CONTEMPT OF COURT

ECHR Art 6  ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

Contempt of Court Act 1981 LEARN THIS!!!!

VARIETIES OF CONTEMPT  Strict Liability Contempt  Deliberate Contempt (Common law Contempt) - MALICE  Inquiring into Jury deliberations  Disobedience of a court order

PURPOSE OF CONTEMPT  To preserve the integrity of the court and legal process rather than safeguarding the dignity of the court.  ‘The law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with the due administration of justice. It’s application is universal.’ 5

THE LAW COMMISSION  Contempt law has been under review by the Law Commission  Consultation closed 5th Oct 2012  Several reports have been published  Crime & Courts Act 2013 abolished ‘Scandalising the court’ as an offence  Various recommendations have been made in reports. Not all taken up.

STRICT LIABILITY CONTEMPT  Created by Contempt of Court Act 1981  No need to prove intent to secure conviction  Examples: publishing defendant’s previous convictions  Publishing certain details of criminal trials  Publishing defendant’s photograph  Current ‘problems’ – internet/tweeting/mobile phones 7

THE CRITERIA  Prosecution must show:  There is a publication  It must create a substantial risk (more than minimal risk) that the course of justice in particular proceedings will be seriously impeded or prejudiced  The proceedings are ‘active’  Proceedings by Att General or with his consent 8

‘substantial risk of serious prejudice’  What does ‘substantial’ mean?  No positive definition – mostly negative – ‘not insubstantial’, ‘not minimal’, ‘a risk….not merely remote’  Main concern is the effect of material on the jury and the possible verdict.  Judges considered to be immune BUT some cases have been brought in respect of reporting appeal trials

SOME CONSIDERATIONS  The medium used – TV, national newspaper, local newspaper?  Once a substantial risk is made out the prosecution must show the effect of the material will be SERIOUS.  See the 10 Guiding principles from Att-Gen v MGN & Others [1997]  Hat Trick Productions Case (Maxwell)

Ten principles  1 st -that each case must be decided on its own facts.  2 nd - a court will look at each publication separately and test matters as at the time of publication.  3 rd - the publication must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication.  4 th - that the risk must be substantial.  5-6th, the court must be sure that the publication has seriously impeded or prejudiced the proceedings.  7 th principle provides three factors which must be taken into account:  (a) The likelihood of the publication coming to the attention of a potential juror.  (b)8 th - The likely impact of the publication on an ordinary reader at the time of publication.  (c)9 th - the residual impact of the publication on a notional juror at the time of trial.  10 th - the likely effect of the judge’s directions to a jury.

ACTIVE PROCEEDINGS What is ‘active’? Examples:  If a person is arrested  A warrant has been issued for arrest  Summons has been issued  Person charged orally  Inquest has been opened  CIVIL COURT: date for hearing is set

NOT “active”  Arrested person is released without charge (unless on police bail)  No arrest is made within 12 months of warrant  The case is discontinued  Defendant is unfit to plead or stand trial  PERIOD between verdict and sentence??

Section 4(2)  Gives court the power to postpone publication of reports of a hearing or a trial or parts of a trial. UNLIMITED FINE + 2yrs in jail

QUESTION 1: BASICS

POLICE APPEALS  Warrant for arrest makes case ACTIVE!!!  Issuing a photo, appeal for information, description of suspect, last known whereabouts  “The press has nothing 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” – Att Gen 1981

QUESTION 5: APPEALS

FADE FACTOR  Recognises that the public will probably have forgotten detail in reports published in the early stages of a criminal case – by the time a jury is selected  Takes into account time, size of publication, area of publication etc.  WHAT ABOUT INTERNET ARCHIVES?

QUESTION 4: FADE

CASES TO KEEP IN MIND

Att-Gen v MGN Ltd [2011] EWHC 2074 (Admin) Jo Yeates Landlord arrest

What happened?  On 30 December 2010, Christopher Jefferies (landlord) was arrested on suspicion of the murder of Joanna Yeates, whose body had been found on Christmas Day.  He was released from police bail on 4 March 2011  On 5 May 2011 Vincent Tabak pleaded guilty to the manslaughter of Miss Yeates.  PROSECUTION: The Mirror, for articles published on 31 December 2010 and 1 January 2011 and The Sun for articles published on 1 January 2011.

The Issues?  Whether the publications created a substantial risk that the course of justice in the proceedings against Mr Jefferies  Whether the publications created a substantial risk that the course of justice in such proceedings would have been seriously impeded by deterring potential witnesses from assisting the defence.

What do you think?  Daily Mirror - December  “Jo suspect is peeping Tom”  “Arrest landlord spied on flat couple”  “Friend in jail for paedophile crimes”  “Cops now probe 36 year old murder”  The Sun – January 1, 2011  “Obsessed by death” – “scared kids” with macabre fashion  “Murdered Jo suspect –followed me- says woman”. Suggested Mr Jeffries prefered blondes

QUESTION 9: SUSPECT

Att-Gen v Associated Newspapers & News group [2011] EWHC 418 [Admin] online pictures of accused

Att-Gen v Associated Newspapers & News group [2011] EWHC 418 [Admin] – online pictures of accused  The cases arose out of the trial in Sheffield in 2009 of Ryan Ward, who was convicted of murdering car mechanic Craig Wass by hitting him with a brick.  The Sun and The Daily Mail newspapers have been found guilty of contempt of court over internet photos showing a murder trial defendant with a gun. 29

Att-Gen v Associated Newspapers & News group [2011] EWHC 418 [Admin] – online pictures of accused  1st case English courts have had to consider whether publication online was a statutory contempt of court  The publication did not prejudice the trial –the judge asked the jury whether they had been online and they said they had not, so he refused to discharge them from the case.  The test is not how many people in fact accessed the photograph but how many relevant persons might have.

THE INTERWEBS?  “This case demonstrates the need to recognise that instant news requires instant and effective protection for the integrity of a criminal trial” - Lord Justice Moses

DEFENCES 1. FAIR & Accurate & contemporaneous reporting of legal proceedings - no malice 2. Innocent distribution OR publication – note differences (s Act)  Distribution – requires an honest belief that material not in contempt  Publication – not as wide – burden on publisher 3. Discussion in good faith on public affairs (s.5)

QUESTION 8: LAW & JOURNOS

DISCUSSION OF PUBLIC AFFAIRS – Section 5  An important defence introduced prior to the Act in 1979 – Thalidomide case  ‘A publication made as or as part of a discussion in GOOD FAITH of public affairs is not to be treated as contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion’  Burden of proving ‘bad faith’ falls on prosecution.

Thalidomide Case  anti-morning sickness drug caused babies to be born with limb defects and damaged eyes, ears and internal organs.  Sunday Times wanted to publish an article discussing hot Thalidomide was tested and marketed. YES  You can discuss the issues, the drug, effects, but not particularities of the case or anything prejudicial to the “active case”  What would happen if we didn’t talk about all issues being discussed in courts across the UK?

QUESTION 2: PUBLIC ISSUE

CONTEMPT OF COURT 2

ITEMS FOR CONSIDERATION  Deliberate/Common Law Contempt  Frustrating Court Orders made against others  Juries  3 rd Party costs 38

DELIBERATE /COMMON LAW CONTEMPT  The ‘other’ contempt.  Referred to in s.6 Contempt of Court Act 1981  ‘Nothing in the foregoing provisions of the Act restricts liability for Contempt of Court in respect of conduct intended to impede or prejudice the administration of justice’.  NOTE -PROCEEDINGS DO NOT HAVE TO BE ACTIVE

SOME EXAMPLES  Att-Gen v News Group Newspapers [1988] 2 All ER 906 (The Sun)  Att-Gen v Sport Newspapers Ltd [1991] 1 All ER 503 (Suspect on run)  Att-Gen v Hislop [1991] 1All ER 911 – (attempted interference with a civil trial)  Section 9 – bring a recorder into court or broadcast NO NO NO NO!!! 40

Definitions  ‘Intent’ – what is the intended effect of the material? Can the publisher foresee prejudice but continues anyway?  This is a tricky area of law – not used very often but should always be remembered.  Contempt by “molestation”  NO public interest test  Honest mistake is a defence.  Have to prove you took all possible care  Check in with courts, police, etc 41

QUESTION 3: SECTION 9

Frustrating court orders made against others  See the Spycatcher case for a discussion on this issue  Shows how far the law of contempt can be stretched  Does the lack of a jury make a difference? 43

JURIES  Publishing the deliberations of a jury - S Act  “It is contempt to obtain disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”  Att-Gen v Seckerson & Times Newspapers Ltd [2009]  Jurors understanding their role  e.g. Att-Gen v Fraill – Facebook Case  Att-Gen v Dallas – Internet search (PhD lady who claimed to have bad English)

JURIES  Jurors have always spoken to friends and familiy, INTERNET gives it permanence and public platform  Less than 1% of juries are ever discharged, less than 300 trials a year (Are juries fair?, 2010)  12% of jurors admitted to looking on the Internet for info  26% saw media reports about their cases during trial

Examples:  Newcastle Crown Court (2008) – someone handed in 37 questions with maps, and analysis of the crime scene  Played CSI or Law and Order on his own and violated judges orders

QUESTION 6: JURIES

NEW LAWS  Crim Justice and Courts Act 2015  Judge’s right to order surrender of juror’s electronic devices  Power of search by court security  Criminalizes research by jurors  Sharing research with other jurors  Disclosing juries deliberations

QUESTION 7: JURIES & TRIAL

SHARING DELIBERATIONS  This should be clarified by the law  Academic research has always been possible but with restrictions.  See section 73 of Act.  Will the new offences and rules make the trial process better and fairer to accused and the juries?  DIFFERENT TO THE USA AND OTHER COUNTRIES

3 rd Party Costs orders  Procedure whereby a 3 rd party i.e. one not directly involved in case can be ordered to pay some of the costs where the 3 rd party, by misconduct, has interfered with a court hearing and caused waste of costs. The behaviour does not have to = contempt BUT court has discretion.

Why this rule?  See Att-Gen v MGN Ltd [2002]EWHC 907 (Admin) (footballers case)  Published interview with father during jury deliberations, where he was alleging his son was attacked for “racial reasons” when judge made clear NOT to consider that issue.  Different views on the decision here – could trial have been saved?  First order made against the Home Office!  Notice must be given to 3 rd Party so may challenge.

Rights of Appeal + others  Contempt looks forward at possibility of damage  Appeal looks back at the actual damage