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Published: Fri, 02 Feb 2018

The law of contempt has been criticised as a “dagger”

Critically discuss the extent to which this criticism is, or is not, justified.

There are two types of contempt that exist in the UK, one at common law and another defined by statute in the Contempt of Court Act 1981. At common law there are two further categorisations of contempt, civil contempt and criminal contempt. Contempt at common law has been called direct contempt or contempt in the face of the court, though this does not mean that the judge presiding over the case must see it, merely that it took place within court precincts or involves a trial currently before that court. Civil contempt occurs primarily through failure to comply with a court order or interference with witnesses or jurors, though it can also occur through misbehaviour, as in Balogh v St Albans Crown Court [1975] [1] in which the defendant, Stephen Balogh, was employed as a clerk and during a particularly boring trial concerning pornographic films and books, as all boring trials are, he hatched a plan to release ‘laughing gas’ into the courtroom in an attempt to enliven the speeches. Balogh was convicted of contempt though this was later quashed as the gas was never released and the defendant never obtained his “…relief from the tedium of pornography.” [2] Criminal contempt, on the other hand, is committed when the administration of justice is brought into disrepute or somehow obstructed and he prosecution must prove beyond reasonable doubt that the publication that is alleged to be contemptuous was intended to prejudice a fair trial. The administration of justice may be obstructed in a number of ways, if it requires the dismissal of the jury or the jury “requires directions from the court well beyond those ordinarily required and routinely given to juries to focus their attention on evidence called before them rather than whatever they may have heard or read outside court.” [3] The court may find a publication to pose a real risk of prejudice to a fair trial in a number of ways, in the case of R v Bolam Ex p. Haigh [4] for example; the defendant wrote a highly emotive article that the court believed created bias against the defendant in the trial of John George Haigh. Similarly, a publication may be contemptuous if it puts pressure on litigants to drop a case against the publisher of said article, as was the case in Attorney General v Hislop. [5] Aside from constituting a real risk of prejudice to a fair trial, for a publication to be found in contempt of court at common law the prosecution must also prove that the publisher intended to do so, though the court may infer intent from the circumstances only when the prejudicial effect of a publication is a virtual certainty. For a publication to amount to contempt any proceedings must be pending or imminent, there has been much debate on what this means though it is generally accepted that there is no absolute requirement that proceedings be pending or imminent, merely that they should be reasonably likely to occur. The Contempt of Court Act 1981created ‘strict liability’ contempt which states that “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”, as contained in s1. The 1981 Act also defines the scope of this form of contempt under s2, which states that the strict liability rule applies only to publications, which are defined as any speech, writing, broadcast or any other form of communication that is addressed to the public, or any section thereof (s2(1)). Under s2(2) it is stated that this rule applies only to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. It is also made clear, in s2(3), that the strict liability rule will only apply to publications from the time proceedings are active, which we are informed by s2(4) reside in Schedule 1 of the Act.

Though it seems like an unjustifiable limit upon both the freedom of speech and freedom of the press to restrict what can and cannot be said about a person who is accused of a crime, it is important to remember that these rights are not without reservations, the freedom of expression, for example, does not extend to derogatory marks made about others on the basis of their sexual orientation, gender or race. These limitations are present because of the need to protect the rights of others whilst you are exercising your own rights, in the European Convention on Human Rights Article 10(1) assigns the right of freedom of expression and in Art 10(2) it lists a series of exceptions to this freedom, including the protection of the reputation of others and maintaining the authority and impartiality of the judiciary. These restrictions show that whilst freedom of expression is seen as a fundamental right, the protection of the freedom of others and the administration of justice are more significant than the unrestricted usage of your own freedoms. In this instance it is the right to a fair trial contained in Art 6(1) that is being strongly protected. This can be justified on the grounds that whilst judges are too rational to be swayed by things they have heard or read about a defendant who comes before them in court, the laymen of the jury may not be so able, or willing, to decide a case purely on the basis of the evidence presented to them. Even the most frivolous litigation may be pushed towards a guilty verdict by extensive media coverage on the topic and if we cannot ensure, as far as is reasonably possible, the right to a fair trial then our whole legal system would surely collapse. One need only look at the publications relating to suspects in alleged murder of Joanna Yeates to see how quickly the media articulates the negative aspects of someone’s character; with the Attorney General himself has expressed concerns over the potential prejudice of the trial. [6] Thus it is paramount that we restrict what can be said about those awaiting, or in the process of, a trial as the right to a fair and unbiased public hearing outweighs the performance of one’s own rights.

In this age of mass media it can be argued that the media can exert undue influence upon pending cases or those which have already begun. Cases such as Attorney General v Hislop [7] provide proof of this concept, in which the magazine ‘Private Eye’ published an article on the issue of which a previous libel action was pending. Originally the court found that this pressure applied to the litigants was not likely to prejudice proceedings, though this was later overturned on appeal and the publishers were fined £10,000. The significance of this judgement is not to be underestimated, it shows clear evidence that the media can, if it wishes to, prejudice proceedings of which it is intimately involved. Again this is an issue of the right to a fair trial, as if the media has such sway over public opinion, how is it possible for someone to challenge the media and still have a fair trial if every article published about your case is shown in a negative light? Thus it can be said that contempt of court is an invaluable method for keeping the media in check.

Under s10 of the Contempt of Court Act 1981 permits the court to request that a journalist name their confidential source of information unless it is in the interests of justice, national security or for the prevention of disorder or crime. This section arose out of the decision of the European Court of Human Rights in Goodwin v United Kingdom [8] in which Goodwin was ordered to reveal the source of information for an article he had written, Goodwin refused and was subsequently fined by the High Court for doing so, on appeal in the European Court of Human Rights, Goodwin argued that his right to freedom of expression contained under Art 10 of the European Convention on Human Rights had been breached, the court found that any interference with this right was only permissible when it fell under the exceptions contained in Art 10(2). Since in this instance it was the company that would have been embarrassed by the article, there was no public interest forcing Goodwin to reveal his source and therefore Goodwin was not forced to do so. Problems, however, arise in regards to the aforementioned exceptions to freedom of expression, as if a journalist were to be required to reveal his source, he would be found in contempt of court and risk a term of imprisonment or a fine should he refuse. His only other option would be to reveal his source of confidential information and in that case it is unlikely that he would ever be able to find such a source again, due to the fact that he would have broken his promise to the source and the view of other sources that he is disloyal. With the knowledge of such verdicts it is also less likely that any ‘whistleblowers’ will the press as they do not wish to be tried for something they feel the public needs to know, which means that investigative journalism will be extremely difficult to perform and important information of government wrongdoings, for example, is unlikely to surface.

In the case of Attorney General v News Group Newspapers [9] a doctor was accused of raping an eight year old girl, though this never came to trial as there was deemed to be insufficient evidence against him. ‘The Sun’ newspaper found out about this story and began a campaign to fund the investigation and prosecution of the doctor. They also published a number of articles relating to the alleged rapes. The Attorney General applied for the owners of the newspaper (News Group Newspapers) to be fined for contempt of court at common law. The court held that on the actions of ‘The Sun’ there was an intent to prejudice a fair trial by bringing to the attention of readers damaging matters that would not have been admissible as evidence were the case to come to trial, and the actions of the newspaper constituted contempt, even though proceedings were not pending. In this case the newspaper was merely trying to bring to the awareness of the general public a matter which they should know about, despite this element of civic duty, they were still held in contempt and if it is not the duty of the media to draw attention to such issues, then what remains for them to do? It can be said, therefore, that this decision made the very essence of journalism a potentially contemptuous matter.

In conclusion, I believe that despite the importance of a free media and freedom of expression, it is even more important that anyone accused of a crime may have a fair trial, as evidenced by the importance placed upon that right, contained in Art 6, and the restrictions reserved for freedom of expression in Art 10(2). Though it is also important that the public be made aware of any unethical practices that the government or corporations are performing, it is just as important that the media is not left uncheck to run riot at the wheel of public opinion. I feel that contempt of court, whilst admittedly harsh to journalists at times, is not a dagger in their back, instead it is more of a nudge, prompting journalists to consider the rights of others whilst they are exercising their own freedom of expression.

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