Media Law lecture -- Contempt of Court

Q’s for next week:

• What is jigsaw identification?
• What are the rules on sketching court proceedings?
• What is the CPS Media Protocol?
• What does the law say about reporters speaking to jurors?

• How many jurors in a criminal trial, what number is needed for a majority verdict?

  • 12; 11/12.

Media issue of the week: Lord Chief Justice laying out thoughts on the role of the media (full @ judiciary.gov.uk)

• Principle of freedom of press not explicitly stated, but enshrined in various documents.

  • Free press is important; independent press can be reckless, but important for revealing public scandal.
  • “Crime is crime”; if a reporter commits a crime, it should be investigated.

  • Press Complaints Commission 20 years old; failure to exercise its powers indicative of an understanding of its position.

    • Comparable to a judge not passing the lengthiest sentence possible in a case.

Reading to date: terminology of first module, all the appendices, missed other stuff, need to ask somebody.

Contempt of Court Act 1981

• Purpose:

  • Avoid trial by media
  • Defendant’s right to be tried on the evidence

• Restricts reporting whilst sub judice

  • While proceedings are on, there are restrictions on what can be reported.
  • Protects jurors, defendant.

• Open Justice

  • Justice should be seen to be done, as well as done.
  • Subject to scrutiny.
  • Doors of court are open to public.
  • Allows transparency.
  • Also part of the European Convention on Human Rights — right to an public trial, though with qualifications.
• Can information be controlled?

• Article 6 and 10 European Convention on Human Rights

  The central contempt test

• Proceedings active from arrest/issue of warrant for an arrest.

• The test:

  • A publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
• Strict liability — intent has little to do with it.

• Enforced by the attorney general.

  • Has to consent to a prosecution against a periodical.

• Applies to a risk of prejudice, not actual prejudice.

  • Attorney General v. Express News

    • Daily Star published photos and names of footballers arrested in rape case despite Attorney General’s request

      • No trial ever carried out, but Daily Star fined £60,000 for risk of prejudice.

• Attorney General v. MGN Ltd. and News Group Newspapers LTD (2011)

  • Joana Yates case — number of publications in Sun and Mirror that focused on Christopher Jeffries, Yates landlord.

    • Said landlord was peeping tom, has pedophile friend in jail, was obsessed by death, suggested had followed a woman contrary to wishes (immense vilification)
    • Both found in contempt of court; £18k and £50k fines. Could have prevented people from speaking up, jurors coming to court with an open mind.

Sanctions:

+ Fines
+ Legal costs
+ Imprisonment
+ Wasted costs order: S93 Courts Act 2003
    + Third Party costs orders
    + "serious misconduct"
    + No need for contempt to be charged; attorney general does not have to give consent, judges can do it themselves.

Prior to arrest

• Common law contempt

  • Information serious prejudiced proceedings
  • Intention
  • Imminent
  • Rarely prosecuted

  • AG v. News Group Newspapers (1989)

    • Printed reports of doctor having raped 18 year old; Sun printed interviews with relatives stating they’d start a private prosecution.

      • Proceedings were imminent; real risk and intention of behalf of publication to muck up proceedings.

• Libel — even if contempt proceedings not brought.

  • Sexual offense victims have lifelong right to anonymity. Can be waived, but must be in writing.

When are proceedings active?

• Active from:

  • Arrest
  • Issue of warrant for arrest

• Ends:

  • By acquittal or sentence
  • Discontinuance of proceedings

  • Staggered verdicts (i.e., multiple charges, defendants)

    • Proceedings are still active and continue until all verdicts reached

Contempt: factors that may be relevant

• The decision maker: jury or judge

  • After jury has made decision, the judge becomes the decision maker. Latter is less likely to be influenced by TV/media.
  • Laws under statute are primarily geared towards defending jury.
  • “red alert” any time there’s a jury.
• The impact on potential juror?
• Each report looked at separately

• What stage of proceedings?

  • The “Fade Factor”

    • Chance of contempt is much more likely when jury is in-situ as opposed to initial arrest.
    • Further away from trial, less likelihood for contempt.

Examples of material may be in contempt

• Photographs of defendant when ID is an issue
• Previous convictions

• Bad character

  • Attorney General v. Associated Newspapers LTD and News Group Newspapers Ltd. (2011)
• Vilification of the defendant
• Details account of the evidence against the defendant
• Details of confessions