For the first-year law test, you are advised to memorise, word-for-word where appropriate, text in burgundy
For the first-year law test, you need not learn (or even read) text in pale grey
Committing contempt of court is arguably the most serious legal risk for journalists – and also for non-journalists who share unsafe material on social media. It can result in a very large fine or even prison, as well as potentially causing the collapse of a trial – as has happened. Deliberately committing contempt – say, by breaching an injunction or other reporting restrictions – would be to undermine justice. Responsible publishers NEVER do this.
Case study: Tommy Robinson, jailed for ‘reporting’.
In May 2018, the founder of the English Defence League, Tommy Robinson, was jailed for contempt after posting a Facebook Live video about an ongoing trial. Factual, balanced reporting would not be illegal during a trial, but Robinson was accused of breaching a temporary ban on reporting the case while it was still going on. The ban was imposed to ensure a fair trial. He was also jailed for a previous offence.
However, in August 2018 the Appeal Court agreed that his conviction on one of the charges was unsafe for reasons related to the speed of the hearing. He was released on bail.
The Attorney General, Geoffrey Cox, later announced that Mr Robinson should face a new trial (expected early May 2019). Perhaps with social media in mind, he said: “I remind everyone that it is an offence to comment on live court cases.”
The outcome of the retrial may well change the way the Contempt of Court Act is interpreted by the courts in the future. Read more:
Tommy Robinson freed on bail as court orders retrial – The Guardian
This piece on the Independent website explains the legal context in easy-to-understand detail, as well as scrutinising Robinson’s criminal background and his claim to be a journalist:
How journalists might commit contempt
Journalists can commit “strict liability“ contempt in various ways, including:
- asking a juror about deliberations – why they came to their decision.
- reporting a case when Section 4.2 restrictions are in force (temporary)
- revealing a defendant’s identity when it is protected by a Section 11 (anonymity) order (lifelong unless lifted)
- failing to give a balanced report of proceedings.
- reporting matters discussed in court when the jury were not present.
(Second 4.2 and Section 11 are parts of the Contempt of Court Act).
Failing to report a case contemporaneously but storing up reports for later publication can also pose a risk. Contemporaneous, accurate and balanced reporting is one of the key defences in a contempt case.
“Contempt of court” can be mean many things – such as being rude to the judge. A juror was jailed for playing on his phone during a trial. But for journalists, “strict liability” contempt – jeopardising a trial by publishing prejudicial information – is a significant hazard. It that can land them in prison for up to two years. Potential fines are unlimited.
For journalists, the most important aspects of the Contempt law relate to interference with the work of the courts.
The key danger is that a journalist’s work creates:
a substantial risk of serious prejudice… to a court case.
Another key issue is whether a case is active – that is, about to start or still going on. A case might be active for years if it is paused for some reason.
A key term here is strict liability contempt (see below). If your report creates a substantial risk of serious prejudice, you can be found guilty of contempt – and the “strict liability” bit means you are guilty even if you did not know you were jeopardising a trial.
A timeline for reporting
Restrictions on reporting a crime will vary as a case progresses:
- The crime is committed: the media can report freely
- Someone is arrested/charged: the case is active; reports must avoid prejudice
- Preliminary hearing in the magistrates’ court: the “eight points” can be safely reported, along with non-contentious material
- A full hearing: fair, accurate and contemporaneous reports must stick to what is said in court while the hearing continues
- A not-guilty verdict: the case is not active once the final verdict is given; the media can report freely
- A guilty verdict: the case is technically active until sentencing but the jury is discharged so it is considered safe to run background reports, unless the judge orders otherwise
When a case becomes active: what can be reported
The basic facts of a crime can still be reported once a case has become active, as long as they are not likely to be disputed in court. So a newspaper can still report that a robbery took place, and where and when it happened, and that someone has been arrested (but not that “the robber has been arrested”, because that says the arrested person is guilty). But some detail, such as whether a particular weapon was used, might be unsafe.
Simply naming an arrested person is not contempt, so long as guilt is not implied – which would also pose a risk of defamation if the person is later released without charge.
In crimes involving a death, the inquest and funeral can also be reported, along with tributes to the victim (as long as they do not prejudice the trial).
Victims can be named; but once court proceedings have started, restrictions might be imposed. Alleged victims of sex offences, modern slavery and female genital mutilation have automatic anonymity for life.
When a case becomes active: what CANNOT be reported
Based on past convictions for contempt, the following kinds of information about a suspect are likely to pose a substantial risk of serious prejudice:
- Reference to past convictions
- Suggestions of dishonesty or bad character
- Evidence linking them to the crime
- Any other suggestion they are guilty
Other material that might give rise to contempt includes:
- A witness’s detailed account of the crime – once the case is active
- A photograph or physical description of the suspect, in case there is a dispute about the identity of the person who committed the crime. The defendant might claim in court that they were not the person caught on CCTV, or that a witness was mistaken.
Human rights and contempt of court
The right to a fair trial has been established in England for hundreds of years. It is protected by both the European Convention on Human Rights and the 1998 Human Rights Act (and sometimes, it is journalists who want to be tried fairly). The two Articles most relevant here are:
- Article 6: the right to a fair trial
- Article 10: the right to freedom of expression (which includes media freedom)
A court will weigh these two rights against each other when deciding on applications to prevent publication of anything relating to a case.
Section 12 of the 1998 Human Rights Act also says that temporary injunctions preventing publication should not normally be made in ex-parte hearings – that is, without the media being present to argue against the injunction.
Generally, a journalist must not prejudice a fair trial by publishing:
- a defendant’s previous convictions (details of their past crimes)
- background information that might influence a jury
- a photograph of a defendant IF the identity of the culprit is an issue.
Other forms of contempt may not involve prejudice. They include:
- breaching a court order, including injunctions
- taking pictures in court
- revealing what a jury talked about when debating its verdict. It is a crime even to ask.
It is no defence to say you did not know a court order was in place. If you write about a case, it is your job to find out whether there are any reporting restrictions (see strict liability, below).
In England and Scotland the law on contempt is the same but Scottish courts are more strict; what you can get away with in England may be dangerous in Scotland.
A key principle is that juries must decide cases only on the evidence pesented in court, and nothing else: not what they read in the papers, and not even things they happen to know.
Journalists can report a case while the hearing is still going on, and be protected from a defamation claim by absolute privilege – as long as reports are accurate, fair and contemporaneous. Fairness means, at the very least, saying that the defendant denies the charges. It might also mean reporting the defence case if you have previously reported the prosecution case. If the defendant has pleaded guilty or been found guilty after a trial, then it would be fair to include details of any mitigation (a plea for a lenient sentence, often because of the defendant’s circumstances).
Note that students can easily be confused on this point: there are two distinct but overlapping areas of law here.
We speak of reporters having absolute privilege in court reporting, but this is protection against being sued for defamation. Contempt and Defamation are separate areas of law and privilege is not a term used in connection with contempt of court. However, the requirement for accurate, fair and contemporaneous reporting gives protection against a defamation claim (under privilege) AND against being found in contempt of court.
To avoid the risk of strict liability contempt (substantial risk of serious prejudice), journalists should only report what is actually disclosed in court – while the case is active. If there is a jury, they can only report what is said when the jury is in the courtroom (sometimes the jury leaves while lawyers discuss legal issues with the judge: for instance, whether a piece of evidence can be presented). Once a case is concluded and no longer active, journalists can report more freely.
Judge, jury or magistrates?
“You can’t influence a judge” is a popular saying among journalists. This relates to the principle that a story might influence a jury or magistrates because jurors and magistrates are not professional lawyers; but if a case is being heard only by a judge, there is much less risk of contempt because of the idea that judges, as highly experienced lawyers, are not influenced by media reports.
Criminal trials in the Crown court have a jury, but appeals and most civil cases are heard only by judges.
However, it is possible to influence witnesses and colour their evidence – perhaps by interviewing them for in advance for a background piece – so there is still danger.
Only the Attorney General can bring a legal action under the Contempt of Court Act 1981. This is to protect the media from “revenge” cases being brought by people involved in trials.
“Strict liability” contempt creates substantial risk of serious prejudice to an active case.
It is called strict liability because journalists can be guilty even if they did not know their report might prejudice a case (and potentially, lead the judge to abandon a hearing because the defendant cannot be given a fair trial – an extremely serious matter).
It is no defence to say all possible checks were made, or that there was no intention to prejudice a case.
There are three possible defences against a charge of strict liability contempt (but you wouldn’t want to have to rely on any of them). They are:
- innocent publication
- fair, accurate, contemporaneous reports
- discussion of public affairs
In reality, they are fairly limited defences.
And if a reporter failed to discover reporting restrictions were in place, there would be no defence at all. Notices about restrictions are usually posted outside a courtroom.
A publisher could also argue that there has only been a small risk of contempt, or that any prejudice would not be serious. This defence can be successful – sometimes.
Innocent publication means you did not know a case was active, or that reporting restrictions were in place, despite taking all reasonable care. However, you cannot plan to run a story on the basis that you will use this as a defence if challenged, because the mere fact that you knew you might need the defence is a sign that you were aware of the danger, and should have checked. But if you had no reason to suspect someone was involved in a potential case, and you can persuade a judge of that fact, then the defence might succeed. This case study suggests it is not a very safe defence:
Case study: a newspaper ran a story on a convicted robber. It turned out that while in prison, he had been arrested in prison on suspicion of murder, meaning the murder case became active. The paper claimed innocent publication, saying it was unaware of the arrest, but was fined £15,000.
Fair and accurate contemporary reporting is a defence, but journalists should be complying with these rules anyway – in which case, they should not be threatened with being tried for contempt in the first place.
Discussion of public affairs – the Section 5 defence – applies when the media discusses a subject of general public interest that is also raised by a current court case. As long as the discussion makes no reference to the court case, and the details do not closely match the subject of the trial, then the public interest defence might succeed. An over-simplification might help here: the media should clearly not be prevented from running a feature about domestic violence simply because someone in a court somewhere in England is on trial for domestic violence. The Daily Mail ran a piece about doctors allegedly allowing severely handicapped babies to die of starvation, just as a doctor was on trial for allegedly doing just that. The Mail successfully argued it was a serious discussion of a matter of public interest, and won – even though it was admitted the story would create “incidental” prejudice to the trail. But it had to appeal its case to the House of Lords to win. No student journalist should take the risk of running a “public interest” feature that coincides with an ongoing trial on a related issue – but they should be aware of the defence.
When is a case ‘active’?
If a case is active, it means a court hearing is happening or potentially about to happen, and there is a risk that writing about it might prejudice the case.
A case becomes active when:
- someone is arrested
- a warrant for arrest is issued
- a summons to appear in court is issued
- a suspect is verbally charged
- an indictment or other document is issued that sets out the charge
A case is no longer active when:
- an arrested person is released without charge
- twelve months have passed since a warrant was issued, with no arrest being made
- a charge or summons is withdrawn
- the defendant is declared unfit to be tried, or to plead
- the defendant is acquitted (found not to be guilty)
- the defendant is sentenced
- any other verdict or decision means the case is ended (such as an order for charges to “lie on file”, meaning no further action will be taken).
Even though a case ceases to be active when a defendant is cleared, the same is NOT true if they are found guilty. Then, the case remains active until they are sentenced – which may be days or weeks later.
However, in big cases the media often publishes full background coverage, including interviews, as soon as the last verdict is given. This is reckoned to be safe, because the jury has no further involvement and it is considered that judges will not be influenced by news coverage – though they can order that coverage is postponed until after sentencing.
Can a case become active again after ceasing to be active?
Yes! If a case goes to appeal, it becomes active again, but only when:
- one side in the case formally applies for leave to appeal, or
- when the appeal is actually lodged
If one of the people involved in the case comes out of court and says they intend to appeal, that is not enough to stop the media publishing full stories. A person merely saying they will appeal does not make the case active again.
Case study: two men convicted of murder tried to stop a television programme being broadcast about their case because they hoped for a re-trial. They said the programme might prejudice a future jury. A court refused an injunction, saying it was not certain there would be a re-trial. It is important that court cases can be reported.
Note that appeal cases are heard only by judges (more than one), so the risk of prejudice is very low. No publication was prosecuted for contempt relating to an appeal case in the 60 years up to 2013.
This briefing deals with contempt in criminal cases, but it is also possible to commit contempt in relation to civil trials, such as a libel hearing or a claim for compensation for some wrong. Any pre-trial hearings are heard by judges so the risk of contempt is low. Defamation hearings will nearly always be tried without a jury in future, but there remains a small chance a jury will be brought in, so care should be taken.
Civil cases are no longer active when they are:
- settled (the two sides make a deal out of court)
- decided by a judge or jury
- discontinued (stopped)
- withdrawn (the complainant drops the case)
Someone is ‘helping the police with their enquiries’:
Sometimes, it is hard to know whether a case is active. Someone may be voluntarily “helping police with their enquiries” at the police station. In that case, they have not been arrested and journalists can freely report what is happening (as long as they don’t imply the person is a suspect – that might be defamation). But are they there voluntarily? If not, that counts as arrest. The police may not be able to say either way, if there are other suspects they are looking for. And if someone is in the police station voluntarily, there is a risk that by the time a story is broadcast or published, they will have been arrested and the case will be active. This is a particular problem when newspapers are about to go to print, or when bulletin copy is being left overnight for early morning newsreaders: for broadcasters, the answer is to play safe until a check call can be made.
Sometimes police put out public appeals to help find a wanted suspect – after an arrest warrant has been issued. Technically, this is contempt of court, because the warrant means the case is active; and it clearly suggests the police think the person is guilty, which would be prejudicial. But when the Contempt of Court Act was passed, the Attorney General said the media should have nothing to fear from helping police catch a wanted person. Once that person was caught, though, it would not be safe to refer to a manhunt or publish anything suggesting they were guilty.
Dangers in reporting arrests:
Be careful with wording: it is safe to say someone has been arrested in connection with a crime; it is not safe to say they have been arrested for the crime, because that implies they are guilty.
It is not safe to say “a suspect” has been arrested. That, too, implies guilt.
And there are emerging legal and ethical issues around naming of people who have been arrested (but this will not come up in the 2019 law test).
Witness accounts: a danger
Witnesses to a crime might describe the suspect’s appearance. This is dangerous: if the description fits the person who is arrested, it implies they are guilty. This would prejudice a trial, and be contempt. When reporting an arrest, avoid publishing witness descriptions (especially if you publish a picture of the person arrested).
Can I rely on a police press release?
Very occasionally, police issue statements or press releases that inadvertently contain prejudicial information. For instance:
“After weeks of investigation, we are very pleased to have captured the main suspect in this case and can only hope this arrest will result in a long prison sentence.”
It’s possible the police will make a mistake in this area: they’re not lawyers. This is no defence for any news outlet that publishes material that creates a substantial risk of serious prejudice to a case, even if it came from the police.
The big question: is my story in contempt?
It is one thing to know the law; quite another to decide whether a story breaks that law (and really, for the media, that means checking with a lawyer).
The first test is risk:
- Is there a real risk a trial will be affected (prejudiced) by a report?
- If the answer is yes, the second test is the scale of prejudice:
- Is the affect serious? Is it serious prejudice?
A court has declared that “substantial risk of serious prejudice” means the outcome of a case might be changed, or even that the jury would have to be discharged. Having to stop the trial, or move it to another area, would also mean there was considered to be substantial risk of serious prejudice.
Some cases have had to be abandoned altogether because a defendant could not be given a fair trial.
The factors a court would consider are:
- who is hearing the case (a judge, or a jury?)
- timing (if a story is published a long time before the hearing, that reduces the risk – unless it’s a very prominent report)
- location of the trial (a local paper report in Scotland is unlikely to influence a jury in Wales)
- number of readers/listeners
- what the report actually says
The News of the World exposed men who were running a fake money racket, and they were arrested as a result. Its reward: a £50,000 fine. Its front page headline said: We Smash £100m fake cash ring – but it was published after the men were arrested, so the case was active. The headline and story clearly implied the men were guilty. Even though the trial was eight months away, the prominence of the story meant it might be remembered by jurors – especially as the reporter would be a witness in the case.
If jurors know a defendant has previous convictions, this might sway their view and make them more likely to return a guilty verdict. This would prejudice their right to a fair trial.
There are circumstances in which previous convictions can be raised in court, but students should still assume – for the Coventry University media law test – that it is not safe to mention them in reports.
There are also circumstances in which the media might escape prosecution for reporting on previous convictions while a case is active. Again, students should disregard this for the purpose of the Coventry law test, and assume it is not safe.
‘Mr Smith said he would protest his innocence’
Often, a media report that someone has been arrested or charged will end by saying the person involved has denied the accusations. This seems only fair – especially if the person involved is famous, and the charges are likely to receive wide coverage. The general guidance is that this can safely be reported, even though it is not one of the “eight points” that can be mentioned at a preliminary hearing in the magistrates’ court.
But if they say they will plead guilty when the full hearing opens, this CANNOT be reported at the preliminary stage.
Work it out: all they are saying is that they will plead not guilty, and a jury will know this anyway right from the start of a trial, so it can hardly prejudice that trial. If they later plead guilty, the fact that they previously denied the charges makes no difference. But if you report that they planned to plead guilty, and they change their mind, you’ve prejudiced the case.
Reports not linked to a trial
It is possible to prejudice a trial in a story that does not even refer to that trial, if the story has a bearing on the case a jury will hear.
This is also a risk when a trial ends, but the defendant is still on trial for something else.
Case study: The Sun quoted smoker player Ronnie O’Sullivan saying he wanted to win a Master’s title to celebrate his mother completing a prison term for evading VAT. At the time, she was on trial again for something else. Jurors in the second case might have read about her previous conviction. A judge found a substantial risk of serious prejudice to her trial, and discharged the jury.
Case study: Levi Bellfield was found guilty of the murder of schoolgirl Milly Dowler. The Daily Mail and Daily Mirror ran full coverage, including allegations of rape that had been kept from the jury. But the jury had not yet reached a verdict on a second charge of attempting to kidnap another schoolgirl. The trial on the second charge was stopped, and the two papers were punished for contempt.
In civil (non-criminal) cases, juries not only decide the case but also set the amount of damages. Media reports that speculate about damages can be in contempt.
Journalists may interview witnesses in criminal cases before a court case starts, or while the hearing is under way – usually to help them prepare backgrounders that they can run when a trial ends. A danger is that a witness, in giving evidence, will feel a pressure to stick to the story they told the media. Paying witnesses would breach the Editor’s Code. The Ofcom Code for broadcasters bans payments (apart from expenses) while a case is active, and discourages payment to likely witnesses where a trial is expected, unless there is a clear public interest.
A report that might sway a witness – or discourage a claimant in a civil case from pursuing a claim – could also be in contempt.
How does a judge decide whether there is prejudice?
Every case is judged on its own facts. A court will consider:
- the chances of a juror seeing/hearing a report
- likely effect on a reader (is it attention-grabbing, memorable?)
- what “residual” impact the report will still have when the trial takes place, if it’s some time afterwards.
Residual impact is considered the most important in judging impact on jurors. A court will only convict a publisher if it finds substantial risk of serious contempt.
ITN and four newspapers were found not guilty of contempt (but had the stress of a trial) for reports about a murder that ran nine months before the eventual trial. One of the men arrested was identified in the reports as an IRA terrorist and convicted killer – which would clearly be prejudicial if jurors remembered the stories. The judge decided it was unlikely jurors would have seen the stories, or remembered them. No student journalist should take the risk of publishing such material after an arrest.
If one publication has already run a story that creates a risk of prejudice, it does not mean another publication can safely run the same story, on the basis that the damage has already been done. Both can be in contempt: they are judged individually.
Stories that are already on the internet
Clearly, stories that are “safe” when they are published can become prejudicial once someone has been arrested and a case becomes active. Before the arrest, the media can freely publish contentious information that would not be safe once a case is active.
This has become a potential problem in the internet age, with the earlier stories still available online. In reality, though, it is not considered feasible to go through archives, constantly checking for stories that might be prejudicial. Jurors are ordered not to search for background information anyway. The risk is real: in 2008 an Old Bailey trial collapsed when it emerged a juror had done searches, and shared his findings with fellow jurors.
However, in 2012 the Daily Mail was ordered to take down two-year-old articles about a policeman facing trial for manslaughter. They accused him of being violent.
Which courts are covered?
The Contempt of Court Act applies to “any tribunal or body exercising the judicial power of the state”. If that body is called a “court”, it applies. Inquests and employment tribunals are also covered. But it does not apply to professional bodies such as the British Medical Council.
Prejudiced… or impeded?
Strict liability contempt actually seeks to prevent court proceedings being prejudiced or impeded. For the Coventry University media law test, students can generally disregard the latter. It is, however, possible to commit contempt even when the person referred is never put on trial (you can’t prejudice a trial if there is no trial to prejudice!). This happened in the case of Christopher Jeffries, who was arrested on suspicion of murder but then released. Newspaper reports wrongly vilified him. They could have made witnesses think the case was solved, meaning they might not have come forward – so the papers were deemed to have impeded justice. At the time of reporting, of course, it looked as if there would be a trial (See Quinn, Law for Journalists, page 78).
Even with a case that is not yet active, there is a danger of being in contempt – not through strict liability under the Contempt of Court Act, but through the much older common law offence of intentional contempt.
This happens when a publication deliberately sets out to prejudice a case that is not active, but “pending or imminent” – meaning there is an expectation an active case will emerge. Prosecutions are rare now because it is very difficult to prove intention.
The tests are:
- is the case pending or imminent?
- was there deliberate intent?