Media law refresher/intro days in London and Manchester

Law Refresher/Intro to Media Law

Tuesday June 18 and Tuesday July 16, The Space Centre, Judd Street, King’s Cross WC1H 9NT, 10am-4pm, Manchester, Tuesday, July 9, venue TBC, 10am -4pm

A one-day course covering the basics of media law that can affect anyone publishing in the UK either in print or online. It includes areas such as libel, contempt, reporting the courts, sexual offences, children, privacy&confidentiality, copyright and ethics in light of the Leveson report and recent decisions made by Parliament and the newspaper industry.

If you would like more information, or want to book a place on any of the courses, email me at davidbanksmedialaw@gmail.com

Sex, death, brass bands and libel by photograph

IF you want to find mistakes in papers look at the pictures.

The Sun on Sunday has just paid out in a libel settlement after running a story about a man discovering he was the son of Fred West – but the picture they printed on the front page was the man’s half-brother who was entirely unconnected to the serial killer. It has been reported that a five figure sum has changed hands as a result.

I’ve some sympathy for the Sun on Sunday, such things are all too easily done and let me share with you the story of one such disaster, which, sadly, I had a hand in. I’ve blogged this elsewhere on a previous occasion, but it bears repetition as it highlights the legal dangers of the photograph and its caption.

This is back in the days when I was a jobbing hack on the Daily Post and it was my turn to ‘do the calls.’

This was the round of phone calls made several times a day to the emergency services to see if there were any crimes, deaths, disasters or other human misery happening for us to report on. It was also in the days when such calls were made to human beings – usually a duty inspector in the police control room, or a desk sergeant at individual police stations. Since then these humans, who one could have a conversation with, have been replaced by pre-recorded ‘voicebanks’, which are a journalistic dead-end and should only ever be used as a starting point for a story by any reporter worth their salt.

Anyway, I digress, back to the sex and death. You see the virtue of talking to a human is that they do love a bit of gossip and so it was that morning when I made the call and was informed of a sudden death in a nearby market town, woman in custody as a result. Slowly, but surely, the story emerged.

It would seem the local brass band was a hotbed of illicit passion, and the alleged crime involved two of its members. She was 30, he was in his 60s, and after band practice they would adjourn to the local marshes in his roomy estate car where they would consummate their affair. Both were married.

The police were holding her as they believed she’d hit him in a lovers’ tiff, causing a fatal heart attack. She said he had died while they made love. The Daily Post at the time was intent on becoming the ‘Daily Mail of the North’ and for us the story had everything – sex, death, death caused by sex, and a brass band.

So, I set out hotfoot to the market town with a photographer, and crucially got to the bandmaster before word had spread of just how this bandsman had died. The family were letting people know of his death, but were, understandably, not sharing the grisly detail.

Most important, we got a photo of the band. Dead man, back row centre, and the bandmaster never queried it, but we got him to name every single band member, and there she was, in the front row – the, quite literally, femme fatale.

So, were were very happy with ourselves, we had the story, the picture, the whole lot and off to Liverpool it all went to be printed the next day in the Daily Post.

The next day, when I opened the paper, it was one of those moments as a reporter and you will all have them, when you close the paper, wanting what you see not to be true.

Because, on the front row far right there was a man in a wheelchair, and there was no-one sitting or standing behind him – what a designer would call ‘dead space’ a blank wall. So the man in the wheelchair was cropped off to neaten the pic. However, when the caption, which has already been written, reads: “Mrs X, fourth from the right,” the crop means that the identification moves along to the right. So instead of accusing the femme fatale of killing a fellow bandsman with her amorous attentions, we accused the 16-year-old schoolgirl sitting next to her.

So, I have some sympathy with the Sun on Sunday, as I said, it is easily done.

But if you do do it, then get it sorted quickly, which is precisely what the Daily Post did.

Firstly, we didn’t wait for a complaint. Eric Langton, who was on the DP newsdesk – one of the best news editors I’ve ever worked with, a real newsman, totally unflappable and a pleasure to work for – went straight round to the girl’s family with a letter of apology from the paper.

Her dad, you will understand, was not a happy man. Let’s face it, his daughter is 16 – she’s not on drugs, she’s not pregnant, not a tattooed death metal fan. She plays in a brass band for heaven’s sake, she is every dad’s vision of perfection, and here you have the Daily Post suggesting she kills elderly bandsmen with sex.

But, in typically civilised British fashion, he was polite with Eric and said that what action they took depended on how she reacted, she was at school and hadn’t seen the paper yet.

She arrived home, took one look at the Post…..and burst out laughing. She didn’t think anyone in the town would really think it was her, and didn’t think it would be taken seriously. So, they didn’t sue us. Nor did they want a correction, which they felt would just draw more attention to the story.

A close call, but a lesson that being straight with people and admitting your error, no matter how stupid it may make you look, can get you off the hook.

I’m not sure we would have been so lucky if it had happened now. Today as soon as it appeared on our website, her schoolmates would have Facebooked and Tweeted it to all and sundry, whereas we were just in print back then – chip-paper a day later – and I think that would put more pressure on the faily to take action and nail the lie of the story.

Oh, and the femme fatale? She was acquitted at trial.

Tweeting your way into prison

I ARRIVED home one Friday evening to a flurry of messages from sports reporters who follow me on Twitter.

“You have got to get on Twitter and see what Joey Barton is up to,” they said.

I logged on to find that Barton had decided to give the world the benefit of his thoughts on the viability of John Terry’s not guilty plea to a charge of racially abusing Anton Ferdinand – a charge for which he had yet to stand trial.

Barton was typically forthright and one memorable tweet described Terry’s plea as an insult to any juror’s intelligence.

Was Barton, I was being asked somewhat hopefully it has to be said, up to his neck in contempt and would his next fixture be in court facing the Attorney General?

Fortunately for football, and Twitter’s, favourite bad boy @Joey7Barton was in the clear because Terry’s case was to be tried by magistrates, who are beyond the influence of the media, and certainly incapable of being swayed by the tweets of a footballer. Indeed, Terry was eventually found not guilty.

But as was clear from his tweet mentioning jurors, Barton didn’t know this, and nor did the many people who assumed he was about to be prosecuted for contempt.

This was a sign of things to come. Following press inquiries, the Attorney General’s office announced the following Monday that Barton would not be facing any action. But since he was appointed the AG, Dominic Grieve QC, has made it clear he takes contempt very seriously and has warned that he would prosecute bloggers and tweeters as well as traditional media if they overstepped the mark.

So it came to pass last month that two men were given nine-month suspended prison sentences after they admitted contempt by publishing on Twitter and Facebook photographs purporting to show the killers of James Bulger, Robert Thompson and Jon Venables as adults. Both are subject to a court order banning publication of any details about their new identities, location or photographs of them.

The case is the latest in a long line of incidents where ordinary members of the public have taken to social media and found themselves charged with a crime; facing substantial damages in a civil action or else doing untold damage to their own reputation through an errant post.

We are all publishers now, but mainstream publishers know the law, and even they get into trouble reasonably often. Setting up a Twitter or Facebook account is the work of moments and if memory serves does not entail a run-down of the legal pitfalls that await the unwary.

Perhaps it should, because the past year has seen a catalogue of cases illustrating the variety of ways in which individuals can break the law online.

For example, some supporters of Ched Evans, a Sheffield United and Wales footballer, took to Twitter when he was convicted of rape, naming the victim. Ten of them were tracked down by North Wales Police. They now have a criminal record for an offence under the Sexual Offences Amendment Act 1992.

Even the judicial process itself can be derailed by the injudicious use of Twitter or Facebook. One juror had to be discharged after she confessed to her Facebook friends that she was having difficulty deciding the case she was trying so asked them to help. Another was sentenced to eight months in prison after she Facebook friended a defendant she had just acquitted and gave her a running commentary on the two co-defendants that were still being tried.

Police forces are finding their time increasingly being used to investigate messages on social media.

The man who sent obnoxious tweets to diver Tom Daley after he ‘only’ managed an Olympic bronze found himself the victim of Tweetmob after the diver RTd him and then got a knock on the door from the police who issued a warning for harassment.

The Director of Public Prosecutions, Keir Starmer, recently issued interim guidance on when it would be suitable to prosecute such messages. However, even with that guidance in place, as more and more people sign up for such media, the caseload for police and the court can only increase.

And that is just the criminal side of the issue. The capacity for user to publish libels and breach others’ privacy on social media is huge.

A retweet takes just two button pushes, and as we saw from the Lord McAlpine libel case, several hundred people found that all too easy to do. It seems the retweeters are being let off with an apology, deletion of the tweet and a nominal donation to charity. Others who tweeted more are embroiled in actions launched by the peer.

There seems to be a perception among those who find themselves in difficulty that a post on social media is not like publication. Many will say things like it’s ‘just my opinion’ or that they were simply not aware that what they were doing was against the law.

But it is. Conversations confined to the saloon bar or the dinner party table are being committed to the internet where they are permanent and searchable.

And here lies the challenge for our lawmakers, and to an extent the publishing platforms that allow people to get into so much trouble.

It may be that well-publicised cases such as the purported Bulger killer pictures and the McAlpine libel may serve as a deterrent. If they do not have that effect then the DPP, CPS and the government perhaps need to examine the law to see whether they are content for ever-larger numbers of people to criminalise themselves in this way.

We cannot expect Twitter, Facebook, Blogger and others to police every item that is published by their users, nor would we want them to for well-founded reasons of freedom of speech. However, they could give better guidance to users when opening an account about the kinds of material that can get them into legal trouble.

If nothing is done, then the police, courts and, before long I predict, prisons are going to be busy.

If you are worried about your own, or your employees’ liability for what is published on social media, I run courses on how to make the most from these platforms, while avoiding potentially serious and costly legal problems. Contact me via the contacts page, above

Here come the (thought) police

A COUPLE of jurors have been in the news this week, one for speaking his mind in court, one for speaking his mind on Facebook.

One is now facing a contempt charge after he allegedly committed his thoughts on being chosen to try a man charged with sexual offences against a child to his Facebook page. He may be regretting being quite so frank in allegedly saying he “wanted to fuck up a paedophile.”

The other was a juror on a sexual offence trial in Tyneside, but his problem was not the nature of the offence, it was the origins of the offender – a Mackem (native of Sunderland) whose home team had just given the Geordie juror’s team, Newcastle United a 3-0 drubbing in the local derby. The juror was, he confessed, incapable of trying the man fairly and was discharged.

Cue outrage on Twitter at his confession, especially as the delay to the trial meant the victim had to go through evidence again.

Would we rather both had remained silent? Of course it would be preferable that all jurors arrived at trial capable of setting aside prejudice and trying the case solely on the evidence.

But if they are not capable of doing so, isn’t it better to know that?

The Toon fan made his feelings known in court, so avoided anything more than the disapproval of the court, and a vocal few on Twitter and elsewhere. The Facebooking juror is facing somewhat more serious consequences.

This raises a wider point about the way in which offensive behaviour on social media is being policed and reported by the media and it follows on from the post I wrote below, about Paris Brown.

At the moment publication on social media is being treated by the police, the Crown Prosecution Service and the courts as just that, a form of publication, which it undoubtedly is. I would argue that it is more than that, it is fundamentally different to that.

Publication has for centuries now, involved many tiers of eyes examining an article, book or broadcast before it reached the general public. The exception being, perhaps, live TV, but even there a time delay and a watchful eye meant the public were usually spared anything too offensive.

In my own experience, any piece of writing I perpetrated had to get past a newsdesk, sub editor, chief sub editor, night editor and stone sub before it reached the paper and I, like many reporters before me, am grateful for their eternal vigilance.

Now, however the means of publication, or in the case of the retweet, re-publication, has been out in the hands of everyone. Anyone can distribute their thoughts to the multitude, in subbed, as fresh as the moment they had them. Much of it is wonderful, some of it mundane and plenty of it actionable in law.

And the instantaneous nature of social media publication, I would argue, differentiates it for any form of publishing we have seen before. If you watch a young person going at their iPhone, you realise just how slow your own thumbs are and how quickly they can commit their thoughts to the ether. And this is my fundamental point, this is less like publication and more like thought. Many users of social media, especially Twitter, are simply thinking out loud, very loud.

Of course, one might argue, it is their own fault, they know the power of the retweet, they ought know their digital thoughts become permanent and searchable for all to discover. But the vilification of the likes of Paris Brown and the juror who didn’t like paedos simply tells people to keep their thoughts to themselves. It does not address the fact that they have those thoughts in the first place.

This is what social media is showing us, that there is an ugly side to people’s nature and before they would only express it to family, close friends and those who shared their views, now they are committing it to the Internet.

And is this what we want? I think yes, I would rather know what a juror thought about me, so he could be discharged, than him keep it a secret and find me guilty.

When Orwell wrote 1984 he envisaged cameras in every home spying on our every action. This is so much more than that, we don’t need the cameras, we have Twitter, Facebook, Blogs and more where people voluntarily sign up not only to record their actions but also their very thoughts.

The thought police are here, but they weren’t sent in by Big Brother, they are us.

The rise, and rapid demise, of Paris Brown

A WEEK is a long time in politics and even longer in the life of a youth police and crime commissioner.

The fledgling career of Paris Brown, 17 who had won the £15k post was stopped before it even started after tweets she posted when 14 to 16 were uncovered by the Mail on Sunday.

They had found posts in which she had used the racist and homophobic terms ‘pikey’ and ‘fag’.

After an initial show of support from the Kent Police and Crime Commissioner, Ann Barnes, by yesterday it was clear things had gone too far when Kent Police announced they we investigating some of the posts on Twitter. Paris Brown announced in a press conference that she would not be taking up the post of youth commissioner.

So, was the MoS right to reveal the tweets of a teenager, and did she need to go? Well, probably yes to both questions. Here’s why.

In the normal course of things the tweets that she sent, for which she has now apologised, are not really a matter of public interest. While using those terms is always unacceptable, she was not targeting an individual in making them – she said, for instance, that the cast of Made In Chelsea all ‘looked like fags’. Unpleasant, certainly, but qualitatively different from applying that word to a individual gay person in a tweet directed at them.

So ordinarily one would say that this is probably not something that ought to concern a national newspaper and were the Daily Mail to do page leads on the offensive postings of teenagers, they would need to run a special supplement every day and a very large one at that. But they don’t, the Mail, despite views to the contrary expressed by its detractors on Twitter, and there are many, is not interested in the ill-considered tweets of the nation’s youth.

Paris Brown is only 17, and, as I tweeted yesterday, I would hate to be reminded of some of the deeply stupid things I probably said when I was that age. Pity the poor teenager today whose every tweet and Facebook post is potentially immortal, a digital albatross circling them for the rest of their life. They ought to be able to live down their indiscretions, offensive as they may be, just as those of us who grew up pre-Internet were able to do.

Many people Paris’s age use social media in the same way they would just talking in the pub – it is as full of the trite, offensive, deeply meaningful, nonsensical, emotional, heartfelt and daft as such conversations always have been. but now they are broadcast to the world, are permanent and searchable. To them a post on Facebook or Twitter is as simple and quick as thought, but they are thinking out loud, very loud.

So was the press in general and the MoS in particular, right to cover this in the way they did? This is where the public interest comes into play. Paris Brown was soon to be employed on the public purse, albeit that some of her salary would come from Ann Barnes’ own, it was still taxpayers’ money that would be funding her post. She would be responsible for engaging with people her age as part of that role. So her right to privacy has to be balanced against the public’s right to know what a public servant in this position actually thinks.

Given the fact that a youth commissioner charged with communicating with young people is inevitably going to do that by using social media, it is not unreasonable to ask what views she has expressed on those media.

It is a question that those employing her should perhaps have asked before announcing her appointment. To be fair to Ann Barnes, Ms Brown was put through Kent Police’s normal vetting process for the level of role she was taking up. That vetting process did not include looking at her postings on social media. One would imagine that that vetting process is being rapidly revised in light of recent events.

If they did not think of looking at Paris Brown’s tweets, it was blindingly obvious that any journalist worth his or her salt would do. It is what journalists do. Gay people in Kent and those from ethnic minority groups have a right to know what any public servant holding such a position thinks about them and the language they use gives you a clue.

In the end she did the right thing, which was inevitable once police were investigating, and declined the post. I suspect the police will shortly announce no further action, because if they take this to court, then they need to start building some new ones to cope with the influx of those who have posted similar and worse. She can, as she hopes, move on, and any social media consultants in Kent would do well to sign her up to provide true-life lessons to schools, colleges and universities on the perils of the intemperate post.

Paris Brown said yesterday she hoped this would stand as a lesson to young people. That is very true. Some surveys have shown that more than half of prospective employers look at potential employees social media postings, and 40 per cent of them don’t make a job offer as a result of what they find. You cast a long social media shadow, and along lasting one at that.

Ann Barnes said yesterday, referring to Leveson, that it was the role of the press to break news, but not to break people. Very true, and Paris Brown ought not to be broken by this now she has turned down her new post. But organisations cannot have it all ways, if you want your staff to engage on social media you have to accept the risks as well as the benefits that brings. You cannot control the every thought and tweet of your staff.

We are just beginning to understand the revolution in communication that social media has brought about. Paris Brown is a casualty of that revolution.

There will be many more.

Why judges need no further powers

PROPOSALS to give judges far-reaching powers over the media to prevent prejudice to trials are wrong and here are three quick reasons why.

The idea is included in the Law Commission’s consultation on contempt of court and means that judges could order the temporary removal of material from online archives before and during a trial if it might prejudice the case.

I will be submitting a detailed response to the commission’s consultation, but I wanted to set out a brief argument against that specific idea, in the hope it would prompt others in the media to realise the huge burden it will potentially place and on them and prompt them to respond to the consultation as well.

1. If you give judges this sort of power, they will exercise it too widely and too often

Often for the best of reasons, judges make orders which are simply beyond their powers in law. They may do so to preserve a fair trial, or to protect a vulnerable victim or witness, but they overstep what the law says they are allowed to do.

There are countless examples of the misapplication of orders under Section 4 and Section 11 of the Contempt of Court Act 1981 and Section 39 of the Children and Young Persons Act 1933.

At the Law Commission symposium held recently to discuss their proposals. One judge attending, unwittingly perhaps, gave a perfect example of this.

He had, he told the audience, been the judge in the trial of two police officers over the Hillsborough disaster. During that trial he had made an order banning publication of any photograph of the memorial to the 96 who died at Hillsborough. He explained that feelings were inflamed at at the time and they needed no further inflammation by publication of such an emotive picture.

There were various nods of approval from the audience when he said this.

The question is, under what power in law did he make such an order? Section 4 of the Contempt of Court Act 1981 allows for an order postponing the reporting of an element of a trial, or the entire trial, to prevent prejudice to proceedings. However, it only gives judges the power to postpone reporting of their proceedings, it cannot apply to events outside the court. The Hillsborough Memorial was not part of those proceedings, so ought not to have been subject of any order.

2. The practicalities of removal of material will impose a huge burden on publishers and ultimately render such orders ineffective.

The idea of these orders is that where someone has been the subject of previous proceedings or trials, widely reported, that an order can be made so that those reports are temporarily hidden from public view, so that a juror on their trial will not find them.

They will not work, and here’s why.

The idea is based on the premise that prejudicial material will be easy to find, identify and disable. Things are never that simple, even with the formidable technology at the disposal of publishers.

Let’s take the example of Gary Striker, Premiership footballer, leading goal scorer and well-publicised bad-boy.

Let us say, for simplicity’s sake, that stories about Striker fall into six categories:
1 Sport stories including match reports which feature him
2 Sport stories which feature Striker’s often very serious foul-play
3 News stories featuring Striker’s public appearances that contain innocuous material
4 News stories that detail Striker’s appearances in court on a variety of charges
5 Sport stories that mention his convictions in passing
6 Stories from all of the above, which include readers comments that mention his previous convictions

Let’s say Striker is up on a very serious charge, heading for Crown Court trial and the judge decides to make an order for removal of prejudicial material.

I don’t think any automated programme exists that would differentiate the above categories.

The only way you will be able to sort out the prejudicial from the innocuous is to have people read them, and in the case of someone as famous as Striker, that will mean sifting a vast amount of information. Who will that burden fall upon?

Will the defence, or judge, in seeking, or making an order, be required to specify which stories they want removed?

Or, as I suspect, will the power be to make a general order for removal of prejudicial material, leaving publishers to sift out the benign from the risky.

In a case like that of Striker, that will be almost impossible to achieve in a timely manner.

I do hope that publishers, of both new media and traditional newspaper websites, will respond to the Law Commission proposals and urge a rethink on this issue.

If they don’t, then pity the poor minions who have to weed out every prejudicial mention of Gary Striker.

Ten Tips to help you pass NCE Law&Newspaper Practice

NCE is fast approaching and for hundreds of junior reporters around the country a lot hangs on this. A pass means they become senior reporters, and for those in training contracts it traditionally means the freedom to ply their trade elsewhere. A pay rise often accompanies elevation to senior status too. So you can see why it is taken seriously.

It’s a tough test though, with a number of different papers and a portfolio of work to complete as well. There are lots of opportunities to mess it up.

For about four years I was chief examiner for the NCE newspaper practice – which is a test of legal and ethical knowledge as well as your reporting skills.

Here are my 10 tips to junior reporters facing the exam, I hope they help.

1. Watch the time. You only have one hour for the exam. There are 50 marks for the law question and 25 each for the two practice questions. So, logically you might allocate 30 minutes to law and 30 to newspaper practice, but keep your eye on the clock. It is very easy to get carried away with the law question and not allow yourself enough time for the practice. If you really nail the law, that might just be ok, but you will really need to nail the law. I saw far too many papers with a rushed final question that hardly got any marks at all.

2. Know your law. The NCE when I was writing it anyway, focused on mainstream legal issues – contempt, libel, mags court restrictions, children, sexual offences and the PCC code. There might be other items such as privacy, confidentiality and copyright thrown in, but those main items should get you through.

3. Don’t confuse your defences. A favourite question of examiners features the defences for a court report. All too often candidates claimed absolute privilege – a libel defence – as a defence against contempt of court. There’s a simple mnemonic I invented to avoid this. “Banksy says remember your ABCAbsolute privilege has Bugger-all to do with Contempt. The defence against contempt for court reporting is S4(1) of the Contempt of Court Act 1981 which says a fair, accurate contemporaneous report of court proceedings cannot be in contempt of court, sop long as no order has been made under S4(2) postponing the report.

4. Don’t scattergun. You might want to play on the safe side and put down every single thing you know about the law, but that just tells the markers that you can’t spot the problem at hand. Keep the law relevant.

5. Be specific. If you think the problem in the question is libel explain why. Many candidates lose marks by simply saying: “The problem here is libel…” then going on to explain the defence that might apply. There will be marks available for explaining exactly which  words are libellous and why. The same goes for any other legal issue, analyse why it is a problem, then go on to explain the defence that might apply.

6. Know your PCC Editors’ Code. Go to the PCC website, look at recent cases. Know the code inside out. It’s in your contract of employment, you’ve probably been given it a few times during your traineeship, it’s on the PCC website, there really is no excuse for not knowing it. In the current climate I would not be at all surprised if it features more often in NCE exams than it has before.

7. Be realistic. On the practice questions, where you are explaining how you would handle a story, make suggestions that you would expect to work every day. You might like to talk to the Prime Minister on the issue at hand – he would not return your call.

8. To vox pop or not to vox pop. This has become a standard part of many candidates practice answers. Sometimes it is a relevant idea, very often it is not. If you think it is, then do please tell the examiner what you would ask and how the responses would add to the story. The same goes for the digital equivalents of a telephone or internet poll.

9. Check your answer. Build in time to check your answer. You are not marked down for spelling on this exam, or at least weren’t when I was examining it. But nevertheless, checking your copy might avoid some terrible howler being submitted that might cost you marks.

10. In the unhappy event you fail, stump up for a failure report. It will certainly help you get through it next time and so it is worth the money.

In any event, I hope the above is useful, and good luck on the day.

Contempt of court and how to avoid it

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.