Part 3 - Contempt and related matters

Question 1

What are the risks of breaching the Contempt of Court Act 1981 as regards publishing features after a verdict/verdicts are reached in a Crown court case, or publishing material relating to criminal cases pending appeal hearings in the Court of Appeal, or if the Court of Appeal orders there to be a re-trial by jury?

Answer 1

A Crown court case remains active, even after verdicts have been reached, until the defendant is sentenced. Whilst it is technically possible for a media organisation to publish material which breaches the 1981 Act, Crown court judges are regarded as too experienced to be influenced by media coverage, so it is generally safe to publish background features about such as case as soon as the last verdict is given.

However, the case becomes active again if an appeal is lodged, so strict liability contempt applies, and ceases to be active after the hearing of any appeal is completed unless it results in a new trial or the case is remitted to a lower court.

Question 2

Outline the section 4 defence in the 1981 Act for reports of court cases.

Answer 2

In some circumstances, a media report of a court hearing might create a substantial risk of prejudice to a later stage of the same case or to another case due to be tried.

But Section 4 of the Act gives a defence saying that a person cannot be found guilty of breaching the strict liability rule in respect of a report of a court hearing which is held in public which is:

• a fair and accurate report of that hearing
• published contemporaneously, and
• in good faith

Question 3

What is a Section 4(2) order under the 1981 Act?

Answer 3

It gives a court power to postpone publication of reports of a hearing or trial.

Question 4

What are the scope and grounds of a Section 4(2) order?

Answer 4

It may postpone the reporting of a case or part of a case:

• where this appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or
• in any other proceedings, pending or imminent, and
• that the period of postponement may be as long as the court thinks necessary for this purpose

Question 5

Give an example of circumstances in which a Section 4(2) order may be used.

Answer 5

If several defendants are to be dealt with in a series of trials, reports of the first trial could arguably influence people who read or see them and are then selected as jurors for the next or subsequent trials, concerning different allegations against the same defendant(s).

The jury in the second trial might be told nothing about the earlier trial but if the remember media reports of the first trial they may be more likely to find a defendant guilty, especially one who was convicted at the first trial.

Question 6

When can the imposition or continuation of a Section 4(2) order be challeged?

Answer 6

• if there is no later stage of the same case or no case pending or imminent to protect from publicity
• if the purpose for which the order was made is to ban publication of someone’s identity to protect their or someone else’s welfare or reputation rather than to protect the administration of justice

Question 7

What is a general ground of challenging the imposition or continuation of a section 4(2) order?

Answer 7

Postponement of reporting the case could undermine one or more of the societal benefits of open justice.

Question 8

What is the danger of reporting during a Crown court case proceedings heard in the absence of a jury?

Answer 8

Publishing reports of discussions and rulings made in the absence of a jury before verdicts are given could lead to the trial being aborted, as knowledge of these matters could be prejudicial.

Question 9

What is the Chief Coroner’s guidance to coroners regarding audio-recording inquest proceedings?

Answer 9

A journalist can, if appropriate, be permitted to record inquest proceedings but only as an aide memoire for reporting.

Question 10

What does case law state regarding when Section 11 orders should be used under the 1981 Act and how does the law define its scope?

Answer 10

Attorney General v Leveller Magazine Ltd: this power should only be used to prevent publicity which would ‘frustrate or render impracticable the administration of justice.’

Question 11

Outline what case law states about Section 11 orders under the 1981 Act in respect of names/matter already mentioned in open court.

Answer 11

R v Arundel Justices, ex p Westminster Press: A section 11 order cannot be made if the name or matter has already been mentioned in public proceedings in the case.

Question 12

What does case law state about Section 11 orders under the 1981 Act in regard to the ‘comfort and feelings’ of defendants?

Answer 12

R v Evesham Justices, ex p McDonagh: A section 11 order should not be made for the ‘comfort and feelings’ of a defendant.

Question 13

What does case law state about Section 11 orders under the 1981 Act in regard to a claimed risk of defendants or witnesses being attacked?

Answer 13

Re Officer L: there must be a ‘real and immediate risk’, established by objective evidence, to justify the provision of section 11 anonymity.

Question 14

What can be a ground of challenge against Section 11 orders under the 1981 Act?

Answer 14

If anonymity is granted to a defendant or a ban imposed on publication of his/her address, the public may wrongly think someone else is the defendant.

Another may be one of more of the societal benefits of open justice.

Question 15

What criteria does a court need to be satisfied about to make a Section 46 order under the Youth Justice and Criminal Evidence Act 1999?

Answer 15

• the quality of the person’s evidence, or level of cooperation in preparations for the case, is like to be diminished by fear or distress in connection with being identified by members of the public as a witness in that case
• granting anonymity is likely to improve the quality of the witness’s evidence or the level of his/her cooperation

Question 16

What is a ground for challenging the imposition or continuation of a Section 46 order under the YJCEA 1999, or for arguing for the relaxation of its scope?

Answer 16

It imposes a substantial and unreasonable restriction on the reporting of the case AND that it is in the public interest to remove or relax that restriction.

Question 17

What are particular grounds which could be argued in a challenge in a relevant case concerning the imposition of a Section 46 order?

Answer 17

Whether there is much purpose in the order if the witness’s identity is known to the defendant, and whether the person is due to give evidence.

More generally, a general ground of challenging the imposition or continuation of an order could be one or more of the societal benefits of open justice.

Question 18

How can a person under Section 46 anonymity give consent to be identified in a media report and which conditions need to be met in order to make the consent valid?

Answer 18

Written consent. This does not have to be approved by a court, but the defence will fail if it is proved that the consent was obtained by interfering with the witness’s ‘peace or comfort’.

Question 19

What is best practice for wording written consent from adults who waive their Section 46 anonymity?

Answer 19

The individual must be asked to state explicitly in the written waiver that he/she has not been subjected to any interference with his/her peace or comfort.

Question 20

Outline the general permission granted by Criminal Practice Directions for journalists regarding use of laptops or mobile phones in court.

Answer 20

They may be used in court to report cases contemporaneously by means of ‘live, text-based communications’, which includes emails, texts, and tweets, provided the court has not banned such use in the particular case and that such use is silent and unobtrusive. This permission does not apply to any other use of such devices in court.

Question 21

What is the Chief Coroner’s guidance on permission for journalists to use laptops or mobile phones?

Answer 21

They can be used to report inquests if such use is silent, though the coroner can ban this use in a particular case.

Question 22

Why may a court/coroner choose to ban the use of mobile phones and laptops to report?

Answer 22

For example, if there is concern that a witness due to testify could be coached or briefed on what to say by reference to tweets of earlier evidence or that simultaneous reporting from the courtroom may create pressure on witnesses.