8. Two men are jailed after pleading not guilty to fraud charges. Defence counsel tell the crown Court, after the sentencing that the men will eventually appeal against conviction. In the light of the lawyers' statement. When can a newspaper safely publish a background article which had been prepared for when the trial was over? The answer must illustrate how conclusions are based on the Contempt of Court Act 1981. (15 marks)
Answer:
It is safe to publish the background article after the sentencing because at that point the case ceases to be “active” under the Act.
The case would become “active”again when the appeal is lodged, so nothing should then be published which creates a substantial risk of serious prejudice.
However such an appeal would be heard by the Court of Appeal and the judges there are unlikely to be influenced by pre-appeal media coverage, so there is no risk of it breaching the rule in that respect.
But if a new jury trial is ordered to take place, at that point care must be exercised in what is published to avoid committing contempt/creating a substantial risk of serious prejudice as regards the retrial.
9. A man pleads guilty in a magistrates' court to charge of theft from his employer. There is no departure from the usual court procedure, but at the end of the case, after the man has been fined, his solicitor asks the magistrates to consider asking an order permanently prohibiting the man's identification in newspaper reports of the case. The solicitor says that such publicity would harm his client's chances of finding a alternative employment
Can the magistrates validly make such an order at the end of the case under the Contempt of Court Act? The answer must indicate how conclusions are reached. (10 marks)
Answer:
Under Section 11 order of Contempt Court Act, it states the order is an order whereby the court can extend a courtroom ban on the use of someone's name or other details to prevent publication of that information by the media. Only to be granted:
(1) where necessary; (2) to avoid frustrating or rendering impractical; (3) the administration of justice; (4) not for the comfort and convenience of the defendant; (5) cannot be used unless name and/or address has already been withheld from the public in the case.
Typically the order is used to protect blackmailed victims; protect national security, state secrets by not revealing alleged betrayal's identity; as well as forbidding reports of the case publishing the data or process details.
Therefore, the magistrates cannot validly make such an order at the end of the case.
10. What circumstances could publishing a photograph of a defendant be regarded as being in contempt of court because of a statute? What is the relevant statute?
Name the Act which bans the taking of photographs, or making of sketches, of people involved in court cases when they are inside a courtroom. Does this law apply beyond the actual courtroom? Explain the law's scope, and how court artists comply with it while producing sketches for the media. (25 marks)
&&&&&&&&&&&&
11. A woman pleads guilty in a magistrates' court to stealing good worth £30 from a supermarket. She tells the court that she stole to fed her two hungry children children that day, after her benefit money ran out. She is put on probation for two years.
One local newspaper, in its first available issue, reports this court case fairly and accurately, except that is names the wrong supermarket.
Another weekly paper caries, on the same day, a report of the case which is fair and accurate and gives the same quote and detail but for the fact that it states the value of the stolen goods to have been £300.
Explain the position in defamation law of both newspapers, as regards these particular court reports.
Can either or both be sued successfully for libel?
In your answer, set out what the law requires of reports of court cases, if a media organisation is to enjoy protection from libel actions when publishing such reports. (20 marks)
&&&&&&&&&&&&&
13. Sam Nemot, a Member of Parliament, is found guilty at the Crown Court of rape and sentenced to five years' imprisonment. The next day The Daily Oracle publishes a news story reporting the verdict and sentence, and an editorial in which it expresses opinions which include, “Parliament is well rid of this man”.
Mr Nemot's conviction is later quashed by the Court of Appeal and the newspaper reports the next day that court's decision. He then sues that the newspaper over the original news story and the editorial comment.
What is the newspaper's liability, if any, for defamation?
Answer:
The newspaper's original news story is covered by absolute privilege, provided all the defence's requirements are met.
Under the Defamation Act 1996 Absolute Privilege for court copy in all UK courts, inquests, military courts, etc. It gives immunity from libel providing the article is: (1) fair (balanced); (2) accurate (especially charge, names, plea and case continuing) (minor inaccuracies will not defeat the privilege); (3) published contemporaneously (first available edition); and (4) the report is of judicial proceedings (not outbursts or interruptions [if people making them are not involved in the case] or reports not read out in court – so do not publish defamatory outbursts – they ar enot protected. Non-defamatory parts of outbursts may be published); (5) held in public in the UK (or in European Courts of Justice and Human Rights).
Non-contemporaneous court reports get Qualified Privilege.
The editorial comment is covered by fair comment. It applies to comments/opinions only. The defendant must proves: (1) the comment is recognisable as comment; (2) it is based on provably true facts or privileged matter; (3) sufficiently referred/alluded to, indicated or stated in what is published with the comment – usually set out in the article unless already well-known; (4) it is an honestly held opinion (I.e. what the writer genuinely believed); and (5) it was on a matter of public interest (including TV, film or restaurant reviews).
Therefore, as long as comment met the above requirements, it should be safely published.
Irish News used fair comment as the protection to successfully appealed its restaurant review case. The previous award was quashed on appeal.
Showing posts with label media law. Show all posts
Showing posts with label media law. Show all posts
Monday, 26 July 2010
Sunday, 25 July 2010
Media Law: Court Reporting – 9 July 2009 (part one)
1. Match up the following terms and descriptions. If, for example, there was a term numbered 10 and a matching description marked F, the answer should be presented as 10 – F. (10 marks)
Answer:
Burglary: entering a building as a trespasser and stealing or attempting to steal.
Theft: dishonest appropriation or property belonging to another with the intention of permanently depriving the other of it.
Robbery: stealing by force or threat of force.
Blackmail: making an unwarranted demand with menaces.
Handling: dishonestly receiving goods, knowing or believing them to be stolen.
2. Reports of some court proceedings are restricted by the Magistrates' Court 2980. Do any such restrictions apply when the magistrates: (a) Commit a defendant for sentence at crown court?
Remand a defendant for a week to a await committal proceedings? Hear prosecution evidence begin as they try a defendant summarily on a burglary charge? State your reasons (20 marks)
Answer:
(a) No, report restriction does not apply.
As the Magistrates Court has committed the defendant for sentence at Crown Court, that means summary proceedings has already been held.
However, Magistrates Court Act 1980 does not cover cases being dealt with summarily – trial in Magistrates Court.
(b) Yes, report restriction applies.
As regards a committal hearing, under the section 8 restrictions the media can report: any decision of the magistrates to commit any defendant to Crown court for trial, unless defendant requests restrictions are to be lifted.
(c)No, report restriction does not apply.
Because restrictions do not apply once magistrates have decided to try a triable either-way offences case summarily (trial in Magistrates Court).
3. Should anything be amended in the following court report to comply with:
(a) the Magistrates' Courts Act 1980; or
(b) the Sexual Offences Act?
Explain your conclusions.
A 19-year-old woman has been accused of making a false claim of rape. Wilhelma Wigan, of St Non's Avenue, Downton, is charged with perjury by falsely signing a statement telling police she was raped. Bernard Brussells, prosecuting, told Downton Magistrates that Wigan claimed in the statement that Harry Hemnall raped her at knifepoint after following her from a nightclub. Mr. Hemnall, of Theydon Grove, Bassettford, was arrested and held by police for 17 hours. Two days later Wigan admitted the allegation was false, Mr. Brussells added. The magistrates bailed Wigan and sent her case to Crown Court for trial. (10 marks)
Answer:
The Magistrates' Court Act 1980 Section 8 ten points applies, unless decision is made to try case summarily (trial in Magistrates Court), or the defendant requests report restrictions are to be lifted.
In this case, the Sexual Offences Act 2003 does not apply, because Wigan was not raped by Harry Hemnall, so there is no need to worry revealing Wigan's identity, and she is not entitled to lifelong anonymity.
However, “Mr. Hemnall, of Theydon Grove, Bassettford, was arrested and held by police for 17 hours. Two days later Wigan admitted the allegation was false, Mr. Brussells added.” should be removed, as these details explanation of the case development was not covered by the report restriction.
Other description can be published as covered by report restriction.
4. What power does an adult criminal court have to prevent the media from identifying children or young persons involved in its proceedings? Explain the scope of this power. What is the media's legal position as regards identifying such individuals if this power is not invoked? (15 marks)
Answer:
When children or young persons appears in adult criminal court, their names can be named unless the court impose section 39 order under Children and Young Persons Act 1993, if made reporters cannot publish: (1) name; (2) address; (3) school; (4) photo; or (5) anything else likely to lead to the identification of a child or young person (under 18) involved ion the proceedings (defendant, victim, witness).
If this power is not invoked, then the media can identify these individuals.
5. Under what circumstances may the ban on identifying a child or young person appearing at youth court be lifted? (20 marks)
Answer:
Under these following circumstances the ban Section 49 Children and Young Persons Act 1933 at youth court will be lifted:
(1) by the Magistrates or the Home Secretary, to avoid injustice to the juvenile;
(2) by the youth court by the Director of Public Prosecutions (e.g. by a Crown Prosecution Service lawyer) applying for the lifting under the criminal Justice and Public Order Act 1994 in order to trace a juvenile at large after appearing in the Youth Court charged with a violent or sexual offence or any offence for which an adult could be jailed for 14 years or more; or
(3) under the Crime (Sentences) Act 1997, the Magistrates may lift the restriction on identifying a convicted juvenile after conviction where they believe it is in the public interest to do so (usually upon application by the media), but before doing so they must allow the prosecution the defence and often the media to make representations.
(4) The restrictions cease to apply once the child or young person turns 18.
(5) Section 49 does not apply to reports of the subsequent Antisocial Behaviour Order (ASBO) proceedings if ASBO is imposed; Section 49 still applies to reports of the hearing while the application is part-heard and adjourned or if no ASBO is imposed.
6. What is the law on identifying the alleged victim of a sexual assault?
Give two examples of circumstances in which restrictions on identity are not applicable in case of sexual assault. (15 marks)
Answer:
The Sexual Offences 2003 sates: (1) apply automatically to grant anonymity for life to a person who complains they are a victim of a sexual offence listed in the Act – even if they subsequently withdraw their complaint.
(2) From the point of complaint cannot publish anything if it is likely to lead to the identification of the complainant as a victim of such an offence, for example, name, address, photo or identity of school/college/workplace. Jigsaw effect is needed to be aware.
(3) Cannot identify the victim as a victim in any publication in any circumstances (it does not just apply to reports of sex offence proceedings).
(4) Cannot identify the victim in reports of civil proceedings (e.g. a damages claim by rape victim or in reports of Employment Tribunal proceedings.
(5) A “complaint” can be made by someone acting on the person's behalf, and to the police, a rape centre or even to a journalist for example.
Two examples of circumstances in which restrictions on identity are not applicable:
(1) The court is satisfied they impose a substantial and unreasonable restriction on the reporting of the trial and it is in the public interest to lift them;
(2) The accused satisfies the court that it is necessary to lift them to induce witnesses to come forward, and the defence would be substantially prejudiced if they are not lifted or the defendant would suffer substantial injustice;
7. Generally, common law provides for criminal proceedings to be held in public Name two exceptions whereby the press might be excluded from these proceedings involving adult defendants. (10 marks)
Answer:
Burglary: entering a building as a trespasser and stealing or attempting to steal.
Theft: dishonest appropriation or property belonging to another with the intention of permanently depriving the other of it.
Robbery: stealing by force or threat of force.
Blackmail: making an unwarranted demand with menaces.
Handling: dishonestly receiving goods, knowing or believing them to be stolen.
2. Reports of some court proceedings are restricted by the Magistrates' Court 2980. Do any such restrictions apply when the magistrates: (a) Commit a defendant for sentence at crown court?
Remand a defendant for a week to a await committal proceedings? Hear prosecution evidence begin as they try a defendant summarily on a burglary charge? State your reasons (20 marks)
Answer:
(a) No, report restriction does not apply.
As the Magistrates Court has committed the defendant for sentence at Crown Court, that means summary proceedings has already been held.
However, Magistrates Court Act 1980 does not cover cases being dealt with summarily – trial in Magistrates Court.
(b) Yes, report restriction applies.
As regards a committal hearing, under the section 8 restrictions the media can report: any decision of the magistrates to commit any defendant to Crown court for trial, unless defendant requests restrictions are to be lifted.
(c)No, report restriction does not apply.
Because restrictions do not apply once magistrates have decided to try a triable either-way offences case summarily (trial in Magistrates Court).
3. Should anything be amended in the following court report to comply with:
(a) the Magistrates' Courts Act 1980; or
(b) the Sexual Offences Act?
Explain your conclusions.
A 19-year-old woman has been accused of making a false claim of rape. Wilhelma Wigan, of St Non's Avenue, Downton, is charged with perjury by falsely signing a statement telling police she was raped. Bernard Brussells, prosecuting, told Downton Magistrates that Wigan claimed in the statement that Harry Hemnall raped her at knifepoint after following her from a nightclub. Mr. Hemnall, of Theydon Grove, Bassettford, was arrested and held by police for 17 hours. Two days later Wigan admitted the allegation was false, Mr. Brussells added. The magistrates bailed Wigan and sent her case to Crown Court for trial. (10 marks)
Answer:
The Magistrates' Court Act 1980 Section 8 ten points applies, unless decision is made to try case summarily (trial in Magistrates Court), or the defendant requests report restrictions are to be lifted.
In this case, the Sexual Offences Act 2003 does not apply, because Wigan was not raped by Harry Hemnall, so there is no need to worry revealing Wigan's identity, and she is not entitled to lifelong anonymity.
However, “Mr. Hemnall, of Theydon Grove, Bassettford, was arrested and held by police for 17 hours. Two days later Wigan admitted the allegation was false, Mr. Brussells added.” should be removed, as these details explanation of the case development was not covered by the report restriction.
Other description can be published as covered by report restriction.
4. What power does an adult criminal court have to prevent the media from identifying children or young persons involved in its proceedings? Explain the scope of this power. What is the media's legal position as regards identifying such individuals if this power is not invoked? (15 marks)
Answer:
When children or young persons appears in adult criminal court, their names can be named unless the court impose section 39 order under Children and Young Persons Act 1993, if made reporters cannot publish: (1) name; (2) address; (3) school; (4) photo; or (5) anything else likely to lead to the identification of a child or young person (under 18) involved ion the proceedings (defendant, victim, witness).
If this power is not invoked, then the media can identify these individuals.
5. Under what circumstances may the ban on identifying a child or young person appearing at youth court be lifted? (20 marks)
Answer:
Under these following circumstances the ban Section 49 Children and Young Persons Act 1933 at youth court will be lifted:
(1) by the Magistrates or the Home Secretary, to avoid injustice to the juvenile;
(2) by the youth court by the Director of Public Prosecutions (e.g. by a Crown Prosecution Service lawyer) applying for the lifting under the criminal Justice and Public Order Act 1994 in order to trace a juvenile at large after appearing in the Youth Court charged with a violent or sexual offence or any offence for which an adult could be jailed for 14 years or more; or
(3) under the Crime (Sentences) Act 1997, the Magistrates may lift the restriction on identifying a convicted juvenile after conviction where they believe it is in the public interest to do so (usually upon application by the media), but before doing so they must allow the prosecution the defence and often the media to make representations.
(4) The restrictions cease to apply once the child or young person turns 18.
(5) Section 49 does not apply to reports of the subsequent Antisocial Behaviour Order (ASBO) proceedings if ASBO is imposed; Section 49 still applies to reports of the hearing while the application is part-heard and adjourned or if no ASBO is imposed.
6. What is the law on identifying the alleged victim of a sexual assault?
Give two examples of circumstances in which restrictions on identity are not applicable in case of sexual assault. (15 marks)
Answer:
The Sexual Offences 2003 sates: (1) apply automatically to grant anonymity for life to a person who complains they are a victim of a sexual offence listed in the Act – even if they subsequently withdraw their complaint.
(2) From the point of complaint cannot publish anything if it is likely to lead to the identification of the complainant as a victim of such an offence, for example, name, address, photo or identity of school/college/workplace. Jigsaw effect is needed to be aware.
(3) Cannot identify the victim as a victim in any publication in any circumstances (it does not just apply to reports of sex offence proceedings).
(4) Cannot identify the victim in reports of civil proceedings (e.g. a damages claim by rape victim or in reports of Employment Tribunal proceedings.
(5) A “complaint” can be made by someone acting on the person's behalf, and to the police, a rape centre or even to a journalist for example.
Two examples of circumstances in which restrictions on identity are not applicable:
(1) The court is satisfied they impose a substantial and unreasonable restriction on the reporting of the trial and it is in the public interest to lift them;
(2) The accused satisfies the court that it is necessary to lift them to induce witnesses to come forward, and the defence would be substantially prejudiced if they are not lifted or the defendant would suffer substantial injustice;
7. Generally, common law provides for criminal proceedings to be held in public Name two exceptions whereby the press might be excluded from these proceedings involving adult defendants. (10 marks)
Media Law: Court reporting - 8 August 2009 (part two)
7.At an inquest into the death of a woman who had taken an overdoes of pills, her husband says she had been depressed for many years and the reasons was that, as a child, she had been sexually abused by her brother, Edward, who lives in the United States. The coroner makes no order restricting reporting of the inquest. Can the media when reporting the inquest
(a) Safely name woman as a victim of a sexual offence?
(b) Safely report the defamatory allegations against her brother, Edward? (15 marks)
Answer:
(a) According to The Sexual Offences Act 2003, the restriction can be lifted when the complaint dies, so the women can be safely names as a sexual offence.
(b) Under the defamation Act 1996 Absolute Privilege, it gives immunity from libel for court copy in all UK courts, inquests, military courts etc, provided all the defence's requirements were met:
(1)fair (balanced); (2) accurate (especially charge, name, plea and case continuing and minor inaccuracies will not defeat the privilege); (3) published contemporaneously (first available edition); and (4) the report is of judicial proceedings (not outbursts and interruptions [if people making them are not involved in the case] or reports not read out in court – defamatory outbursts are not protected. Non-defamatory outbursts may be published); (5) held in public in the UK (or in European Courts of Justice and Human Rights). Non-contemporaneous court reports get Qualified Privilege.
Therefore the defamatory allegations can be safely reported.
8. A councillor is fined by magistrates for using a television set without having a television licence. A weekly newspaper's headline to a fair and accurate report of the case, published two days after the hearing, reads: “Councillor fined for TV licence dodging”.
(a) What legal danger is there in this headline? Explain the relevant law.
(b) Write a headline that would be safe. (15 marks)
Answer:
(a) The legal danger is “fined for TV licence dodging” implies dishonesty, but there might be other reasons rather than intending to using the TV set without a licence, if so then the headline is not accurate and would be sued for libel.
(b) The safe headline would be: “Councillor fined without a TV licence”.
9 Two men appear at a magistrates' court, accused of sexually assaulting boys. The court clerk begins the hearing by checking the defendants' names and addresses with them, and she reads the charges to them. After the court grants both men bail, their solicitors ask the magistrates to make an order under section 11 of the Contempt of Court Act 1981 to prohibit publication of the defendants' home addresses because otherwise. The solicitors argue, the defendants will suffer hostility from the local community. In support of this application, the solicitors quote article 8 of the European Convention on Human Rights.
Assume that you are a reporter at this hearing, and that you draft a note to the magistrates to object to such an order being made. In the note, what would you state about:
(a) the circumstance in which a section 11 order can be imposed, and
(b) the European Convention on Human Rights? (20 marks)
Answer:
(a). Section 11 order is an order whereby the court can extend a courtroom ban on the use of someone's name or other details to prevent publication of that information by the media. Only to be granted:
(1) where necessary; (2) to avoid frustrating or rendering impractical; (3) the administration of justice; (4) not for the comfort and convenience of the defendant;
(5) cannot be used unless name and/or address has already been withheld from the public in the case.
Typically the order is used to protect blackmailed victims; protect national security, state secrets by not revealing alleged betrayal's identity; as well as forbidding reports of the case publishing the data or process details.
(b). According Article 8: Right to respect for private and family life, it includes two items, though the first one states: everyone has the right to respect for his private and family life, his home and his correspondence.
The second item then emphasizes that certain conditions are exceptions, such as “the interest of national security, public safety or the economic well-being of the country, prevention of disorder or crime,protection of health or morals, and the rights and freedoms of others”.
10. (1) 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 media reports of all or part of a particular case.
Answer:
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 rial, 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 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, in order to subject to such an order, other requirements should be met: (1) fair;(2)accurate; and (3) contemporaneous report of court proceedings held in public; (4)in good faith (meaning of good faith yet to be tested).
If in a particular case no such postponement order is made, but a media organisation is later accused of being in contempt because it published a report of the case, Section 4 provides a defence to such a charge of contempt.
Detail the requirement of this defence, as regards what the media can safely publish.
Answer:
Section 4 of the Contempt Court Act states: (1) fair;(2)accurate; and (3) contemporaneous report of court proceedings held in public; (4)in good faith (meaning of good faith yet to be tested). As long as the above requirements are met, the media can safely publish the report.
During a Crown Court trial involving several defendants, the jury is sent out of the courtroom because judge needs to hear barristers argues a legal point about what evidence should be admissible. Reporters and the public are allowed to stay in the courtroom. The judge makes no postponement order under Section 4.
Can the media publish, before the jury's verdicts are announced, a report of these legal arguments? Explain your conclusions. (30 marks)
Answer:
If the media covering the case were then to publish, before the verdict stage is complete, a report of that discussion, this could lead to the trial being aborted – if the jury thereby gets to know of that matter.
Yet the judge may not make a section 4(2) postponement order in respect of matter discussed in court in the jury's absence, because he/she expects the media to realise that it should not be published prematurely.
11. A newspaper reports that a man released from prison only last month, admits three charges of burglary and asks for three further offences to be taken into consideration when he appears before magistrates. The chairman announces that because of the man's record, they have decided to commit him in custody to Crown Court for sentence.
Do reporting restrictions under the Magistrates' Court Act 1980 apply to this story? State your reasons.(10 marks)
Answer:
As the Magistrates Court has committed him in custody to Crown Court for sentence, that means summary proceedings has already been held.
However, Magistrates Court Act 1980 does not cover cases being dealt with summarily – trial in Magistrates Court).
12. The first two sentences of a court story read: -
A window cleaner went to jail for two years yesterday when he admitted theft.
At downtown Crown Court, John Smith, (45) of Nicholson Grove. Callender, was given a two-year suspended sentence.
What is inconsistent in this story? Explain your conclusion.
Answer:
(b) A man facing three charges of burglary is jailed for six months, twelve months and eight months, the sentences to run concurrently. How long does he actually serve?
Answer:
The man should serve for 12 months in total.
(c): Community order
Absolute discharge
Conditional discharge
Answer:
Community order: To carry out the requirements of the court including unpaid work for community under direction of a probation officer or a youth offending team (could include curfews or drug or alcohol treatment).
Absolute discharge: no punishment other than the fact of the conviction is necessary.
Conditional discharge: not immediately imposed or specified any punishment, but if defendant commits any further offence within the period laid down by the court, he is liable to be punished for first offence as well as the subsequent conviction.
13. How does the law restrict photography or sketching in and around a court and publication of such a photograph or sketch?
Answer:
Under Section 41 Criminal Justice Act 1925, it is illegal: (1) to take or attempt to take any photograph of ; (2) or make or attempt to make – with a view to publishing it – any portrait or sketch; (3) any person in any court, its building, or its precincts; (4) or of any person while they are 'entering or leaving' a court building or its precincts; (4) the publication of any such photo (or film), portrait, or sketch is also prohibited, as an offence in itself; (5) The Act does not define what 'precincts' are, and this has caused practical difficulties of interpretation.
The 1925 Act has been extended to cover television in court.
Photos, particularly where identity is in issue, could also be contempt.
(a) Safely name woman as a victim of a sexual offence?
(b) Safely report the defamatory allegations against her brother, Edward? (15 marks)
Answer:
(a) According to The Sexual Offences Act 2003, the restriction can be lifted when the complaint dies, so the women can be safely names as a sexual offence.
(b) Under the defamation Act 1996 Absolute Privilege, it gives immunity from libel for court copy in all UK courts, inquests, military courts etc, provided all the defence's requirements were met:
(1)fair (balanced); (2) accurate (especially charge, name, plea and case continuing and minor inaccuracies will not defeat the privilege); (3) published contemporaneously (first available edition); and (4) the report is of judicial proceedings (not outbursts and interruptions [if people making them are not involved in the case] or reports not read out in court – defamatory outbursts are not protected. Non-defamatory outbursts may be published); (5) held in public in the UK (or in European Courts of Justice and Human Rights). Non-contemporaneous court reports get Qualified Privilege.
Therefore the defamatory allegations can be safely reported.
8. A councillor is fined by magistrates for using a television set without having a television licence. A weekly newspaper's headline to a fair and accurate report of the case, published two days after the hearing, reads: “Councillor fined for TV licence dodging”.
(a) What legal danger is there in this headline? Explain the relevant law.
(b) Write a headline that would be safe. (15 marks)
Answer:
(a) The legal danger is “fined for TV licence dodging” implies dishonesty, but there might be other reasons rather than intending to using the TV set without a licence, if so then the headline is not accurate and would be sued for libel.
(b) The safe headline would be: “Councillor fined without a TV licence”.
9 Two men appear at a magistrates' court, accused of sexually assaulting boys. The court clerk begins the hearing by checking the defendants' names and addresses with them, and she reads the charges to them. After the court grants both men bail, their solicitors ask the magistrates to make an order under section 11 of the Contempt of Court Act 1981 to prohibit publication of the defendants' home addresses because otherwise. The solicitors argue, the defendants will suffer hostility from the local community. In support of this application, the solicitors quote article 8 of the European Convention on Human Rights.
Assume that you are a reporter at this hearing, and that you draft a note to the magistrates to object to such an order being made. In the note, what would you state about:
(a) the circumstance in which a section 11 order can be imposed, and
(b) the European Convention on Human Rights? (20 marks)
Answer:
(a). Section 11 order is an order whereby the court can extend a courtroom ban on the use of someone's name or other details to prevent publication of that information by the media. Only to be granted:
(1) where necessary; (2) to avoid frustrating or rendering impractical; (3) the administration of justice; (4) not for the comfort and convenience of the defendant;
(5) cannot be used unless name and/or address has already been withheld from the public in the case.
Typically the order is used to protect blackmailed victims; protect national security, state secrets by not revealing alleged betrayal's identity; as well as forbidding reports of the case publishing the data or process details.
(b). According Article 8: Right to respect for private and family life, it includes two items, though the first one states: everyone has the right to respect for his private and family life, his home and his correspondence.
The second item then emphasizes that certain conditions are exceptions, such as “the interest of national security, public safety or the economic well-being of the country, prevention of disorder or crime,protection of health or morals, and the rights and freedoms of others”.
10. (1) 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 media reports of all or part of a particular case.
Answer:
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 rial, 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 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, in order to subject to such an order, other requirements should be met: (1) fair;(2)accurate; and (3) contemporaneous report of court proceedings held in public; (4)in good faith (meaning of good faith yet to be tested).
If in a particular case no such postponement order is made, but a media organisation is later accused of being in contempt because it published a report of the case, Section 4 provides a defence to such a charge of contempt.
Detail the requirement of this defence, as regards what the media can safely publish.
Answer:
Section 4 of the Contempt Court Act states: (1) fair;(2)accurate; and (3) contemporaneous report of court proceedings held in public; (4)in good faith (meaning of good faith yet to be tested). As long as the above requirements are met, the media can safely publish the report.
During a Crown Court trial involving several defendants, the jury is sent out of the courtroom because judge needs to hear barristers argues a legal point about what evidence should be admissible. Reporters and the public are allowed to stay in the courtroom. The judge makes no postponement order under Section 4.
Can the media publish, before the jury's verdicts are announced, a report of these legal arguments? Explain your conclusions. (30 marks)
Answer:
If the media covering the case were then to publish, before the verdict stage is complete, a report of that discussion, this could lead to the trial being aborted – if the jury thereby gets to know of that matter.
Yet the judge may not make a section 4(2) postponement order in respect of matter discussed in court in the jury's absence, because he/she expects the media to realise that it should not be published prematurely.
11. A newspaper reports that a man released from prison only last month, admits three charges of burglary and asks for three further offences to be taken into consideration when he appears before magistrates. The chairman announces that because of the man's record, they have decided to commit him in custody to Crown Court for sentence.
Do reporting restrictions under the Magistrates' Court Act 1980 apply to this story? State your reasons.(10 marks)
Answer:
As the Magistrates Court has committed him in custody to Crown Court for sentence, that means summary proceedings has already been held.
However, Magistrates Court Act 1980 does not cover cases being dealt with summarily – trial in Magistrates Court).
12. The first two sentences of a court story read: -
A window cleaner went to jail for two years yesterday when he admitted theft.
At downtown Crown Court, John Smith, (45) of Nicholson Grove. Callender, was given a two-year suspended sentence.
What is inconsistent in this story? Explain your conclusion.
Answer:
(b) A man facing three charges of burglary is jailed for six months, twelve months and eight months, the sentences to run concurrently. How long does he actually serve?
Answer:
The man should serve for 12 months in total.
(c): Community order
Absolute discharge
Conditional discharge
Answer:
Community order: To carry out the requirements of the court including unpaid work for community under direction of a probation officer or a youth offending team (could include curfews or drug or alcohol treatment).
Absolute discharge: no punishment other than the fact of the conviction is necessary.
Conditional discharge: not immediately imposed or specified any punishment, but if defendant commits any further offence within the period laid down by the court, he is liable to be punished for first offence as well as the subsequent conviction.
13. How does the law restrict photography or sketching in and around a court and publication of such a photograph or sketch?
Answer:
Under Section 41 Criminal Justice Act 1925, it is illegal: (1) to take or attempt to take any photograph of ; (2) or make or attempt to make – with a view to publishing it – any portrait or sketch; (3) any person in any court, its building, or its precincts; (4) or of any person while they are 'entering or leaving' a court building or its precincts; (4) the publication of any such photo (or film), portrait, or sketch is also prohibited, as an offence in itself; (5) The Act does not define what 'precincts' are, and this has caused practical difficulties of interpretation.
The 1925 Act has been extended to cover television in court.
Photos, particularly where identity is in issue, could also be contempt.
Monday, 19 July 2010
Media Law: Court reporting - 8 August 2009 (part one)
1. In what circumstances may an advocate be allowed to treat a person as a hostile witness? What is the effect of being declared a hostile witness? (10 marks)
Answer:
The circumstances is if a witness appears to be refusing to testify or go back on a witness statement given previously.
The effect is the witness may be asked leading questions by the side who called him.
Example of a leading questions.
2. List what restrictions on identification are applicable if a child or young person:
(a) appeals to Crown Court against a youth court's findings of guilt; appeals to Queens' Bench Divisional Court;
(b) appears on indictment at Crown Court;
(c ) appears at an adult magistrates' court jointly charged with an adult? (15 marks)
Answer:
(a) When a child or young person appeals to Crown Court against a youth court's finding of guilt, Section 49 Children and Young Persons Act 1933 applies.
When appeals to Queen's Bench Divisional Court, as it is part of High Court, section 49 applies.
So anonymity automatically applies that forbids reporting: (I)(1) the name; (2) address; (3) school; (4) photograph, or (5) any particulars likely to lead to the identification. (II) of any child or young person (under 18). (III) involved in the case (whether as defendant, victim or witness).
In addition, jigsaw effect need to be aware.
(b) When a child or young person appears on indictment at Crown Court (adult court), the child can be named unless the court makes a Section 39 Order under Child and Young Persons Act 1933.
If made, you cannot publish: (I)(1) name; (2) address; (3) school; (4) photo; or (5) anything else likely to lead to the identification. (II) of a child or young person (under 18); (III) involved in the proceedings (defendant, victim, witness).
(c ) When a child or young person appears at an adult magistrates' court jointly charged with an adult. Section 39 Order still applies, reporting restriction is the same as (b) answer.
3. A youth court convicts a girl aged 16 of stealing from local shops. The prosecution lawyer then asks the court to impose an anti-social behaviour order on the girl because she is a persistent shoplifter. This lawyer argues that the order should ban her from entering any local shop for a year.
(a) Do any restrictions prevent the media from identifying the girl in a report of the theft case? Explain the law.
(b) Can the media identify the girl in a report of the hearing on whether an ASBO should be imposed on her? Explain the law. (30 marks)
Answer:
(a) As a youth court convicts a girl of stealing goods. Under Section 49 Children and Young Persons Act 1933, anonymity automatically applies that forbids reporting: (I)(1) the name; (2) address; (3) school; (4) photograph, or (5) any particulars likely to lead to the identification. (II) of any child or young person (under 18). (III) involved in the case (whether as defendant, victim or witness).
In addition, jigsaw effect need to be aware.
(b) When the ASBO hearing is made in the Youth Court, it is Bolt-On ASBOs. Section 49 Children and Young Persons 1933 still applies to report of the ASBO hearing, so anonymity automatically applies and the media can identify her. All the restriction see (a) answer.
Reporter cannot report details taken from the criminal trail, nor can he report that the juvenile was convicted of the criminal offence. He can merely report that ASBO was made, its terms and against whom.
However, Anti-Social Behaviour Act 2003 – S49 does not apply to reports of the subsequent ASBO proceedings if ASBO is imposed.
4. If a defendant is found guilty at Crown Court but sentence is postponed what is a newspaper's position in the law of contempt should it wish to publish a background article in connection with the case before sentence is passed? (10 marks)
Answer:
As the sentence is postponed, the proceedings are still active. In this case, newspaper is highly likely to publish a background article which creates a substantial risk of serious prejudice. Such as:
(1)stating that the person arrested is the same person who committed the crime;
(2)Publishing photo, photo-fit or detailed description if identification is in issue and there is going to be an ID parade, or if identification may be an issue at trial – a witness is expected to testify at the trial on such visual identification;
(3)using the word - “murder” it may be manslaughter or an accident;
(4)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;
(5)previous convictions;
(6)background material/lifesyle; or
(7)anticipating or influencing the verdict.
5. What are the rights to attend the youth court of: -
(a) the public;
(b) the press?
Name the relevant Act of Parliament. (10 marks)
Answer:
Under Children & Young Persons Act 1993 the public cannot generally attend Youth Court.
However, journalists are entitled to attend and report cases there, because section 47 Children and Young Persons Act 1933 states that “bona fide representatives of news gathering or reporting organisation can.”
(6) List details in the following court report which should be deleted to conform to laws in the U.K. The answer must clearly indicate how conclusions are reached.
George William Roberts (42), a plasterer of Ashby Road, Luggtown, has bee remanded on bail by the town's magistrates, charged with voyeurism. The charge says he hid a camera in the bathroom of a 32-year-old ballet teacher.
Bail was conditional on his reporting daily to police and not going to Lake View Road.
Reporting restrictions were not lifted. (15 marks)
Answer:
Because reporting restriction were not lifted, so section 8 Magistrates Court Act ten points applies:
(1) Name, age, occupations, address of the defendant, which the report has given details, are covered by the Court Act; (2) arrangement to bail on adjournment and bail condition, as the reports states, is also covered by the Act; (3) the offences with which the defendant is charged, or a summary of the charge can be reported and the report has given these details.
According to The Sexual Offences Act 2003, (1) from the point of complaint, the newspaper cannot publish anything likely to lead to the identification of the complainant as a victim of such an offence. So anything leads her identification such as name, address, photo or identity of school/college/workplace have to be prohibited.
“The charge says he hid a camera in the bathroom of a 32-year-old ballet teacher” and “not going to Lake View Road” should be deleted because of possibility of revealing her identification.
(2) Restriction applies automatically to grant anonymity for life to a person who complains they are a victim of a sexual offence. So the women enjoys lifelong anonymity.
Answer:
The circumstances is if a witness appears to be refusing to testify or go back on a witness statement given previously.
The effect is the witness may be asked leading questions by the side who called him.
Example of a leading questions.
2. List what restrictions on identification are applicable if a child or young person:
(a) appeals to Crown Court against a youth court's findings of guilt; appeals to Queens' Bench Divisional Court;
(b) appears on indictment at Crown Court;
(c ) appears at an adult magistrates' court jointly charged with an adult? (15 marks)
Answer:
(a) When a child or young person appeals to Crown Court against a youth court's finding of guilt, Section 49 Children and Young Persons Act 1933 applies.
When appeals to Queen's Bench Divisional Court, as it is part of High Court, section 49 applies.
So anonymity automatically applies that forbids reporting: (I)(1) the name; (2) address; (3) school; (4) photograph, or (5) any particulars likely to lead to the identification. (II) of any child or young person (under 18). (III) involved in the case (whether as defendant, victim or witness).
In addition, jigsaw effect need to be aware.
(b) When a child or young person appears on indictment at Crown Court (adult court), the child can be named unless the court makes a Section 39 Order under Child and Young Persons Act 1933.
If made, you cannot publish: (I)(1) name; (2) address; (3) school; (4) photo; or (5) anything else likely to lead to the identification. (II) of a child or young person (under 18); (III) involved in the proceedings (defendant, victim, witness).
(c ) When a child or young person appears at an adult magistrates' court jointly charged with an adult. Section 39 Order still applies, reporting restriction is the same as (b) answer.
3. A youth court convicts a girl aged 16 of stealing from local shops. The prosecution lawyer then asks the court to impose an anti-social behaviour order on the girl because she is a persistent shoplifter. This lawyer argues that the order should ban her from entering any local shop for a year.
(a) Do any restrictions prevent the media from identifying the girl in a report of the theft case? Explain the law.
(b) Can the media identify the girl in a report of the hearing on whether an ASBO should be imposed on her? Explain the law. (30 marks)
Answer:
(a) As a youth court convicts a girl of stealing goods. Under Section 49 Children and Young Persons Act 1933, anonymity automatically applies that forbids reporting: (I)(1) the name; (2) address; (3) school; (4) photograph, or (5) any particulars likely to lead to the identification. (II) of any child or young person (under 18). (III) involved in the case (whether as defendant, victim or witness).
In addition, jigsaw effect need to be aware.
(b) When the ASBO hearing is made in the Youth Court, it is Bolt-On ASBOs. Section 49 Children and Young Persons 1933 still applies to report of the ASBO hearing, so anonymity automatically applies and the media can identify her. All the restriction see (a) answer.
Reporter cannot report details taken from the criminal trail, nor can he report that the juvenile was convicted of the criminal offence. He can merely report that ASBO was made, its terms and against whom.
However, Anti-Social Behaviour Act 2003 – S49 does not apply to reports of the subsequent ASBO proceedings if ASBO is imposed.
4. If a defendant is found guilty at Crown Court but sentence is postponed what is a newspaper's position in the law of contempt should it wish to publish a background article in connection with the case before sentence is passed? (10 marks)
Answer:
As the sentence is postponed, the proceedings are still active. In this case, newspaper is highly likely to publish a background article which creates a substantial risk of serious prejudice. Such as:
(1)stating that the person arrested is the same person who committed the crime;
(2)Publishing photo, photo-fit or detailed description if identification is in issue and there is going to be an ID parade, or if identification may be an issue at trial – a witness is expected to testify at the trial on such visual identification;
(3)using the word - “murder” it may be manslaughter or an accident;
(4)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;
(5)previous convictions;
(6)background material/lifesyle; or
(7)anticipating or influencing the verdict.
5. What are the rights to attend the youth court of: -
(a) the public;
(b) the press?
Name the relevant Act of Parliament. (10 marks)
Answer:
Under Children & Young Persons Act 1993 the public cannot generally attend Youth Court.
However, journalists are entitled to attend and report cases there, because section 47 Children and Young Persons Act 1933 states that “bona fide representatives of news gathering or reporting organisation can.”
(6) List details in the following court report which should be deleted to conform to laws in the U.K. The answer must clearly indicate how conclusions are reached.
George William Roberts (42), a plasterer of Ashby Road, Luggtown, has bee remanded on bail by the town's magistrates, charged with voyeurism. The charge says he hid a camera in the bathroom of a 32-year-old ballet teacher.
Bail was conditional on his reporting daily to police and not going to Lake View Road.
Reporting restrictions were not lifted. (15 marks)
Answer:
Because reporting restriction were not lifted, so section 8 Magistrates Court Act ten points applies:
(1) Name, age, occupations, address of the defendant, which the report has given details, are covered by the Court Act; (2) arrangement to bail on adjournment and bail condition, as the reports states, is also covered by the Act; (3) the offences with which the defendant is charged, or a summary of the charge can be reported and the report has given these details.
According to The Sexual Offences Act 2003, (1) from the point of complaint, the newspaper cannot publish anything likely to lead to the identification of the complainant as a victim of such an offence. So anything leads her identification such as name, address, photo or identity of school/college/workplace have to be prohibited.
“The charge says he hid a camera in the bathroom of a 32-year-old ballet teacher” and “not going to Lake View Road” should be deleted because of possibility of revealing her identification.
(2) Restriction applies automatically to grant anonymity for life to a person who complains they are a victim of a sexual offence. So the women enjoys lifelong anonymity.
Sunday, 4 July 2010
Defamation defence part I (draft)
1. A daily newspaper reporter is attending a trial. By his deadline time, only the prosecution case has been heard. In the law of libel, can his newspaper publish a report at this stage? Give your reasons.
Answer:
The newspaper cannot publish the report at this stage.
The daily newspaper reporter is attending a trial, that means the reporter is reporting court cases. So automatically the journalist enjoys absolute privilege.
For Absolute privilege to apply, according to the Defamation Act 1996, a court case report must be “fair and accurate”. This does not mean that the proceedings must be reported verbatim; a report will still be “fair and accurate” if:
(I)it presents a summary of both side
(ii)it contains no substantial inaccuracies;
(iii) it avoids giving disproportionate weight to one side or the other
Provided it complies other requirement of absolute privilege defence:
(I)accurate (especially charge, names, plea and case continuing)
(II) published contemporaneously (first available edition); and
(III) the report is of judicial proceedings (do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
(IV) held in public in the UK (or in European Courts of Justice and Human Rights).
As by the reporter's deadline, only the prosecution case has been heard, he/she is unable to write a balanced copy.
In a case in 2006, (Bennett v Newsquest, see Media Lawyer newsletter, No 64), Mr Justice Eady pointed out that a newspaper story which reported a criminal case and which reported a criminal case and which was the subject of a libel action. He said:
“The report must be fair overall and not give a misleading impression. Inaccuracies in themselves will not defeat privilege. Omissions will deprive a report of privilege if they create a false impression of what took place or if they result in the suppression of the case of part of the case of one side, while giving the other.”
If the report is held to be unfair or inaccurate in any important respect, the media organisation publishing it loses the protection of privilege.
(b). When a defendant charged with a summary offence in a magistrates court takes his place in the dock a man in the public gallery shouts: “He is innocent. The policeman beat him up”. Discuss whether this comment can be used safely in the light of the laws of defamation.
Answer:
The answer's safety depends on the content itself is defamatory or not.
The comment is made during the court proceedings, according to the Defamation Act 1996, it states for absolute privilege to apply, the report is:
of judicial proceedings (not outbursts or interruptions [if people making them are not involved in the case] or reports not read out in court – so do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
In general, absolute privilege extends only to the actual report of proceedings held in open court.
It does not protect, for example, defamatory matter shouted out in the court, e.g. from the public gallery by someone who is not part of the proceedings. However, if shouted comment is not defamatory, it can in libel law be reported safely whoever made it.
So in this case, if the shouted content is not defamatory, the paper can publish it safely; but if the content is defamatory, then the paper cannot publish it safely.
2. A reader threatens to sue a newspaper for defamation. The reporter who wrote the feature which contained the alleged defamation says to the Editor. “We've noting to fear. I showed the full feature to the reader before publication because it was a complicated story, he agreed with it and had the chance to reply to the allegations in it about him”.
In the law of defamation, is the reporter correct? The answer must indicate how conclusions are reached.
Answer:
The reporter is incorrect.
The defence in his case is justification. It states:
Justification means truth and applies to statements of fact. To establish this the defendant must prove, on the balance of probabilities, the truth of the words both in substance and in fact, in their natural and ordinary meaning and of every innuendo, inference and imputation that can be reasonably drawn from the words.
The danger of justification defence in this case is though the reporter said he showed the reader before publication (plus the reporter himself/herself even admit it was a complicated story), and it seems the reader agreed with it and had the chance to reply to the allegations in it about him.
However, there is no indication to say the reporter persuaded the witness to sign a written statement at the time and date it. Or such testimony could be an audio-recording of any witness willing to testify against the claimant.
Apart from the danger relevant with the case said above, other dangers of justification defence are (which might apply if the paper is sued on a later stage):
(I)credibility/reliability/availability of witnesses e.g. where there is a time gap.
(II)If stick to defence all the way to trial - greater damages likely to be awarded for aggravation and substantial costs.
(III)Difficult to prove, especially where meaning created by inference or innuendo.
(IV)Sometime may be best financially to settle out of court because of large awards of damages and substantial costs in going to trial.
(V)Uncertainty of outcome – what meaning will the jury find?
Answer:
The newspaper cannot publish the report at this stage.
The daily newspaper reporter is attending a trial, that means the reporter is reporting court cases. So automatically the journalist enjoys absolute privilege.
For Absolute privilege to apply, according to the Defamation Act 1996, a court case report must be “fair and accurate”. This does not mean that the proceedings must be reported verbatim; a report will still be “fair and accurate” if:
(I)it presents a summary of both side
(ii)it contains no substantial inaccuracies;
(iii) it avoids giving disproportionate weight to one side or the other
Provided it complies other requirement of absolute privilege defence:
(I)accurate (especially charge, names, plea and case continuing)
(II) published contemporaneously (first available edition); and
(III) the report is of judicial proceedings (do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
(IV) held in public in the UK (or in European Courts of Justice and Human Rights).
As by the reporter's deadline, only the prosecution case has been heard, he/she is unable to write a balanced copy.
In a case in 2006, (Bennett v Newsquest, see Media Lawyer newsletter, No 64), Mr Justice Eady pointed out that a newspaper story which reported a criminal case and which reported a criminal case and which was the subject of a libel action. He said:
“The report must be fair overall and not give a misleading impression. Inaccuracies in themselves will not defeat privilege. Omissions will deprive a report of privilege if they create a false impression of what took place or if they result in the suppression of the case of part of the case of one side, while giving the other.”
If the report is held to be unfair or inaccurate in any important respect, the media organisation publishing it loses the protection of privilege.
(b). When a defendant charged with a summary offence in a magistrates court takes his place in the dock a man in the public gallery shouts: “He is innocent. The policeman beat him up”. Discuss whether this comment can be used safely in the light of the laws of defamation.
Answer:
The answer's safety depends on the content itself is defamatory or not.
The comment is made during the court proceedings, according to the Defamation Act 1996, it states for absolute privilege to apply, the report is:
of judicial proceedings (not outbursts or interruptions [if people making them are not involved in the case] or reports not read out in court – so do not publish defamatory outbursts – they are not protected. Non – defamatory parts of outbursts may be published);
In general, absolute privilege extends only to the actual report of proceedings held in open court.
It does not protect, for example, defamatory matter shouted out in the court, e.g. from the public gallery by someone who is not part of the proceedings. However, if shouted comment is not defamatory, it can in libel law be reported safely whoever made it.
So in this case, if the shouted content is not defamatory, the paper can publish it safely; but if the content is defamatory, then the paper cannot publish it safely.
2. A reader threatens to sue a newspaper for defamation. The reporter who wrote the feature which contained the alleged defamation says to the Editor. “We've noting to fear. I showed the full feature to the reader before publication because it was a complicated story, he agreed with it and had the chance to reply to the allegations in it about him”.
In the law of defamation, is the reporter correct? The answer must indicate how conclusions are reached.
Answer:
The reporter is incorrect.
The defence in his case is justification. It states:
Justification means truth and applies to statements of fact. To establish this the defendant must prove, on the balance of probabilities, the truth of the words both in substance and in fact, in their natural and ordinary meaning and of every innuendo, inference and imputation that can be reasonably drawn from the words.
The danger of justification defence in this case is though the reporter said he showed the reader before publication (plus the reporter himself/herself even admit it was a complicated story), and it seems the reader agreed with it and had the chance to reply to the allegations in it about him.
However, there is no indication to say the reporter persuaded the witness to sign a written statement at the time and date it. Or such testimony could be an audio-recording of any witness willing to testify against the claimant.
Apart from the danger relevant with the case said above, other dangers of justification defence are (which might apply if the paper is sued on a later stage):
(I)credibility/reliability/availability of witnesses e.g. where there is a time gap.
(II)If stick to defence all the way to trial - greater damages likely to be awarded for aggravation and substantial costs.
(III)Difficult to prove, especially where meaning created by inference or innuendo.
(IV)Sometime may be best financially to settle out of court because of large awards of damages and substantial costs in going to trial.
(V)Uncertainty of outcome – what meaning will the jury find?
Thursday, 1 July 2010
Media law - contempt part II (draft)
4. A minibus carrying pupils of a school is involved in a crash in Oxshire. Ten of the pupils die. Two others, and the teacher who was driving the vehicle, are taken to hospital with serious injuries. When the inquest is formally opened, a police inspector tells the coroner that there is a possibility of criminal proceedings against the teacher.
A national newspaper has prepared, before the crash happened, a feature alleging an unsatisfactory standard of maintenance of many school minibuses, inadequate safety arrangements for pupils travelling in them, and poor driving skills of many of the teachers who drive them.
Can the newspaper safely proceed to publish this feature? The answer must indicate how you reach your conclusions.
Answer:
The newspaper cannot safely proceed to publish this feature.
As the police says there is a possibility of criminal proceedings against the teacher, therefore, the pre-trial publication should be taken into consideration by the court:
(I)The likelihood of the publication coming to the attention of a potential juror;
(II)the likely impact on an ordinary reader;
(III)and, crucially, the residual impact on a notional juror at the time of trial;
The materials published in the newspaper will potentially create a substantial risk of serious prejudice, and it might have adverse effect on jury's judgement.
5. After a woman's body is found in woodland, a local newspaper prepares news feature about her “murder”, having learned who she is. It discovers her husband has previous convictions for violence against her. Neighbours give interviews to reporters about seeing and hearing violent confrontations between the couple in recent months.
People who live near the woodland describe to reporters a man allegedly seen there late at night, just before the body was discovered.
All this material is included in the draft feature.
Just before the newspaper's deadline, police announce that the husband is now under arrest in their inquiries into the woman's death.
Explain, in light of contempt laws, what material must be altered in or deleted from the feature, and why.
Explain what material can safely be published. (ignore defamation issues).
Answer:
As just before the newspaper's deadline, police announce that the husband is now under arrest in their inquiries into the woman's death, therefore, the criminal case becomes active.
Strict liability contempt – contempt of court act 1981 states that if proceedings become active, then media organisation 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 may be 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 conviction;
(VI)background material/lifestyle; or
(VII)anticipating or influencing the verdict.
The newspaper cannot use the word “murder”, as it maybe find out he is not guilty at the end of the trial; the newspaper must delete her husband's previous convictions for violence against her, as it might have adverse effect on the jury's judgement; the newspaper also need to alter the neighbour's interviews saying that they saw and heard violent confrontations between the couple in recent months, as these background materials/lifestyle will have impact on jury as well.
What the newspaper can publish is that a man allegedly seen there late at night, just before the body was discovered, according to those who live near the woodland.
A national newspaper has prepared, before the crash happened, a feature alleging an unsatisfactory standard of maintenance of many school minibuses, inadequate safety arrangements for pupils travelling in them, and poor driving skills of many of the teachers who drive them.
Can the newspaper safely proceed to publish this feature? The answer must indicate how you reach your conclusions.
Answer:
The newspaper cannot safely proceed to publish this feature.
As the police says there is a possibility of criminal proceedings against the teacher, therefore, the pre-trial publication should be taken into consideration by the court:
(I)The likelihood of the publication coming to the attention of a potential juror;
(II)the likely impact on an ordinary reader;
(III)and, crucially, the residual impact on a notional juror at the time of trial;
The materials published in the newspaper will potentially create a substantial risk of serious prejudice, and it might have adverse effect on jury's judgement.
5. After a woman's body is found in woodland, a local newspaper prepares news feature about her “murder”, having learned who she is. It discovers her husband has previous convictions for violence against her. Neighbours give interviews to reporters about seeing and hearing violent confrontations between the couple in recent months.
People who live near the woodland describe to reporters a man allegedly seen there late at night, just before the body was discovered.
All this material is included in the draft feature.
Just before the newspaper's deadline, police announce that the husband is now under arrest in their inquiries into the woman's death.
Explain, in light of contempt laws, what material must be altered in or deleted from the feature, and why.
Explain what material can safely be published. (ignore defamation issues).
Answer:
As just before the newspaper's deadline, police announce that the husband is now under arrest in their inquiries into the woman's death, therefore, the criminal case becomes active.
Strict liability contempt – contempt of court act 1981 states that if proceedings become active, then media organisation 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 may be 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 conviction;
(VI)background material/lifestyle; or
(VII)anticipating or influencing the verdict.
The newspaper cannot use the word “murder”, as it maybe find out he is not guilty at the end of the trial; the newspaper must delete her husband's previous convictions for violence against her, as it might have adverse effect on the jury's judgement; the newspaper also need to alter the neighbour's interviews saying that they saw and heard violent confrontations between the couple in recent months, as these background materials/lifestyle will have impact on jury as well.
What the newspaper can publish is that a man allegedly seen there late at night, just before the body was discovered, according to those who live near the woodland.
Media law - contempt part I (draft)
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.
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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