I see Contestant Number One in Ipswich has walked. I do hope he can locate himself a good firm prepared to take on his case against the media on a no win, no fee basis…
I saw yesterday’s Daily Star front page while loitering at a railway station last evening: “SUSPECT NUMBER TWO IS A SECRET TRANNY!”, illustrated by a snap of the man who has been subsequently charged looking for all the world like he’d simply dressed up as Dr. Frank-N-Furter for a midnight Rocky Horror screening.
This morning there are a couple of trainee solicitors spending their last day at work before Christmas visiting the British Library Newspapers archive in Colindale frantically photocopying every prejudicial story to have appeared in the British press over the past week.
Never let it be said that the Ministry does not inform, educate and entertain. Therefore we are delighted to provide you with a little light holiday reading:
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… 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.
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.
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.
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.
“In assessing the likely impact of the publication on an ordinary reader, the court will consider…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.”
Is what is happening here national newspapers taking a calculated gamble on the fact that what they are printing will also come out in the trial? And accordingly, to the extent discussed in court, these matters will be discussed in far more forensic detail? If that is the case, then the papers will surely be in the clear. If, like the Woodgate case, they raise prejudicial points which either the prosecution doesn’t raise or the Court refuses to allow into evidence, then they’ve got problems. In many ways, the prosecution, faced with the unthinkable possibility of a costly mistrial, will be tempted to explore the salacious tabloid allegations in order to move focus away from their treatment of the story and dilute the contemptuous effect. 2 wrongs making a right.
The only sensible solution I can think of is to for people who read The Sun or the Mirror to be forbidden to sit on a juries.
The second issue which you raise is one of respect for the person who is arrested, given that neither suspect had been charged at the time that the stories were printed. I hope the PCC come down on these guys like a ton of bricks. Be nice to see an editor fired over this.
I know it’s Christmas and all, but given that the Minister is quoting statutes, I’d like to throw in the additional difficulties which could be posed since the “bad character” provisions set out in the Criminal Justice Act 2003 came into force.
Before that Act, there were strong limitations on what background evidence you could and couldn’t put before a court, on the grounds that showing that the defendant had done unrelated bad stuff didn’t mean he or she had dunnit in that case.
The salacious stuff you heard in criminal trials generally went to the credibility of a witness or the defendant. Now, however, any “reprehensible conduct”, whether related or unrelated, can be used to help to establish the GUILT of a defendant.
Pretty much anything can be “reprehensible”. Not, I suspect, cross-dressing per se. Nor, perhaps, having once worked on the same ship as a very much alive Suzy Lamplugh (though it’s nice of the press to rake it all up just before Christmas: her poor family). But some much more serious accusations have decorated the press which might be capable of hitting that gong.
This means that the Crown Prosecution Service, as well as considering a detached risk of prejudice, will have to consider whether each such story affects any of the evidence that they would have hoped to lead when they consider whether the case is a runner. I’m pleased that the Attorney General is playing a cagey and shrewd long game, because otherwise he’d really be looking like someone who was so compromised that he was no longer able to uphold the law.
You can’t ban people who read the Sun/Mirror from juries. First, I’ve read them for, er, research purposes, and I like to think that I would apply the due and necessary process of law and be able to exercise appropriate judgment after hearing all the evidence. Second, a jury system is absolutely necessary to preserve the single most democratic justification for criminal law. You’ve got to let Tab readers sit in judgment on all the perps, as the vast majority of perps read the Tabs (or look at the pictures).
I’d pay to see the PCC come down on anyone like a ton of bricks. I don’t think they have even the power to administer a gentle Melvin.
The Ministry Of Truth » Truth Exempt Shady Selfish Arsehole
[...] Point number two, per previous posts, such public comments – particularly comments made in the media by such high profile and influential individuals as Cabinet ministers – might very well amount to contempt of court. I have no doubt that the Attorney General will be directing the police to investigate the comments of the estimable Ms. Jowell and similar comments made today by one D. Blunkett, Esq. (Mr. Bluffett said he wants the police to act with “thoroughness, not theatre”: I’m sure I can’t be the only one to remember that particular man’s particularly theatrical tenure as Home Secretary and therefore find myself rolling on the floor laughing my fucking arse off.) [...]