Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings

Revised: 11 May 2018|Legal Guidance

Contents

Guidance

“Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms” – Att.-Gen. v Punch Ltd [2002] UKHL 50 at [2].

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" (e.g. Crown Courts) or "inferior" (e.g. magistrates’ court) courts.

There are two main forms of contempt – criminal and civil - but the burden of proof for both is to the criminal standard - Dean v Dean [1987] 1 FLR 517 CA. “The question whether contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on the nature of the conduct. To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial. Conversely, disobedience to a procedural order of a court is not in itself a crime, just because the order was made in the course of criminal proceedings.” – R v O’Brien [2014] UKSC 23 at [42].

Criminal Contempt

A criminal contempt is conduct which goes beyond mere non-compliance with a court order and involves a serious interference with the administration of justice - Director of the Serious Fraud Office v B [2014] A.C. 1246. The general description of the nature of criminal contempt in Robertson and Gough [2007] HCJAC 63 is “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”. In short, it is behaviour which so threatens the administration of justice that it requires punishment from a public point of view.

The main types of criminal contempt are failing to answer questions in court, physically interfering with a trial, threatening witnesses and conduct obstructing or calculated to prejudice the due administration of justice. It can arise before, during or after criminal proceedings at either the Crown Court or the magistrates' court, or in the course of any civil proceedings.

Actus reus and mens rea of criminal contempt

The actus reus of common law criminal contempt is an act or omission which creates a real risk of prejudice to the administration of justice. However, it is not necessary that the proceedings are actually prejudiced, and conduct which indicates a wilful defiance of or disrespect to the court, or which challenges or affronts the authority of the court as the guardian of the rule of law will suffice. The mens rea is an intention to interfere with the administration of justice. However, following Solicitor General v Cox [2016] EWHC 1241 (QB), this intention can be inferred from the circumstances. It is sufficient proof of the necessary mens rea that the act was deliberate and either in breach of the criminal law or a court order which the person knew of. It is not necessary that the contemnor should know what the criminal law prohibits before he can be found to have committed contempt.

Practice and Procedure for dealing with Criminal Contempt

In Morris v Crown Office [1970] 2 Q.B. 114, CA the Court of Appeal stated that, in order to maintain law and order (upon which freedom depends) the judges have a wide power “to deal at once with those who interfere with the administration of justice.” R v Dodds [2002] EWCA Crim 1328 sets out the minimum requirements for a fair hearing where the contempt is dealt with summarily. These include that the contemnor is told what they are said to have done wrong, understand the defences available, has a reasonable opportunity to make representations and to seek legal advice.

The summary procedure for criminal courts dealing with criminal contempt is set out at Rule 48.5 CrimPR. The court explains the conduct and sets out the court’s powers, allows the respondent an opportunity to apologise, and decides whether to take no further action or in the alternative to enquire into the conduct there and then. The Crown Court can postpone the enquiry to another day and arrange for statements to be provided. However that enquiry must be done on the same day in the magistrates’ court, although the enquiry can be put back until later in the day.

Generally, resort to the summary procedure will be justified where there is a need for the court to act decisively, to show that its authority has not been undermined, and to demonstrate that behaviour of the kind perpetrated will never be tolerated and that it will be dealt with quickly and severely.

Crown Court power to deal with criminal contempt

The Crown Court is a superior court of record (s 45(1) of the Senior Courts Act 1981) but its inherent power to make an order of committal of its own motion is restricted. It can deal with contempt "in the face of the court", which has been interpreted broadly and is not confined to contempt seen by the judge; 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).

A Crown Court judge's power to commit summarily for contempt should be exercised only where the contempt is clear and it is urgent and imperative 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 QB 73).

The summary procedure at Rule 48.5 applies in the Crown Court where the court observes, or someone reports to the court, a contravention of s3 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (disobeying a witness summons), s20 of the Juries Act 1974 (disobeying a jury summons), s8 of the Contempt of Court Act 1981 (obtaining details of a jury’s deliberations, etc.), s9 of the Contempt of Court Act 1981 (without the court’s permission, recording the proceedings, etc.) or any other conduct with which the court can deal as, or as if it were, a criminal contempt of court. Section 14 of the Contempt of Court Act 1981 provides for a maximum period of committal of 2 years in the Crown Court.

In R v Callum Iain McLeod [2001] Crim. L.R. 589, 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, thus avoiding the public cost of separate proceedings and investigation, provided that its sentencing powers are sufficient to reflect the severity of the conduct.

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 enquiry should take place at the earliest opportunity.

Magistrates’ Court power to deal with criminal contempt

A magistrates’ court’s jurisdiction is limited in comparison to that of the Crown Court.

By the provisions of s12 of the Contempt of Court Act 1981 it has jurisdiction only to deal with any person who wilfully insults the justice or justices, any witness or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or wilfully interrupts the proceedings of the court or otherwise misbehaves in court. These are forms of criminal contempt. The maximum penalty the magistrates’ court can impose is one month’s imprisonment or a fine up to £2,500.

In magistrates’ courts the summary procedure at Rule 48.5 applies where the court observes, or someone reports to the court a contravention of s 97(4) of the Magistrates’ Courts Act 1980 (refusing to give evidence), s 12 of the Contempt of Court Act 1981 (insulting or interrupting the court, etc.), section 9 of the Contempt of Court Act 1981(without the court’s permission, recording the proceedings, etc.) or any other conduct with which the court can deal as, or as if it were, a criminal contempt of court. Section 14 Contempt of Court Act 1981 provides for contempt in the magistrates’ court to be dealt with by an order to any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court.

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. However that enquiry/hearing must be done on the same day in the magistrates’ court although the enquiry/hearing can be put back until later in the day.

Rules 48.9 and 48.16 CrimPR apply where the magistrates’ court deals with unauthorised disclosure of prosecution material under sections 17 and 18 of the Criminal Procedure and Investigations Act 1996.

Referral

When a contempt issue arises the prosecutor should be available to assist by reference to the procedure. Where the contempt only comes to light after the case has concluded, or the penalty which the court can impose does not reflect the seriousness of the offending, the matter may be referred to the Attorney General to consider instigating contempt proceedings in the High Court. Where this may apply, the reviewing lawyer should bring the matter to the attention of the Unit Head, early contact should be made with the Attorney General’s Office to flag the matter and explain that papers will be sent over and the Press Office should also be kept informed.

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 Cases - Cases to be notified to CCP/DCCP, elsewhere in the Legal Guidance.

All requests for advice from police in respect of contempt issues that amount to a criminal offence 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 if it is determined that criminal charges are insufficient to reflect the seriousness of the offending.

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 2492.

Civil contempt

Civil contempt refers to conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed. Civil contempt is usually raised by one of the parties to the proceedings. Although the penalty for a civil contempt contains a punitive element, its primary purpose is coercion of compliance. A person who commits that type of contempt does not acquire a criminal record and it is not a criminal offence, even if committed in connection with a criminal case (Cobra Golf Ltd v Rata [1998] Ch. 109). Examples of civil contempt include disobedience of a court or undertaking by someone involved in litigation, and proceedings will normally be commenced by the other party aggrieved by it.

Contempt by breach of an undertaking is rarer in criminal proceedings than civil ones. Examples include failure to comply with restraint orders or Terrorism Act investigation orders in the Crown Court, or unauthorised use of disclosed prosecution material in the Magistrates’ or Crown Court (see CrimPR 15.8 and CrimPR Part 48). A further example would be where a sentence was mitigated on the basis of an undertaking made by someone to repay money stolen by the defendant. This could possibly also be 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 a distinct criminal offence (particularly where it could amount to perjury, where the defendant has the right to jury trial) it would normally be appropriate to refer the matter to be investigated by the police, unless the maximum sentence available for the offence would not properly reflect the conduct in question.

Procedure for dealing with civil contempt in the criminal courts

The procedure for criminal courts dealing with civil contempt, which is less likely to occur in the face of the court, is set out in Rule 48.9 CrimPR.

In the Crown Court it applies where a party, or other person directly affected alleges, or the court deals on its own initiative with unauthorised use of disclosed prosecution material under s 17 of the Criminal Procedure and Investigations Act 1996, a failure to comply with a compliance order, restraint order, ancillary order or certain investigation orders under the Terrorism Act 2000 or the Proceeds of Crime Act 2002 and any other conduct with which that court can deal as a civil contempt of court. The Crown Court has an inherent power to imprison for a maximum of 2 years and/or impose a fine, and the same powers under s.18 CPIA 1996.

The only type of civil contempt the magistrates’ court can deal with is the unauthorised use of disclosed prosecution material under s.17 of the Criminal Procedure and Investigations Act 1996. The maximum penalty the magistrates’ court can impose for this is 6 months’ imprisonment or a fine up to £5,000.

A written application must be served on the court and the respondent with at least 14 days’ notice of a hearing setting out particulars of the conduct and the court’s powers and explain that it is an application for the respondent to be dealt with for contempt of court. Where the court acts on its own initiative it must arrange for a statement to be prepared, arrange service on the respondent and provide at least 14 days’ notice for a hearing.

Strict Liability publication contempt

Section 1 of the Contempt of Court Act 1981 sets out and defines “the strict liability rule”.  This provides that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication.

Risk

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. The absence of actual prejudice resulting from publication does not prevent it from being a contempt but may be relevant in deciding whether there was a substantial risk of serious prejudice.

The course of justice may be impeded where adverse publicity e.g. vilification of a suspect may deter witnesses from volunteering information that would help to eliminate him from enquiries or to prepare a defence for trial and assist in a process by which a guilty person escapes justice (HM Attorney General v MGN Limited and News Group Newspapers Limited [2011] EWHC 2074 Admin).

Active proceedings

Strict liability publication contempt 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.

NB: 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.

The strict liability rule only applies to publications, although this is broadly defined and includes any speech, writing or programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.

Section 4(2)

Section 4(2) empowers the court, 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, to 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 provision is aimed at postponement of publication rather than a permanent ban - R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434. It is most likely to be appropriate where there are due to be subsequent trials of the same offence, and reporting the outcome of the first trial might prejudice the jury in the later ones e.g. in the Victoria Station murder trials.

The need for precision in formulation of orders is set out in the Practice Direction Contempt of Court Act 1981 (1983) 76 Cr App R 78 and in the Reporting Restrictions Guide.

A person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith – s.4(1). A further defence applies to publications made as or as part of a discussion in good faith of public affairs or other matters of general publication interest if the risk of impediment or prejudice is merely incidental to the discussion – s.(5).

Section 7

Section 7 provides that proceedings for contempt under the strict liability rule shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it.

Accordingly if a prosecutor has concerns before the case gets to court that a publication creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication (as set out in s 1), he/she should refer the concern to the Attorney General. If proceedings have commenced, concerns should be raised with the court in the first instance; the judge may then wish to refer the matter to the Attorney. If the prosecutor feels that the issue has not been adequately resolved following it being raised with the judge, he/she can make the referral to the AGO.

The case of R v Simon Harwood Southward Crown Court 20 July 2012 is a rare case of the crown court resolving the concerns.

In considering whether to institute/consent to proceedings, the AG will bear in mind that:

  • The burden of proof is the criminal standard.
  • The risk must be assessed at the date of publication and it is irrelevant whether it does in fact arise: AG v MGN & NGN  [2011] EWHC 2074.
  • “Substantial risk” means a risk which is more than remote or not merely minimal.
  • A “serious prejudice” is one which would have created a seriously arguable ground of appeal in the case: AG v Birmingham Post and Mail Ltd [1999] 1 WLR 361.
  • An “impediment” to the course of justice may arise where the nature of the reporting is such as to dissuade potential defence witnesses from coming forwards: AG v MGN & NGN [2011] EWHC 2074.

Section 11

Section 11 Contempt of Court Act 1981 gives the court the power to make a direction prohibiting the publication of a name or other specific matter but only where the court has exercised either its inherent or statutory jurisdiction to withhold those details from the public in the proceedings, for example the common law power to allow the name of blackmail victims to be withheld from the public R v Socialist Worker ex p A.G. [1975] QB 637 (DC). It is rare for the court to make such a direction in respect of a defendant. S 11 is not enacted for the comfort and feelings of defendants (Evesham Justices ex p McDonagh [1988] QB 553) and there is a requirement of clarity of terms and duration, and explanations for its purpose that a section 11 order has to meet.

Common law publication contempt

Strict liability contempt applies only to active proceedings as set out in Schedule 1 Contempt of Court Act 1981. Where proceedings are not active, common law publication contempt may be committed e.g. where proceedings are pending or imminent (albeit not necessarily active for the purposes of the 1981 Act). However, common law publication contempt requires an actual intent to interfere with the administration of justice in those proceedings.

Orders postponing or prohibiting full reports of proceedings

Prosecutors should have regard to the Reporting Restrictions Guide, Reporting Restrictions in the Criminal Courts April 2015 (Revised May 2016) that provides a practical guide for judges and the media on the statutory and common law principles which should be applied. Part 6 CrimPR applies.

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 and information) is a qualified right. Interference with 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).

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.

Breach of statutory reporting restrictions - Quasi Contempt

Prosecutors should be familiar with statutory restrictions which apply automatically to restrict the reporting of certain proceedings without the need for a specific order of the court, such as anonymity afforded to complainants in cases of a sexual nature (s.1 Sexual Offences (Amendment) Act 1992) and the prohibition on reporting the identity of defendants appearing in the youth court (s 49 Children and Young Persons Act 1933). Other statutory restrictions apply 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 (s 45 Youth Justice and Criminal Evidence Act 1999) – see Annex A.

Breaches of automatic or discretionary reporting restrictions and anonymity orders are generally chargeable as substantive criminal offences (where the relevant statute creates such an offence) even though they can also be seen as contempt of court.  It is preferable for these offences to be charged, in accordance with the Director’s Guidance on Charging, rather than initiating contempt proceedings, save in rare cases where the circumstances are particularly grave and the case warrants a more serious punishment than the court can impose. Prosecutors should note that there is a requirement to secure Attorney General consent prior to prosecuting some of these offences.

The offences and penalties on conviction are set out at Annex A.

Prosecutors should refer to the Criminal Practice Directions (CPD I General matter 6B: Restrictions of reporting proceedings) at 6B4 for general principles applicable to exercise of the court’s discretion to impose a restriction.

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. A prosecutor may provide assistance to the court on the legal effect of the making of the order; the effect of a refusal to make the order and draw the court's attention to any relevant considerations when deciding whether to make such an order.

Rule 6.4 of the CrimPR sets out the procedure by which the court can impose a restriction on reporting what takes place at a public hearing, on public access to what otherwise would be a public hearing or withhold information from the public during a public hearing. An application must be made by a party where the court does not proceed on its own initiative. The other party should be notified and details of the order required set out.

Rule 6.5 applies where the court can vary or remove a reporting or access restriction and rule 6.6 applies where the court can order a trial in private.

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. It is not possible to substitute the name of the defendant, if wrongly identified, if the time limit has expired as this would amount to the laying of information outside the time limit.

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 s 39 of the Children and Young Persons Act 1933, sections 45 and 49 YJCEA and s 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 s 5 (1) (a) or whether it is "any other publication" as set out in s 5 (1) (c) Sexual Offences (Amendment) Act 1992 (SO(A) A1992). However, s 6 SO(A) Act 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 matters that contravene s 1 SO(A) A 1992 are published in an online edition of a newspaper or periodical, prosecutors should bring proceedings under s 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 s 5(1)(c) SO(A)A 1992, as would the proprietor of the publication.

Prosecutors should note the defence in s 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.

Referral

Prosecutors are required to notify and consult the Area Complex Casework Unit (CCU) in any cases that raise issues of liability under s 5 (1) (a) or (c) SOA(A)1992, the defence under s 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. Unlike Breaches of reporting restrictions imposed under the SO(A)A 1992, these breaches do not require AG consent to prosecute.

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 and the Attorney may need to institute proceedings or his consent is required 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 that may create a substantial risk of serious prejudice or impediment to the course of justice in proceedings, prosecutors should provide the following documents/information to the AG'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);
  • Chronology of court appearances including the proposed date of trial, or likely date of trial (this is crucial information, as it may help in assessing the likely 'fade factor');
  • the prosecutor’s assessment of the risk of prejudice to the proceedings
  • Any comments made by the defence and/or judge on the 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 2492, who will ensure that the relevant AGO Legal Adviser is alerted
  • the CPS Press Office at Rose Court, Headquarters should also be notified on 020 3357 0906 (out of hours; 07699 781926); 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.

Contempt by Jurors

See the legal guidance: Juror Misconduct Offences.

Appeals against orders

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

Crown Court: Section 13 (2) (bb) of the Administration of Justice Act 1960 provides for an appeal of an order or decision of the Crown Court to the Court of Appeal.

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 S 4 or S 11 Contempt of Court Act 1981. The appellant will usually be the press or a broadcasting authority.

Rule 16A Criminal Appeal Rules 1968 applies to appeals under s 159, Criminal Justice Act 1988 against orders made in the Crown Court restricting or preventing reports of proceedings.

Rule 16B Criminal Appeal Rules 1968 applies to appeals under s 159, Criminal Justice Act 1988 against orders made in the Crown Court restricting public access to proceedings.

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.

Annex A: Breach of statutory reporting restrictions - Quasi Contempt offences

s1 Judicial Proceedings (Regulation of Reports) Act 1926

Notes

Prohibits publication in relation to any judicial proceedings of any indecent medical, surgical or physiological details which would be calculated to injure public morals. Breach is punishable on summary conviction, to imprisonment for a term not exceeding four months and/or to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required.

Type of court proceedings

All courts

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Indefinite

 

s39 Children and Young Persons Act 1933. (Section 45 YJCEA replaces s39 CYPA 1933 in relation to criminal proceedings

Notes

Prohibits publication in a newspaper, sound, television broadcast or online media (s.79 (7) of the Criminal Justice and Courts Act 2015) of any matter likely to identify a child as a victim, witness or defendant in the proceedings. Breach of the section is punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is not required.

Type of court proceedings

Civil proceedings

Automatic or discretionary (by court order)

Court order (discretion)

Duration of the reporting restriction if not lifted

Until the age of 18

 

s45 Youth Justice and Criminal Evidence Act 1999

Notes

A criminal court can grant anonymity to victims, witnesses & defendants under the age of 18 when proceedings commence. This can include publication of the name, address, school details or an image. This power is not available to Youth Courts, as s.49 CYPA provides automatic anonymity in those proceedings. Breach of a s.45 order is a criminal offence at s49 YJCEA, subject to certain specific defences and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale.

Type of court proceedings

Criminal proceedings in any court other than the Youth Court

Automatic or discretionary (by court order)

Court order (discretion)

Duration of the reporting restriction if not lifted

Until the age of 18 and also until proceedings (including on appeal) have subsequently been completed

 

s45A Youth Justice and Criminal Evidence Act 1999

Notes

Criminal courts including Youth Courts can grant life-long anonymity to victims & witnesses under the age of 18 when proceedings commence. Breach is a criminal offence and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale

Type of court proceedings

Criminal proceedings in any court including the Youth Court

Automatic or discretionary (by court order)

Court order (discretion)

Duration of the reporting restriction if not lifted

Lifetime of the individual the subject of the order

 

s46 Youth Justice and Criminal Evidence Act 1999

Notes

Gives the court power to restrict reporting about certain adult witnesses (other than the accused) in criminal proceedings on the application of any party to those proceedings. The Court may make a reporting direction that no matter relating to the witness shall during his life-time be included in a publication if it is likely to lead members of the public to identify him as being a witness in the proceedings. Breach of a s46 order is a criminal offence at s49 YJCEA is a criminal offence and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale

Type of court proceedings

Criminal proceedings in any court

Automatic or discretionary (by court order)

Court order (discretion)

Duration of the reporting restriction if not lifted

Lifetime of the individual the subject of the order

 

s47 Youth Justice and Criminal Evidence Act 1999

Notes

Prohibits the reporting of special measures directions, directions relating to the use of Live Link for an accused and directions prohibiting an accused from cross-examining a witness in person. Breach of a s47 order is a criminal offence at s.49 YJCEA is a criminal offence and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required

Type of court proceedings

Criminal Courts

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused

 

s49 Children and Young Persons Act 1933

Notes

Media are prohibited from publishing (in any speech, writing, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public) of any matter likely to lead members of the public to identify someone under 18 as being a victim, witness or defendant in youth court proceedings. This includes, but is not limited to their name, address or school or photo. Breach of the section is punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is not required

Type of court proceedings

Youth Court & proceedings on appeal from it

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Until the age of 18 and also proceedings (including on appeal) have subsequently been completed

 

s20D Juries Act 1974

Notes

It is a criminal offence to obtain, disclose or solicit any details of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. The Attorney General’s consent is required

Type of court proceedings

Crown Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Indefinite

 

s8C Magistrates’ Court Act 1980

Notes

Automatic reporting restrictions on reporting pre-trial rulings in the Magistrates’ Court on the admissibility of evidence or on points of law in order to avoid prejudicing the right to a fair trial, should the case (or linked proceedings) ultimately be tried in the Crown Court. Section 8D sets out offences in connection with reporting. A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale. The Attorney General’s consent is required

Type of court proceedings

Magistrates’ Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused

 

s11 Criminal Justice Act 1987

Notes

Automatic reporting restrictions on preparatory hearings in long, complex or serious cases and serious fraud cases. Breach is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required

Type of court proceedings

Crown Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

s5 Sexual Offences (Amendment) Act 1992

Notes

Creates an automatic prohibition on publication of details that identify a victim of rape or other serious sexual offence. Breach of the section is punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General’s consent is required.

Type of court proceedings

All courts

Automatic or discretionary (by court order)

All courts

Duration of the reporting restriction if not lifted

Lifetime anonymity

 

s38 Criminal Procedure and Investigations Act 1996

Notes

Section 37 Criminal Procedure and Investigations Act 1996 creates restrictions on reporting a preparatory hearing, an application for leave to appeal in relation to such a hearing or an appeal in relation to such a hearing other than specific matters set out in s.37(9). Section 38 sets out offences in connection with reporting in contravention of section 37. A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale. The Attorney General’s consent is required.

Type of court proceedings

Crown Court

Automatic or discretionary (by court order)

Crown Court

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

s41 Criminal Procedure and Investigations Act 1996

Notes

Automatic reporting restrictions on reporting pre-trial rulings in the Crown Court on the admissibility of evidence or on points of law. Breach is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required.

Type of court proceedings

Crown Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

s58 Criminal Procedure and Investigations Act 1996

Notes

Power to postpone reports of derogatory assertions about named or identified persons that have been made in mitigation. The court must have substantial grounds for believing that the assertion is derogatory and false or that the facts asserted are irrelevant to the sentence. Breach is a criminal offence (s60) and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale

Type of court proceedings

Magistrates’ Court, Crown Court, Appeal Court

Automatic or discretionary (by court order)

Court order(discretion)

Duration of the reporting restriction if not lifted

Postpones publication for 12 months or until revoked by the court

 

s52A Crime and Disorder Act 1998

Notes

Automatic reporting restrictions that apply to the reporting of allocation and sending proceedings. Breach is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required.

Type of court proceedings

Magistrates’ Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

Schedule 3 para. 3 Crime and Disorder Act 1998

Notes

Restrictions on reporting a dismissal application in respect of a charge brought against a person sent for trial under section 51 or 51A of the Crime and Disorder Act 1998. Breach is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required.

Type of court proceedings

Crown Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

s141F Education Act 2002

Notes

Automatic reporting restriction preventing the identification of any teacher alleged to have committed a criminal offence against the pupil. Breach is a criminal offence and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale

Type of court proceedings

Pre-Court

Automatic or discretionary (by court order

Automatic

Duration of the reporting restriction if not lifted

Ceases to apply once proceedings for the offence have been instituted or in accordance with s.141F (11) and (12)

 

s71 Criminal Justice Act 2003

Notes

In Crown Court, Court of Appeal and Supreme Court proceedings, automatic reporting restrictions apply when the prosecution informs the court of its intention to appeal against the court’s rulings and to the court’s subsequent decision as to whether to expedite the prosecution appeal, or adjourn, or discharge the jury. Breach is an offence punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General's consent is required.

Type of court proceedings

Crown Court, Court of Appeal and Supreme Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Conclusion of the trial of the accused or of the last of the accused to be tried

 

s82 Criminal Justice Act 2003

Notes

Court of Appeal in the interests of justice can make orders to prevent the inclusion of any matter in a publication which appears to it would give rise to a substantial risk of prejudice to the administration of justice in a retrial. Breach is a criminal offence (s.83) and is punishable on summary conviction to a fine not exceeding level 5 on the standard scale. The Attorney General’s consent is required.

Type of court proceedings

Appeal Court

Automatic or discretionary (by court order)

Court order (discretion)

Duration of the reporting restriction if not lifted

Postpones publication for so long as it is necessary for the purpose of preventing an interference with the course of justice

 

s71 Serious Crime Act 2015

Notes

Anonymity for victims of female genital mutilation. Breach is a criminal offence (Schedule 1 Female Genital Mutilation Act 2003) punishable on summary conviction in England and Wales, to a fine. The Attorney General’s consent is required.

Type of court proceedings

Crown Court and Magistrates’ Court

Automatic or discretionary (by court order)

Automatic

Duration of the reporting restriction if not lifted

Lifetime anonymity

 

Annex B: Procedure for dealing with Common Scenarios at court

Rule 48.5 CrimPR Procedure

  • The court explains the conduct in question
  • explains the court’s powers to deal with the conduct
  • notifies that the court can order the respondent’s immediate temporary detentioninvites the respondent to explain his or her conduct
  • explains that the respondent may apologise, if he or she so wishes
  • explains that this may persuade the court to take no further action
  • explains that the respondent may take legal advice; and allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise

The court may then take no further action in respect of that conduct; enquire into the conduct there and then; or postpone that enquiry (if a magistrates’ court, only until later the same day). When the matter comes back to court the court must repeat the explanations and allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise. Note that magistrates’ powers are - imprison for a maximum of 1 month, or fine to a maximum of £2,500, or both. These magistrates' powers only apply to

  • refusal to give evidence (s97(4) MCA Act 1980)
  • recording court proceedings without permission (s9 Contempt of Court Act 1981)
  • wilfully insulting a magistrate, witness, court officer or lawyer at court
  • wilfully interrupting proceedings or otherwise misbehaving in court

The Appeal Court and Crown Court can imprison up to 2 years), or unlimited fine for

  • obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity
  • disobeying a witness summons - s3 Criminal Procedure (Attendance of Witnesses) Act 1965
  • disobeying a jury summons - s20 Juries Act 1974
  • obtaining details of a jury’s deliberations, etc. s8 Contempt of Court Act 1981
  • without the court’s permission, recording the proceedings, etc. s9 Contempt of Court Act 1981
  • any other conduct with which the court can deal as, or as if it were, a criminal contempt of court

The court can put dealing with the matter back until, for example, the end of the trial but in magistrates’ courts the contempt procedure can only be used on the same day.

Photography in court

Section 41 Criminal Justice Act 1925 (CJA 1925) makes it an offence 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. The penalty on summary conviction is a fine not exceeding level 3 on the standard scale. The Attorney General's consent is not required.

The offence at s41 CJA 1925 can be charged as a criminal offence in accordance with the Director’s Guidance on Charging, or the underlying behaviour can be dealt with by the court as a contempt in accordance with the summary procedure at Rule 48.5 of the Criminal Procedure Rules - see R v D (Contempt of Court: Illegal Photography) [2004] EWCA Crim 1271, or on a later application to the High Court by the Attorney General.

If dealt with by summons or charge normal time limits apply. The decision whether to charge a criminal offence or to bring proceedings for contempt will depend on the facts of the case, including the gravity of the interference with the administration of justice.

In Solicitor General v Cox [2016] EWHC 1241 (QB) the Solicitor General brought proceedings for common law contempt in respect of photos and videos taken in court and posted online along with derogatory comments about the judge. The court found that both the taking and publication of the illegally taken images, accompanied by pejorative comments about a judge, amounted to contempt, in circumstances where the contemnor knew phones were banned and had acted in deliberate defiance of it. The court considered the gravity of the risks and of the interference with the due administration of justice in the case and held that proceedings for contempt, rather than prosecution of the criminal offence, were appropriate.

The case of Cox highlights the extent to which the use of social media can interfere with the administration of justice and the need to take appropriate action. Prosecutors should refer to the Criminal Practice Directions (CPD I General matters 6C. This clarifies the use which may be made of live text-based communications, such as mobile email, social media (including Twitter) and internet-enabled laptops in and from courts).

Where evidence exists of an offence contrary to s.41 CJA 1925 prosecutors should assist the court by reference to the above considerations. The court initially decides on whether action must be taken by application of the summary contempt procedure at Rule 48.5. In the magistrates’ court the summary contempt procedure must be completed that day – see Practice and Procedure below. If the court does not proceed in this manner a decision has to be made on whether to proceed by charge or to refer the matter to the Attorney General having regard to the gravity of the risks and interference with the due administration of justice in the case.

Two options

  1. If the offender is apprehended on the day and the court is sitting advise court that it can deal with it as a contempt of court there and then, using the summary procedure at Rule 48.5 above, or have the police decide whether to charge an offence contrary to s.41 Criminal Justice Act 1925. If a magistrates’ court decides to deal with it there and then it may receive an apology but cannot impose a sanction - see Rule 48.5 procedure above.
  2. If the court does not deal with it there and then the normal police investigation and charge procedure applies. The offence is at s41 Criminal Justice Act 1925. Penalty is a level 3 fine. AG consent is not required so police can charge. Prosecutors note – there is no need to contact AGO when this scenario occurs unless the risks and interference with the due administration of justice was particularly grave. See Solicitor General v Cox where particularly serious issue.

Audio recording in court

This applies to audio recordings not photographs

  • s9 Contempt of Court Act 1981 applies
  • Rule 48.5 procedure (above) applies so note that this is not dealt with by charge or summons
  • Prosecutors should advise the court of its power to deal with the matter and in most cases that is the appropriate means of dealing with the matter. There is no need to refer the matter to the Attorney General’s Office if the court is dealing with the matter
  • However where the contempt only comes to light after the case has concluded, or the penalty which the court can impose does not match the seriousness of the offending, the matter may be referred to the Attorney General to consider instigating contempt proceedings in the High Court
  • In dealing with the matter a magistrates’ court can imprison for a maximum of 1 month, or fine to a maximum of £2,500, or both. The Crown Court can imprison for a maximum of 2 years, or fine to an unlimited amount

Discretion exists to permit journalists to record proceedings - CPD 2015 Amendment No 3 [2015] EWCA Crim 1567.

Contempt

“Conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”.

Rule 48.5 procedure (above) applies in the Crown Court where the court observes, or someone reports to the court

  • disobeying a witness summons - s3 Criminal Procedure (Attendance of Witnesses) Act 1965
  • disobeying a jury summons - s20 Juries Act 1974
  • obtaining details of a jury’s deliberations, etc.- s8 Contempt of Court Act 1981
  • without the court’s permission, recording the proceedings etc. - s9 Contempt of Court Act 1981
  • any other conduct with which the court can deal as, or as if it were, a criminal contempt of court
  • maximum period of committal of 2 years in the Crown Court

Rule 48.5 procedure (above) applies in the Magistrates’ Court where the court observes, or someone reports to the court

  • refusing to give evidence - s97(4) Magistrates’ Courts Act 1980
  • insulting or interrupting the court, etc. - s12 Contempt of Court Act 1981
  • without the court’s permission, recording the proceedings, etc.- s9 Contempt of Court Act 1981
  • any other conduct with which the court can deal as, or as if it were, a criminal contempt of court

Publishing on social media / Breach of reporting restrictions

  • This is generally dealt with by prosecution – charge or summons procedure. See Annex A above
  • However it can also be seen as contempt of court
  • It is preferable to charge rather than initiating contempt proceedings
  • Prosecutors should note that AG consent is required for most offences at Annex A