Contempt of Court Act

What is the Contempt of Court Act

After the ECHR ruled that English contempt law breached article 10 of the convention parliament enacted the Contempt of Court Act 1981. It prohibits the media from publishing information that will prejudice ongoing legal cases and in particular trials before juries.

The primary function of the Contempt of Court Act is to protect the integrity of active court proceedings. Following the ECHR ruling the Contempt of Court Act was drawn up with the aim of increasing the personal freedom of speech.

A strict liability rule is introduced by the Act. Under this rule any conduct that interferes with the course of justice can be treated as contempt of court even when there was no intention to interfere. This rule applies only to publications i.e. any form of communication addressed to any section of the public or the public at large.

There are two limitations on when the Contempt of Court Act applies These are:

  • It only applies when a publication carries a substantial risk of seriously prejudicing justice in the proceedings, and
  • It applies only to publications when proceedings are active.

Proceedings cease to be active upon:

  • acquittal or sentence
  • any verdict which puts an end to the proceedings being reached
  • a discontinuation of the proceedings

There are both civil and criminal components to the Act. The criminal offence of Contempt of Court carries a gaol sentence of up to two year and an unlimited fine.

It should be noted that the Contempt of Court Act applies solely to court cases in the UK.

Anonymity under The Contempt of Court Act 1981

Under Section 11 of The Contempt of Court Act 1981 the court has the power to prevent the publication of material including names of participants, arising out of the proceedings held in open court.

An important principle of English Common Law is that justice is done in public. This is so that justice is not only done but also seen to be done. This provision constitutes an exception to this principle.

In Scott v Scott [1913] AC 417 Lord Haldane LC explained the principle and the exceptions to it: “while the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions…. But the exceptions are themselves the outcome of yet a more fundamental principle that the chief object of the courts of justice must be to secure that justice is done…. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.

From the wording of section 11 it is evident the it does not confer on a court a power to prevent the publication of a name or other matter in connection with a case, a court has a pre existing power to make such an order. The Act simple recognises that in appropriate circumstances it may do so.

The rationale for granting a Section 11 Order is to serve the public interest in ensuring that justice is done and not to benefit the victim of the crime. Any benefit the victim derives from such an action is incidental and unintended. In R. v Evesham Justices ex parte McDonagh [1988] QB 553 it was held that the granting of a Section 11 Order that prevented the publication of the defendant’s home address had been unlawful. The order had been made to prevent further harassment of the defendant by his ex wife.

In explaining the courts decision Watkins LJ commented: “There are undoubtedly many people who find themselves defending criminal charges who, for all manner of reason, would like to keep unrevealed their identity, their home address in particular. Indeed I go as far as to say the in the vast majority of cases, in the magistrates’ courts anyway, defendants would like to keep their identity unrevealed and would be capable of advancing seemingly plausible reasons why that should be so. But Section 11 was not enacted for the benefit of the comfort and feelings of defendants.”

Whether or not a Section 11 Order is appropriate will depend very much on the particulars of the case in question.