The Reporting of Crown Court Proceedings and the Contempt of Court Act 1981
| Author | Debra Brogarth,Clive Walker,Ian Cram |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02840.x |
| Published date | 01 September 1992 |
| Date | 01 September 1992 |
The Reporting
of
Crown Court Proceedings and the
Contempt
of
Court Act
1981
Clive Walker,” Ian Cram” and Debra Brogarth”
Introduction
Ever since the enactment of the Contempt of Court Act
198
1,
concern has been
expressed’ about the use of orders under sections
4
and
11
restricting the media’s
ability to report court proceedings in accordance with the principle of open justice.*
However, the absence of any empirical survey of these orders has hampered a proper
evaluation of their worth. This article seeks to elucidate the operation of reporting
restrictions at Crown Court level by presenting and analysing the results of a survey
of nine Crown Courts during the period
1982-89.
The findings are prefaced by
an exposition of the legal framework.
A
The Legal Setting
(i) Contempt
of
Court Act
1981,
section
4
At first glance, the
1981
Act appears to take the public interest
in
the reporting
of court proceedings seriously. Thus, by section
4(
1):
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.
Section
4(3)
defines ‘contemporaneously’ as a report made ‘as soon as is prac-
ti~able.’~ The leading authority on the meaning of a ‘fair and accurate report’ is
R
v
Evening News, ex pane
Hobb~.~ The newspaper had published a substantially
accurate account of the Recorder’s somewhat prejudicial words when reading the
charge to the jury. Consequently, the responsibility for any prejudice against the
defendant lay with the Recorder, not the newspaper.
By virtue of the definition of ‘legal proceedings’ in section
19
of the Act, the
protection of section
4( 1)
extends to tribunal hearings and ‘anybody exercising the
judicial power of the state.’ The proceedings must be ‘held in public’ which means
that section
4(1)
has no application to proceedings held
in camera
or
in
chamber^.^
As to ‘good faith,’ the requirement will
be
satisfied where the report is made honestly
and with no ulterior motive.6 This condition
of
good faith may undermine the
*Centre for Criminal Justice Studies, University of Leeds.
This study was financed by the Leverhulme Trust. The authors thank Rodney Brazier, Professor C.J. Miller
and the officials at the targeted courts and at the Lord Chancellor’s Department who facilitated the fieldwork.
See NCCL and Guild of British Newspaper Editors,
OfJiciully Secret
(1988); Association of British
Editors,
How
Open is Open Justice?
(1988). Both relied
on
evidence provided by journalists rather
than court records.
See
Scort
v
Scofr
[
1913) AC 417. There is
no
right to report under Article 6 of the European Convention:
Arkinson, Crook and 77ze Independent
v
UK.
Appl
No
13366187.
This follows
R
v
Border
TV.
ex parte Attorney-General
(1978) 68 Cr App
R
375.
See instead the Administration of Justice Act
1960.
s
12(3),
infru.
Compare
Central Estates (Belgruvia) Ltd
v
Woolgur
[
19721
I
QB 48, at p
55
per
Lord Denning MR.
1
2
3
4 [I9251
2
KB
158.
5
6
The
Modern
Law Review
555
September 1992 0026-7961
647
The
Modern
LAW
Review
[Vol.
55
purpose behind section
4( l),
which was to remove the threat of contempt, especially
where related cases were pending, unless a court expressly applied it.’
Finally, even if a report does contain inaccuracies, no action for contempt will
lie unless those inaccuracies prejudice the prospects of a fair trial or the administration
of justice in general. In
R
v
Evening Standard
Co
Ltd, ex purte Attomey-General,8
a newspaper wrongly attributed statements made by one witness
in
committal
proceedings to another witness at the full trial. As the evidence of the witness at
committal proceedings had already been ruled inadmissible at the trial on the ground
of being unduly prejudicial, the newspapers’ publishers were fined
f
1,OOO.
Similarly,
a faulty trial report was held to be sufficiently prejudicial in
Attorney-General
v
BBC9
because of the risk of the jury being discharged or an appeal arising from
a refusal to discharge.
The freedom enjoyed under section
4(
1)
to publish reports of open court proceedings
is subject to section
4(2):
In
any such proceedings the court may, where
it
appears
to
be
necessary
for
avoiding a
substantial risk
of
prejudice to the administration
of
justice in those proceedings,
or
in
any
other proceedings pending
or
imminent, order that the publication
of
any report
of
those
proceedings,
or
any part
of
the proceedings, be postponed
for
such period as the court thinks
necessary
for
that purpose.I0
A
publication may more readily fall foul of section
4(2)
than the strict liability
test under section
2(2)
in that only ‘prejudice’ rather than ‘serious prejudice’ need
result. Whether a ‘substantial risk of prejudice’ exists may depend on the view taken
by the judge or jurors’ susceptibilities. Where jurors
are
credited with short memories
or an ability to disregard matters not submitted in evidence in court,Il the
substantial risk test will obviously be difficult to satisfy. A less robust view of the
suggestibility of jurors was apparent in
R
v
Ponting,I*
where McCowan
J
imposed
an order banning re-enactments by Channel
4
of any part of proceedings until the
jury had returned its verdict or until further notice. By contrast, in
R
v
Crown Court
at Staford, ex parte Central Television plc,”
the Court of Appeal found that there
was nothing in the television reports of a criminal trial in which the jury had retired
to consider its verdict to give rise to a fear that a substantial risk of prejudice would
be created by further reports. Accordingly, the Court overturned the order.
As
well as becoming more sanguine about the effects of comment on jurors, the
judges have recently shown greater trust in the ability of journalists to adhere to
section
4(1),
and this has in turn affected the usage of section
4(2).
For example,
in
R
v
HM Coroner for East Kent, ex parte Spooner
and
0thers,l4
relatives of
persons killed in the Herald of Free Enterprise sinking off Zeebrugge obtained a
ruling that the owners could be liable for corporate manslaughter. Reports of those
proceedings were postponed until the Coroner’s Court had delivered its verdict.
~
7
8
9
10
I1
12
13
14
See (Phillimore)
Report
on
Contempt of Court
(1974) Cmnd 5794, para 141; Miller,
Contempt
of
Court
(2nd
ed,
1989) pp 326, 330.
(19541
1
QB 578.
The Independent,
3 January 1992.
See Beloff, ‘Fair Trial
-
Free Press? Reporting Restrictions in Law and Practice’ (1992) PL 92.
For the origins of
s
4(2),
see
Report of the Lkpurfmental Committee
on
Proceedings before Examining
Justices
(1958) Cmnd 479, para 59;
Phillimore Report, op cit
n 7, para
141.
See
R
v
Horshum Justices, ex purte Furquhurson
[I9821
QB
762, at p 794
per
Lord Denning
MR;
R
v
Kruy
(1969) 53 Cr App
R
412, at p 414
per
Lawton
J.
7he Times,
29 January 1985. Compare
In
re Chunnel
4
7”
Co
Ltd
[I9881 CLR 237.
(19911
1
WLR
4.
he Times.
10
October 1987.
648
To continue reading
Request your trial