Part 2 - Contempt and Related Matters

Question 1

What does the law of contempt protect? Name the relevant Act.

Answer 1

The judicial process and the fairness of any trial in the case. Contempt of Court Act 1981.

Question 2

Who in a courtroom can be punished for contempt?

Answer 2

Anyone who is disruptive or threatening in a courtroom.

Question 3

What is the greatest risk of media committing contempt of court?

Answer 3

Publishing material which could prejudice a fair trial by giving the impression that a suspect or defendant is likely to have committed the crime, or by vilifying a suspect or defendant to the extent that witnesses might refuse to come forward to help his/her defence, or by vilifying a witness.

Question 4

How could a journalist commit contempt involving witnesses?

Answer 4

By contaminating a witness’s evidence by interviewing him/her in detail or offering payment for his/her story before a trial.

Question 5

In the law of contempt, name a strict liability offence.

Answer 5

Publication of material which creates a substantial risk of serious prejudice or impediment to criminal or civil proceedings which are ‘active.’

Question 6

Who can and cannot prosecute for contempt of court?

Answer 6

Proceedings for contempt can only be initiated by a Crown court or higher court, or by/with the consent of the Attorney General. Magistrates cannot punish a contempt of their courts caused by a publication - must be dealt with by the High Court.

Question 7

In contempt law, when does strict liability apply?

Answer 7

When proceedings are ‘active.’

Question 8

When are criminal proceedings ‘active’? What does this mean?

Answer 8

• when a person is arrested
• an arrest warrant is issued
• a summons is issued
• a person is charged orally
• a document specifying the charge is served on the accused

This means that there is a definite prospect of an individual facing trial.

Question 9

When do criminal proceedings cease to be active?

Answer 9

• the arrested person is released without being charged (except when released on police bail or ‘under investigation’)
• no arrest is made within 12 months of the issue of an arrest warrant
• the case is discontinued
• the defendant is acquitted or sentenced
• the defendant is found unfit to be tried or unfit to plead, or the court orders the charge to lie on file

Question 10

What does ‘under investigation’ mean?

Answer 10

If police need more time to investigate an alleged crime, they can categorise a suspect released after arrest as remaining ‘under investigation’.

Question 11

What does ‘unfit’ mean?

Answer 11

A defendant suffering acute physical or mental illness can be ruled to be unfit to stand trial, or to plead.

Question 12

What does ‘lie on file’ mean?

Answer 12

The defendant has not been convicted or acquitted, but the court agrees that the charge is no longer worth pursuing.

Question 13

Outline what can happen in the period between the verdict and the sentence at Crown court.

Answer 13

A Crown court case remains active, even after verdicts are reached, until the defendant is sentenced. Media organisations are safe to publish background features about such a case, including material which did not feature in the trial - although judges have been known to order postponement of such material until after sentencing.

Question 14

The publication of which sort of material could amount to contempt?

Answer 14

• detailed accounts of a witness’s evidence while a case is active, as it could contaminate the witnesses’ memory before s/he testifies
• molestation of a defendant, juror, or witness as they leave or enter a courthouse, and taking photos/shooting film within a courthouse
• vilifying a witness, as it could deter others from being witnesses

Question 15

What type of material could cause a substantial risk of serious prejudice or impediment?

Answer 15

• mentioning a suspect or defendant’s previous convictions
• information suggesting he/she is dishonest or of bad character in other ways
• any evidence seeming to link him/her directly to the crime of which s/he is suspected
• any other suggestion that s/he is guilty

Question 16

What could it also be a strict liability offence to publish?

Answer 16

• witness’s detailed account after case becomes active
• photograph or footage or physical description of a suspect when visual identification of the alleged perpetrator is or is likely to be an evidential issue because a police identity parade is to be held and/or a witness is expected to testify at the trial on such identification

Question 17

Why might publishing a witness’s detailed account be contempt?

Answer 17

Risk that:

• witness might, because detailed account has been published, feel obliged to stick to it and so be less able honestly to retract or vary some detail after further reflection
• witness’s evidence might not figure in the trial at all (inadmissable or retracted) but if already published then jurors or other witnesses may have read it and be influenced by it

Question 18

Why could publishing a photo/footage/description be contempt?

Answer 18

It could confuse a witness who gives identification evidence.

Question 19

What can be published after criminal proceedings become active?

Answer 19

Non-prejudicial basic information about the crime. In most cases it is not contempt to name the arrested person because they will be named at the trial, but may be unsafe in defamation/privacy law to name arrested person before they are charged.

Common ground information is also safe to publish.

Question 20

What is the ‘fade factor’?

Answer 20

The ‘fade ‘factor’ recognises that by the time a jury is selected the public will probably have forgotten details in reports published in the early stages of a criminal case.

Question 21

Why may the fade factor not be enough to prevent liability for contempt for ‘impediment’?

Answer 21

Because some published material may be so striking as to create a substantial risk of serious prejudice or impediment. This has said to include especially disclosure of a defendant’s criminal record.

Question 22

What does the fade factor not apply to and what is the safest course?

Answer 22

Does not apply to archive material on news websites. The safest course to avoid a contempt problem is to remove it or block access to it until the case ends.

Question 23

Aside from criminal and civil cases, what does the 1981 Act also cover?

Answer 23

Inquests.

Question 24

When does an inquest become ‘active’?

Answer 24

When it is opened.

Question 25

Explain the scope and requirements of the section 3 defence in the Contempt of Court Act 1981.

Answer 25

This is the defence of not knowing proceedings were active. It applies if the person responsible for the publication, having taken all reasonable care, did not know and had no reason to suspect when the material was published that relevant proceedings were active.

Question 26

What are the contempt risks in publishing material to assist the police?

Answer 26

Sometimes, after obtaining an arrest warrant (case is active), police seek media help to trace a suspect and may supply photograph/description for publication. Technically the media organisation could be accused for creating a SRSP or impediment to an active case.

Question 27

What did the then Attorney General say about publishing material to assist the police in 1981?

Answer 27

‘The press has nothing whatsoever to fear from publishing in reasoned terms anything which may assist in the apprehension of a wanted man and I hope that it will continue to perform this public service.

Question 28

What is the defence for publishing material to assist police?

Answer 28

There is no defence but there has not yet been a prosecution for contempt in such circumstances.

Question 29

When do civil proceedings become active?

Answer 29

From the time a date for the trial or a hearing is fixed.

Question 30

When does a civil case cease to be active?

Answer 30

When it is disposed of, abandoned, discontinued or withdrawn.

Question 31

Why is there less possibility of media coverage creating a substantial risk of serious prejudice to active civil cases?

Answer 31

Most are tried by a judge alone, who are regarded as unlikely to be affected by media coverage.

Question 32

When could there be more possibility for SRSP in civil cases?

Answer 32

If witnesses or juries are involved as they may be affected by media coverage before a trial.

Question 33

What does ‘sub judice’ mean and in what context is it used?

Answer 33

Sometimes when a journalist seeks a comment about a civil case, a lawyer involved will insist that little can be published because it is sub judice, which means that legal action has begun. This is not the same as the case being active.

Question 34

Aside from publishing details that may create substantial risk of serious prejudice/impediment, vilifying a witness or suspect, publishing footage/photos of a defendant, or molesting jurors/witnesses, what else may be contempt of court?

Answer 34

It is a contempt of court to:

• seek to discover or publish information from the jury’s confidential discussions about a verdict
• audio-record a court’s hearing without its permission
• publish information in breach of a court order made in common law, such as an injunction
• publish information in breach of an order made under the Contempt of Court Act 1981
• fail to obey a court order to reveal the identity of a source of information

Question 35

What is the punishment for contempt of court?

Answer 35

A fine unlimited by statute and/or a jail sentence of up to two years.

Question 36

When do criminal proceedings become active again after they have concluded?

Answer 36

When an appeal is lodged.

Question 37

When do criminal cases cease to be active regarding appeals?

Answer 37

When the hearing of any appeal is completed, unless in that appeal a new trial is ordered or the case is remitted to a lower court.

Question 38

What is the scope and requirement of the Section 5 defence in the Contempt of Court Act 1981?

Answer 38

This defence is that of the discussion of public affairs. A publication made as, or as part of, a discussion in good faith of public affairs will not be treated as contempt of court under the strict liability rule if the risk of impediment of prejudice to particular legal proceedings is merely incidental to the discussion.

Question 39

In contempt law, what is best practice to ensure that the section 5 defence can be successfully used?

Answer 39

A media organisation should not, when publishing a general feature or discussion about a societal issue, refer in it to any active case in which the issue figures and in particular should not suggest that the defendant in such a case is guilty or not guilty.

Question 40

Outline the Dr Leonard Arthur case and what it meant for the Section 5 defence in contempt law.

Answer 40

During the trial the Daily Mail newspaper published an opinion article about euthanasia by Malcolm Muggeridge, and was tried for contempt of court. Although the Mail was aware the trial was taking place, their defence was that the article was a discussion of public affairs under section 5 of the newly enacted Contempt of Court Act 1981. The House of Lords held that the article did create a substantial risk of serious prejudice to the trial but, as it was written in good faith to support a pro-life by-election candidate, and made no mention of the Arthur case, the risk of prejudice was merely incidental.

Question 41

What does section 20D of the Juries Act 1974 state? Give detail.

Answer 41

That it is contempt of court to breach the confidentiality of a jury’s deliberations, whether the jury is in a Crown, an inquest (Coroners and Justice Act 2009) or a civil case. It is contempt to intentionally obtain, solicit, or disclose any detail of:

• statements made
• opinions expressed
• arguments advanced
• votes cast

by jurors during their deliberations.

Question 42

Who else can breach section 20D of the Juries Act 1974?

Answer 42

Jurors themselves.

Question 43

What does Part 1A of Schedule 6 of the Coroners and Justice Act 2009 do?

Answer 43

Protects confidentiality of an inquest jury’s deliberations.

Question 44

What are the two types of contempt? Explain.

Answer 44

Common law contempt - arises either from how someone behaves inside or outside court, or because of what is published, when there was intent to interfere with the judicial process.

Strict liability contempt - occurs when published material creates a substantial risk of serious prejudice or impediment to an ongoing court case, irrespective whether there was such intent.

Question 45

What is there a risk of if jurors are identified in the media and why?

Answer 45

Common law contempt, even if they are identified after a trial. It could be ruled to have interfered with the judicial process by putting the juror could be put at risk of harm from someone unhappy with a verdict or deterring others from jury service.

Question 46

What does section 9 of the Contempt of Court Act 1981 state?

Answer 46

It is contempt to:

• use a tape-recorder or any other audio-recording device in court, or take one into a court for use, unless the court gives permission
• broadcast any audio-recording of court proceedings, or play any of it in the hearing of any section of the public
• make any unauthorised use of a recording, if recording has been allowed.

Question 47

What is the reason for the ban on audio-recording in court?

Answer 47

• to prevent witness testimony being broadcast, which for some witnesses would increase the strain of giving evidence
• to stop secret recordings being made in the public gallery by, for example, a defendant’s criminal associates, who could use them to intimidate or humiliate a prosecution witness, or to help dishonest witnesses collude in false corroboration.

Question 48

What does Rule 6.9 of the Criminal Procedure Rules state?

Answer 48

A court has discretion to allow audio-recording, including by a journalist, and to allow publication of the sound recording. There must, however, be a ‘reasonable need’ for such use.

Question 49

What does Section 41 of the Criminal Justice Act 1925 state?

Answer 49

It bans photography and filming in courts. It is illegal to:

• take or try to take any photograph or footage
• make or try to make any portrait or sketch with a view to publication of any person in any court, its building, or within its precincts, or of such a person while he or she is entering or leaving any such building precincts
• to publish such a photo or sketch

Question 50

What is the issue with the term ‘precincts’?

Answer 50

It is not defined in the Act and whilst it includes room, foyers, or corridors within the courthouse building, it is unclear to what extent it includes areas immediately outside.

Question 51

How can the media legally make/publish portraits/sketches of court proceedings?

Answer 51

Court artists memorise the scene and characters but do the actual sketching elsewhere.

Question 52

What is the punishment for breaching section 41 of the Criminal Justice Act 1925?

Answer 52

A fine of up to £1,000.

Question 53

When do the 1925 Act’s restrictions apply as regards jury visits to another location?

Answer 53

They still apply as the court goes into session at such a location, e.g. crime scenes.

Question 54

Outline the rules regarding photography/filming at coroners courts.

Answer 54

The common law of contempt also applies there, but a judge or a coroner may give permission for photography/filming there if this is not of the court in session and may impose conditions.