5B Contempt and Reporting Legal Proceedings : Contempt or 'Sub-Judice' Rules
What does it mean to be in contempt?
Also known as the ‘sub-judice' rules, contempt is a criminal offence. There are two types of contempt: statutory and common law. Both involve interfering with legal proceedings in the UK. There is no exhaustive list of what constitutes "legal proceedings" but it includes, for example, the main courts e.g. magistrates' court, county court, high court and also inquests, military courts and industrial tribunals. Hearings before the Professional Conduct Committee of the General Medical Council are not included.
What is protected?
Statutory contempt law bans the media from publishing or broadcasting, including on the internet, any comments or information that might seriously prejudice active legal proceedings, in particular criminal proceedings heard before juries. The concern is that a juror might hear or see something outside of the courtroom that would sway him/her when he/she is deciding whether an accused person is innocent or guilty.
The legal test
In short, once legal proceedings become "active", it is a criminal offence for media organisations to broadcast material which would create "a substantial risk of serious prejudice" to the proceedings. Criminal proceedings become "active" as soon as one of the following has occurred: a person is arrested, a warrant for arrest is issued, a summons has been issued, or a person has been charged, and they remain so until such time as the accused has been acquitted or convicted. Civil proceedings e.g. libel proceedings, become active when the hearing date for the trial is arranged and, in Scotland, when the record (written case) is closed.
Once a person has been convicted, whether or not they have been sentenced, proceedings cease to be ‘active' and there is much more scope for commenting on the proceedings and making comments about the convicted person/publishing material which it was not possible to disseminate before or during the trial.
Finally, note that UK contempt laws only apply to legal proceedings that are taking place in the UK. You could not, therefore, be in contempt of US legal proceedings for broadcasting prejudicial material in the UK.
Who can be prejudiced?
It is not just potential jurors who might be prejudiced by what is broadcast. People giving evidence in proceedings i.e. witnesses, may also be prejudiced by what they see or hear on television. In addition, although professional judges are considered largely to be immune from being prejudiced by what they see and hear outside of the courtroom, some courts are presided over by lay people e.g. most Magistrates' Courts, and the law assumes that such people acting in a judicial role can be prejudiced in their deliberations.
Liability for statutory contempt is ‘strict', which means that the broadcaster's and programme-maker's knowledge or intention is irrelevant, as is the fact that no actual prejudice was caused in a particular case - the risk of prejudice is sufficient. If a contempt was committed intentionally, however, it would be punished even more severely.
Common law contempt consists of any other action which is intended to interfere with the administration of justice e.g. a sustained campaign by the media to influence legal proceedings. It is important to bear in mind that proceedings need not be active.
A classic example of a contempt is the publication or broadcast, once proceedings are active, of the fact that a person charged with a criminal offence has a previous criminal record. This is not something which, in the vast majority of cases, members of the jury would know before deciding whether the person charged is guilty or not guilty. Indeed such information is generally deliberately withheld from juries because it is deemed so prejudicial. Broadcasting this information, therefore, would create a substantial risk that people who may subsequently serve on the jury would be swayed in their consideration
of the facts and in making their verdict.
Penalties for contempt
Contempt of court is a criminal offence and carries severe penalties: an unlimited fine and/or up to two years imprisonment of the relevant personnel responsible for the offending publication or broadcast - normally the Editor. It should be noted that the law is interpreted more strictly in Scotland.
Third Party Costs Orders
The courts have relatively recently been granted a power which enables them to force third parties e.g. media organisations, to pay any costs which have been wasted in criminal trials, as a result of that party's "serious misconduct". Thus, in addition to the penalties for contempt, a media organisation could find itself faced with a bill for part of, or the total cost of, an aborted trial, for example where postponement or cancellation of the trial was caused by the prejudicial reporting of one of its journalists.
Fines made against media organisations for contempt, where trials have been cancelled, have traditionally been in the order of tens of thousands of pounds. Clearly, third party costs orders could run into hundreds of thousands of pounds or even millions. It is, therefore, extremely important that all references to active legal proceedings in programmes are referred to the programme lawyer for approval at an early stage and that detailed research is undertaken to ascertain the status of any legal proceedings.
Here are some further activities that would or could be in contempt:
- Obtaining or publishing details of jury deliberations. See below. Reporting of court proceedings in breach of a court order or certain reporting restrictions. See ‘Reporting Legal Proceedings' below.
- Anticipating the course of a trial or predicting the outcome.
- Publishing details of a defendant's lifestyle, if relevant to the charge.
- Making payments to witnesses (note that, in addition, this is likely to be prohibited under regulatory rules. See Chapter 4B, Crime).
- Filming or recording inside court buildings. See below.
- Revealing the identity of victims of sexual offences without written consent, which can only be given if over 16 years of age. See ‘Reporting Legal Proceedings' below.
- Reporting proceedings concerning wardship, adoption, other children related hearings, Mental Health Act applications and national security. See ‘Reporting Legal Proceedings' below.
- Reporting criminal proceedings and identifying a child as a defendant, witness or victim. See ‘Reporting Legal Proceedings' below.
- Breaching an injunction obtained against another party.
It is a contempt of court " ... to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations in any legal proceedings".
On no account must programme-makers make any approach or speak to jurors or potential jurors about the legal proceedings in which they are or were involved without taking legal advice.
Tape Recordings, Photographs & Sketches
It is a contempt of court for anyone i.e. public or press, to use, or take into court for use, a tape recorder or other recording device, without the consent of the Court. Similarly it is a contempt to use or publish any such recording. The court may in its discretion allow such recordings to be made. To be safe, programme-makers who are attending court should not take into court recording devices even where there is no intention of using them.
Taking photographs, filming and sketching (if intended for publication) is also prohibited in court. This includes not just inside the courtroom but anywhere within the court building and its precincts. Filming parties to proceedings as they arrive and leave the court house is also technically forbidden but in practice this rule is not enforced e.g. pictures of defendants and witnesses arriving and leaving the Royal Courts of Justice or the 'Old Bailey' are commonly shown. Regarding sketching, whilst sketching in court is prohibited if intended for publication, attending court, memorising proceedings and then making a sketch afterwards is permissible.
Documents/Information Obtained from Parties to Civil/Criminal Proceedings
In civil proceedings, relevant documents are released to the court by both parties, during the process of ‘disclosure'. There is an implied undertaking on parties not to use documents disclosed in this way for any other purpose than the proceedings, except in limited circumstances e.g. where the document has been read to or by the court or referred to at a hearing in open court. To do otherwise is likely to be a contempt. Similarly, a journalist publishing or broadcasting information emanating from such documents, knowing where it came from, would be in contempt.
For example, a programme-maker may be researching a programme about negligence in the medical profession and looking at particular cases of litigation. One of the parties to the litigation passes him documents which they have received from the other side. This may be a contempt and the programme-maker's use of such documents in any programme may be a further contempt. Seek legal advice.
Similarly, in criminal proceedings, use of any document which is disclosed by the prosecution or defendant (or co-defendant) in the course of proceedings is likely to be restricted to use within those proceedings. One exception is that the accused may use or disclose the object or information contained in a document to the extent that it has been displayed or communicated to the public in open court. This is even more restrictive than the provisions governing civil proceedings. For example, a programme-maker may be investigating a miscarriage of justice and the person convicted may pass him documents/ statements that were disclosed to him/her by the prosecution to look at. These actions could give rise to an offence which a programme-maker could have incited by the investigation. Legal advice should always be sought.
Defamation law exists to protect the reputation of a person from defamatory statements made about him/her to a third party without lawful justification. A statement is defamatory if, when said about a person and published to a third party, it would make ordinary people think less of that person.
For a person to sue they must show that the defamatory language was a) used about them, b) that they were identified or identifiable and c) that the words were published to another, i.e. a third party. It doesn't matter whether the statement is intended to be defamatory; ultimately a jury (or sometimes a judge) will decide what the broadcast is saying about the individual and whether it has unjustifiably injured their reputation.