“On the one hand, journalists are given important protection from contempt of court, providing their reports of legal proceedings are ‘fair, accurate, and contemporaneous’. On the other hand, this freedom to report fully can easily be sidestepped because courts have at their disposal the power to make various orders, the effect of which is to restrict what may be contained in journalists’ reports.”
In this essay I am going to discuss the statement above in regards to contempt of court. I will start by providing a brief outline of what contempt of court is following this I will then start to explain the law and how it can affect a professional journalist while reporting on legal proceedings.
Contempt of court is really put in place to protect the legal proceedings that happen within a court of law. The main concern of the law of contempt of court is to preserve the integrity of the legal process . Having this law in place gives the high court (as magistrates do not have the power to punish contempt of court by publication), the powers to punish any person(s) that interferes in any way with the proper functioning of the court system.
“Anyone who, for example, is disruptive or threatening in a courtroom can be punished immediately for contempt, by being sent by the magistrates or judge to the court’s cells, and in some cases subsequently to jail – because contempt is a criminal offence.”
Journalists should be both wary and educated with specific sections of the contempt of court act 1981, one section in particular is section 1 – this part is in relation to journalists and the media. Within this section it states that publishing material or information that could create a great and substantial risk of prejudice and adversely affect a fair trial within active legal proceedings is contempt of court.
Such information can be in all forms of the following material; written, spoken, broadcast and any other forms of communication that is accessible to the public. The media has the power to influence the jury through its many mediums and with online resources becoming more popular archive material is also at easy access. In some cases, were facts are for example brutal or shocking this can often lead the information to be ‘memorial facts’, in such cases as the John Venables case archive material when ever his name would be mentions would be easy to access, this is of course extreme cases.
Although there are restricting areas within this law, for example section 2 of this act there are areas the journalist can report while the case is still active. A case becomes active when the person is a) arrested b) issue of warrant or arrest c) issue of a summons, or d) a person being charged orally. The people that have been arrested can be named, however wording here is important. For example you CAN say “John Smith, from Preston was arrested yesterday in relation to a burglary”, you COULDN’T say “A burglar was arrested today...” as well as being defamatory this kind of statement is also assuming the guilt of someone. A journalist would also be in contempt if they included any names of any victims within a case. Juveniles (anyone under the age of 18) are given full anonymity at all times according to section 49 of the Criminal Justice and Public Order Act. There are other facts that can be reported that wouldn’t cause any prejudice towards a potential jury, this could be where the crime took place or what time. When the case in active, the defendant(s) must been seen by the court and if applicable the jury as guilty. Any one in court should been seen as a first time offender and other offences should not be taken into consideration – hence why it is important that the media do no publish such information.
In the case of a journalist having a report including any of the above and it being published there are some protection in the form of defence. Section 3 of the act basically is the defence that the journalist simply did not know that the proceedings were active when the report was published. As with all defences the journalist would have to provide evidence in court that they did not know. In addition to that, the information provided in articles must come from accurate sources and it is the journalist’s responsibility to select information from appropriate sources. Normally any source with authority would be valid.
If a journalist is accused of contempt than they must prove that “all reasonable care was taken” when the report if written up just to protect themselves from being in contempt. To allow a journalist to have full advantage of section 3 they would have to be sure that the case was definitely not active, as it states in McNae’s “a journalist reporting a crime story must check regularly, especially prior to a deadline, with the police to discover whether there has been an arrest or charge” , as said above when the case does become active this is when reporting restrictions come into place.
As stated in the title above “journalists are given important protection from contempt of court, providing their reports are ‘fair, accurate, and contemporaneous’.” Section 4 of the Act provides another defence it states that a person cannot be found guilty of breaching the ‘strict liability rule’ if their report is of a court hearing that was held in public, a fair and accurate report of the public hearing, and if it was published contemporaneously . This defense does not, however, protect those journalists publishing reports on private court proceedings. If for example, the report was on a private hearing then this would not be in contempt under The Administration of Justice Act 1960, exceptions to this would be if the case involved children or the report gave details of mental health e.t.c
Section 5 of the contempt of Court Act 1981 is another defense that may be used by journalists. This simply is the defense for discussions in good faith of public affairs were the risk of prejudice is merely incidental to the discussion , basically meaning it would be considered to be in the general public’s interest.
Journalists should be well educated about both the law as a whole and also the defences in which they could use in they were found to be in contempt. As well as this they should also be aware of the orders that various courts can make that will effect certain restrictions and news reports.
Also within section 4 of the contempt of court act is an order for the report and its information to be postponed. Having said that, if there is no section 4 order made then it is very unlikely that it can be in contempt, although as it states in McNae’s “...it may incur the displeasure of the judge if the information is disclosed which the jury ought not to be made aware of before the end of the trail” . As stated before an example of this would be when the media can deliberately mention certain facts that will emphasis certain issues.
Courts can also impose a section 11 order. This gives the courts the power to allow a name or other matter to be withheld from the public, to prohibit the name of the publication of that name or matter in connections with the proceedings, as appears to the court to be necessary for the purpose of which it was withheld .
To conclude this essay, I feel I have included all judicial order that I consider most relevant and significant to journalists. I have covered what the dangers are when reporting any court case, what would be allowed and what wouldn’t. I have also illustrated what could happen if a journalist were to be in contempt and what defenses they may use. It’s also important to remember certain powers which courts have that will affect journalistic reports.