5B Contempt and Reporting Legal Proceedings : FAQs
Q. One of our contributors has been arrested. What should we do?
A. Contact your programme lawyer immediately. Clearly, the repercussions of such an event would depend on the particular circumstances e.g. the type of offence for which the contributor was arrested, the nature of the programme, the nature of the contribution.
Q. An individual featured in our programme is on bail but has not been charged. Can they be included?
A. Again, it would depend entirely on the particular circumstances i.e. the type of offence for which the potential contributor has been arrested and bailed, the nature of the programme, the nature of the proposed contribution. Contact the programme lawyer immediately for advice.
Q. The subject of the programme has been convicted but not sentenced. Can we go ahead and broadcast?
A. In all likelihood, yes, but in such circumstances programme-makers must seek advice from the programme lawyer. The fact that the subject of the programme has been convicted means that the jury element of the legal proceedings are concluded and proceedings are no longer deemed to be "active", for the purposes of strict liability contempt. However, there could potentially be other reasons why the programme could not be broadcast e.g. proceedings in respect of other criminal charges may remain ‘active', or there may be a specific court order preventing publication of certain details of the case. With any television programme concerning a current criminal legal case, the programme lawyer should be very closely involved and so would be able to advise on the specifics of the particular case.
Q. Can you be in contempt of an Appeal?
A. Potentially yes. Under the Contempt of Court Act 1981, appeal proceedings become "active" from the time of application for leave or the lodging of a notice of appeal. However, because appeals are heard by professional judges, rather than lay jurors and tend to concern points of law and procedure, the risk of prejudicing such proceedings is generally much lower than with jury trials in the Crown Court.
Q. What kinds of proceedings are covered by the law of Contempt?
A. 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, Appeal Courts and also inquests, military courts and industrial tribunals. Hearings before the Professional Conduct Committee of the General Medical Council are not included.
Q. Why can't we talk about the case, the newspapers are full of it?
A. Newspapers and television news programmes often publish/ broadcast fair and accurate reports of on-going trials. This means that once a trial has started, the newspaper or news programme's court reporter does a report outlining that day's evidence and proceedings. Such contemporaneous, fair and accurate reports are only permissible (i.e. they do not amount to a contempt) where they are contemporaneous i.e. are published very soon after the hearing, are a fair and accurate summary of the day's proceedings and relate to proceedings held in public. The reports must be carefully written and not distort what was said in court. Such reports are generally included for each day of the trial so that a summary of all the evidence i.e. both prosecution and defence, is covered. Clearly, such 'fair and accurate reporting' would not be suitable or indeed possible for most types of programmes.
Q. A contributor is willing to talk on camera about being raped. Can she be identified?
A. It is a criminal offence for the media to identify the victims of most sexual offences e.g. rape, attempted rape, indecent assault etc.. However, the legislation which creates this offence includes a defence to the charge of breaching the anonymity rule i.e. that the victim (who must be over 16) has given freely (i.e. was not placed under any duress) his or her written consent for the publication or broadcast in question. Clearly, wherever it is intended to feature someone talking about being the victim of a sexual offence, seek advice from the programme lawyer at an early stage.
Q. A contributor cannot be identified for legal reasons. To ensure we're not in contempt, what measures do we need to take to ensure he is unidentifiable?
A. In short, we must do whatever is necessary to ensure that the person in question is not identifiable. Visually, this may mean: pixilating the person's face or even more of their image (if they have some distinctive feature e.g. a particularly unusual hair style that friends or work colleagues might recognise); filming the person in silhouette; or, altering their voice or even entirely replacing it with the voice of an actor. In addition, we must be very careful about exactly what information we broadcast about the person, taking into account what information is already in the public domain, so that viewers wouldn't be able to piece all the information together and identify the person in question.