Reviewed November 2019
Contempt laws protect the judicial process and a person’s right to a fair trial.
For publishers contempt laws sometimes punish publication of articles that might prevent a witness giving true testimony or a jury reaching a true verdict.
For contempt to be an issue there usually needs to be some sort of judicial process running. In England & Wales this is referred to as ‘active proceedings’ and for that to happen someone needs to have been arrested, or a warrant has to have been issued for their arrest.
Once the law of contempt applies, care must be taken to avoid prejudicial publication.
How is contempt breached?
By publishing something which causes:
Substantial risk of serious prejudice or serious impediment to active proceedings.
What are active proceedings?
Proceedings are active if one of the following things has happened:
Arrest
Warrant issued
Laying of information (documentary process at magistrates to prosecute eg a company)
Oral charge
Proceedings remain active if a person is bailed, or if they are released under investigation.
Proceedings cease to be active if a person is released without charge, if they are found not guilty at trial, or if they are sentenced (in practice contempt risk ceases once they are found guilty)
What causes a risk of prejudice?
Avoid the following:
- Pictures, video or descriptions, ‘where identity is at issue’ i.e. the defendant is denying the offence completely and the prosecution are calling eyewitnesses. Those eyewitnesses will be involved in an ID parade and must rely on their memory of the crime, not your publication.
- Assumptions of guilt – reporting that the arrested person is the one who committed the crime.
- Character assassination – blackening a defendant’s name, so preventing a jury from trying him or her fairly.
Court orders
Contempt is also committed by disobeying an order of the court, such as an injunction.
Courts also have powers under the Contempt of Court Act 1981 to make orders restricting reports of proceedings.
Examples are:
- Section 4 order – an order postponing reports of part of proceedings. An example would be to prevent a jury knowing a defendant had pleaded guilty to some offences already
- Section 11 order – a banning order, sometimes used to restrict reporting in cases involving national security
Online publication is a particular risk here. While court reporters are familiar with these orders and contempt rules, the public often are not, and will breach them. Care should be taken when inviting user comment on reports of court proceedings or crime.
A plan to give the Attorney General legal powers to order the removal or temporary concealment of prejudicial material in online archives was dropped from the Crime and Courts Bill in 2014 following widespread concern expressed by the media.
Defences
It is usually a defence to show that you did not know proceedings were active when you published. However, you must show the court that you checked.
The discussion of public matters which touch open court proceedings is usually protected as well. So a general debate about euthanasia will not prejudice a ‘mercy-killing’ trial so long as it does not directly comment on the ongoing trial.
Penalties
Contempt is a criminal offence. The courts have unlimited powers of fine and generally fines are in five figures. Editors can also face a personal fine for contempt.
Written by David Banks, Media Law Consultant and Trainer. David runs the Law, Ethics and Copyright workshops for NUJ Training Wales.
