The dressing down of the Prime minister David Cameron over comments regarding a well known chef who has been giving evidence as a witness in an ongoing fraud trial, is a warning to us all.
“Contempt” has become a word that justifiably causes concern to newsrooms as the consequences can be far more toxic than libel. Editors can be sent to jail and trials can be abandoned at vast cost. Indeed, the Law Commission is suggesting heavier fines on newspapers who transgress, based on a percentage of turnover.
So there is every reason to check and check again in contempt cases. Warnings from the Attorney-General are not new and are given to the press when there is a case likely to attract major media coverage e.g. on the arrest of Christopher Jefferies.
Importantly, the current A-G has stated that in reporting crime, the press has been pushing the boundaries. Now with the very real dangers of mischief on the internet resulting in contempt being committed on social media sites like Twitter and Facebook, he has underlined his determination to enforce the law-principally the Contempt of Court Act 1981-by making his warnings public.
Given the demand for 24/7 news, the pressures are obvious, and the temptation to go to the edge self-evident. All the more reason to have a rigorous check-list. So, remember:
1. Repetition does not avoid liability under the Act; whoever republishes a contempt is still guilty of contempt.
2. Cases are live for contempt purposes from the moment of arrest, not when the suspect is charged. It is true that the longer before trial, the better the chance of successfully defending any contempt action because of the “fade” factor, but you don’t want to get to the stage of having to run that argument as a defence in the first place.
3. Check the A~G’s website and twitter feed and be careful with your own tweets as it is all too easy to publish a contempt accidentally.
4. Check if there have been any s4(2) orders restricting reporting of Court cases. Such orders are common, and just looking on the noticeboard outside the court is not enough. For whatever reason, it may not be there, so make proper enquiries.
5. Carry out a proper assessment of whether what you want to publish creates a substantial risk of serious prejudice. The fact that others may be ignoring the test does not mean it is all right. Look what happened in the Jefferies case (and he was only a suspect).
6. Do not automatically rely on police press releases or statements . The fact that the police publish material does not mean it is not a contempt or that it gives you a free rein to publish material on who the police call a prime suspect. They can all too often be over enthusiastic over an arrest and give too much detail, or imply guilt.
7. Do not publish material about a defendant in a trial which hasn’t finished- this happened in the Levi Bellfield case. Following his conviction for the murder and abduction of Milly Dowler a jury were deliberating on the alleged kidnapping of Rachel Cowles and the Judge abandoned the trial following articles in two newspapers on the grounds that the jury could not have put the prejudicial material out of their minds.
8. Do not publish photographs where identity could be an issue. Photographs can sometimes deliver a very damning verdict of a defendant and influence a jury.
9. Archive material on the internet remains a problem and if there is material that might create a substantial risk of serious prejudice in a case (details of convictions etc.) you should consider carefully whether or not to remove it.
It all boils down to exercising judgement, carrying out due diligence, and asking the obvious questions. Don’t do a “selfie”; rather make time for an “advisory”. You know it makes sense.