- Created by: zaraamani
- Created on: 20-12-17 11:35
What is Contempt of Court?
- The law of contempt of court aims to protect a individual's right to a fair trial by preventing publication of information which might seriously impede or prejudice the outcome of the legal proceedings.
- The legitimate aim of the law is to protect the independence and impartiality of the judicial process.
- Article 10 of the ECHR (European Convention of Human Rights) is the right to freedom of expression. This is a qualified right. This means it can be removed if it is set down by law, necessary and proportionate in a democratic society or in order to fulfil a legitimate aim, such as maintaining the impartiality of the jury.
- Article 6 of the ECHR is the right to a fair trial. This is a absolute right. This means it can not be interfered with.
- The press argue that they should have freedom to report on cases whereas individuals argue that they should not have reports present in the media which are likely to prejudice a case. This causes conflict between the two articles.
Law on Contempt
- The domestic law on contempt was originally found in the common law.
- The case of Sunday Times v The UK (Thalidomide Case) led to the creation of new law following the criticisms of the ECHR: The Sunday Times had published two articles commenting on the Thalidomide affair before the outcome of the case had been decided. The articles implied that the drug distillers were guilty.
- The European Court of Human Rights were critical of the fact that English law had formulated an absolute rule that made it unlawful to prejudge issues in pending cases and claimed the law went too far in restricting Freedom of Expression.
- This led to the creation of the Contempt of Court Act 1981 which addressed the lack of defences for Freedom of Expression.
- Common law provisions on contempt exist alongside the statutory provisions.
Contempt of Court Act 1981
- s.1: It is a strict liability offence to commit contempt. This means there is no need to prove intent/mens rea (guilty mind). Therefore, FOE can be restricted easily as there is no need to prove intent - fairness of a trial is increasingly protected. However, this does depend on how actively the Attorney General is enforcing the law and how it is being interpreted by the courts.
- s.2: The law applies to publications whuch create a substanial risk that the course of justice in the proceedings will be seriously impeded/prejudiced. Publication: Any speech, writing, broadcast or any other communication to the public. Case example: publishers of Mail Online and Sun Online found guilty of contempt after publishing a photograph of a defendant in a murder trial holding a gun.
S.2 Elements: S.2(2)
- s.2 (2): Key principles of what constitutes a substantial risk was laid out in Attorney General v Mirror Group Newspapers. Each case should be decided on it's own facts and courts will test matters at the time of the publication. The Court needs to consider the likelihood of the publication being seen by a potential juror, the likely effect the publication will have on an ordinary reader and most importantly, the residual impact the publication will have on a notional juror at the time of the trial.
- Case examples: AG v BBC: Comments made on Have I Got News For You about sons of Robert Maxwell were held to be in contempt, despite fact trial being six months away. Bowyer and Woodgate - Sunday Mirror found guilty of contempt for publishing an article during the trial of two footballers for assault. Suggested that the assault was racially motivated, which led to collapse of the trial and then eventually a re-trial. ITV Central - Ran news item about a trial which was about to start and included details of defendant's past convictions. Chris Jefferies - The Sun and the Mirror fined for contempt over coverage of the arrest and portraying Jeffires to be guilty - found to be entirely innocent.
S.2 Elements: S.2(3)
- Proceedings in quesion must be active.
- Active proceedings are defined in Schedule 1 of the CCA 1981:
- Criminal proceedings: Active when any formal step has been taken. Stops when defendant has been acquitted or convicted.
- Civil proceedings: Active when arrangements made/date has been set for hearing. Stops when case is settled or discontinued.
- Appellate proceedings: Active when intention to appeal is formally indicated. Stops when hearing is complete unless a re-trial has been ordered.
- s.2 requires cases to be active in order to create an offence of contempt. This can restrict FOE as it can take several months for criminal cases to conclude. On the other hand, an individual's liberty is often at stake and restrictions need to be put in place. Once the case is concluded, restrictions do not apply. Civil cases are not as restricted as they are not heard by a jury - only a judge who is able to put prejudicial material aside.
- s.3 Innocent Publicattions: The publisher will not be found guily of contempt if taken all reasonable care, was unaware the proceedings of the trial are active.
- s.4 Fair and Accurate Contemporay Reports: Fair and accurate reports will not give rise to an offence but can be postponed under s.4(2) in order to avoid prejudice. This is used as a last resort and its conditions have been set out in the Act.
- s.5 Discussion of Public Affairs: If the publication is in the public interest, it will not be treated as contempt. The risk of prejudice must be merely incidental. The prosecution must try and prove the risk is not merely incidental. This is difficult for the Attorney General as he has to prove the prosecution case and disprove the defence.
Defences in the Contempt of Court Act have answered the criticisms of the ECHR in the Sunday Times case and offer opportunity for the accused to justify their publication, respecting FOE. However, the key concept of 'public interest' is open to wide interpretation.
Common Law Contempt of Court
- The common law of contempt exists alongside the Contempt of Court Act 1981.
- There are 3 differences between common law contempt and CCA: no defence of public discussions, law applies to imminent/pending proceedings and proof of intent is required.
- In common law, you need to prove intent - making it more difficult to prove than the strict liability rule under CCA 1981. However, imminent/pending proceedings in common law have a wider definition than 'active proceedings' and are easier to prove. On the other hand, statutory contempt of court includes discussion of public affairas as a defence which allows a better balance between the two conflicting rights as FOE is offered more protection.
- Common law is used as a alternative where the parties intended to commit contempt. AG v News Group Newspapers: 8 year old girl alleged to have been r.aped by a doctor. The Sun published articles attacking the doctor with the use of emotive language prior to the proceedings becoming active. The common law provisions were used to prosecute.
Internet and Contempt Law
- Law on contempt is based on the idea that conditions can be created in order to ensure a fair trial by denying the public certain facts.
- The Internet makes it hard to deny people information and can make information easily accessible.
- Cheryl Thomas: Are Juries Fair? - 12% of jurors questioned had looked online to try find information and 26% had seen reports on the internet during the trial of high profile cases.
- Theodora Dallas: juror who researched defendant's past on the internet and shared information with fellow jury members. Sentenced to 6 months in prison, this illustrates how seriously thecourts take any attempt to contact or research the defendant.
- Internet and social media make it difficult to protect the fairness of the trial process and authority of the court - calls for the law to be renewed/updated.
- Crimes and Courts Act 2015: created several juror offences in relation to contempt.
- The extent to which the fairness of a trial is protected by the law on contempt depends on how actively the Attorney General enforces the law.
- Many high profile cases have led to so called 'trial by media' and yet no prosecutions have followed e.g Jill Dando case, parents of Madeline McCann.
- Attorney General: The press feels entitled to print whatever they wish, shielded by the right of freedom of expression, without any of the associated responsibilities.