DEF: public forgetting a report over time
[1]
- ‘fade factor’
A-G v BBC + Hat Trick Productions (1997)
[3]
- Maxwell’s son: “heartless scheming bastards”
- programme popular AND repeated
- fined £10,000
A-G v Morgan (1998)
[4]
- NoW helped smash fake cash ring
- report assumed 2 men’s guilt
- memorable AND reporter was witness
- fined £50,000
A-G v ITV Central (2008)
[2]
- reported previous convictions on same day trial started
- fined £25,000, plus voluntarily paid £37,000 postponement costs
A-G v MGN (2002)
[3]
- Sunday Mirror interview suggested Leeds footballer assault racist
- TIMING TERRIBLE: jury just sent home to deliberate
- fined £75,000
A-G v News Group Newspapers (1999)
[4]
- men arrested in connection with bomb attack
- Sun reported one was an IRA sniper
- murder charge had to be dropped
- fined £35,000
local papers less at risk from contempt
[2]
- location paper sold reduces risk of prejudice
- if nationals pick up story, paper has to have actively sought further exposure (e.g. sold story on)
prejudicial content in reports
[17]
- criticism of decision to prosecute
- previous convictions
- defendant’s background / character
- circumstances of the offence
- assertion of facts
- photograph/description of suspect
- guilty pleas to other charges
- involvement in other proceedings
- proceedings without the jury
- assuming guilt
- assuming outcomes of preliminary issues (e.g. fit for trial)
- speculating about damages (something jury awards in civil cases)
- protected documents/information (e.g. ‘payments into court’)
- interviews with witnesses
- undermining witnesses
- interfering with proceedings (i.e. reports deterring witnesses from giving evidence)
- inaccurate reporting
A-G v Evening Standard (1998)
[3]
- trial for attempting to escape from prison
- some defendants IRA
- fined £40,000
A-G v Sun (1996)
[3]
- Ronnie O-Sullivan celebrating his mum’s release after not paying VAT
- Mrs O’Sullivan back in court for obscene publications
- Sun fined £10,000
A-G v MGN (1997)
[3]
- Geoff Knights (Gillian Taylforth’s bf) on trial for assault
- several papers reported his previous convictions
- none fined because not clear where story originated
Sunday World local thugs case (2008)
[4]
- Northern Irish paper reported on intimidation by local drug dealers
- court disrupted, moved location
- ban on further reporting IGNORED
- fined £60,000
A-G v Express Newspapers Ltd (2005)
[3]
- two well-known footballers in rape case (told not to ID)
- Daily Star suggested victim knew them
- fined £60,000
factors considered when balancing risk of prejudice
[3]
- likelihood it will be seen by potential juror
- likely effect it will have on a reader
- residual impact by time of trial
multiple publications
[1]
- reporting something that has already been reported earlier does not save you from contempt of court
defences against strict liability
[3]
- innocent publication
- fair and accurate contemporary reports
- discussion of public affairs
innocent publication
[2]
- if didn’t think case was active
- must prove: took reasonable care AND ‘no reason to suspect’ case was active
distributors and ‘innocent publication’
[2]
- must prove reasonable care was taken
- often get publishers to give a lawyers view (to protect them)
fair and accurate contemporary reports
[3]
- must be ‘fair and accurate’
- must be published contemporaneously with trial
- must be published in good faith (i.e. no ulterior motive)
discussion of public affairs
[1]
- essentially: commentary on important public issues does not have to stop just because there’s a court case going on that involves them
A-G v English (1983)
[3]
- Daily Mail report on doctors starving disabled babies
- active case not mentioned
- no contempt brought (although article would clearly prejudice trial)
A-G v Associated Newspapers (1983)
[2]
- Mail on Sunday discussed character of Michael Fagin
- safety of Queen matter of public interest
A-G v TVS Television Ltd (1989)
[4]
- ‘The New Rachmans’
- similar landlords to Rachman in Reading
- one trial had to be stopped
- court disagreed that the programme merely looked at a public interest issue
scope of strict liability contempt
[2]
- ‘any tribunal or body exercising the judicial power of the State’
- General Medial Council did not qualify for this in 1998 case
differences between intentional contempt and strict liability contempt
[3]
- common law / CCA
- cases must be ‘pending or imminent’ rather than ‘active’
- must set out to prejudice court
‘pending or imminent’
[2]
- pending: once arrested
- imminent: more vague, but can include prior to arrest
DEF: intention
[2]
- modern meaning (i.e. intends to prejudice trial)
- BUT also includes someone who was a) aware proceedings were imminent; b) aware the content might prejudice case
A-G v News Group Newspapers (1988)
[2]
- Sun: ‘Rape Case Doc: Sun Acts’
- doctor acquitted, Sun fined £75,000
Latin: ‘under judicial consideration’
[2]
- sub judice
- NOT the all-pervasive argument many (esp. polticians) believe
difference between Scottish and English contempt
[3]
- Scottish laws stricter (e.g. regarding pictures)
- people other than A-G can prosecute
- phrasing court reports (“The Crown alleged that…”)
other types of contempt
[10]
- contempt in the face of court
- scandalising the court
- tape recorder / photographs in court
- failing to comply with court order
- frustrating court orders addressed to to others
- using documents disclosed during proceedings
- investigating/publishing jury deliberations
- interfering with witnesses
- reporting hearings heard in private
- breaking embargoes on court judgements
contempt in the face of court
[1]
- getting rowdy and undermining court’s authority
scandalising the court
[2]
- personal attacks on a judge (either written or verbal)
- prosecution now very rare (usually ask for apology or take libel action)
recordings / photos
[2]
- contempt to use (and even bring) recorders into court
- artists can take notes then draw outside
filming outside the court
[3]
- fine, but avoid prejudicing case
- footage of heavy security suggests accused is dangerous
- onlookers yelling things
disobeying court orders
[3]
- e.g. an injunction against publication
- Daily Mail / Nigel Dempster (‘mean’ claimant)
- must have been a court order, and must have been given fair notice
frustrating court orders
[2]
- court orders are often addressed to certain groups
- Peter Wright ‘Spycatcher’ publication (2 papers had injunction, other printed anyway, contempt)
interviewing jurors
[3]
- standard in USA, but not here (in CCA 1981)
- includes publication and ‘soliciting’ information from jurors
- only jury’s deliberation is secret, a juror’s opinion can be given
paying witness for their story
[2]
- (if agreed in advance) can encourage witnesses to embellish their stories
- not covered properly in CCA (only PCC and Ofcom)
PPC guidelines on paying witnesses
[5]
- banned once proceedings active
- includes anyone likely to be called as a witness
- only lifted once accused is freed / pleads guilty / verdict
- before trial: payment should only be in public interest, and if absolutely necessary to get info
- MUST inform payee that they have to tell courts about arrangement
Ofcom guidelines on paying witness
[1]
- exactly the same as PCC
where it’s contempt to report private hearings
[6]
- Children’s Act 1989
- wardship of court
- other matters relating to maintenance / upbringing of children
- mental health hearings
- national security
- anything secret that forms part of the issues of the case
breaking embargoes on court judgements
[3]
- before a judgement is handed down from higher courts, they are routinely supplied to lawyers and their clients
- publication of judgements before they are handed down is contempt
- The Lawyer magazine broke this in Da Vinci Code case
when can trial judges hear contempt cases?
[2]
- when A-G not required by law (exceptional)
- even then legal team might advise going to A-G if judge is threatening
when are contempt cases usually heard?
[1]
- after case which was prejudiced
contempt is the only serious criminal offence to be…
[1]
- tried by judges rather than juries
sanctions for contempt
[2]
- hefty fines
- imprisonment of editor
costs orders
[2]
- publication can be ordered to pay costs of a collapsed case
- CONCERN: does not require A-G
prevention of publication
[1]
- must show clear evidence of potential prejudice
Channel 5 / Noonan brothers
[4]
- one stabbed just before documentary
- witnesses might be intimidated so police applied for injunction
- Channel 5 got late sitting of Court of Appeal to overturn
- no clear risk to police investigation (e.g. people already knew the Noonans were scary mobsters)
where are injunctions ordered?
- High Court
- has been suggested Crown Court could order them (very rare due to nature of injunctions)
role of journalists regarding injunctions
- should be ready to actively challenge injunctions where prohibitions are unnecessary
CONFUSION: contempt v defamation
- defences sound similar, backed by same principle, but legally different
- contempt: “fair and accurate contemporary reporting”
- defamation: “privilege” (either “absolute” or “qualified”)
CONFUSION: contempt v libel
- you can avoid contempt until the cows come home, but defendants can still sue you to the hilt for libel
DEF: gagging order
- suing one publication for libel, then issuing writ threatening others with contempt if they report details of the case
- Lord Salmon said this was all silly nonsense
