What is the Contempt of Court Act 1981?
After the European Court of Human Rights (ECHR) ruled in Sunday Times v UK (1979) that English contempt law breached Article 10 of the European Convention on Human Rights (the Convention), the UK Parliament enacted the Contempt of Court Act 1981 (CCA 1981). The primary function of CCA 1981 is to protect the integrity of active court proceedings. It prohibits the media from publishing information that will prejudice ongoing legal cases and in particular trials before juries.
A strict liability rule is introduced by CCA 1981. Under this, any conduct that interferes with the course of justice can be treated as contempt of court, even when there is no intention to interfere. This rule applies only to publications, ie, any form of communication addressed to any section of the public or the public at large.
The main provisions of CCA 1981 are to:
- limit liability for contempt under the ‘strict liability rule’ (ss 1- 7);
- prohibit the use of recording devices in court without leave of the court and makes publication of a sound recording a contempt of court (s 9);
- provide limited protection against contempt for a person refusing to disclose the source of information contained in a publication for which he is responsible (s 10);
- allow magistrates’ courts to deal with contempt in the face of the court by imposition of a fine of £2500 or committal to custody for a maximum of one month or both (s 12);
- restrict the period of committal to prison for contempt where there is no express limitation to two years for a superior court and one month for an inferior court (s 14).
Application of CCA 1981
CCA 1981 only applies where:
- a publication carries a substantial risk of seriously prejudicing justice in the proceedings; and
- proceedings are active.
Criminal proceedings are generally active from the point of arrest without a warrant, issue of a warrant for arrest or of a summons, service of an indictment, or oral charge, whichever happens first. 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 CCA 1981. The criminal offence of contempt of court carries a jail sentence of up to two year and an unlimited fine.
CCA 1981 applies solely to court cases in the UK.
Anonymity under CCA 1981
Under s 11 of CCA 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  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.”
The rationale for granting a s 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), it was held that the granting of a s 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 court’s 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 s 11 was not enacted for the benefit of the comfort and feelings of defendants.”
Whether or not a s 11 order is appropriate will depend on the particulars of the case in question.