Contempt of court
1. It is an offence to publish 1 material which creates a substantial (real) risk that the course of justice in the proceedings will be seriously impeded or prejudiced 2. This applies only if the relevant proceedings are active.
2. "Prejudicial material" includes previous convictions 3, confessions 4, assertions of guilt 5 and prejudicial photographs 6.
3. Section 2 of the Contempt of Court Act 1981 limits the common law rule that conduct may be treated as contempt regardless of intention, to circumstances where publication would create a substantial risk that justice will be seriously impended or prejudiced.
4. It is not a contempt of court if the risk of prejudice created by a publication is merely incidental to a discussion of matters of general public interest 7. You may wish, for example, to publish a report of an accident which is of public importance but contains material which may prejudice the defendant in particular proceedings. This will not constitute a contempt of court if the information is incidental to the main thrust of the report. You should seek legal advice if you have any doubts.
5. There is an express right to publish a fair, accurate and contemporaneous report of public legal proceedings 8. A report will be "contemporaneous" if published as soon as is practicable after any temporary legal restriction on reporting has ended9.
6. The court may order that the publication of certain matters heard in court should be postponed for a specified period, where there is a substantial risk of prejudice to the proceedings in question or any other proceedings pending or imminent10. For example, where one trial is part of a series and premature publication of evidence common to all of them might prejudice later proceedings, a court is likely to order that publication of information should be postponed.
7. However, courts are increasingly reluctant to impose postponement orders 11 where there is an alternative course of action 12 or to permit orders that are unnecessarily wide 13, especially where the risk is of only slight or trivial prejudice 14.
- For the definition of a “publication”, see Contempt of Court Act 1981 (“CCA”), s.2(1). At common law it is a contempt, with intent to impede or prejudice the administration of justice, to publish material calculated to prejudice the fair trial of a pending or imminent cause. It is also a contempt of court to publish prejudicial matter knowing or having good reason to believe the criminal proceedings are imminent For a detailed discussion of the case law, see Archbold ‘Criminal Pleading, Evidence and Practice’ (2010) edition, paragraphs 28-59 to 28-137.
- CCA 1981, S.2(2). A substantial risk is one that is more than minimal. For a possible defence (innocent publication or distribution), see CCA 1981, s.3.
- Solicitor General v News Group Newspapers Ltd , COD 307 DC; Attorney General v Morgan and Another  EMLR 294; Attorney General v Associated Newspapers Ltd. “The Independent”,  EMLR. 711, DC.
- Attorney General vTimes Newspapers Ltd (February 12, 1983) DC
- Attorney General v News Group Newspapers Plc  QB 110, DC
- Attorney General v News Group Newspapers Ltd. 6 Cr App. R(S) 418
- CCA 1981, s.5
- CCA 1981, s.4(1)
- For a report, which was neither fair, nor contemporaneous, see Walers v Sunday Pictorial  1 W.L.R. 967, CA
- CCA 1981, s.4(2). Excessive publicity may be considered as prejudicial to the Defendant’s chances of a fair trial and could result in an acquittal or a successful appeal. R v McCann  92 Cr App R 239; R v Taylor and Taylor, 98 Cr App. R.361 CA
- It will rarely be appropriate to impose a postponement order on reporting of committal proceedings in view of the restrictions already imposed by s.8, MCA 1980: R v Beaconsfield Justices, ex parte Westminster Press Ltd TLR, 28 June 1994, QBD
- R v Central Independent Television Plc  1 All ER 347 – overturning the trial judge’s order postponing television and newspaper reports while the jury was deliberating on its verdict in the hotel overnight: even if there was a substantial risk of serious prejudice (which was doubted) it would have been more appropriate to order that the jury be denied access to television and newspapers while at their hotel.
- R v Horsham Justices, ex parte Farquharson  All ER 269 – a blanket ban on publication of the entire proceedings ruled to be too wide; after the evidence had been led, the reporting of only that part which was necessary, in the interests of justice, to suppress for the time being should have been postponed.
- MGN Pension Trustees v Bank of America (Serious Fraud Office intervening)  2 All ER 355, Ch D.