Your Rights: Right of free expression: Contempt of Court: What is Contempt of Court

Contempt of court serves the primary function of protecting the integrity of court proceedings. The law relating to contempt of court is found in the Contempt of Court Act 1981 and in the common law.

Contempt of Court Act 1981

The Contempt of Court Act 1981 (CCA) was enacted following a decision of ECHR that English contempt law contravened Article 10 of the Convention. It was intended to give greater protection to freedom of speech. The CCA introduces a strict liability rule. The strict liability rule indicates that conduct tending to interfere with the course of justice - particularly legal proceedings - may be treated as a contempt of court regardless of whether there was any intent to so interfere.

The strict liability rule applies only to publications. These are defined so as to include any speech, writing, broadcast or other communication in whatever form which is addressed to the public at large or any section of the public.

Two important limitations on the impact of the strict liability rule are:

It applies only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced.
It applies to a publication only if the proceedings are active.

When Contempt can be Used

The CCA sets out when proceedings become active. Different tests apply for criminal and civil cases. In criminal cases, proceedings become active for the purposes of the strict liability rule with:

An arrest without warrant.
The issue of a warrant.
The service of a summons.
The service of an indictment.
Oral charge.

Criminal proceedings cease to be active:

Upon acquittal or sentence.
Upon any other verdict, finding or decision which puts an end to the proceedings.
By discontinuance or by operation of law.

In civil cases the proceedings become active when arrangements for a hearing are made. They cease to be active when the case is disposed of, discontinued or withdrawn.

What Amounts to Contempt of Court

A publication must create a substantial risk of serious prejudice to the course of justice for it to amount to contempt. In determining whether a publication has created a substantial risk of serious prejudice, the courts will consider all the circumstances surrounding the publication and the proceedings in question. It is clear that for a publication to be contempt a slight or trivial risk of serious prejudice is not enough nor is a substantial risk of slight prejudice.

In making an assessment of whether the publication does create a substantial risk of serious prejudice the court will consider:

The likelihood of the publication coming to the attention of a potential juror.
The likely impact of the publication on an ordinary reader at the time of publication.
The residual impact of the publication on a notional juror at the time of trial.

In assessing the likelihood of a publication coming to the attention of a potential juror, the court will consider whether the publication is distributed in the area from which jurors are likely to be drawn and the number of copies circulated.

In assessing the likely impact of the publication on an ordinary reader, the court will consider the prominence of the article in the publication and the novelty of the content of the article in the context of likely readers.

The court will also take into account the length of time between publication and the likely date of trial, the focusing effect of listening over a prolonged period to evidence in a case, and the likely effect of the judge’s directions to a jury.

In 2002 the Sunday Mirror was found guilty of contempt in relation to its publication of an article during the 2001 trial of the Leeds United footballers Lee Bowyer and Jonathan Woodgate. The article, released while the jury were deliberating, strongly suggested that the assault with which the two men were charged had been racially motivated, despite the judge stressing in his summing-up that the prosecution were not alleging a racist motive. It was found by the court that the article created an atmosphere in which justice could not be done, and a re-trial had to be ordered. Despite there being no suggestion that the newspaper had intended to prejudice the trial, the High Court found it guilty of contempt under the strict liability rule.

It should be noted that even irreverent comment about defendants in a forthcoming criminal trial may constitute contempt of court. In 1996 the Court of Appeal found that the makers of the television programme Have I Got News For You were in contempt of court when jokes were made that the Maxwell brothers (who were to be tried for the Mirror Group pension fraud) were obviously guilty of fraudulent conduct, even though the programme was broadcast six months before the trial.

The above factors apply primarily to cases which will be heard by a jury - criminal cases in the Crown Court and some civil cases, for example, defamation claims. In contrast, where cases are heard on appeal or by judges alone, it is much less likely that the court would find that there was a substantial risk of serious prejudice, as professional judges are, as a result of their training, expected not to be influenced by the media in reaching a decision.

Defences

The CCA expressly provides that a person is not guilty of contempt of court under the strict liability rule if at the time of publication - having taken all reasonable care - he or she does not know and has no reason to suspect that the proceedings are active.

It is also a defence for a distributor of a publication to show that, having taken all reasonable care, he or she did not know and had no reason to suspect that the publication contained matter that created a substantial risk of serious prejudice.

As well as these two fairly limited defences, the CCA permits the publication of material which would otherwise amount to contempt if:

It is a contemporaneous report of legal proceedings.
It involves the discussion of public affairs.

The protection afforded by this defence is subject to the power of the court to make a postponement order under the CCA. Postponement orders can be made where the court considers it necessary to avoid a substantial risk of prejudice in the proceedings before the court and in any other proceedings pending or imminent. Reporting can be postponed for as long as the court considers necessary.

The media can challenge postponement orders by way of judicial review, under Section 159 of the Criminal Justice Act 1988, which states that any aggrieved person may appeal to the Court of Appeal against an order made by a Crown Court judge or by an application to the court that made the original order. The courts have repeatedly stated that the media ought to be given an opportunity to make representations about the propriety of an order restricting reporting.

A publication made as part of a discussion in good faith of public affairs or other matters of general public interest does not breach the strict liability rule if the risk of impediment or prejudice was merely incidental to the discussion. Thus Malcolm Muggeridge was free to write about the issues of terminating medical support to deformed babies even though a doctor was on trial for the murder of a child with Down’s Syndrome. Muggeridge focused on a by-election in which the issues of principle had been raised and did not mention the trial. The House of Lords held that the newspaper could rely on the public interest defence.

Common Law Contempt of Court

The CCA expressly provides that it does not restrict liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice. Common law contempt is therefore preserved. A publisher is liable in contempt for an intentionally prejudicial publication made when proceedings are pending or imminent. Proceedings can be pending or imminent even prior to the arrest of a suspect.

Publication of a confidential document in defiance of an injunction prohibiting its disclosure would also amount to common law contempt. This principle was extended in the Spycatcher litigation in which the Court of Appeal held that other publishers not directly subject to the injunction, acting on their own behalf, could be in contempt of court by publishing the same material where this would frustrate the court’s intention to keep the material secret.

About Contempt of Court