A history of the English Law of Contemptfollows, written by Jonathan Hill.Contempt law in England exists to prevent a jury being swayed by media attention. It removes the burden on the jury of being hidden away from family, friends, television newspapers and radio at great expense and often little effect. English juries need not be interrogated about what they have seen in the press, because there is nothing to see. It is well observed - the penalty is a maximum of 2 years' imprisonment and unlimited fines. There is no jury trial - the matter is decided by a High Court Judge. Prosecution must be sanctioned by the Attorney General - this prevents frivolous prosecutions being brought by unsuccessful litigants (s. 7) - however, this only applies to prosecutions for Strict Liability Contempt. Remedies also include prior restraint on publication of potentially prejudicial articles. There has only been one case where a conviction has been overturned on appeal due to prejudice caused by media coverage - the case of R v. Cullen, McCann and Shanahan [1990] Cr. App. R. 239. Tom King, the then Secretary of State for Northern Ireland announced that too many Irish defendants accused of acts of terrorism were abusing the right to silence to escape justice and that, as a result, he intended to abolish that right in the province (this he duly did - see Murray v. United Kingdom 1 Times LR 1995 for the European view on the act. The Northern Ireland provisions were extended to the rest of the UK in the Criminal Justice Act 1994). He made this announcement the day after the 3 Irish defendants in the above case claimed their right to silence, standing trial for the attempted murder of one Tom King, Secretary of State for Northern Ireland. It was unsurprisingly considered prejudicial. As far as sentancing goes, imprisonment is less common now - mostly because publishers and broadcasters print and broacast under advice from in house legal teams.. If an editor or producer can show he disseminated an item that was in contempt, though had received learned advice that it was not contempt, then he his looked upon with greater benevolence by the court - having taken reasonable steps to stay within the law. Beyond this, intent is largely irrelevant: it is a strict liability offence. The turning point came with the Thalydomide case- actually Attorney General v. Times Newspapers Ltd. [1974] AC 273. The Times went ahead and published an editorial which attempted to campaign for a better settlement for the victims of the drug in the ongoing litigation. It was judged by the House of Lords to be contempt to put moral pressure on one side in a current case. This was widely criticised, and the European Court of Human Rights found it to be contrary to article 10 - freedom of expression. (see Sunday Times v. United Kingdom [1979] 2 EHHR 245) This was not to say that the Convention outlawed the law of contempt: but legislation was needed in order to make it more palatable to our inquisitorially orientated cousins. This was the Contempt of Court Act 1981.
The Types of Contempt.1) Strict Liability Contempt. As was mentioned before, intent is irrelevant, and contempt may be committed without any intention to prejudice proceedings. Contempt is committed according to S2(1) of the act when publication 'creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced.' There remains the special defence in hard cases where there are grey areas and legal advice has been sought berfore publication. This applies all the way down the chain of distribution, since the term 'publication' is a wide one.
There is also a public interest defence. Strict liability contempt is
the creature of statute in this saga: it was created to be less harsh on
the media by offering these defenses which were previously unavailable at
common law. The section which bows to freedom of speech is section 5: The act does, however, specifically preserve the old common law offences, such as: 2) Deliberate Contempt The rare attempt to influence court proceedings. Since the public interest defence is unavailable (except in theory based upon a possible common law interpretation of the balance of justice), it has become disturbingly common for deliberate contempt to be charged instead of accidental. The A-G must, however, prove intent. Calling for a prosecution, however, is not contempt. The distinction is illustrated in A-G v. News Group Newspapers [1988] 2 All ER 906. The Director of Public Prosecutions decided not to prosecute a doctor who allegedly raped a child. A story or editorial criticising the decision and calling for the DPP to reconsider would not have been contempt. The 'Sun' newspaper (a nasty, right wing little tabloid) editor went a few steps further. He decided that the newspaper would encourage the family to launch a private prosecution, paid for by the paper in return for exclusive interviews and photos. The day after the deal was signed, and in full contemplation of the prosecution, the paper launched a vicious character assassination of the doctor. This included quite unfounded allegations of other crimes supposedly committed by him - allegations that would have been excluded from the jury. The Doctor was then named the day after that story by an MP in the House of Commons under the shield of Parliamentary Privelege. Despite this overwhelmingly prejudical media treatment, the doctor was acquitted. The Sun was fined £79 000. Some doubt is cast over the possibility of comment on impending proceedings being contempt, even in the light of the Sun case. This would defeat the public interest in investigative journolists exposing criminals and persuading the DPP to take action through public debate and scandal. This is a controversial area, however, and proceedings against publication where proceedings are imminent cannot be ruled out. 3) Scandalous attacks on the judiciary Unfounded and unreasonable attacks on judges are contempt. An old common law hang-over which is rarely used. Reasoned criticism of the judicary would not be seen to be contempt. 4) Jury deliberations This one is new to the statute. It is illegal to publish accounts of jurors of how they reached their decisions. Even academic study falls under this rule. It has made it difficult to assess how well juries cope with, for example, complicated fraud trials (a controversial debate in the wake of Guinness v. Saunders and the Mirror Group fiascos) - it is impossible to even ask a juror if he understood the evidence and arguments.. 5)Disobedience to an order of the court Flauting prior restraint, etc.
Sub Judice PeriodThe sub judice period starts in criminal cases the moment formal steps are taken against the defendant - arrest or warrant for arrest. If the defendant has not been arrested after 12 months of the warrant, the proceedings cease to be active until arrest. In civil cases the restrictions start the moment a trial date is set. In summary, the test is always whether publication will seriously impede or prejudice justice. This gives a reasonable amount of breathing space. There are statutory safeguards on freedom of speech to prevent abuse (libel proceedings against one editor do not prevent another from referring to or repeating the libel by way of applying contempt rules..- A-G v. News Group Newspapers [1986] 2 All ER 833). We are yet to have a genuine OJ Simpson travesty as a result, and the restrictions are not indefinite. It's a matter of weighing the two conveniences - the media's right to sling accusations about immediately a person is arrested, against that person's right to a fair trial - now perfectly in line with The European Convention on Human Rights - a fortiori - an application of article 6 - right to a fair hearing.
The Above was submitted by Jonathan Hill |