What is meant by Contempt of Court?
Contempt of court has been described as the improper interference with the administration of justice. Courts must be free to decide on the matters placed before it without being hindered from any outside influence.
The Contempt of Court Act 1981
The Contempt of Court Act 1981 was brought in with the intention of promoting freedom of speech and as a result of a Human Rights decision by the European Court of Human Rights in which it was decided that the previous common law notion of contempt of court in fact breached Article 10 of the European Convention on Human Rights.
What does the Act say?
Section 2(2) of the Contempt of Court Act 1981 states that where any publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced contempt of court will be found.
The offence of contempt of court is a strict liability offence. This means that someone who has published material which has interfered with the course of justice will be found in contempt of court regardless of whether they intended to do so.
What needs to be present to establish Contempt of Court?
The following elements need to be established in order for Contempt of Court to be found:
- There needs to be a publication
- In relation to proceedings which are active
- It relates only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced
A publication is defined as to include any speech, writing, broadcast or other communication in whatever form which is addressed to the public at large or a section of the public.
Proceedings which are active
For contempt of court to be found the proceedings must be active as defined by the Contempt of Court Act 1981. There are different tests to establish whether proceedings are active for criminal courts and civil courts.
Criminal proceedings will become active when one of the following happens:
- Arrest without a warrant
- The issue of a warrant for arrest
- The issue of a summons to appear before the court
- The service of an indictment or other document specifying the charge
- An oral charge
- Criminal proceedings will conclude and therefore cease to become active when one of the following happens:
- An acquittal or a sentence
- Any other verdict or finding or other decision which puts an end to the proceedings
- By discontinuance or operation of law
The Contempt of Court Act 1981 provides that civil proceedings become active from the time when arrangements are first made for the hearing of the case or from when the hearing begins. This active period is deemed to conclude when the proceedings are disposed of by settlement or judgment or are discontinued or withdrawn.
Substantial Risk of Serious Prejudice
To determine whether a publication creates a substantial risk of serious prejudice to the course of justice the court will consider the following:
- Whether the publication is likely to come to the attention of a potential jury member
- What the impact on an ordinary reader at the time of publication is likely to be
- The timing of the trial and the publication
Attention of a potential jury member
When examining this the court will take into consideration such factors as the area where the publication was circulated and how many copies of the publication have been circulated as jurors are selected from the public at large. In some cases jurors are considered to be capable of disregarding what they read in newspapers or television but the courts have to fully examine in relation to that specific case whether this would happen.
What if there is no jury?
In cases where there is no jury contempt of court is much less likely to be established. Judges and district judges can be expected to use their legal training to disregard any information which has not been found from any evidence or any argument presented to them in court.
Impact on the Ordinary Reader
When considering what the impact on the ordinary reader is likely to be the court will consider such factors as the prominence of the article in the publication and also the content of the article. When looking at the content and prominence consideration will be taken as to whether photographs of a defendant have been published, whether his identity has been described and whether details of his previous convictions have been detailed in the publication. The latter is extremely important as this should not be used against a defendant in a trail so publication of these would likely have a substantial risk of serious prejudice to the administration of justice.
Timing of the hearing
The court will also consider the length of time between the publication and the hearing. The degree of risk and seriousness of the prejudice will depend on the circumstances of each case publications which are published close to a hearing or trial will be seen to pose the most risk.
Other factors taken into consideration
Factors such as if a publication seeks to predict the outcome of a case or comment on specific pieces of evidence or attempt to suggest that a specific party or a witness is untruthful then these are factors which may be taken into account. Different publications will deem whether certain factors will need to be taken into account with each case being dealt with on a case by case basis.
The Contempt of Court Act 1981 provides the following three defences in relation to contempt of court:
- Innocent publication
- Fair and accurate contemporary reports
- Discussion of Public Affairs
A publisher will not be found guilty of contempt of court if at the time of publication – having taken all reasonable care – he or she does not know and has no reason to suspect that the proceedings are active.
In relation to distributors of publications they will not be found guilty if they have taken all reasonable care and have no reason to believe nor any reason to suspect that the publication they distributed contained material in contempt of court.
Fair and accurate contemporary reports
If a publisher has published a fair and accurate report of legal proceedings which are held in public, published contemporaneously (during or as soon as is reasonably practical after the hearing) and which is published in good faith they will not be found guilty of contempt of court. All the elements need to be established to use the defence.
Discussion of Public Affairs
If a publication is part of a discussion in good faith over public affairs or other matters of general public interest it will not be found to be contempt of court. If the publication or report is a bona fide discussion of a matter of public interest and the prejudice was merely incidental to that discussion then there will be no contempt of court.
An injunction applying prior restraint to publication is the penalty which is most associated with the strict liability offence of contempt of court.