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CONTEMPT OF COURT

The main aim of contempt of court rules is to prevent potential jurors from being prejudiced for or against a defendant because of what has been published in the media before or during a trial.

A jury is supposed to reach their decision only on the evidence produced in court.The jury must also presume that the accused is not only innocent but also that he has no previous convictions.

Contempt of Court is governed by two sets of rules.
1. The Contempt of Court Act 1981 applies to individual cases.
2. Common Law contempt can apply to individual cases and to the administration of the law generally.

The Contempt of Court Act 1981 is the most relevant to every day journalism.

In each case it only comes into operation when the ‘initial step’ has been taken. Which means a person has been:
* Arrested
* Charged
* or a warrant has been issued for their arrest
* or a summons has been issued for them to appear in court.

A ‘person who is helping police with their inquiries’ does not come under any of those four categories.

Whether or not a story is in contempt of court is measured by the following test:
Does the story create a substantial risk that the course of justice will be seriously impeded or prejudiced.

The important words are ‘substantial’ and ‘serious’.
.

These are the tests by which the court decides whether the story would create a substantial risk of serious prejudice the mind of anyone who read it and who was then was selected to serve on the jury hearing the case.

Time: The longer the time between the story being published and the jury retiring to reach its verdict the less chance there is of the story being in contempt. Newsdesks should know the average time it takes in their Crown Court area for a case to go from arrest to trial. If the story is published, say, on the night before the trial opens then the risk of contempt is higher than if it were published months previously.

Proximity: The court will weigh up the chances of a juror having actually read the offending story. If the story is published in the Northern Echo in Darlington and the trial is held in Cornwall then there is plainly little chance of a substantial risk of serious prejudice because a potential juror could never be expected to have read it..

Initial Impact: Presuming, though, that the story is likely to have been read by a potential juror then the court will try to assess the impact the story would have had on him.
It does so by determining how novel was the way it was presented. A screaming Page One lead in the local paper would plainly have more impact than a down page three-par story on page 18 of a national. Then the court would try to evaluate the:

Residual Impact: The theory is that if a juror listens in court to all the evidence, and hears all the witnesses cross-examined, and then is guided by the trial judge on what is, and is not, important then any initial prejudicial impact the story might have had will fade away as the juror concentrates on the actual evidence.

CONCLUSION: The trend is towards liberalisation when it comes to applying the Contempt of Court Act 1981. Judges seem to have accepted that most pre-trial coverage, while maybe prejudicial, falls short of creating a substantial risk of being seriously prejudicial. National tabloids have used lurid accounts of Geoff Knights beating up a taxi driver and have been cleared of contempt.
But each case is different. By using the above tests an editor can at least make his own assessment of whether the particular story creates a substantial risk of serious prejudice.

There is a particular danger in revealing that the defendant has a previous conviction. A jury (which must presume that a defendant has an unblemished past) would find that hard to forget.

The Contempt of Court Act 1981 ceases to be active when:
* The arrested person is released without being charged - except when released on police bail.
* No arrest is made within 12 months of the issue of the warrant
* The case is discontinued
* The defendant is acquitted or sentenced
* The defendant is found unfit to be tried, or unfit to plead or the court orders the charge to lie on the file.

OTHER POINTS
Newspapers are safe when they use police appeals for help in tracing a wanted man for whom a warrant has been issued even though the ‘Danger Man’ or ‘ Find this Monster’ type of headline would plainly create a substantial risk of serious prejudice especially as most such stories reveal his past convictions. This is classic contempt of court territory but the Attorney General has promised not to prosecute because the public safety outweighs the fugitives right to a fair trial. As soon as ‘Danger Man’ is arrested, however, the immunity ceases.

Section 3 of the Contempt of Court Act gives an editor a defence if, at the time of publication, having taken all reasonable care, he did not know and had no reason to suspect that proceedings in the particular case were active.

Section 5 of the Contempt of Court Act gives protection to stories which are a discussion of public affairs as long as the risk of prejudice to a particular case is merely incidental to the wider discussion.

Civil proceedings: The Act states that civil proceedings become active as far as contempt risk is involved when the case is set down for trial (put on the waiting list) or when an actual date is fixed for the case to be heard.

Pictures: A picture can be in contempt in the same way as a story if , for instance, the case hinged on witnesses identifying the man in court or at an identity parade. And if you used a picture of the defendant handcuffed and guarded by armed police it might also prejudice a juror.


COMMON LAW CONTEMPT
The risk of contempt under the 1981 Act only starts when the Initial Step is taken - a person is arrested, charged, or has a warrant or summons issued against him.
Common Law contempt covers the time before that initial step is taken but when a trial could plainly be seen to be imminent or pending.
If a known criminal, for instance, takes a group of people hostage and a newspaper identifies him and his previous convictions before he is arrested or charged or a warrant is issued then there is plainly going to be a risk of contempt to proceedings which will almost certainly take place.
If the newspaper is prosecuted under Common Law contempt the prosecution has to prove that the editor intended to create prejudice. The court can infer intent by taking account of all of the circumstances leading to publication.

Common Law contempt can also be used against articles prejudicial to the course of justice generally, as distinct from the particular case governed by the 81 Act.

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