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CONTEMPT OF COURT

‘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’ Art 6 ECHR

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VARIETIES OF CONTEMPT

• Strict Liability Contempt• Deliberate Contempt (Common law

Contempt)• Inquiring into Jury deliberations• Disobedience of a court order

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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.’

THE LAW COMMISSION

• Contempt law was reviewed 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.4

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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

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SOME USEFUL CASES

•Att-Gen v MGN Ltd [2011] EWHC 2074 (Admin) – Jo Yeates Landlord arrest•Att-Gen v Associated Newspapers & News group [2011] EWHC 418 [Admin] – online pictures of accused

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THE CRITERIA

• Prosecution must show:• There is a publication• It must create a substantial risk that the

course of justice in particular proceedings will be seriously impeded or prejudiced

• The proceedings are ‘active’

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‘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

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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)

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ACTIVE PROCEEDINGS

• What is ‘active’?Examples: If a person is arrestedA warrant has been issued for arrestSummons has been issuedPerson charged orallyInquest has been opened

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DEFENCES

• 1. FAIR & Accurate & contemporaneous reporting of legal proceedings - no malice

• 2. Innocent distribution OR publication – note differences

• 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)

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DISCUSSION OF PUBLIC AFFAIRS

• 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.