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Contempt of Court and Reporting Restrictions

Contents:

Law

The concept of contempt was established at common law as "an act or omission calculated to interfere with the administration of justice". The common law is still the starting point for determining what constitutes a contempt, and case law has established the powers of courts to deal with contempt.

Criminal Justice Act 1925

Section 41 creates a contempt to take any photograph, make or attempt to make any portrait or sketch of a justice or a witness in, or a party to, any proceedings before the court, either in the courtroom or its precincts.

Administration of Justice Act 1960

Section 12 creates contempts in particular circumstances of reports of proceedings of courts sitting in private such as proceedings under the Children Act 1989.

Criminal Procedure (Attendance of Witnesses) Act 1965

Section 3 permits the summary punishment of a person who disobeys a witness order or witness summons as if the contempt had been committed in the court and limits punishment to a maximum of three months' imprisonment.

Magistrates' Court Act 1980

Section 97 permits a magistrates' court to commit to custody for a maximum of one month or to impose a fine of up to £2500 on a person appearing in the court who refuses to be sworn or give evidence or produce a document or thing.

Contempt of Court Act 1981

  • Limits liability for contempt under the "strict liability rule" (sections 1- 7)
  • Deems jury interference as contempt (section 8)
  • Prohibits the use of tape recorders etc in court or bringing sound recording equipment into court without leave of the court and deems publication of a sound recording as a contempt (section 9)
  • Provides limited protection against contempt for a person refusing to disclose the source of information contained in a publication for which he is responsible (section 10)
  • Empowers magistrates' courts to deal with contempt in the face of the court by imposition of a fine of £2500 or committal to custody for a maximum of one month or both (section 12)
  • Restricts the period of committal to prison for contempt where there is no express limitation to 2 years for a superior court and one month for an inferior court (section 14).

Criminal Procedure and Investigations Act 1996

Section 18 creates a contempt of court where a person knowingly uses or discloses an object or information contained in it if the use or disclosure contravenes section 17. The magistrates' court may commit a person guilty of this contempt to prison for a maximum of 6 months, or impose a fine that does not exceed £5000 or both. The Crown Court may commit to custody for a maximum of 2 years or impose an unlimited fine or both.

Quasi Contempt

There are other statutory restrictions on the reporting of proceedings which, if breached are not contempts but substantive offences. Examples include:

  • section 39 Children and Young Persons Act 1933 - prohibition on publication in a newspaper, sound and television broadcast only of a name, address or school calculated to identify a child or a picture of a child concerned in the proceedings, as a victim, witness or defendant. Identification through other means eg social media is not covered by section 39 (confirmed by Tugenhadt J in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279)
  • Section 49 Children and Young Persons Act 1933 - automatic restriction on publication in a newspaper report and programme service (as defined in section 101 Broadcasting Act 1990) only of a name, address or school or any particulars likely to identify a child or a picture of a child concerned in the proceedings as a victim, witness or defendant
  • section 8 Magistrates' Courts Act 1980 - Restrictions on reports of committal proceedings;
  • section 5 Sexual Offences (Amendment) Act 1992 - prohibits publication of details that identify a victim of rape or other serious sexual offence who has anonymity.

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Guidance

Powers

All courts and those tribunals that are not merely administrative but exercise the judicial power of the State are protected by the law of contempt. At common law, only courts of record have an inherent power to punish for contempt and their powers of punishment vary according to their status as 'superior' or 'inferior' courts. Proceedings brought under the Contempt of Court Act 1981 are in practice initiated by the Attorney General, and the CPS may be involved in preparing papers on his or her behalf. "Quasi contempt" offences are usually investigated by the police and prosecuted by the CPS.

There are two main forms of contempt, but the burden of proof is to the criminal standard whether the contempt is criminal or civil.

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Contempt "in the face of the court"

This can arise before, during or after criminal proceedings being prosecuted at either the Crown Court or the magistrates' court. This is sometimes described as "criminal contempt" irrespective of the court in which the proceedings are heard.

A Crown Court may deal with contempt "in the face of court" when the contempt is committed either:

  • in the courtroom itself (for example, interrupting or interfering with the proceedings); or
  • in the court building where it has been reported to the judge (for example, threatening a witness waiting to give evidence); or
  • beyond the courtroom and the court's precincts, when it is reported to the judge and it relates to proceedings whether in progress or pending (for example, improper approaches to witnesses or jurors).

The Crown Court is a superior court of record (section 45(4) of the Supreme Court Act 1981) but its inherent power to make an order of committal of its own motion is restricted to the following circumstances:

  • Contempt "in the face of the court", which has been interpreted broadly and is not confined to any contempt seen by the judge; or
  • Disobedience of a court order; or
  • Breach of an undertaking to the court (DPP v Channel Four Television Co. Ltd. [1993] 2 All E.R. 517).

The power should be exercised only when it is urgent and it is important to act immediately. In the absence of urgency, the matter should be referred to the Attorney General to consider bringing proceedings in the Queen's Bench Division (Balogh v St. Albans Crown Court [1975] 1 Q.B. 73).

Criminal contempt is usually raised by the court itself or by the Attorney General. A contempt involving a Crown Court that does not fall in any of the above categories is to be dealt with by the Administrative Court in accordance with CPR Schedule 1, RSC Order 52.

When a Crown Court judge indicates that he/she wishes to deal with someone for contempt, prosecutors must ensure that prosecuting counsel is in a position to assist the court with as much information as possible, including relevant authorities. When contempt is not admitted, the trial should take place at the earliest opportunity.

In (R v Callum Iain McLeod 20.12.200? TLR), the Court of Appeal held there was no reason why a trial judge could not be considered to be an independent and impartial tribunal for proceedings for contempt of court. Sometimes the contempt may be sufficiently serious to justify proceedings for a criminal offence (for example perverting the course of justice or witness interference); however the court may prefer to deal with the conduct as part of its inherent jurisdiction to administer justice in a speedy and orderly manner.

Where a magistrates' court exercises a statutory power to deal with contempt the hearing should be before a bench of justices other than those justices before whom the alleged contempt took place.

When an investigation into contempt of court is required, the prosecution advocate in court should immediately inform the DCCP who should bring the matter to the immediate attention of the relevant Chief Superintendent and the AGO. The Police and the CPS should utilise the pre-charge advice process in order to case manage the investigation.

All requests for advice from police in respect of contempt issues should be recorded on an MG3, registered on CMS from the outset and an action plan set. Local escalation procedures should be agreed and applied to ensure that any failure in case progression is rectified.

The CPS will submit a report to the AGO within 10 days of receipt of the police report/advice file to CPS at the conclusion of the police investigation

Where police wish to interview jurors about a tainted acquittal or jury intimidation an application for such interviews should be made to the Court of Appeal. This is not a legal requirement but a practice agreed with the Court of Appeal, which applies even where the trial judge has purported to give permission for such enquiries or even directed they take place.

The CPS should notify the AGO before making the application, which should be made via the Crown Court and passed to the Court of Appeal for consideration. The Court of Appeal may draft questions to elicit the information required.

The purpose of the procedure is to protect the sanctity of jury deliberations and the basis for their decisions in any given case. It also prevents breach of section 8 Contempt of Court Act 1981.

If in any doubt regarding the procedure to be adopted contact the CPS Policy Helpdesk at hqpolicy@cps.gsi.gov.uk or 020 3357 0873 or the Attorney General's Office on 020 7271 2400.

Any case where the judiciary directs that the papers are referred to the CPS for any reason, such as the investigation of possible perjury or interference with a juror, should be notified to the CCP/DCCP. See Referral of case to CPS Headquarters, elsewhere in the Legal Guidance.

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'Constructive' or indirect contempt

'Constructive' or indirect contempt, e.g. the publication of a newspaper article prejudicing a forthcoming trial (this may also be referred to as 'Strict Liability Contempt', although publication of such prejudicial matter may also be a contempt at common law). This is known as a civil contempt.

Civil contempt is not a criminal offence, even if committed in connection with a criminal case: (Cobra Golf Ltd v Rata [1998] Ch. 109). Contempt by breach of an undertaking to the court is not unusual in civil cases but is rare in criminal cases. One example would be where a sentence was mitigated on the basis of an undertaking made by someone to repay money stolen by the defendant. Giving such an undertaking, if it misleads the judge, may amount to a contempt of court and possibly to a criminal offence such as perjury (where the undertaking is given on oath) or perverting the course of justice. Where the conduct may amount to being a distinct criminal offence (particularly where it could amount to perjury, where the defendant has the right to jury trial and there is a statutory requirement for corroborative evidence) it would normally be appropriate to refer the matter to be investigated by the police.

Civil contempt is usually raised by one of the parties to the proceedings. See also Archbold 28-39. The Attorney General may intervene in order to institute proceedings in the Administrative (Divisional) Court of the Queen Bench Division in appropriate cases under Criminal Procedure Rules Schedule 1, RSC Order 52.

Once such a breach has come to light, it is the responsibility of the court to summon the alleged contemner. However, because it is undesirable that the court should then act as prosecutor, and judge, it is appropriate for the CPS to assist by instructing an advocate to place the circumstances of the matter before the court and question the alleged contemner in case of any dispute. Such cases will be very rare but in the event of such an occurrence, steps should be taken to instruct the original advocate at the hearing. The responsibility for providing the CPS with the relevant transcripts and post trial documents lies with the Ministry of Justice.

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Strict Liability Contempt under the Contempt of Court Act 1981

The strict liability rule may render the publication a contempt regardless of any intent to interfere with the course of justice in the proceedings. Refer to The Law, earlier in this guidance, applies:

  • to publications (including broadcasts , websites and other online or text-based communication) addressed to the public at large or any section of the public;
  • which create a substantial risk that the course of public justice will be seriously impeded or prejudiced. Risk is judged at the time of publication. The longer the gap between publication and the trial ('the fade factor'), the less the substantial risk of serious prejudice is likely to be;
  • and only applies to legal proceedings that are "active" at the time of the publication.

"Active" is defined in Schedule 1 Contempt of Court Act 1981 and proceedings are active if a summons has been issued or a defendant arrested without warrant. Where a warrant has been issued, proceedings cease to be active once twelve months' have elapsed without the suspect's arrest, and where there has been an arrest when the suspect is released without charge otherwise than on bail.

Proceedings also cease to be active where they conclude by, inter alia, acquittal/sentence, any other order bringing proceedings to an end, or by discontinuance/operation of law.

Note: Common law contempt may be committed where proceedings are pending or imminent (albeit not necessarily active for the purposes of the 1981 Act), and where there is actual intent to interfere with the administration of justice in those proceedings.

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Orders postponing or prohibiting full reports of proceedings

Any restriction on reporting is contrary to the general rule in favour of open justice, and the fair and accurate reporting of public court proceedings.

Article 10 of the European Convention on Human Rights (the right to freedom of expression (the freedom both to impart and to receive information, regardless of frontiers), is a qualified right, and interference of it in the form of restrictions may be appropriate where this is necessary and proportionate in pursuit of a legitimate aim such as the protection of the rights of others to a fair trial (Article 6 ECHR), or to privacy (Article 8 ECHR).

However interference is only appropriate to the extent to which it is truly necessary, and there should be no interference (or a lesser degree of interference) where the result might be achieved by other means.

Prosecutors should be familiar with statutory restrictions which can apply to the reporting of proceedings:

  • without the need for a specific order of the court, such as anonymity afforded to complainants in cases of a sexual nature; prohibition on reporting the identity of defendants appearing in the youth court (section 49 Children and Young Persons Act 1933) and restrictions on the reporting of committal proceedings (section 8 of the Magistrates' Court Act 1980);
  • only after the court makes a specific order such as a prohibition on reporting the identity of any child or young person appearing in the magistrates court or Crown Court as a victim, witness or defendant (section 39 Children and Young Persons Act 1933).

Prosecutors should not take a neutral stance and should:

  • draw the court's attention to these provisions in open court where it enables the court to make appropriate orders and give advice to the media;
  • understand the ECHR rights that are engaged and assist the court to respect and protect the rights of victims, witnesses and defendants;
  • oppose reporting restrictions that they do not consider necessary for a fair trial;
  • seek reporting restrictions only where necessary e.g. to protect the identity of a witness, or to protect a forthcoming prosecution involving the same defendant or prosecution witness, where it is considered that publicity of the first trial is likely to prejudice the proceedings which are pending. Any application should therefore seek only such restrictions and for such period as are necessary to meet the interests of justice;
  • provide a draft order to the court when an order is sought to ensure that the requirements of the Consolidated Criminal Practice Direction above are met.

The Consolidated Criminal Practice Direction, Part 1, paragraph 1.3 requires any order made to be recorded in some permanent form, by committing it to writing, as soon as possible after it is made, and make clear:

  • it's precise scope;
  • if applicable, the time at which it shall cease to have effect (should, for instance, it be an order under section 4(2) of the 1981 Act);
  • the specific purpose of the making of the order.

Courts should announce the making of an order in court and bring the order to the attention of members of the press/media who are not in court at the time it is made: for instance, by making a note of the existence of the order next to the case in the court list. A copy of the order should also be available in the court office for inspection, and court staff should be prepared to answer questions relating to the order.

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Specific Orders

Section 4(2) of the Contempt of Court Act 1981 gives the court power to make orders postponing publication to avoid substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings that are either pending or imminent. Where the court announces that it is considering making a "blanket Order" under section 4(2), the prosecutor is under a duty to remind the court that an Order is open to challenge if it is too wide and there is a risk that the order will be quashed and no protection provided.

Other issues with which a prosecutor may provide assistance to the court are:

  • the legal effect of the making of the order
  • the effect of a refusal to make the order
  • drawing the court's attention to any relevant matters that it should consider when deciding whether to make such an order.

Section 11 Contempt of Court Act 1981 gives the court the power to make a direction prohibiting the publication of a name or other matter but only where the court has exercised either its inherent or statutory jurisdiction to withhold a name or other matter from the public in the proceedings. It is rare for the court to make such a direction in respect of a defendant. Section 11 is not enacted for the comfort and feelings of defendants (Evesham Justices ex p McDonagh [1988] QB 553)

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Breach of Orders: Identification of Newspapers and Other Publications as Defendants

When a proposed defendant is a newspaper or other publication and a body corporate, it is essential that the defendant is identified correctly. This is as true in prosecutions of media organisations as it is in the case of any prosecution involving a company. If the wrong 'person' is prosecuted, this will provide an absolute defence and this will be especially important if proceedings are brought for a matter subject to a statutory time-limit (STL). It is not possible to substitute the name of the defendant, if wrongly identified, if the STL has expired as this would amount to laying of information outside the STL.

The investigating officer is primarily responsible for the correct identification of the defendant company, but the prosecutor should be ready to assist the officer with advice in this respect and. should separately confirm that the defendant company has been correctly identified.

When prosecuting newspapers for 'quasi contempt' offences contrary to section 39 of the Children and Young Persons Act 1933 and section 5 of the Sexual Offences Act (Amendment) 1992 (for breaching anonymity), it is essential to remember that the appropriate defendant to prosecute is the publisher, not the printer, although in many cases it will also be appropriate to consider the public interest in prosecuting the editor as well.

Particular care is needed in the matter of a publishing company which may have separate legal companies dealing with different aspects of the publishing process. It is essential to ensure that it is the publisher that is correctly identified and summonsed.

There is no case law to determine whether an online edition of a newspaper or periodical is a "newspaper or periodical" for the purposes of section 5(1)(a) or whether it is "any other publication" as set out in section 5(1)(c) Sexual Offences (Amendment) Act 1992 (SO(A)A 1992). However, section 6 SO(A)A 1992 explains that: "publication" includes any speech, writing, relevant programme, or other communication in whatever form, which is addressed to the public at large or a section of the public.

Where matter that contravenes section 1 SO(A)A 1992 is published in an online edition of a newspaper or periodical, prosecutors should bring proceedings under section 5(1)(c)SO(A)A 1992 against "any person publishing it".

The law of defamation gives a wide interpretation to the concept of a 'publisher' where the term is intended to capture all those who had played a role in bringing a publication into existence, not just those who were literally responsible for (for example) arranging the type-set and handling the dissemination of the publication. Any editor of an online newspaper who has responsibility for drafting or approving any articles would appear to fall within the definition of "any person publishing it" under section 5(1)(c) SO(A)A 1992, as would the proprietor of the publication.

Prosecutors should note the defence in section 5(5) SO(A)A 1992 that at the time of the alleged offence the defendant was not aware, and neither suspected nor had reason to suspect, that the publication included the matter in question. This may be raised by a corporate publisher who argues that competent and properly trained personnel such as journalists, editors and lawyers were employed to check the copy before publication.

Prosecutors are required to notify and consult the Area Complex Casework (CCU) in any cases that raise issues of liability under section 5(1)(a) or 5(1)(c) SOA(A)1992, the defence under section 5(5) SOA(A) 1992 or other unusual complexities.

Prosecutors should notify the Area CCU of all cases involving breach of reporting restrictions under sections 39 and 49 Children and Young Persons Act 1933. It is good practice to notify AGO of such cases.

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Practice

Duties

Criminal Procedure Rules Part 62 codifies the procedure for dealing with contempt laid down at common law or followed in practice: www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/part_62.htm.

The CPS has a duty to protect the integrity of the trial process and to ensure that victims and witnesses who should not be identified receive that protection. Where a contempt issue arises, the reviewing lawyer should bring the matter to the attention of the Unit Head. The Press Office should also be kept informed.

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Contempt/quasi contempt that requires the consent of the Attorney General

The following contempt/quasi contempts are either brought by the Attorney General or require his/her consent:

  • section 1 Contempt of Court Act 1981
  • section 8 Magistrates' Court Act 1981
  • section 4(5) Sexual Offences (Amendment) Act 1976 and section 5 Sexual Offences (Amendment) Act 1992.

There does not appear to be any restriction on prosecutions in the following contempts/quasi contempts but in practice they should be referred to the Attorney General to consider bringing proceedings in the Divisional Court in accordance with Criminal Procedure Rules Schedule 1, RSC Order 52:

  • sections 4, 8 and 11 Contempt of Court Act 1981;
  • section 9 Contempt of Court Act 1981 if the incident is not treated as a criminal contempt in the face of the court;
  • section 12 Administration of Justice Act 1960
  • section 11 Criminal Justice Act 1987
  • sections 37 and 38 Criminal Procedure and Investigations Act 1996.

The following quasi contempts do not require the Attorney General's consent, but it is good practice to make the Attorney General's Office aware of such cases before an information is laid:

  • sections 39 and 49 Children and Young Persons Act 1933
  • section 41 Criminal Justice Act 1925.

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Notifying the Law Officers

The Attorney General has a public interest function, part of which is to ensure the fair and proper administration of justice. In exercising his or her functions in relation to contempt, the Attorney General is acting independently of Government, in a public interest capacity, to ensure that justice is protected and accordingly takes it proper course. It is imperative that where an allegation of contempt of court arises, it is referred immediately to the Attorney General. Cases should be referred immediately even though further investigation is required or is being carried out and particularly where an Order has been made for the matter to be referred to the Attorney General.

In a case of strict liability contempt, that is, a publication may create a substantial risk of serious prejudice or impediment to the course of justice in proceedings, prosecutors should refer the following documents to the Attorney General's Office:

  • background note and summary of evidence (this could be done by supplying any police report)
  • date when proceedings became active (for instance, date of arrest or issue of warrant)
  • date of committal for trial (if this has taken place)
  • proposed date of trial, or likely date of trial (this is crucial information, as it may help in assessing the likely 'fade factor')
  • opinion of truth or otherwise of publication
  • catchments area and circulation figures of publication, if known: this information may be available by consulting the free ABC online resource (www.abc.org.uk), where a certificate of circulation may be downloaded.

The Attorney General's Press Officer must be informed immediately if material appears to have been published or is about to be published in a current or pending case which may have a prejudicial effect on the ongoing proceedings. Areas should contact the Attorney General's Press Officer on 020 7271 2465, who will ensure that the relevant Attorney General's Office Legal Adviser is alerted.

The CPS Press Office at Rose Court, Headquarters should also be notified. This will ensure that the Director is informed.

The Attorney General and the CPS Press Officer will need the following information:

  1. Summary of the prosecution case, including any Orders made in relation to publicity.
  2. Details of the potential or actual prejudice (that is, in what way the publication may adversely affect the proceedings).
  3. Copies of any existing press coverage and/or any draft article/TV programme which has been obtained from the newspaper/TV company concerned.
  4. Summary of what, if any action CPS has taken/plans to take.
  5. A chronology where appropriate.

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Appeals

Appeals against orders

Magistrates' courts: decisions may be challenged by way of application for judicial review to the Administrative Court.

Crown Court: section 159 Criminal Justice Act 1988 provides that a person aggrieved may appeal to the Court of Appeal, with the leave of that Court, against an order made under section 4 or section 11 Contempt of Court Act 1981. The appellant will usually be the press or a broadcasting authority. Rule 16A Criminal Appeal Rules 1968 provides rules for appeals under section 159 Criminal Justice Act 1988 against orders made in the Crown Court restricting or preventing reports of proceedings. The respondent has only three days after receiving notice from the applicant in which to provide written notification to the Registrar of Criminal Appeal of an intention to respond. An application to the Registrar under Rule 16A (3) of the 1968 Rules to be made a respondent should be made if leave to appeal is granted.

Where prosecution has taken a neutral stance at the lower court, the same position will be adopted at the Court of Appeal or Divisional Court.

Appeals against a finding or finding and sentence combined

Where an appeal is lodged against a finding in a contempt case, or against a finding and sentence, the Court of Appeal may, in appropriate cases, request the assistance of an advocate to the court. Such a request will be directed to the Attorney General's Office since the appointment of an amicus is a matter for the Attorney General. If the Attorney General is satisfied that the attendance of an amicus is necessary, counsel will be instructed by the Treasury Solicitor on behalf of the Law Officers.

Appeal against sentence only

Where an appeal is lodged against sentence only, CPS will instruct a Prosecution Advocate to assist the court with the facts of the case. The practice of the Court of Appeal is to expedite the hearing in such cases and therefore a Prosecution Advocate will need to be instructed without delay.

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Useful Information

The Practice Direction Contempt of Court Act 1981 (1983) 76 Cr App R 78.

Reporting restrictions in the Criminal Courts, published by the Judicial Studies Board, the Newspaper Society, the Society of Editors and Times Newspapers Ltd, October 2009.

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