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| Question | Answer |
| Contempt of court is a strict liability crime. What does this mean? | Mens rea (guilty mind/intention) does not have to be proven |
| Who brings a contempt of court case? | The Attorney-General (AG) (Also, Judge will order arrest of someone in contempt if they disrupt a court hearing) |
| Contempt of court was originally governed by common law. What happened? | Common law contempt was challenged in Sunday Times v UK 1979 (ECtHR) It was too restrictive on Freedom of Expression However, UK government passed Contempt of Court Act 1981, which reinforced the old common law, but also allowed greater FOE |
| Which court are contempt cases heard in? | Administrative Court - division of the High Court |
| Under which section of the Contempt of Court Act 1981 (COCA) is the strict liability rule? | Section 1 - "...interfering with the course of justice in particular legal proceedings regardless of intent to do so" |
| Contempt by publication is governed by which section of COCA? | Section 2 |
| Section 2(1) is the first element that needs to be proved in order for a defendant to be guilty. What does it say? | The strict liability rule applies only in relation to publications. "Publication" includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large, or any section of the public |
| Section 2(3) is the second element of the offence. What does it say? | Only applies to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced |
| Section 2(3) is the third element (final) of the offence. What does it say? | Only applies to publications where the proceedings in question are active, within the meaning of this section |
| What does Section 2(4) refer to? | It refers to Scehdule 1 of COCA, which defines the meaning of "active" cases |
| Summarise the elements of a contempt of court offence. | A defendant is guilty if he publishes information that seriously impedes or prejudices the course of justice in active proceedings, or create a substantial risk of doing so |
| So what 4 things does the AG have to prove? | 1 - the item is a publication 2 - the publication creates a substantial risk of serious impediment or prejudice 3 - the information referred to active proceedings 4 - no defences apply |
| Element 1 What is "publication" defined as? | "...any speech, writing, programme...communication in whatever form, which is addressed to the public" |
| Element 1 What was decided in Re Lonhro Plc 1989? | A small newspaper with a circulation between 2000-3000 people was held to be a 'publication' |
| Can information posted on social media count as a 'publication'? | Yes AG has taken action against 3 men who used Twitter and Facebook to publish photographs, purporting to be of the Bulger killers (had been a worldwide injunction preventing the publication of any material that could identify the killers) |
| Element 1 Can online newspapers be guilty of contempt? | Yes AG v Associated Newspapers and NGN 2011 Published picture of a defendant in a murder trial posing with a gun - found guilty of Contempt of Court even though jurors said they had not seen the photo It was enough that there was a 'substantial risk' that they 'might' have seen it |
| Element 1 Can newspapers be guilty for holding potentially prejudicial information in their online archives? | Yes HM Advocate v Beggs 2002 (Scotland) Held that this was the same thing as publishing the information during the trial |
| Element 1 What did Clauses 37 and 38 of the Criminal Justice and Courts Bill 2014 aim to do, in relation to material in online archives? | Introduce new powers to allow the AG and courts to require owners of online archives to remove material which might prejudice upcoming proceedings |
| Element 2 What is the second element that the AG has to prove? | That the information creates a "substantial risk of serious impediment or prejudice" to the proceedings |
| Element 2 What is the courts' view on material published in a national newspaper or broadcast on national radio? | Always going to be a substantial risk Less likely to be a substantial risk if the newspaper/radio station was local Jurors for trial picked from local area, so less likely to be a risk if jurors are in London and story is published in local Bristol newspaper |
| Element 2 What happened in AG v Express Newspapers 2005 (Titus Bramble and Carlton Cole footballers case)? | Suspected of rape, but AG had asked to not publish any names as it would be an issue in any upcoming trial Papers published their names anyway Even though there was no trial, papers still guilty of contempt as they had created a 'risk' of prejudice |
| Element 2 What is the key case on determining whether there is a substantial risk of serious impediment? | AG v Mirror Group Newspapers 2011 Geoff Knights Case |
| Element 2 What 3-part test did the Geoff Knights case create? | 1 - what is the likelihood of the publication coming to the attention of a potential juror? 2 - what is the likely impact of the publication on an ordinary reader at the time of publication? 3 - what is the residual impact of the publication on a notional juror at the time of the trial? |
| Element 2 What will the court consider to make an assessment of Part 1 of the test (likelihood of the publication coming to the attention of a potential juror)? | Whether the publication circulates in the area from which jurors are likely to be drawn from How many copies of the publication circulated |
| Element 2 What will the court consider to make an assessment of Part 2 of the test (likely impact of the publication on a notional reader)? | Prominence of the article in the publication Novelty on the content of the article |
| Element 2 What will the court consider to make an assessment of Part 3 of the test? Case examples to use? | Length of time between publication and likely date of trial Focusing effect of listening to evidence over a prolonged period Likely effect of judge's directions to the jury AG v Unger 1998 (the home help - fade factor) AG v ITV Central 2008 (broadcast same day as trial) |
| What was decided in AG v ITN 1995? What was the 'obiter dicta' statement? | Information should not have been published. However, only a very remote risk of prejudice as the publication was a long time before the trial (fade factor) and the details were only in one broadcast. Therefore, not guilty of contempt Obiter - outcome may have been different if the broadcast had been repeated |
| Element 2 What happened in AG v BBC 1996? | Comments made on Have I Got News For You (popular current affairs show) Called 2 defendants "heartless scheming bastards" Popularity of speakers increased the impact of their statement (novelty factor) Held guilty of contempt |
| Element 2 What happened in AG v ITV Central 2008? | News report mentioned that a defendant on trial that same day had been previously convicted for murder Two further news bulletins made during the day Court had to postpone the trial, and ITV voluntarily paid the costs at £37,000 |
| Element 2 What is the theory of the 'fade factor'? | That if a juror listens to all the evidence presented by the prosecution and defence; listens to all the witnesses and cross-examination; and then it guided by the trial judge on what is and what is not important... Then any initial prejudice created x number of months ago will fade away as the juror concentrates on the actual, current evidence |
| Element 2 Why is there still a particular danger for a paper/broadcast to publish details about a previous conviction? | The juror should presume that a defendant has an unblemished passed in order to guarantee their fair trial News about a previous conviction is hard to forget and may prejudice their opinion of the defendant |
| Element 2 What happened in AG v Unger 1998? | Headlined 'Home Help Who Helped Herself' implied she was guilty of the offence Judge criticised the publication However, there was a long time between publication and trial (fade factor), so newspaper was acquitted of contempt |
| Element 2 What happened in AG v Times Newspapers 1983 (Fagan case)? | Fagan got into Queen's bedroom at Buckingham Palace - arrested Descriptions of him as a drug addict and a potential suicide were decided not to be in contempt The Times also successfully used S5 defence, as the Queen is a matter of public interest |
| Element 2 What happened in AG v The Sun Newspaper 1996 (Ronnie O'Sullivan's mum)? | Mum came out of 12 month prison sentence Paper published interview with Ronnie O'Sullivan about her release Time of publication, she was on trial again for dealing in obscene publications - readers could find out previous convictions Sun found guilty - fined £10,000 |
| Element 2 What happened in AG v Associated Newspapers 2011 (Levi Bellfield case)? | On trial for murder of Millie Dowler and attempted kidnap of Rachel Cowes Found guilty of murder - jury went home for the weekend Papers published about conviction, but also about his interest in raping young girls and mistreatment of his ex girlfriends, which had not been submitted as evidence in court Jury had to be discharged before the kidnap verdict was reached |
| Element 3 What is the third element that the AG has to prove? | That the proceedings in question are "active" |
| Element 3 How is "active" defined? | Schedule 1 Contempt of Court Act 1981 Criminal - formal step, e.g. arrest, warrant for arrest issued Civil - arrangements made for the hearing Appeal - intention to appeal is formally indicated |
| Element 3 When do cases cease to be active? | Criminal - acquitted, convicted and sentenced, released without charge Civil - judgment issued Appeal - judgment issued |
| Element 3 What happened in AG v Newsgroup Newspapers and MGN 2011 (Christopher Jeffries)? | Jeffries arrested in Joanna Yeates murder case Never charged Arrest made the case active Papers published articles which were untrue and blackened Jeffries' character, making him seem guilty Papers guilty despite there never actually being a trial |
| Element 3 What happens if information has been published at different times? | AG v MGN (Geoff Knights) said each publication will be assessed separately |
| Element 4 What is the fourth element that the AG has to prove? | That no defences apply under Section 4 or Section 5 of COCA 1981 |
| Element 4 What defence is in Section 4 COCA? | You are not guilty of contempt, in respect of a fair and accurate report of legal proceedings, that are held in public, published contemporaneously and in good faith |
| Element 4 What defence is in Section 5? | Introduced the defence of discussion of public affairs The risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion |
| Element 4 What case example can be used to exemplify the use of a S5 defence? | AG v Associated Newspapers 1983 (Fagan) AG v English 1983 - article for a Pro-Life election candidate. Included criticism of the practice among doctors where they let handicapped babies die. Doctor on trial at the time for a murder of a baby with Downs Syndrome - held not guilty; discussion met requirements of Section 5 |
| Element 4 What defence is in Section 3 | Innocent publication Does not know and has no reasonable cause to believe that the proceedings were "active" at the time of publication |
| Common Law Contempt Is the common law offence of contempt still in use? | Yes - for intentional contempt AG v NGN 1988 (Sun's private prosecution) Published successive articles attacking the defendant in emotive language Held guilty of common law intentional contempt - judge could not accept that an experienced editor would not know this would be in contempt |
| Common Law Contempt Give some examples of the offences of criticising/scandalising the courts? | R v Grey 1900 Balogh v St Albans Crown Court 1975 (laughing gas) Bodden v Metropolitan Police Commissioner (disruptive behaviour outside the courtroom can amount to contempt if it disrupts court proceedings) |
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