Tommy Robinson, founder of the English Defence League, has appeared all over the news recently, having been jailed for the potential prejudice of a court case in Leeds.
Stephen Yaxley-Lennon (Tommy’s real name) was arrested in Leeds last week after he was broadcasting on social media, outside of Leeds Crown Court where a long trial was taking place. Tommy Robinson pleaded guilty to a charge of contempt of court, in which the judge told him his actions of broadcasting all over social media would have caused the on-going trial to be re-run, which could have cost the taxpayer “hundreds and hundreds of thousands of pounds”!
The footage had lasted around an hour and had already been watched some 250,000 times within hours of being posted on Facebook.
Robinson is now serving a 13 month prison sentence for contempt of court.
One of the consequences of this affair has been the lack of knowledge shown by amateur publishers about contempt. Even if it is unrealistic to expect them to have a professional’s level of knowledge, the general lack of understanding has really taken your correspondent by surprise.
Fortunately, professional journalists know all about the law of contempt, but the antics of Mr. Robinson and his friends provide a good excuse for a quick refresher!
As we all know, the law of contempt of court protects the judicial process. For journalists, the greatest risk of committing a contempt is by publishing material which could prejudice a fair trial by:
- Giving an impression that the individual in question is the sort of person who is likely to commit a crime, or vilifying a suspect to the extent that a witness may refuse to come forward;
- Attempting to discover or publish the jury’s confidential discussions;
- Material that is published which breaches the common law of contempt;
- Publishing material that is in breach of a court order; or
- Interfering with witnesses’ evidence through interview or offering payment for a juicy part of the story.
Contempt can come in two different forms; common law and strict liability. The common law of content is much more difficult to prove, and as the name suggests, strict liability is much stricter! For common law of contempt, there must have been intent to create a risk of seriously prejudicing legal proceedings which are imminent or pending.
Strict liability has been around for decades, enabling the courts to punish those who commit contempt. These powers derive from the Contempt of Court Act 1981 (“the Act”).
Every journalist is aware of the Act, and its fundamental rule that:
‘It is a contempt to publish material which creates a substantial risk of serious prejudice or impediment to ‘active’ legal proceedings’.
As it is a strict liability offence, the prosecutor does not have to prove that the individual or organisation intended to create risk. To put it simply, the court has only has to judge the actual or potential prejudice caused. It is imperative for court reporters to understand the obligations created by the strict liability rule, especially as the consequences of breaching the Act are fines and/or prison time (maximum two years).
However, it must be remembered that the strict liability rule only applies if the proceedings in question are “active” at the time of the publication. The Act describes a criminal matter becomes active when:
- The suspect is arrested;
- When an arrest warrant is issued;
- On the issue of a summons or indictment; or
- When a person is charged.
Obviously, a criminal case ceases to be active at the end of the trial, whatever the outcome. However, it is often forgotten that when an appeal is lodged, the proceedings become active one again, so the strict liability rule is reinstated.
The Court also has the power to make a Postponement Order, which prevents the publication of reports of an earlier hearing until the second or main trial is finished, to avoid a substantial risk of prejudice. Therefore, journalists should always be thinking about whether a Section 4 (2) is in place, if there are two or more defendants, or two or more trials.
As Mr. Robinson has kindly reminded us, contempt should always be in the back of the mind when reporting criminal cases. As he found out to his cost, the consequences of getting it wrong, can be severe!