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Contempt joins privacy as hot topic

The law of contempt reared its head this month to give newspapers pause for thought about the limits of press freedom.

First the High Court gave the Attorney General (AG) permission to bring a prosecution against the Sun and the Daily Mirror for alleged contempt in relation to their coverage of murdered architect Jo Yeates and her Bristol landlord, Christopher Jefferies.

The AG’s lawyers said there was a plainly arguable case that the papers’ reporting had breached the ‘strict liability rule’ under S.2 of the Contempt of Court Act.

Then the report of Lord Neuberger’s committee on super-injunctions, published on 20th May, raised doubts over whether the media would be in contempt of court if they reported comments made in Parliament which ignored the secrecy provisions of a privacy injunction.

The media’s rejection of such doubts became instantly clear when mainstream newspapers and broadcasters reported Lib Dem MP John Hemming’s revelations in the Commons about the footballer who had obtained an injunction to suppress publicity about his alleged relationship with reality TV star Imogen Thomas.

As regards the Sun’s and Daily Mirror’s reporting about Mr Jefferies, who was arrested on 30th December last year and later released without charge, lawyers for the AG argued it was sometimes forgotten that the strict liability contempt rule applies to matters which may impede the course of justice, as well as those which may cause prejudice.

They said an “important category” of contempt involves publications that create a climate of enhanced hostility against a person such as to pose a real risk of seriously harming his ability to gather evidence and secure the co-operation of witnesses.

In court papers, they argued that the newspapers’ contentious reporting had great impact due to its prominence, presentation, subject matter, use of photographs, emotive language, extent and general message.

The AG’s lawyers told the High Court there was “a very real risk” that local people might have been deterred from assisting the defence case or providing positive character evidence if Mr Jefferies had been charged with an offence.

The prosecution, which will be robustly defended, is a reminder that under the current law of contempt, the AG expects press reporting to steer clear of material likely to alienate potential witnesses – even in the early stages of a police investigation.

Meanwhile, the media’s freedom to report proceedings in Parliament without being in contempt of a court injunction was called into question in Lord Neuberger’s report on super-injunctions.

The report said the media clearly had protection, under the Parliamentary Papers Act 1840, to publish material contained in Hansard, the official publication of proceedings in Parliament, even if that material included information whose publication was banned under a court injunction.

But it said it was “an open question” whether, and to what extent, the common law protects press reporting of what members of the Commons and Lords say in Parliament which appears to breach the terms of a court injunction and is not covered by the Hansard provisions of the 1840 Act.

The report stated: “What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.

“It is a matter of substantive policy whether Parliament wishes to clarify the law in this area, and it may well do so in the Defamation Bill…

“It may be that the law will be clarified by the courts in due course.”

On the other hand, the report also noted that a 1999 Joint Committee of Parliament had suggested the situation should be sensibly clarified in favour of the press, adding: “As the Clerks of the two Houses put it: why expose the media to criminal liability for publishing the same speech that the public can read in Hansard?”

Such uncertainty at the heart of a modern democracy is remarkable.

It seems most unlikely, however, that criminal liability for contempt could arise where the law lacks any clarity.

That was clearly the view of the mainstream media when they piled in to report John Hemming’s use of his Parliamentary privilege to reveal information that was otherwise gagged by the privacy order of a High Court judge.

One thing is certain: the law of contempt has joined privacy this month as a burning issue of media law which needs scrutiny.