The Law of Contempt.
The key instinct of most journalists in their unceasing quest for stories is the pursuit of truth and exposure. However, sometimes this ambition can conflict with the law and the resulting situation must be resolved in some way. The vast majority of journalists would probably pride themselves on their ability to bring important subjects and salient issues to the attention of the public, but it can be the case that where there is an unequivocal matter of obvious public interest the media is sometimes forced to muzzle itself so as to ensure its compliance with the law. This is particularly so when media reporting intrudes into the administration of justice and triggers the intervention of the law of contempt. Usually when discussing the media in relation to contempt laws the focus is on the administration of justice and its ability to secure justice without interference from external influences that would jeopardise or prejudice a fair trial. As Lord Donaldson stated in A-G v Newspaper Publishing plc:
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. Its application is universal.1
Invariably the media will take the view that its noble cause is to enlighten members of the public on matters of importance and that it should be free to do so without intrusion from the law. It is these two rival interests that have engendered a number of problems, complications and on occasion breaches of the law; as a result certain publishers and broadcasters have been successfully prosecuted because they circulated material which was considered prejudicial to an accused’s chances of a fair trial.
Much of the dichotomy of the press and the law issue stems from our belief in an open, democratic and accountable society in which it is essential to have a free press to ensure these ideals are preserved. Most of these rights are enshrined in law such as the right to freedom of expression as granted under Article 10 of the European Convention on Human Rights. However, it is equally fundamental that people secure their Article 6 right to a fair trial, a trial which should not be adversely influenced by ‘persuasive’ details or opinions disguised as authoritative sources printed in a newspaper or broadcast in a news programme. The passing of the Human Rights Act (1998) has also created new considerations especially as regards online contempt2. In many ways it is a controversial balancing act where legal principles appear to betray journalistic practices, but is this alleged disloyalty actually the case?
When considering journalism and contempt, there are two contempt offences which are relevant. The first is the older common law offence of ‘intentional contempt’, which is now less commonly applied, and the newer offence, which is one of ‘strict liability’ as contained in the Contempt of Court Act 1981 and now appears to be the more favoured choice for contempt proceedings. Only the Attorney-General can bring actions under this Act, this serves as a deliberate safeguard for the media as it affords journalists protection from the pursuit of superficial or vexatious cases by individuals who are defeated in their court case and then attempt to level the blame for this at the media’s door. Strict liability contempt pertains to any publication or broadcast about ‘active proceedings’ that “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced” as per section 2(2) of the Act. Therefore the Act essentially creates three elements to the offence which are: (i) strict liability (ii) ‘active’ proceedings (iii) and a substantial risk of serious prejudice. The strict liability element of the offence is discharged regardless of whether the prejudice to the proceedings was intended or not, or whether the circulator realised it might cause prejudice. It is immaterial if the publisher or broadcaster employed appropriate action, made all reasonable checks and even took legal advice to avoid the prejudice occurring – they will nonetheless still be in breach of the Act because of the nature of strict liability. Again, due to the offence being one of strict liability, the motive is unimportant. The points at which criminal proceedings become active and when they cease are stipulated in Schedule 2 of the Act. The Act also covers appeals; appeal hearings become active when either party applies for leave to appeal. In practice this type of hearing poses less of a problem for journalists because appeals are generally heard by experienced judges who aren’t likely to be influenced by anything they read in the press, see on television or hear on the radio as was stated in Re Lonhro plc and Observer Ltd3. This of course does not include cases where a retrial has been ordered because the retrial will be heard by a jury. Other problematic areas arise where postponements of publications are ordered when sensitive trials are held, especially cases involving the Official Secrets Act 19894.
It is the ‘substantial risk of serious prejudice’ constituent of the offence which engenders the most controversial and legally voluminous area of the law of contempt. What is classed as serious prejudice to a case is subject to different interpretations. InA-G v News Group Newspapers5 the court emphasised two questions which should to be asked in order to ascertain if a substantial risk of serious prejudice has occurred. Firstly, is there a genuine risk of the trial being affected in any way by the publication or broadcast and secondly, if a risk is evident would the dissemination of the details and the potential influence amount to serious prejudice? In A-G v Guardian Newspapers Ltd (No.3)6 it was held that serious prejudice could be proven if there was a genuine possibility that the conclusions of the case were found to be different as a result of the publication or broadcast, and prejudice would also be proven if the jury was forced to be discharged or if the trial had to be relocated.
Concerns regarding prejudice are not just confined to juries. News reports which influence the defendant’s plea or alter his or her conduct in criminal proceedings can equally be in contempt . It was stated in Re Lonrho plc by Lord Bridge that (at 208):
Whether the course of justice in particular proceedings will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed7.
The period of time between the trial and the circulation of the report is another crucial consideration in determining if there is likely to be any substantial risk of serious prejudice; the longer the period the less likely the substantial risk. In A-G v Independent Television News8 a news item was broadcast by ITN reporting the murder of a police officer. The suspect was an IRA terrorist with one conviction for the murder of an SAS officer. Nine months after the broadcast, the trial took place and it was held that ITN was not in contempt because there was an adequate period from broadcast to trial for a jury to forget the news item. Conversely, and perhaps unhelpfully, it was held in A-G v Morgan9 that certain news stories of high prominence are less forgettable in the memories of jurors despite there being a period of eight months from report to trial. Another contributing factor in determining the existence of a substantial risk is where the trial takes place; the further away the trial to the publication the less likely it is that prejudice will occur (A-G v Sunday Newspapers Ltd10).
A number of defences are afforded to journalists and editors when charged with contempt. Under the Contempt of Court Act (1981) a person will not be guilty of contempt if they circulate a story which is an even-handed and accurate account of public legal proceedings where it is published contemporaneously and in good faith. Under s.3 of the Act a publisher or broadcaster has a defence available as “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 does not know and has no reason to suspect that relevant proceedings are active”. However, the publisher or broadcaster must show they took all reasonable measures to ensure the proceedings were not active (Her Majesty’s Solicitor-General v Henry and News Group Newspapers Ltd11). Another defence is provided for publishers and broadcasters under s.5 of the Act where the risk of prejudice to proceedings by news material is purely ancillary to an intrinsic debate or discussion concerning an issue of public interest. In this situation the circulator avoids liability for contempt so long as it is proven the discussion has been constructed on veracity and produced in good faith.
As can be seen from the sheer volume of cases comprising of the law of contempt it is clearly an area which frustrates journalists as much as it vexes the administration of the law. Numerous conflicting interests must be considered when developing the law in this area and it would appear that despite a number of cases where journalists have been restricted in their reporting activities, nonetheless there seems to be a wide latitude of reporting which is tolerated by the law. This is further evidenced by a rule change allowing the media to cover family law proceedings as of the 27th April 200912. It can be appreciated when complaints and protestations expressed by journalists arise when the law appears arbitrary and suppresses details of a news story an enthusiastic journalist seeks to publish or broadcast, but equally it is the role of the law to step in when cases of genuine prejudice occur and to censor certain details. The sentencing structure for individuals convicted of contempt in practice seems to reflect a certain reasonableness – it is worth noting that for over 60 years no publisher or broadcaster has been imprisoned for contempt.
1Attorney-General v Newspaper Publishing Plc (1988) Ch.33.
2University of Warwick online Law Journal, last accessed on 13th January 2010 at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005_1/russellandsmillie/#a5.
3Re Lonhro Plc and Observer Ltd (1990) 2 AC 154.
4New Law Journal, last accessed on the 12th January 2010 at http://www.newlawjournal.co.uk/nlj/content/law-reports-175.
5A-G v News Group Newspapers (1986) 3 WLR 163.
6A-G v Guardian Newspapers Ltd (No.3) (1992) 1 WLR 874.
7Ibid at 2.
8A-G v Independent Television News (1995) 2 ALL ER 370.
9A-G v Morgan (1998) EMLR 294.
10A-G v Sunday Newspapers Ltd (1999) C.O.D 11 QBD.
11Her Majesty’s Solicitor-General v Henry and News Group Newspapers Ltd (1990) QBD March 20th 1990.
12New Law Journal, last accessed on the 13th January 2010 at http://www.nlj.co.uk/nlj/content/transparency-rules-ok.