Essay: Contempt of court law

Introduction
The contempt of court law is said to be a complex area of law. Especially, journalists and editors are effected by the contempt of court law. Contempt can be considered as a restrain on their freedom of expression. The freedom of expression generally conflicts with the right to a fair trial, both rights are guaranteed by the European Charter of Human Rights (ECHR). With contempt of court there is a continuous consideration as to how to create a perfect balance between these two human rights. One could wonder whether the Contempt of Courts Act 1981 (CCA) helps or hinders the freedom of expression.
In 1972 the Sunday Times published an article about thalidomide children. These were children whose mothers had used a drug containing thalidomide during their pregnancy. As a result, 450 children were born with deformities. Their parents brought actions against the company responsible for the production of the drug. After the publication of the article the company claimed that the newspaper was in contempt of court. The editor of the Sunday Times denied this and sent the company and the Attorney-General a copy of the next article. The publication of this article was restrained by an injunction. However, shortly after the injunction there was a public debate concerning the matter, in which, similar opinions to the once expressed in the banned article were reported. The Sunday Times had already filed an appeal against the injunction. This case came before the European Court of Justice (ECJ). The ECJ held, that this was a matter of public concern. The freedom of expression does not only guarantee ‘the freedom of the press to inform the public but also the right of the public to be properly informed.’ In order to determine whether the restriction was necessary, the public interest must be taken into account. The court noted that the Law Lords had formulated an absolute rule ‘to the effect that it was not permissible to prejudge issues in pending cases: it was considered that the law would be too uncertain if the balance were to be struck anew in each case.’ The ECJ ruled that the English legislature had to take a different approach. This was a matter in which the freedom of expression could be subject to exceptions, but these exceptions had to be interpreted narrowly. Additionally, the Court stated that the restriction can be qualified as one of the exceptions listen in Art. 10(2) ECHR, the Court has to be ‘satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it.’
As a response to the ruling in Sunday Times v United Kingdom and the recommendations of the Phillimore Committee (1974) the Contempt of Court Act 1981 was implemented. The aim of the Act was to strike a better balance between freedom of expression and the right of parties to a fair trial.
This essay will, firstly, look at the meaning and scope of Art. 10 ECHR. Secondly, the current law on contempt of court will be discussed and finally, the suggestions made by the Law Commission for the reform of the law will be discussed.
Freedom of expression
The freedom of expression has been codified in article 10 if the European Convention of Human Rights (ECHR). This right includes the ‘freedom to hold opinions and to receives and impart information and ideas without interference by public authority and regardless of frontiers.’
Art. 10(2) ECHR names the exceptions under which a restriction of the freedom of expression is allowed. There exceptions are to be construed narrowly. In order for a restriction to fall within one of the exception it has to be in accordance with the law. Additionally, the restriction has to be necessary in a democratic society to satisfy one of the situations which are named in paragraph 2 of article 10. Finally, the restriction must be ‘proportionate to the legitimate aim pursued.’ In the case of contempt of court the most important exceptions are the restrictions that are allowed in the interest ‘for prevention of disorder and crime’, ‘for the protection of the reputation or rights of others’ and for ‘maintaining the authority and impartiality of the judiciary.’
As mentioned above the expression of freedom generally collides with the right to a fair trial. By publishing certain facts or articles, the right to a fair trial can be compromised. Therefore, one of the objectives of the CCA 1981, is to protect the right to a fair trial, by limiting the freedom of expression in certain cases. As we have seen in Sunday Times v United Kingdom, this is not always done within the margin of appreciation that the ECJ has appointed to Member States.
What is contempt of court
Contempt of court is the ‘improper interference with the administration of justice.’ The purpose of the current law system is to ensure the possibility for the courts to decide on the cases before them, without any influence of the media. There are three species of contempt of court; statutory contempt, common law contempt and scandalising the judiciary.
In AG v Newspaper Publishing the judge held that the application of the law of contempt is universal and is ‘based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice.’
Contempt by publication
This form of contempt s necessary for the protection of the justice system, including the right to a fair trial. At the same time, the law must protect the freedom of expression. This right is important for the public, for they have the right to be informed about the court proceedings to make sure they know that the legal system works accordingly. Contempt by publication can occur via two ways; through the ‘strict liability’ contempt and through common law contempt.
Contempt of Court Act 1981
The Contempt of Court Act 1981 introduced the strict liability rule. Section 1 CCA stipulates ‘the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless on intent to do so.’ This means that the offenders’ intentions play no role when deciding whether there is a contempt of court. There are, however, limitations to the strict liability rule. Section 2 CCA stipulates four requirements that need to be fulfilled. First of all, there needs to be a publication. The publication must create a ‘substantial risk’ that could impede or prejudice the course of justice in the proceedings. Additionally, the proceedings need to be active at the time the publication takes places.
Publication
A 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.’ When looking at whether there is a publication, the public it could reach plays an important factor. One looks at whether the publication reaches the public at large or whether it is only read by a specific section of the public; e.g. readers, subscribers or members.
Substantial risk to serious prejudice
A factor that is often taken into account, is the type of court that is hearing the case. It could make a difference whether a court with a judge will rule or whether it is a jury which has to make the decision. It is generally believed that juries will be more easily prejudiced, for they have no legal knowledge or training. Naturally, a judge can still be prejudiced by the media, but it is assumed that this will happen less quickly than with a jury.
Additionally, in Re Lohnro the judge held that the in order to determine whether proceedings will be prejudiced by a publication on must look at ‘whether the publication will bring influence to bear which is likely to diver the proceedings in some way from the course which they would otherwise have followed.’ Furthermore, it was held that a ‘substantial risk’ did not mean that one must prove that the course of justice was actually prejudiced, there only needs to be a risk of serious prejudice.
In AG v MGN, Schiemann LJ created ten principles for the application of the strict liability rule, and especially the serious risk of impediment and prejudice. There are no clear rules which determine what types of cases are allowed to be published during active proceedings. Therefore, ‘each case must be decided on its own facts.’ Moreover, each publication is to be assessed separately and they must test the matter as they are at the time of publication. Also, the proceedings in question must be at risk of being impeded or prejudiced as a result of the publication. This risk has to be substantial in a way that the proceedings will ‘not only be impeded or prejudiced but seriously so.’ Substantial has been made out to mean ‘not remote’ or ‘not insubstantial’ and the risk has to be practical rather than theoretical. Furthermore, the publication must have created a risk which has created such a serious effect on the course of justice. In this case courts have made out that serious should have its regular English meaning.
Schiemann LJ named three matters that must be taken into account when assessing whether there is a substantial risk of prejudice due to the publication; one first has to look at the ‘likelihood of the publication coming to the attention of a potential juror’. When assessing this matter the judge will look at the area in which the publication circulates, whether this is an area where it is likely that jurors will be drawn, and they will have to look at the amount of copies that are in circulation.
For the second matter it must be established what the impact of the publication would be on an ‘ordinary reader at the time of publication.’ Here one looks at the ‘prominence of the article in the publication’ , and ‘the novelty of the content of the article in the context of likely readers of that publication.’
Finally, ‘the residual impact of the publication on a notional juror at the time of trial’ was named as a crucial matter by the judge. For the assessment of this criteria, the judge created three factors that must be taken into consideration; ‘the length of time between publication and the likely date of the 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.’ The first two criteria are also known as the ‘fade-factor’; which is the assumption that possible prejudicial publication will have a smaller impact if there is more time between the publication of the article and the start of the trial.
Active proceedings
The proceedings become active when someone becomes a key suspect. This means that the case can be active before the suspect has officially been charged with a crime. Criminal cases, are generally active from the moment a suspect is arrested or a warrant has been issued.
In AG v MGN & Newsgroup the question arose whether there could still be a case of contempt of court if a publication was published when the trial was active, but the case never went to court. The case concerned a Christopher Jefferies who had been arrested for the murder of Joanna Yeates. He was depicted as a possible paedophile and murderer and the article suggested him as the Joanna’s murderer. The publications were published after Jefferies had been arrested, however he was released and another man was arrested and convicted for the murder. The question was whether there could still be a serious risk of prejudice to the proceedings, despite the fact that Jefferies’ case had never gone to court. The judge held that the ‘vilification of a suspect under arrest’ still fell within the ambit of section 2(2) of the CCA 1981, due to the fact that it could discourage possible witnesses from stepping forward with information. The integrity of the judge and directions of a judge would not have compensated this fact and ensured a fair trial.
The court additionally stated that CCA 1981 was compliant with art. 10 ECHR; the CCA 1981 fell within the states’ jurisdiction to guarantee the protection of art. 6 ECHR (right to a fair trial). Any interference with the freedom of expression ‘depends on proof to the criminal standard that the publication in question have created a substantial risk of serious impediment or prejudice to the course of justice.’ Which, according to the court, fell within the limitations, which are acknowledge by the ECHR.
Species of contempt of court
Disrespecting or disrupting court proceedings
Contempt in the sense of disrespecting or disrupting the court proceedings is also known as direct contempt. This type of contempt was created to make sure that all expensive proceedings are not lengthened by these kinds of situations. Additionally, the court must have authority and impartiality, allowing someone to disrespect or disrupt the proceedings could undermine the courts authority and impartiality.
Recording Devices & court proceedings
Section 9 CCA 1981 stipulates that the bringing or usage of any recording instruments or publishing the recording of legal proceedings is considered to be contempt of court. There is an exception for recordings of the Supreme Court. Such recordings are allowed if it has been given a leave from the court.
Breach of court order
The court has the power to allow certain details to be withheld from the public. They can prohibit the publication of a name or matter, which is connected to the case. When such an order is broken, this is a contempt of court.
This happened in the Thomson & Venables v Newsgroup Newspapers et al where two men had obtained an injunction to protect their lives and physical safety by prohibiting any publication of their features and new names. Despite the injunction, a newspaper published information online, which could lead to the identification of the two men. The judge held that ‘a defendant cannot be committed for contempt unless the injunction in respect of which he is said to be in contempt is clear in its terms and its breach is clear.’ Due to the fact the published information was new to the public and did not qualify as information which is ‘generally accessible to the public’ it was held that the court order was breached.
Publication of jury deliberations
According to section 8(1) CCA 1981 there is a contempt of court when one obtains, discloses or solicits any statements, opinions or arguments made by jury members during their deliberations. This article has recently been replaced by section 74 of the Criminal Justice and Courts Act 2015, in which additional exceptions to the rule have been stated.
In 1994 a newspaper published jury deliberations. The journalist had obtained the information from a third party, which had direct contact with the jury. The Attorney General filed for a contempt of court under section 8(1) CCA 1981. The question at hand was whether ‘disclose’ meant solely the disclosure of information by a juror or whether it could also be disclosure through publication by a newspaper. Lord Lowry held that one must look at the ordinary meaning of ‘disclose’ and this was held to both describe the publication of jury deliberations by a juror and the disclosure by publication in a newspaper, as long as the publication disclosed more than already known facts. This meant that the newspaper was in contempt of court.
In R v Mizra there was an Asian defendant who needed a interpreter during his trial. The jury was told not to draw any adverse inference from the use of the interpreter. The jury found the man guilty by majority. However, the judge obtained a letter from one of the jurors, which claimed that some jurors were prejudiced on racial grounds, which had led to partiality on the case. Here the court held that the rule set out in section 8(1) did not address the court itself, but to third parties who could be punished for the offence. This, due to the fact, that it is the courts responsibility to make sure that a defendant has a fair trial. The court is allowed to investigate these allegations.
Juror Contempt
Recently, it has become more common for jurors to search for information regarding their case online. This has led to several collapsed cases. Consequently, the legislature has introduced section 71 of the Criminal Justice and Courts Act 2015, which dictates that juror research is a criminal offence. It is contempt of court under the common law contempt system.
Common law contempt
There are three types of contempt under common law contempt; interfering with ‘pending or imminent’ court proceedings, contempt ‘in the face of the court’ and scandalizing the court.
Section 6(c) CCA states that nothing in the Act ‘restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice.’ The requirements for common law contempt differ statutory contempt requirements. Firstly, there needs to be intent. This contrary to the statutory contempt, where the strict liability rule makes sure that intent is not needed. Additionally, the proceedings need not to be active, they only have to be pending, imminent.
In AG v News Group Newspapers Watkins LJ held that the publications by “The Sun” had a serious risk of prejudicing the trial. It was held that the allegations were so grave and prominent and widely published that the fact that the article were published during pending proceedings did not change this effect. With regards to the requirement of intent Watkins LJ stated that the editor should have foreseen that the published material would create a serious risk of prejudice to the fair trial of the doctor. By publishing these articles the editor tried to convince readers of the doctor’s guilt and it is very well possible that potential jurors read these stories and agreed also. The judge did not, however, feel that recklessness was enough to create a serious risk of prejudice to the trial. Recklessness could only amount to the risk of interference with the court of justice. Watkins LJ, lastly, stated that ‘the circumstances in which a criminal contempt at common law can be committed are not necessarily… confined to those in which proceedings are either pending or imminent.’ Common law was a ‘lively body of law capable of adaption and expansion to meet fresh needs calling for the exertion of the discipline of law.’ In AG v Sport Newspapers Bingham LJ followed Watkins LJ ruling by reiterating that if there is a risk and intention, as mentioned before, there can still be contempt even if the proceedings are neither in existence nor imminent.
In AG v Punch the House of Lord concluded that the editor of Punch had committed contempt of court by publishing a story about the Bishopsgate bomb, written by a former Security Service member, who was not allowed to disclose any information about his work at the Security Service due to an interlocutory injunction. It has been argued that this decision has failed to ‘give due weight to the interest of freedom of expression and media freedom.’ The house of Lords failed to investigate the proportionality of the restrictions imposed by the common law contempt on these rights, simply due to the fact that the publication was intended to ‘frustrate the purpose of an earlier court order to keep such information confidential pending a full trial.’ There was no examination of the public interest in the revelation of the information. It has been suggested that ‘the decision in Punch suggests that freedom of expression arguments will not receive the same consideration in contempt of court applications.’