Media: L5 – Contempt of Court
Focus so far on interplay between Arts 8 and 10 ECHR at the heart of the law on
defamation and the action for the misuse of private information.
Now we are going to look at open justice and interplay between defendant’s right to
a fair trial in Art 6 ECHR as against media’s right to freedom of expression in Art
10:
- to discuss and scrutinise how legal process works, and public’s right to know
what happens in court.
Open justice involves e.g.
- court proceedings should be open to public,
- right to report what is happening so that public knows what is going on.
- All about transparency and fairness. This means that the law of contempt can
ban or restrict court reporting on occasion.
Trial by media should be prevented. Why?
- Juries might be influenced by the publications
- Trials have rules on what/how evidence can be used – this doesn’t apply to the
media – EG: they might publish their past criminal record.
- Makes it impossible to get a fair trial.
The law also prevents disclosure of sensitive information that might prejudice the
outcome of the proceedings and might bring the English legal system into disrepute
and interfere with the administration of justice. The law therefore exerts some
control over what materials are accessible to juries.
There is in effect a triangle of rights in this area:
- The rights of the defendant protected by Art 6 ECHR;
- The Media’s freedom of expression protected by Art 10 ECHR and
- The public’s right to be informed.
The law tries to balance these rights.
2 different types of contempt:
1. Statutory Contempt
2. Common Law Contempt
Statutory under the Contempt of Court Act 1981 and common law.
Both are criminal offences and can result in fines or even imprisonment.
The statutory offence is strict liability so there is no need for mens rea unlike the
common law offence.
The Sunday times case – the need for a new statute:
Previous common law said to guard against trial by media e.g. Sunday Times case
AG v Times Newspapers [1974] AC 273 (HL): The Sunday Times ran a campaign
seeking justice for the victims of the drug Thalidomide in the 60s and 70s – the drug
stopped morning sickness but caused side effects on babies. Published a story that
said they should get compensation and were going to publish another story.
Attorney General obtained an injunction preventing its publication on the grounds
that publication would constitute contempt of court. The injunction was upheld by
House of Lords on the basis that common law contempt requires that legal
proceedings should not be prejudiced by the press – Lord Diplock, argued that the
proper way to proceed would be to lobby parliament to change the law.
, - The Sunday Times was not able to publish its findings on the testing and
marketing of the drug until the injunction was lifted in 1976.
- The ECtHR (Sunday Times v UK) [1979] EHRR 249) found that the injunction
was a breach of Art 10 ECHR on freedom of expression.
o ECtHR did not agree that there was a risk of trial by media.
o The Court seemed to envisage a rather wider role for public opinion than
envisaged by the English courts.
o The Court also found that the English court had not given sufficient weight
to Art 10.
The European Court’s decision Sunday Times case brought about a change in the
law.
The 1981 Contempt of Court Act was meant to have a liberalising effect.
The 1981 Act is meant to favour freedom of expression / Art 10.
What does the current law aim to do?
Although we might have concerns about trial by media, the current law does not
prevent the public from forming their own views.
The law tries to preserve the integrity of the legal system and ensure that any
publicity does not get in the way of the legal proceedings.
The public should be able to form its own views and that process should not
interfere with the legal process.
How should public figures proceed?
Public figures can suffer because of press intrusion.
Contempt might not be the best method of protection. Consider instead e.g. the law
of defamation or action for misuse of private information.
Now that we have some context, we can start to consider the 1981 Act.
The Contempt of Court Act 1981 (CCA): s19
What is a court for the purposes of the 1981 Act?
- s19 says that ““court” includes any tribunal or body exercising the judicial
power of State and “legal proceedings” shall be construed accordingly.”
- In General Medical Council v BBC [1998] 3 All ER 426, the Court of Appeal
found that the Professional Conduct Committee of the GMC was not a court for
the purposes of s19.
o Seen as a statutory committee of a professional body specially incorporated
by statute exercising the self- regulatory powers. Not a court for CCA.
o COA found that the first instance judge was therefore correct not to grant an
injunction in the context of the 1981 Act.
CCA 1981: s1
s1 – Strict Liability
- s1 provides that contempt is a strict lability offence which means that no
intention is necessary.
- Not absolute as 4 defences are available.
- s1: “Conduct may be treated as a contempt of court as tending to interfere with
the course of justice in particular legal proceedings regardless of intent to do so.”
The reference to “particular legal proceedings” limits the scope of the offence:
- E.g. not contempt of court to write an article saying that witnesses in sexual
offences trials are likely to be ridiculed by defence counsel.
Focus so far on interplay between Arts 8 and 10 ECHR at the heart of the law on
defamation and the action for the misuse of private information.
Now we are going to look at open justice and interplay between defendant’s right to
a fair trial in Art 6 ECHR as against media’s right to freedom of expression in Art
10:
- to discuss and scrutinise how legal process works, and public’s right to know
what happens in court.
Open justice involves e.g.
- court proceedings should be open to public,
- right to report what is happening so that public knows what is going on.
- All about transparency and fairness. This means that the law of contempt can
ban or restrict court reporting on occasion.
Trial by media should be prevented. Why?
- Juries might be influenced by the publications
- Trials have rules on what/how evidence can be used – this doesn’t apply to the
media – EG: they might publish their past criminal record.
- Makes it impossible to get a fair trial.
The law also prevents disclosure of sensitive information that might prejudice the
outcome of the proceedings and might bring the English legal system into disrepute
and interfere with the administration of justice. The law therefore exerts some
control over what materials are accessible to juries.
There is in effect a triangle of rights in this area:
- The rights of the defendant protected by Art 6 ECHR;
- The Media’s freedom of expression protected by Art 10 ECHR and
- The public’s right to be informed.
The law tries to balance these rights.
2 different types of contempt:
1. Statutory Contempt
2. Common Law Contempt
Statutory under the Contempt of Court Act 1981 and common law.
Both are criminal offences and can result in fines or even imprisonment.
The statutory offence is strict liability so there is no need for mens rea unlike the
common law offence.
The Sunday times case – the need for a new statute:
Previous common law said to guard against trial by media e.g. Sunday Times case
AG v Times Newspapers [1974] AC 273 (HL): The Sunday Times ran a campaign
seeking justice for the victims of the drug Thalidomide in the 60s and 70s – the drug
stopped morning sickness but caused side effects on babies. Published a story that
said they should get compensation and were going to publish another story.
Attorney General obtained an injunction preventing its publication on the grounds
that publication would constitute contempt of court. The injunction was upheld by
House of Lords on the basis that common law contempt requires that legal
proceedings should not be prejudiced by the press – Lord Diplock, argued that the
proper way to proceed would be to lobby parliament to change the law.
, - The Sunday Times was not able to publish its findings on the testing and
marketing of the drug until the injunction was lifted in 1976.
- The ECtHR (Sunday Times v UK) [1979] EHRR 249) found that the injunction
was a breach of Art 10 ECHR on freedom of expression.
o ECtHR did not agree that there was a risk of trial by media.
o The Court seemed to envisage a rather wider role for public opinion than
envisaged by the English courts.
o The Court also found that the English court had not given sufficient weight
to Art 10.
The European Court’s decision Sunday Times case brought about a change in the
law.
The 1981 Contempt of Court Act was meant to have a liberalising effect.
The 1981 Act is meant to favour freedom of expression / Art 10.
What does the current law aim to do?
Although we might have concerns about trial by media, the current law does not
prevent the public from forming their own views.
The law tries to preserve the integrity of the legal system and ensure that any
publicity does not get in the way of the legal proceedings.
The public should be able to form its own views and that process should not
interfere with the legal process.
How should public figures proceed?
Public figures can suffer because of press intrusion.
Contempt might not be the best method of protection. Consider instead e.g. the law
of defamation or action for misuse of private information.
Now that we have some context, we can start to consider the 1981 Act.
The Contempt of Court Act 1981 (CCA): s19
What is a court for the purposes of the 1981 Act?
- s19 says that ““court” includes any tribunal or body exercising the judicial
power of State and “legal proceedings” shall be construed accordingly.”
- In General Medical Council v BBC [1998] 3 All ER 426, the Court of Appeal
found that the Professional Conduct Committee of the GMC was not a court for
the purposes of s19.
o Seen as a statutory committee of a professional body specially incorporated
by statute exercising the self- regulatory powers. Not a court for CCA.
o COA found that the first instance judge was therefore correct not to grant an
injunction in the context of the 1981 Act.
CCA 1981: s1
s1 – Strict Liability
- s1 provides that contempt is a strict lability offence which means that no
intention is necessary.
- Not absolute as 4 defences are available.
- s1: “Conduct may be treated as a contempt of court as tending to interfere with
the course of justice in particular legal proceedings regardless of intent to do so.”
The reference to “particular legal proceedings” limits the scope of the offence:
- E.g. not contempt of court to write an article saying that witnesses in sexual
offences trials are likely to be ridiculed by defence counsel.
