Week 2: Contempt of Court Flashcards
Strict liability
The strict liability rule means that prosecution, when seeking to prove that a contempt was committed, does not have to prove that the editor or media organisation responsible intended to create the risk.
The court simply judges the actual or potential prejudicial effect of what was published or broadcast.
fair and accurate reports made in good faith in proceedings will not amount to contempt of of court under strict liability
What does ‘active’ mean?
Contempt of Court Act 1981 states that a criminal case is active when…
A person is arrested
An arrest warrant is issued
A person is charged orally or a document specifying the charge is served on the accused
When do criminal proceedings cease to be ‘active’?
Arrested person is released without being charged
No arrest is made within 12 months of the issue an arrest warrant
The case is discontinued/dropped
The defendant is acquitted or sentenced
Defendant is found to be unfit for trial or unfit to plead
Contempt punishments
The maximum penalty which may be imposed by way of imprisonment or fine for contempt of court in Scottish proceedings shall be two years’ imprisonment or a fine or both, in criminal proceedings
Civil proceedings – three months max. or/and £2,500 fine.
Interdicts
these can be placed upon by judges to protect people or a place
Contempt defences
section 3 - innocent publication
section 5 - public interest
section 4(1) - fair and accurate report made in good faith
article 10 of European convention of human rights - freedom of expression
Section 3 -
INNOCENT PUBLICATION
Publisher of any contempt information will be not be guilty of contempt if,
“having taken all reasonable care, he/she does not know and has no reason to suspect that proceedings are active.
“The burden of proving this defence lies on the publisher of the information.”
Section 5
public interest
The piece of journalism should not be treated as contempt
“if the risk of prejudice to legal proceedings is merely incidental to the discussions” (McInnes, 2010, p.189).
so if there will be a trial at same time as TV show about the same issue, this defence can be used.
Super-injunction
A super-injunction is an instrument of English law that prevents the publishing of any details from an ongoing legal case, including the existence of the case itself.
If someone was to find themselves the subject of damaging allegations, their representatives could appeal to the High Court to grant the protection on the client’s behalf in order to safeguard his or her privacy until the case has been heard and a judge has decided whether the information they say is private should in fact be made public.
Section 8
It is an offence to either solicit or to publish information about how a jury came about its decision unless:
this has been revealed in court
Not even allowed to speak to family members or friends about it
Section 9
no tape recordings
What about live tweets?
Accredited journalists are allowed to tweet ‘live texts’ if the sheriff/judge allows it.
Mobile devices must be set to silent.
Tweeting should be silent, unobstrusive and carried out with hand-held devices – not laptops or notebooks.
Members of the public, citizen journalists, student journalists and bloggers can only Tweet if they have permission from the court in advance.
Cameras in court
The filming of judges’ sentencing remarks will be allowed for news broadcasts,
live transmission of criminal trials will remain off-limits.
When filming sentencing, broadcasters will only be allowed to show the judge, not the accused, counsel or public benches.
judge’s permission needed to video the jury etc on a day trip
no photos or filming allowed in and around precint
Section 11
This section allows a name or other matter to be withheld from the public in proceedings before the court.
Only used in special circumstances such as to prevent blackmail or in sexual assaults and rape cases.
The sheriff/judge will then give guidance on how matters should be reported, or in the usual case, how you will not report it.
It should be used to protect the justice process and should be implemented at the start of the trial.
The situation in Scotland is different as there is no statutory restriction but by convention Scottish media maintain anonymity for victims of sexual crime.
section 10
This gives privilege to journalists’ sources.
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, their confidential source of information
This privilege will be overcome by:
national security
interests of justice
prevention of crime
if the journalist promised anonymity to the source then journalist will have to face the consequences if they refuse to name the source
refusing to name source could be seen as contempt of court and journalist could be jailed
defences could be ‘shield law’ in sectino 10 of contempt of court act
or as Goodwin used in 1996, article 10 of ECHR freedom of expression
section 4(1)
4(1) “Fair and accurate reports made in good faith in proceedings of the Parliament…will not amount to contempt under the strict liability rule.”
this defence can be used if the accused is going to court for more than one case
the first case could end up causing risk of prejudice to the future trial
or there could be info at the preliminary hearing that also then prejudices the main trial
this defence will protect the journalist
Section 4(2)
court has power to postpone publication of any report relating to the proceedings for any length of time necessary under contempt of court act
Act says order can be made to avoid “a substantial risk” of prejudice
Act says order can be made in respect of case before that court or other case “pending/imminent” or
order can last as long as court thinks necessary for this purpose
Contempt of Court definition
Contempt includes publishing anything that creates a substantial risk of seriously prejudicing “active” criminal proceedings.
Proceedings become “active” when a suspect is arrested.
Someone could also be in contempt by actions including taking photographs or film, recording what is said in court or talking to a jury member about a case.
Basically, it’s when someone interferes with the course of justice by…
contacting and interviewing members of jury
bring new information when legal proceedings are still ongoing
breaking the terms of a court interdict
taking photos or recording inside the court during trial
releasing the name of a sex crime victim if their name is restricted
Makes it an offence to publish material which creates a substantial risk of serious prejudice to legal proceedings which are imminent or pending if it can be proved that there was intent to create such a risk.
Contempt in common law
Makes it an offence to publish or broadcast any material that creates a substantial risk of serious prejudice or impediment to “active” legal proceedings.
what if police ask you to publish info which then becomes prejudicial to court proceedings?
and in what way could it cause prejudice?
You should publish what the police want in order to help them with their case - there is a public interest in solving this crime
attorney general 1981 said no journalist should be prosecuted for helping the police, so it’s highly unlikely you would be charged with contempt
it could cause prejudice because youre describing hoe someone looks, so this may ruin an ID parade by prejudicing what people are looking for
it may also prejudice members of the jury who see an accused in court who doesn’t look like the description they read about in the paper
can a journalist use a laptop?
yes as long as they are accredited with the scottish courts and tribunal service
a student or citizen blogger who is not accredited would not have permission to
