Essay Introduction for Exams
The offence of contempt of court can be found in the strict liability rule in S.1 CCA. Case is proved by Attorney General. Strict Liability means that there is no need to prove intent.
Impact of strict liability rule; can be seen in Jonathan Woodgate/Lee Bowyer trial; Sunday Mirror found guilty despite claim not aware of any impact on the trial.
You’re guilty of contempt of court is you: ‘Publish info that interferes with the course of justice in particular legal proceedings’
Elements of the Offence (In order of Application)
1.1. Is the Item a publication?
2.2. Did you publish info that could affect court proceedings?
a. Did the publication create a substantial risk? (Describe this part first, then apply)
b. Did the substantial risk create a serious impediment or prejudice? (Then described this part and apply)
3. 3. Did you publish info that related to active proceedings?
4. 4. Can it be disproved that it is in the public interest for the info to be published?
Must be an answer of ‘yes’ to all elements for a criminal offence.
1. Is the Item a Publication?
S.2(1) CCA: Attorney General must prove that the item is a publication.
Publication= ‘speech, writing, broadcasting or other communication in whatever format which is addressed to the public at large or any section of the public’. E.g. TV, newspaper articles, internet articles.
2. Does the Information Adversely Affect Court Pro
To decide if publication does, there is a test contained in S.2(2) of CCA: ‘The Strict Liability Rule applies only to a publication which creates;
· A substantial risk that the course of justice in the proceedings in question
· Will be seriously impeded or prejudiced
So, to fulfil this element, 2 issues must be proved by Attorney General.
(a) Did the Publication Create a Substantial Risk?
The issue surrounds whether there is a ‘proximity of risk’.
· Proximity to Date of Trial: AG v BBC: shows that there is proximity of risk where trial is at most 6 months away.
· Wide Circulation: AG v ITN: shows that there must be a wide circulation; a brief broadcast on the news and small circulation of number of 1st edition newspapers not enough
(b) Was the Substantial Risk of Serious Impediment
The Publication must impact or effect on the court case. To do so, the publication must fall into 1 or more categories.
1. Publications that prejudge (not prejudice) the outcome of the case; OR
2. Publications that may prejudice the jury against a party; OR
3. Publications that criticise a party to legal action; OR
4. Publications that pre-empt the legal rights of a party to an action.
Note: In the exam, name all the categories. Then choose 1 or more and apply.
Publications that Prejudge the Outcome of the Case
This is stating the outcome of the case before it is finished; also calling someone a ****** or murderer where they are on trials for these crimes.
It can affect jury/magistrate and influence them into making decisions before the trial is over. Only applies to jury/magistrate cases; judge’s legal training will stop them being affected by publication.
Criminal trials, defamation, fraud, malicious prosecution, false imprisonment trials all applicable to category.
AG v MGN Ltd: sets out test for this category.
- · Court must look at the likelihood of a potential juror/magistrate reading the article; AND
- · The impact on the ordinary reader at the time of reading (will the reader think the person is guilty?) AND
- · The residual impact of article on juror/magistrate at time of trial (likelihood of juror/magistrate remembering the article)
Publications which may prejudice the jury against
This applies to articles that make a jury dislike a person. So, applicable to all jury trials.
AG v Times Newspapers: Describing the defendant as a drug addict, glib liar and potential suicide was not prejudicial, so potentially sets standard high.
Publications that Criticize a Party to the Action
This can occur in civil or criminal cases; can occur in 1 of 2 ways
· May prevent witnesses coming forward e.g. criticism in a publication of one of the parties may scare a witness off testifying for fear of facing same criticism.
· May discourage parties from pursuing their legal rights e.g. criticising a party for a lack of evidence may force them to drop their case.
Publications that pre-empt the legal rights of the
This category applies to Breach of Confidence cases. It involves a publication undermining existing injunctions or printing information before there is the chance to get an injunction to restrict it.
3. Did you Publish Information from Active Proceed
After proving there it is a publication and there is a substantial impact on a potential trial, the AG must then prove that a trial that can be affected is in progress.
No trial=no influence=no contempt of court
A publication can be about a person who is on trial, affecting their trial directly.
Or can be about the subject matter of trial, affecting the trial indirectly.
S.2(3)CCA: Can only commit contempt of court if you publish info relating to ‘active proceedings’
Definition of Active Proceedings
Schedule 1 to the Act:
· Criminal Prosecutions: become active once any formal step has been taken e.g. arrest or issuing of arrest warrant. They cease to be active once the suspect is acquitted, convicted, sentenced, released without charged.
· Civil Proceedings: become active once arrangements are made for a hearing or when the hearing begins e.g. the trial date is set
· Appellate Proceedings: become active once the intention to appeal is formally indicated. Applies for both criminal and civil appeals.
AG v Newsgroup Newspapers, AG v Mirror Group Newspapers: there wasn’t a resulting trial, but proceedings were active at the time of the publications. Plus, at the time of publication, it wasn’t known that there wouldn’t be a trial. Publications could’ve also stopped witnesses coming forward to clear Jeffries name.
4. Can it be Disproved that the Publication is in
S.5 of CCA: answered criticism from Court of Human Rights in the Sunday Times v UK case. Defence of ‘discussion of public affairs’.
A publication will be a discussion of public affairs where the impact on the trial is:
‘merely incidental (minor/secondary) to the discussion’
The burden of proof is on the AG; the court will assume that all publications are discussions of public affairs unless the AG proves otherwise.
AG v English: The publication created a substantial risk, but the impact on the trial was incidental, so the publication was protected by S.5
Common Law Contempt of Court
CCA didn’t repeal common law offence of contempt of court.
There are 2 differences between common law contempt and CCA:
· No defence of public discussion in common law offence
· Law applies to imminent or pending proceedings rather than the defined set of ‘active’ proceedings presented in CCA.
Common law contempt of court is only used where the parties intended to commit contempt, as in the AG v News Group Newspapers: publications were held to be blatantly prejudicial, so common law provisions used to prosecute the Sun.
Criticising the Courts
(as an amendment to the Crime and Courts Bill the House of Lords voted in favour of abolishing this offence on 10th Dec 2012)
Under the common law, it can amount to contempt of court if an article criticises a judge; also sometimes referred to as ‘scandalising the courts’
R v Grey: Defendant convicted of contempt of court for ‘scurrilous abuse of a judge as a judge’.
Contempt in the Face of the Court
Committed when a person interrupts court proceedings
Balogh v St Albans Crown Court: Contempt in face of court requires an act to have been committed; catching someone intending to interrupt court proceedings is not enough.
Morris v Crown Office: Welsh language demonstration during an unrelated trial. Demonstrators that didn’t apologise sentenced to 1 day in prison.
Bodden v Metropolitan Police Commissioner: Disruptive behaviour doesn’t have to take place in the court room or court house; even if outside, will be found in contempt in the face of court if disrupts court proceedings.