Court Reporting 3 - Contempt and Other Matters

Strict liability contempt occurs when publication of material creates a substantial risk that the course of justice in a particular court case or a particular criminal investigation which is active will be seriously prejudiced or impeded, irrespective of whether there was intent to create that risk.

Under sections 1 and 2 of the Contempt of Court Act 1981, it is a strict liability offence to publish material that creates a substantial risk of serious prejudice. Strict liability means that the prosecution, when seeking to prove that this type of contempt was committed, does not have to prove that whoever published the material intended to create the risk.

Anyone who publishes such material can be prosecuted. However, non-prejudicial basic information about a crime can be published - e.g. that there was a robbery, where it took place, and that someone was later arrested. You should not report that 'the robber was arrested' as this suggests the crime took place.

In most cases, it will not be contempt to name an arrested person because they will be named at the trial. But to publish the identity of an arrested person or suspect before they are charged incurs a risk as regards defamation, privacy, and data protection law.

In contempt law it is safe to identify the alleged victims of crimes before a prosecution begins. Bur a reporting restriction may apply to media reports of the court case. Also, vicitms/alleged victims of sexual offences, trafficking, forced marriage, and FGM offences have automatic lifetime anonymity from the time the offence is alleged.

• The likelihood of publication coming to a potential juror's attention
• Its likely impact on an ordinary reader
• The residual impact on a notional juror at the time of a trial

The court will also consider whether what was published would have given rise to a seriously arguable ground of appeal if the trial had been allowed to continue and ended with a conviction.

This section says that a person is not guilty of contempt of court under the strict liability rule if at the time of distribution having taken all reasonable care they did not kone the publication contained such matter and had no reason to suspect it did.

This enables a magistrates' court, Crown court, or court of appeal to order a third party to pay costs incurred in a court case if these arose from serious misconduct by that third party. This could be ruled to have occurred through publication of material or through a reporter's actions even if there was no breach of the 1981 act's strict liability rule. If a trial is abandoned because of 'serious misconduct' the media organisation help responsible could become liable for huge costs if a new trial has to be held.

This section gives a court power to postpone publication of media reports during trials:

• where this appears necessary for avoiding a substantial risks of prejudice to the administration of justice
• In any other proceedings, pending or imminent

In some circumstances it could be argued that fair, accurate, and contemporaneous reporting of a trial could prejudice a later stage of that case or other proceedings linked to it, e.g. reports of a first trial could prejudice a second trial.

A juror in the second trial who remembers reading media reports of the first trial, or who is told about such reports, might be more likely to find the defendants guilty.

The period of postponement may be as long as the court thinks necessary. Publishing material which breaches section 4(2) is punishable as contempt, with a fine unlimited by statute and/or up to two years in jail.

Section 4(2) orders can also apply at inquests.

The section says: "A publication made as part of a discussion in good faith of public affairs and 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 is merely incidental to the discussion."

The defence was introduced because of complaints that freedom of expression in the UK was unnecessarily restricted by a ruling in a 1975 case in which the Sunday Times wanted to publish an article about thalidomide at a time when civil actions were pending against the manufacturer. The House of Lord ruled the proposed article would be in contempt

Essentially you can do this by saying it is in the public interest to report a case.

• Audio recording without permission
• Seeking to discover or to publish information from a jury's confidential discussions about a verdict
• Publishing an account of the proceedings or a court hearing held in private
• Publishing information made in breach of an order under the 1981 act e.g. by naming a blackmail victim in reports of a court case
• Publishing information in breach of an injunction made in common law

It is illegal to use any audio-recording device, including a phone, in court without permission.

The ban is under Section 9 of the Contempt of Court Act 1981, which makes it contempt to:

• use in court, or bring into court for use, any tape recorder or instrument for recording sounds, without the permission of the court
• to publish any recording of legal proceedings by means of any such instrument

If a court does give permission to record, it is a breach of section 9 to use that recording in contravention of any condition specified by the court.

The general purpose of the ban is to ensure the administration of justice is not undermined. Also it's to stop secret recordings being made in the public gallery who could use them to intimidate witnesses. Also to stop dishonest witnesses from colluding in false corroboration.

The Chief Coroners' guidance is that a journalist can, if appropriate, be permitted to record inquest proceedings but only as an aide memoire for reporting

Photography and filming in courtrooms and their precincts is banned by law. It is illegal without a court's authority to capture any sounds or image from an official transmission of its proceedings. Publication of any such illegally obtained material is an offence too. This also applies to tribunals.

These laws protect the administration of justice. A witnesses' testimony could be disrupted if they become distressed because someone in the public gallery is photographing and recording them. This could prevent a just outcome to the case. Similarly, a juror or defendant could become anxious about being filmed in such locations.

In 2019, Stephen Yaxley-Lennon (Tommy Robinson) was jailed for nine months for filming defendants in a sexual grooming case as they arrived at Leeds Crown Court. The High Court ruled these actions committed common law contempt as they were within the court's precincts.

The Police, Crime and Sentencing Courts Act 2002 amended Section 85A of the Court Act 2003 so that courts (including most tribunals) can now allow an audio or video live stream of any proceedings. However, the legislation also amends Section 85B of the 2003 Act, which makes it an offence to make or try to make an unauthorised recording of the court's transmission of proceedings.

It is a defence for someone charged with this offence to prove they were not in the designated live-streaming premises and did not know, and could not reasonably have known, that the image or sound was being transmitted in court proceedings.

Law made in 2020 allows TV companies, when arrangements are authorised in advance, to film senior judges sentencing defendants at Crown court and to broadcast this footage. This law does not permit anyone else to be filmed nor any other part of the proceedings.

A court can ban the media from reporting a person's name and other information. It says:

• A court can ban the publication of a name or other matter in the proceedings as long as it has first allowed that information to be withheld from the public. 

Section 11 orders are not used routinely but typical uses are:

• to protect the identity of victims/alleged victims of blackmail involving a secret
• to protect commercially sensitive information or secret processes
• to protect national security and state secrets

It is generally acknowledged that departing from the open justice principle by excluding journalists and the public from a court hearing or part of it is only justified in common law in three circumstances:

• when their presence would frustrate the process of justice e,g, affecting the willingness of a victim to give evidence
• when unchecked publicity would defeat the object of the proceedings e.g. when a case concerns a trade secret and the presence of the public or reporting of the case would lead to the secret being revealed
• When the court is exercising a parental role to protect the legitimate interests of vulnerable people, e.g. children

A section 11 order should not be made to protect the 'comfort and feelings' of a defendant - not like when Evesham Mags decided a defendant's address shouldn't be given out as he feared harassment from his ex-wife.

Page 34 of the Judicial College Guidance warns courts that banning the disclosure of a defendant's address creates the risk of inadvertent defamation in that the public might wrongly think someone entirely unconnected to the case but with the same name is the defendant.

This section gives a court power to make an order that:

• no matter relating to a witness who is aged 18 or older during a person's lifetime can be included in any publication if the matter is likely to lead members of the public to identify them as being a witness

However, the act says the order can only be made if:

• the quality of the person's evidence is likely to be diminished by reason of fear or distress with being identified
• granting such anonymity is likely to improve the quality of the witnesses' evidence or their level of cooperation

The wording of section 46 means the order's normal scope is that no detail could identify the witness should be included in a report of the case or any published reference to it - name, address, school/work, still/moving picture

It is a defence to prove:

• they were not aware of and neither suspected nor had reason to suspect the publication included the matter or report in question
• the witness gave written consent for the material to be published

The written consent defence will fail if it's proved the consent was obtained by interfering with their peace or comfort

Gives courts similar anonymising powers to Section 46 orders but in respect of a witness or alleged victim under 18.

Applications for a person to have either such anonymity are most likely to be made to the prosecution but can be made by the defence

This section makes it a criminal offence for a person to intentionally obtain, solicit or disclose in regard to juries:

• statements made
• opinions expressed
• arguments advanced
• votes cast

A juror who discloses such detail, other than to the court, would in almost all circumstances breach the law.

The ban can be breached even if what is published does not identify the juror.

Exceptions in Section 20E mean if as part of the public proceedings anyone refers to such detail for the purpose of enabling the jury to arrive at their verdict or in connection with the delivery of that verdict, what is said can be reported unless the judge forbids it.

This gives journalists permission to report cases using Twitter/X or by emailing/posting text directly onto the internet with a phone or laptop without having to ask permission. This was allowed in 2011.

This is set out in Criminal Practice Direction 2.4 and says:

• the devices must be silent and unobtrusive
• a court can decide at any time to forbid use of such devices

This general permission applies only for journalistic purposes and does not extend to non-accredited journalists or members of the public.

The Chief Coroners' Guidance says that journalists attending inquests are permitted to use phones and laptops for live text-based communications for the sole purpose of reporting proceedings but it must be done silently. The coroner can ban the use of devices if they feel it's necessary.