LA3 - Contempt of Court

Point 1) General Information and Introduction
1. Criminal offence - terminology: prosecuted, defendant, found guilty, found not guilty
2. Cases brought by the Attorney-General
3. Originally governed by common law
  1. Common law contempt challenged in Sunday Times v UK 1979 (Thalidomide Case)
  2. Contempt of Court Act 1981 passed in response to ST v UK to allow more Freedom of Expression (Article 10)
  3. Common law contempt still exists - intentional contempt
4. Cases brought in the Administrative Court - a division of the High Court
Point 2) Contempt of Court Act 1981
1. 1 - Strict Liability rule
  1. Conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings, regardless of intent to do so (no means rea has to be proved)
2. Section 2 - Elements that must be proved to be guilty of an offence
  1. Section 2(1) Only applies to "publications", which 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
  2. Section 2(2) Only applies to a publication which creates a "substantial risk of serious impediment or prejudice" to the course of justice in the proceedings in question
  3. Section 2(3) Only applies to a publication if the proceedings in question are to be treated as active within the meaning of this section
  4. Section 2(4) Schedule 1 defines the times at which proceedings are to be treated as "active"
  5. Therefore, to be guilty of contempt, an individual must publish information that seriously impedes or prejudices the course of justice in proceedings, or creates a substanital risk of doing so
Point 3) 1st Element for the A-G to prove: Is the item a 'publication'?
1. "any speech, writing, programme in a cable programme service or other form of communication addressed to the public
2. In Re Lonhro Plc 1989, a copy of a small newspaper was circulated to between 2000-3000 people, and was held to be a 'publication'
3. In HM Advocate v Beggs 2002 (Scotland), held that holding potentially prejudicial material in an archive once proceedings were active was the same thing as publishing the material during that time
  1. Clauses 37 and 38 of the Criminal Justice and Courts Bill 2014 introduce new powers which will allow the AG and courts to require owners of online news archives to remove material which might prejudice upcoming proceedings
Point 4) 2nd Element for the AG to prove: does the information adversely affect court proceedings?
1. a) Did the publication create a substantial risk? b) Did the substantial risk create a risk of serious prejudice?
2. Article printed in national newspaper or broadcasted by national radio, always a substantial risk
3. Only has to create a risk - does not have to get to court
4. AG v Express Newspapers 2005 - AG warned that no names should be published as it would be an issue for any upcoming trial. Even though the two defendants were not prosecuted, newspaper was found guilty of contempt of court because they had created a risk of prejudice - fined £60,000
5. KEY CASE: AG v Mirror Group Newspapers 2011 - Geoff Knights Case
  1. Had been previous 'saturation' coverage of his volatile relationship with Gillian Taylforth - did further reporting (of the same kind of stories) create a further risk?
  2. Judge said each publication should be judged on its own merits
  3. Created 3 part test for establishing if there is a substantial risk of serious impediment
    1. 1) What is the likelihood of the publication coming to the attention of a potential juror? Court will look at whether it circulates in the area from which jurors are likely to be drawn and how many copies circulated
    2. 2) What is the likely impact of the publication on an ordinary reader at the time of publication? Court will look at the prominence of the article, and the novelty of the content
      1. AG v BBC 1996 (Have I Got News For You): called defendants "heartless scheming bastards". Trial was 6 months away and the programme was later repeated. Held guilty despite the time delay, as the programme was very popular and the speakers were well known, which would increase the impact of their statements (novelty factor)
    3. 3) What is the residual impact of the publication on a notional juror at the time of the trial? Court will look at the length of time between publication and the likely date of trial; the focusing effect of listening over a prolonged period; the likely effect of the judge's directions to a jury
      1. 'Fade factor' - AG v Unger 1998: there was a long time between publication and the trial so the defendant was acquitted of contempt
      2. Theory - initial prejudicial impact a story had, e.g. 6 months ago, will fade away as the jurors concentrate on the actual evidence at the time of the trial
      3. AG v ITN 1995: publication was a long time before the trial, and relatively few papers had been in circulation. ITN had only carried the prejudicial details in one broadcast, so found not guilty. The judge said (obiter dicta) that if the story had been repeated in later broadcasts, the outcome may have been different.
6. AG v Times Newspapers 1983 (Fagan Case): not enough for there to be a slight risk of serious impediment, and neither a substantial risk of slight impediment. Must be a 'substantial risk of serious impediment'
7. AG v Sun Newspaper 1996 (Ronnie O'Sullivan's Mum): published story about previous conviction whilst on trial for a new offence - made it possible for jurors to find out her previous convictions and therefore they had to be discharged. The Sun was found guilty
8. AG v Associated Newspapers 2011 (Levi Bellfield): found guilty for Millie Dowler's murder. Newspapers published this whilst he was still on trial for a second offence of attempted kidnap. Newspapers found guilty and jury had to be discharged
Point 5) 3rd Element for the AG to prove: Did the defendant publish the information about 'active' proceedings?
1. Definition found in Schedule 1 COCA 1981
2. Criminal prosecutions: active once a formal step has been taken, e.g. arrest. Cease to be active once a suspect is acquitted/convicted/sentenced/released
3. Civil proceedings: active when arrangements are made for the hearing
4. Appellate proceedings: active once the intention to appeal is formally indicated
5. AG v Newsgroup Newspapers and Mirror Group Newspapers 2011 (Christopher Jeffries case): Christopher arrested, making the case active. Although never charged or went to trial, the papers were prosecuted for the malicious lies and presumptions of guilt that they spread which blackened Jeffries' character
Defences - COCA 1981
1. Point 6) Section 4 - fair and accurate reporting: publications which are held in public, are published contemporaneously and in good faith
2. Section 5 - discussion of public affairs: publication made as part of a discussion in good faith of public affairs... the risk of impediment is merely incidental to the discussion
  1. AG v English 1983 - doctor on trial for the murder of a Downs' Syndrome baby, and an article was published arguing for a Pro-Life election candidate, and criticised the practice among doctors of allowing handicapped babies to die - newspaper not guilty, it was discussion of public affairs
  2. AG v Associated Newspapers 1983 (Fagan) - newspapers successfully used S5 defence
3. Section 3 - Innocent publication: publisher did not know and had no reasonable cause to believe that the proceedings were active at the time of publication
Point 7) Common Law Contempt of Court
1. Used to try intentional contempt of court
  1. AG v NGN 1988 - The Sun funded a private prosecution against a doctor who allegedly raped a young girl. Newspaper published successive articles attacking him in emotive language. Judge could not accept that an experienced editor would not know that the articles would be prejudicial,so found guilty and fined £75,000
2. No defence of public discussion
3. Applies to imminent/pending proceedings
4. Criticising and scandalising the courts
  1. R v Grey 1900: called judge 'an impudent little man...microcosm of conceit and empty headedness' - decided that this was contempt
  2. Balogh v St Albans Crown Court 1975 - attempted to pump laughing gas into the ventilation system of the court. Conviction turned over on appeal as contempt required actual interruption

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LA3 - Contempt of Court

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