Reporting on criminal cases

To what extent is justice aided or hindered by press restriction?

Since the arrest and imprisonment of Tommy Robinson for contempt of court there has been a lot of complaints from members of the public both in the UK and abroad who are concerned that a “journalist” could be imprisoned for doing their job in the UK. Americans seem particularly shocked at what has happened, so I thought I’d take a few minutes to investigate the law and consider why it is as it is.

What is the law in the UK?

Criminal contempt is a common law offence that involves a serious interference with the administration of justice or creates a real risk that the administration of justice will be prejudiced. It cannot be a mere non-compliance with court orders.

Insofar as journalists and other publishers of news content go, section 1 of the Contempt of Court Act 1981 is very important because it tells us that where information is published with the intention of it being consumed by the public at large then that publication will be a crime if it tends to interfere with the course of justice regardless of the intention of the publisher. In short, if you publish material that could interfere with justice then you are guilty whether or not you intended the publication to interfere with justice. This makes it what is known as a strict liability offence. Please note that there is no requirement that justice is actually prejudiced.

There is a defence contained in section 3 of the Act that lets off people who publish innocently. This really means those who neither know nor suspect that proceedings are live and those who do not know that what they publish may interfere with justice – although there is a caveat that such a defendant must show that they have taken reasonable steps to avoid publishing anything prejudicial before they can successfully defend a prosecution.

You’ll have noticed that the section 3 defence applies to people who do not know that proceedings have begun, in fact, the strict liability rule created by section 1 only applies once proceedings are underway, so what does that mean? The answer is in Schedule 1 of the Act, which tells us that proceedings begin when an arrest is made or a summons issued.

So, what can be published?

Section 4 deals with reporting contemporaneous to the proceedings and tells us that “… fair and accurate report[s] of legal proceedings held in public, published contemporaneously and in good faith” are allowed. Section 5 also tells us that, “[a] publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

So, you can see that a journalist would be allowed to report the general facts of a case such as that Mr Knowlden has been arrested on a charge of torturing kittens and the trial is underway. As witnesses give evidence, our journalist could also report what witnesses have said in court, provided that they do so accurately and fairly. One thing they absolutely cannot do is shout at defendants and witnesses on camera telling the world that they are kitten torturers when they have not been convicted as such.

For what it’s worth, in writing this blog I am relying firmly on the out provided by section 5 should anyone be thinking of accusing me of contempt.

Hang on, didn’t I read that this elite liberal biased judge has blocked reporting illegally?

Well yes… sort of. I don’t pretend to know the politics of any particular judges, but they do have the power to delay publication of court proceedings.

Section 4(2) of the Act reads,

“In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.”

This is a limited power to prevent publication, which a judge can only exercise where there is a substantial risk that either the current proceedings or proceedings that are imminent will be prejudiced. The judge cannot exercise this power on a whim or to protect a special class of defendant.

What’s to stop a judge acting on a whim is the press itself. One thing you’ll find if you do any serious criminal work is that the press have excellent lawyers working for them. If they think that they should be able to publish information then they will send those lawyers to court to argue their case. If they don’t win and they think the judge is acting unlawfully or unreasonably then the press will send their very excellent lawyers to the Queen’s Bench Division of the High Court with instructions to judicially review the judge’s decision.

Hey, cuck, that’s all great but the case Tommy was reporting on was already finished so what gives?

Ahh, I suspect you are referring to the latest conviction for contempt of court where it has been claimed that the case was already over when Mr “Robinson” reported on it. I have no idea if it was over or not as publication of details have been barred, but I suspect that the fact they have been barred tells us that the case was not over since if it were then the court’s power to delay publication would have ended and, with the best will in the world, the Sun and friends are not going to delay publication if they feel that a judge has no power to prevent them.

Schedule 1 of the Contempt of Court Act 1981 not only tells us when proceedings begin, but also when they end. Paragraph 5 informs us that proceeding conclude, in the vast majority of cases, upon acquittal or sentence being passed. So, if the defendants in the case Robinson was reporting on were attending for sentence then the proceedings would still have been live.

Incidentally, if those proceedings have concluded and the restrictions remain, as they clearly do, then it is likely to be because of a linked case. Such linked cases are not unusual nor are they confined to allegations of sexual misconduct. Many years ago when I was a recent graduate, I spent three months sitting in Harrow Crown Court watching a drug dealing trial for a firm of solicitors who had a linked case following on from that one.

How do we compare to the USA?

The US law on contempt by publication derives from the same source as the UK law, namely decisions in cases such as Roache v Garvan 2 Atk 469 (Ch. 1742) and the reports of the law made by Blackstone, but our law and theirs have taken very different paths, particularly with the passing of the Federal Act 1881 that restricted the power of courts to find people in contempt to such misbehaviour that occurs in the presence of the court or so close to it as to obstruct the administration of justice.

We must also consider the First Amendment to the Constitution, which guarantees the right to free speech and a free press following Gitlow v. New York, 268 U.S. 652 (1925) where it was said that,

"[F]reedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States."

The US have fiercely guarded their free press to the point where “national security” was not a good enough reason to prevent the New York Times publishing classified Defense Department documents in New York Times v. United States, 403 U.S. 713 (1971).

America’s history and their love affair with the notion of free speech has so shaped their opinions on the rights of individuals not only to speak as they wish but also to receive news of what is happening around them that the notion of judges restricting those rights, even temporarily, is alien to them. That is why we have seen so much surprise and outrage from the US, particularly from American lawyers, for whom the ideals of free speech is sacred.

Why can’t we say what we like about court cases?

The purpose of our contempt of court laws, at least those dealing with publication of ongoing court cases, exist to protect the trial process and, on the whole, they work well. Anecdotally, I have read many reports of American defence lawyers seeking to prevent a trial going ahead because of biased reporting. In the UK, I have considered such an approach a few times in cases that received wide spread media coverage. I’ve never yet found sufficient material upon which even to found an application because the press here know the rules and stick to it meaning that trials are very rarely prejudiced by reporting of proceedings.

Let’s play a game of make believe for a moment. We’re going to pretend that we are a young woman who has been raped by a famous and well-loved footballer. Because this footballer is well loved, public opinion is that he is innocent, and we are lying. There are no restrictions on the press who pick up on the public mood and soon there are stories appearing from ex-partners and ex-friends selling their tell all stories for a fee. Now, we have to go to court and give evidence to a jury who have read for months that we sleep around, we’re only interested in men with money, we’ll do anything for a big pay day – the sort that we might get in compensation from a wealthy footballer whose just been convicted of raping us. In our scenario, the rape happened; the footballer is guilty. Is it right that we, as the victim, should have to go before a jury who has had months of reading stories about us that are likely to prejudice their view of our evidence before we even take the oath?

We’ll switch it around now. Let’s imagine that we are a wealthy businessman whom the press hate. We’ve been accused of a historic rape by a woman we have never heard of much less met and raped. Again, the press have no restrictions on the reports they can make. Suddenly, we’re facing an assault on our character from all sides of the media. By the time we get to court, we’re begging the judge to kick our case out because there’s no way we can have a fair trial now. But, he refuses and so we have to face a jury who may well be hostile to us because of everything they’ve read prior to joining the jury.

Is it fair on either of those people that the press should be allowed to conduct a character assassination if the mood takes them?

Here’s the rub, do people, who are wholly unconnected to a court case, have the right to have their appetite for gossip sated to the point that their rights outweigh those of the right of a victim to have their accusation aired fairly? Does the public at large have a right to be titillated by the press to the detriment of those accused, rightly or wrongly, of crimes?

I would argue that it is entirely reasonable to temporarily restrict the press to reporting only accurately and fairly during a trial. It is also, in my opinion, reasonable to impose sensible temporary restrictions in cases where there is a significant risk of the trial being prejudiced. These are not secret trials, you can still take yourself to the court and go in to see what is happening. You can still tell your friends all about it. You just can’t publish the information until the risk of prejudice has subsided.