I have spent 12 years training journalists and others in media law and I, like many, thought contempt of court was a bit of a paper tiger.
We had had very few actions for contempt brought by the Attorney General over the years and those that had been were so blindingly blatant that anyone with a rudimentary knowledge of the law could have avoided them – the Leeds footballers, Bowyer and Woodgate contempt by the Sunday Mirror, for example.
But recently we have had a series of contempt actions, with more pending.
The Sun and Daily Mirror were prosecuted over reporting of the arrest of Chris Jefferies, landlord of Joanna Yeates – an innocent man ‘monstered’ by the tabloids.
The Daily Mail and The Sun were prosecuted for contempt for publishing a photograph online of a man holding a gun during his trial.
The Attorney General is due to decide whether to bring an action against a journalist who allegedly tweeted details of pornography found on Vincent Tabak’s computer which was ruled inadmissible as evidence at his trial for the murder of Joanna Yeates.
The Mail and the Mirror face a contempt action over reports of a trial of Levi Bellfield, killer of Milly Dowler
Now The Spectator awaits a decision from the AG after columnist Rod Liddle weighed in with commentary on the Stephen Lawrence murder trial which the jury were directed not to read.
I have written many, many times about the AG Dominic Grieve’s attitude to contempt and the fact that he has warned he will take action where there has been prejudicial reporting.
So, for those of you out there wondering what contempt is and how you might steer a path through it, here is a quick guide.
1. What is contempt?
The law that protects the judicial process. It covers many things from obedience to orders of the court to behaviour in the courtroom itself. But if you are in media then you worry about contempt by publication – ie putting something out there which might derail the judicial process.
2. When do I worry about contempt?
When proceeding are active. The old common law of contempt used a wooly phrase – proceedings ‘pending or imminent’ which was whatever a judge took it to mean – a week, a month, a year. The Contempt of Court Act 1981 swept this aside and created the concept of ‘active’ proceedings. Proceedings are active when someone has been arrested; a warrant has been issued; they have been orally charged or an information has been laid. If none of these things has happened then contempt evaporates as a problem – publish whatever you like.
3. OK, proceedings ARE active, what should I avoid
Publishing something which creates a substantial risk of serious prejudice or serious impediment to those proceedings.
4. What does that mean?
Well, that’s a little subjective, but case law has shown the following to be a problem:
*Photos or descriptions where identity is at issue – ie the defendant claims it was not him who committed the crime and the prosecution has eyewitnesses whose testimony has to be tested by way of an ID parade. They must rely on their memory of the offence, not a photo helpfully published by the media. This action cause the record fine for contempt (so far) £80,000 for the Sun and £20,000 for Kelvin MacKenzie as editor.
*Assumptions of guilt – in crime reports, police have arrested A man, not THE man.
*Previous convictions – not normally allowed in as evidence, so don’t go informing the jury of them.
*Attacking a defendant’s character – if the prosecution do it in front of the jury, that’s fine. Just don’t do it yourself as they await trial.
5. Does this mean a media blackout about a crime if proceedings are active?
No. The CCA 1981 was drafted in response to the Sunday Times coverage of the Thalidomide scandal, which had been found in contempt under the old common law. The ST took an appeal all the way to the European Court of Human Rights, which ruled that the common law contempt, as applied, was in breach of the ST’s right to freedom of speech. So the CCA 1981 includes a Section 5 defence of ‘discussion of public affairs’. So, for example, a euthanasia trial does not shut down all mention or discussion in the media of the issues of euthanasia. But such discussion should avoid direct commentary on the trial.
6. What other defences do I have?
Section 3 defence – you didn’t know and had no reason to suspect there were active proceedings. But you have to show you checked. So if you’re reporting a crime and the police fail to inform you, when asked, that someone has been arrested, then you have a defence.
Section 4 (1) defence – you can’t be in contempt of court if you are reporting court. As long as the judge has not exercised powers under Section 4 (2) ordering you to postpone reporting of some aspect of the trial.
That’s about all there is to it. I realise that when the Pack are covering a story it is sometimes hard to resist carrying the same stories as others and to outdo your rivals at any cost. However, I cannot emphasise enough the folly of doing so. Dominic Grieve takes this very seriously and he has shown he is prepared to act.
If you need further assistance in any of this, you can find my contact details on the contact page of this site.