The Law on Contempt of Court

The law of contempt is concerned with interference with the administration of justice. In AG v. Leveller Magazine Ltd. [1979] AC 440, Lord Diplock stated at page. 449:

“Although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”

Common law contempt of court imposed a strict liability upon any publication, whether the proceedings were active or pending, which gave rise to a real possibility of prejudicing a trial. This was apparent in the case of R. v. Editor of New Statesman, ex parte DPP (1928) 44 TLR 301. It was also the inclusion of this sub judice rule that set apart the common law on contempt of court.

In AG v Times Newspaper [1975] AC 273, it was noted that, ‘Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly… [T]he law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases.’

The rationale behind this rule was explained in Attorney-General v. Times Newspaper Ltd [1973] 2 All ER 54 at page 72:

“The due administration of justice requires first that all citizens have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly, that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.”

Another aspect to the common law of contempt of court was the doctrine of “scandalizing the court” which, in contrast to the sub judice rule, which is only applicable to pending legal proceedings, this form of contempt of court is applicable at any time

The rationale was summarized in Chokolingo v. AF of Trinidad and Tobago [1981] 1 All ER 244, at page 248:

“‘Scandalizing the court’ is a convenient way of describing a publication which, although it does not relate to any specific judge, is a scurrilous attack on the judiciary as whole, which is calculated to undermine the authority of the courts and public confidence in the administration of justice.”

The Common Law position on establishing contempt of court can be identified in the case of Atkins v London Weekend Television Limited 1978 J.C. 48. At page 52, “The essence of a charge of contempt of the kind with which this petition is concerned is, therefore, the allegation that what was said and done was likely to prejudice the fair and impartial trial of the accused person and, thus, to be prejudicial to the interests of justice itself. In this case the question for us is whether the contents of the programme complained of were such as to give rise to a real risk of prejudice to the fair and impartial trial of the petitioner on the charges on which she stood indicted. ”

The Contempt of Court Act 1981 provides the statutory foundation in establishing a contempt of court.

The Contempt of Court Act 1981 was passed in response to the decision of the European Court of Human Rights in Sunday Times v. United Kingdom 26 April 1979, Series A No. 30, 14 EHRR 229.

In that case, a United Kingdom court had granted an injunction to prevent a newspaper from commenting on the responsibility of a company for thalidomide-related birth deformities while there were ongoing settlement negotiations.

The European Court applied the relevant three part test and found that the interference with freedom of expression was “prescribed by law” and had a “legitimate aim”, but was not “necessary in a democratic society.” The Court rejected the Government’s submission that it was a matter of “balancing” the public interest in freedom of expression and the public interest in the fair administration of justice. Rather, the proper approach was as follows at paragraphs 65-67:

“The Court is faced not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.”

“The Court reasoned that there was a public interest in knowing about the case which was not outweighed by a social need which was sufficiently pressing: In the present case, the families of numerous victims of the tragedy, who were unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions. They could be deprived of this information, which was crucially important for them, only if it appeared that its diffusion would have presented a threat to the “authority of the judiciary”

“The Court concludes that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention. The Court therefore finds the reasons for the restraint imposed on the applicants not to be sufficient under Article 10(2). That restraint proves not to be proportionate to the legitimate aim pursued; it was not necessary in a democratic society for maintaining the authority of the judiciary.”

The Court made it clear at paragraph 56 that the protection of the authority of the judiciary extended beyond the rights of individual litigants and included the administration of justice as a whole:

“Insofar as the law of contempt may serve to protect the rights of litigants, this purpose is already included in the phrase “maintaining the authority and impartiality of the judiciary”: the rights so protected are the rights of individuals in their capacity as litigants, that is as persons involved in the machinery of justice, and the authority of that machinery will not be maintained unless protection is afforded to all those involved or having recourse to it.”

More generally, the Court also stated at paragraph 63:

If the issues arising in litigation are ventilated in such a way to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in the courts. Again, it cannot be excluded that the public’s becoming accustomed to the regular spectacle of pseudo-trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes

Therefore, Section 1 of the 1981 legislation contains provision for “the strict liability rule” whereby 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 test for the application of the strict liability rule is contained within Section 2 of said legislation. Section 2 limits the common law presumption that conduct may be treated as contempt regardless of intention. Section 2(1) provides that the strict liability rule will only apply to publications. Section 2(2) then restricts this to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. Finally, section 2(3) limits the application of the strict liability rule to proceedings active at the time of the publication.

Therefore, it can be seen that the test would appear to be that the risk must be substantial and the prejudice serious.

In the case of Attorney-General -v- News Group Newspapers Ltd [1986] 2 All ER 83; [1987] QB 1, it was held that when considering a complaint of contempt of court against a newspaper, it should be recognised that any criminal trial, by its very nature, causes all involved in it to become progressively more inward looking, with the capacity to study the evidence given and the submissions made in the courtroom, to the exclusion of other sources of information. The words 'substantial risk' of prejudice mean 'not insubstantial'. The test of ‘substantial risk’ and ‘serious prejudice’ are separate but overlapping. It was noted by Lord Chief Justice Lord Lane that a slight risk of serious prejudice is not enough, nor is a substantial risk of slight prejudice.

In quantifying risk, guidance is offered by Schiemann LJ in the Court of Appeal in the case of Attorney General -v- MGN Limited [1997] 1 All ER 456; [1997] EMLR 284.

(1) Each case must be decided on its own facts;

(2) The Court will look at each publication separately and test matters as at the time of publication; nevertheless, the mere fact that, by reason of earlier publications, there is already some risk of prejudice does not prevent a finding that the latest publication has created a further risk;

(3) The publication in question must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication;

(4) That risk must be substantial;

(5) The substantial risk must be that the course of justice in the proceedings in question will not only be impeded or prejudiced but seriously so;

(6) The Court will not convict of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice;

(7) In making an assessment of whether the publication does create this substantial risk of that serious effect on the course of justice the following amongst other matters arise for consideration:

(a) the likelihood of the publication coming to the attention of a potential juror;

(b) the likely impact of the publication on an ordinary reader at the time of the publication;

(c) the residual impact of the publication on a notional juror at the time of trial. It is this last matter which is crucial. One must remember that in this, as in any exercise of risk assessment, a small risk multiplied by a smaller risk results in an even smaller risk.

8) In making an assessment of the likelihood of the publication coming to the attention of a potential juror the Court will consider amongst other matters:

(a) whether the publication circulates in the area from which jurors are likely to be drawn, and

(b) how many copies circulated.

(9) In making an assessment of the likely impact of the publication on an ordinary reader at the time of publication, the Court will consider amongst other matters:

(a) the prominence of the article in the publication, and

(b) the novelty of the content of the article in the context of likely readers of that publication.

(10) In making an assessment of the residual impact of the publication on a notional juror at the time of the trial, the Court will consider amongst other matters:

(a) the length of time between publication and the likely date of trial,

(b) the focusing effect of listening over a prolonged period to evidence in a case,

(c) the likely effect of the judge's directions to a jury".

Beltrami & Co. has acted for news publications in such issues. If you require advice on this topic, contact us on 0141 429 2262.