CONTEMPT OF COURT

Substantial risk and serious prejudice  The Contempt of Court Act 1981 exists to ensure the course of justice is not impeded or perverted and to ensure people have a fair trial.  Under its “strict liability” rule, we are in danger of breaching the Act if we create a “substantial risk of serious prejudice”.  In criminal law we are at risk when a case is “active” which means:  A person has been arrested or a warrant for arrest has been issued  A summons is issued  A person is charged with a crime

Substantial risk and serious prejudice 2  A criminal case ceases to be active when:  The arrested person is released without charge  There’s no arrest within 12 months of the warrant  The case is discontinued  The person is acquitted or sentenced  He/she is found unfit to be tried  The period between verdict and sentence is technically active but sentence is passed by a judge who is deemed to be “above prejudice”.  The case becomes active again when an appeal is lodged but appeals are heard by judges. It’s very definitely active again is a re-trial is ordered.

So what is “substantial and what is “serious”?  The defendant’s previous convictions or suggestions of his dishonesty or bad character  Any evidence linking him directly with the crime  Any suggestion that he is guilty  Photographs or descriptions may also be a problem  So what can we say?  His name and the charge  Basic details of the crime – facts unlikely to be challenged  Basic background info – his occupation, former school, etc  Tributes, memorials, funerals, etc  REMEMBER – the nearer the trial becomes the more risk you run

So what is “substantial and what is “serious”?  Once a case goes “active” you need to exercise great care – including being aware of what interviewees, online contributors, callers, etc, may say. Preliminary court hearings are subject to strict reporting restrictions to avoid prejudice. Full trials can generally be reported freely – though other restrictions may apply (see below).  Online is a problem. News websites must take down the “sidebars” which point users to previous stories – they may well now be prejudicial.  Sometimes there is an order to remove the material totally from a website  However…….if somebody wants to find previous stories, they will. There have been examples of jurors searching the web for details of their cases.  The “fade factor” means the nearer the trial, the greater your problems.

CIVIL CASES  Civil cases are deemed to be active from the time a date for the hearing or trial is fixed  The risk of contempt is much lower – civil cases are generally heard by judges and not juries – and judges are deemed to be above prejudice  However, we should still be wary of affecting future witnesses if we publish too much detail of the case prior to the trial. Their evidence could then be tainted by what they’ve read or heard.  The active period for civil cases ends when the matter is resolved – “disposed of” – withdrawn or abandoned.

CONTEMPT DEFENCES  Section 3 defence says you should be protected if, having taken all reasonable care, you had no reason to suppose proceedings were active. It’s important when covering a crime to check regularly with the police to ensure the case hasn’t gone active.  Section 5 – “discussion of public affairs” says we should be protected if the risk to an active case is “merely incidental” to proceedings. In other words if a story in the public interest relates to an on-going case we don’t necessarily have to ignore it. However, we shouldn’t mention the active case. See McNae p.294 Dr Leonard Arthur case.

OTHER CONTEMPT MATTERS  If the police are appealing, through us, for a person wanted in connection with a crime the material may well be prejudicial. For instance, giving previous, saying the man is dangerous. Technically we have no contempt protection but the Attorney General in l981 said the press has nothing to fear. It’s a public duty and nobody has ever been prosecuted.  We are prohibited from soliciting or disclosing jury opinions, arguments or votes cast. After a case we can talk to jurors in very general terms of their overall experience. But it’s a big danger to interview jurors who, say, now cast doubt on decisions they’ve been involved in in the past.  It’s a contempt to breach court orders or injunctions and to fail to reveal confidential sources when a court’s ordered you to do so.

OTHER CONTEMPT MATTERS  Although, generally speaking, we can report an on-going trial – provided the report is are fair, accurate and contemporaneous – other reporting restrictions which may be in place. (See future sessions).  One, however – Section 4(2) can postpone reporting of all or aspects of a trial to prevent prejudice of a future case. There may be several defendants who are facing separate trials – or one defendant who faces a future trial on another matter.  It may be the case that you can’t report the first trial until the outcome of the subsequent one. Baby P’s stepfather faced a future rape trial which caused him – and Baby P – to remain anonymous in the first.

THE MEDIA IN COURT  Section 9 of the CCA 1981 bans the use of audio recorders in court without permission. In practise, permission is highly unlikely and in many courts you would have to leave such recorders at the door.  The Criminal Justice Act 1925 bans photography, sketching filming or videoing - and publication thereof – in and in the “precincts” of the court. Court sketch artists have to make their drawings outside the court room.  “Precincts” is open to interpretation but generally, provided people are on the public pavement, we film/photograph them. (Bearing in mind we must not picture jurors, juveniles or anybody with an anonymity order.)  It’s also a common law contempt to film/photograph and members of the public have been convicted of taking mobile phone pix in court.