1. newspaper has prepared a background article on how a major bank raid was planned. At Crown Court all four men deny the charges, but are found guilty and jailed. Defence counsel says in court that an appeal will be lodged in the next few days on behalf of the four. Can the newspaper publish the background article immediately after the sentencing? The answer must illustrate how conclusions are reached in the light of the Contempt of Court Act 1981.
Hint – also explain what the position would be if appeal had been lodged.
Answer:
The newspaper can publish the background article immediately after the sentencing.
There is a “free-for-all” period when proceedings are not active between sentence and the appeal proceedings becoming active on:
(I)the lodging of a notice of appeal;or
(II)leave to appeal is sought.
Appeal proceedings cease to be active when:
1.the appeal has been dealt with
If an appeal lodged against a conviction in a Crown Court, the media still have considerable freedom concerning contempt law in what can be published, even though it has thus become active again.
It is unlikely to publish anything that creates a substantial risk of serious prejudice to an appeal as appeals are always heard by professional judge(s) without a jury.
However, if a retrial is ordered, proceeding immediately become active again (Jury involved), and will remain so until that retrial is concluded.
The media must thereafter be very wary of publishing anything which creates such risk to the retrial, because witnesses and potential jurors will be seen as susceptible to publicity about the case before and during the retrial.
2. Give one example of circumstances in which a court might exercise its power under Section 4 of the Contempt of Court Act 1981 to postpone reports of its proceedings. Under the Act, can a journalist be in contempt for publishing anything not covered by such an order?
Answer:
Section 4(2) of the Contempt of Court Act 1981 gives a court power to order postponement of the publication reports of a hearing. It states:
(I)postpones publication;
(II)of a report of all; or
(III)part of proceedings;
(IV)for as long as the court considers necessary;
(V)to avoid a substantial risk of prejudice;
(VI)to the administration of justice;
(VII)in those proceedings; or
(VIII)in any other proceedings pending or imminent.
For example, a judge could order that no report of the first trial should be published until the second trial is concluded:
If a defendant, or several defendants, are to be dealt with in more than one trial, media reports of the first trial in the series – for example, concerning alleged smuggling of heroin – could arguably if published contemporaneously, and especially if any defendant is convicted, influence people who read such reports and who are then selected as jurors for the next trial in the series, which could concern different allegations of drug-smuggling against the same defendant(s).
The jury in the second trial, because of the principle of the presumption of innocence for defendants, may well be told nothing in the second trial about the earlier trial. Yet if a juror in this second trial remembers media reports of the first, he/she may be more likely to find defendant guilty, in that it will be clear that the defendant has featured in more than one drugs case.
In addition, it should be noted that for a court to make a section 4(2) order the substantial risk need only be of any prejudice, not necessarily of 'serious' prejudice.
Therefore, under such an Act, the journalist will be in contempt for publishing anything not covered by such an order.
3. Magistrates have issued warrants for the arrest of two men after a bombing in which a number of people died. The Oxdown Gazette carries an official police statement which gives the names of the two men, says they wanted for murder and gives their descriptions. The headline which is accurately based on the police statement is: “Two sought for car bomb attack. It was murder say police”.
What is the newspaper's liability for (a) contempt; (b) defamation? The answer must show clearly how conclusions are reached.
Answer:
According to strict liability contempt – contempt of court act 1981, the risky areas in crime reports which would create substantial risk of serious prejudice are:
If proceeding become active, then you cannot publish anything that creates a substantial risk of serious prejudice, such as:
(I)stating that the person arrested is the same person who committed the crime;
(II)publishing photo, photo-fit or detailed description if identification is in issue and there is going to be an ID parade, or if identification maybe an issue at trial;
(III)using the word “murder” - it may be manslaughter or an accident;
(IV)using detailed witness statements – the witness may feel obliged to stick to the published version of events in court, even if he later realises it was wrong;
(V)previous convictions;
(VI)background material/lifestyle; or
(VII)anticipating or influencing the verdict.
The newspaper stating the arrested man is murder before carrying out the trial. It also published the arrested men's descriptions, but there might be an ID parade later on, or identification maybe an issue at trial at a later stage. Therefore the newspaper will have liability for contempt.
Under qualified privilege (a qualified defence) as a defence to defamation, reports of numerous occasions receive statutory qualified privilege, providing they are: (a) fair; (b) accurate; (c) published without malice; (d) on a matter of public concern or benefit; and (e) subject to publication if requested of a reasonable letter or statement by way of explanation or contradiction.
Main protected occasions covered by Schedule 1 Part 2 include (iii) notices, reports or statements from government departments and bodies performing governmental functions (e.g. local authorities and the police), therefore, as the newspaper carries an official police statement, it will not have liability for defamation.
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