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Law Column: Reader comment case is timely reminder on Contempt of Court

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HTFP reported last week that a regional newspaper has been reported to the Attorney General after a judge abandoned a Crown Court Trial. The Judge is understood to have ordered a re-trial at a different venue after a reader comment was made on an online story during live criminal proceedings.

In a digital world where technology has all but taken over (not quite Skynet for all you budding Arnie fans), potential issues such as Contempt of Court are even more important for those who work in press industry.

Reporters and editors do not need to be told that contempt of court is one of the most serious potential legal consequences within the journalistic world and it can happen when you least expect it. Earlier this year, a juror’s comments during the ‘Irish Rugby’ rape trial were investigated for possible contempt of court as they appeared only hours after the unanimous not guilty verdict were given on the trial. This remark from the juror apparently almost collapsed the nine week trial.  Alongside the same trial, two individuals were accused of identifying the alleged victim in the case in comments online.

The law on contempt of court is designed to protect the judicial process and to ensure a Defendant receives a ‘fair trial’. Contempt comes in two different forms; (1) common law and (2) strict liability under the Contempt of Court Act.

For common law contempt, there must have been an intention to create a risk of seriously prejudicing legal proceedings which are either imminent or pending. Whereas strict liability contempt does not require proof that the individual or publishing organisation intended to create the risk.

Contempt carries with it extremely serious consequences. Under the strict liability rule, a Judge can order fines and/or prison time (with a maximum sentence of two years).

The contempt only applies to proceedings that are “active” at the time of publication. A criminal matter becomes active when (as described by the Act):

  • A suspect is arrested;
  • When an arrest warrant is issued;
  • On the issue of a summons or indictment; or
  • When an individual is charged.

A criminal case ceases to be active at the end of a trial, irrespective of the outcome. However, an interesting point in the ‘Irish Rugby’ trial was that the juror had made a remark a few hours after the trial! This raises further questions that are likely to be explored in more detail at a later date.

Contempt can also occur when a reader makes a comment on a Court report. Therefore, publishers need to be extremely careful about the comment section on online stories. Although the news story may not be prejudicial itself, a reader comment on live criminal proceedings could still impact a fair trial.

Although there are no hard and fast rules in reducing the risk of contempt, the following are a few practical tips that could help:

  1. Where you know readers are likely to comment on reports of sensitive live proceedings, it may be prudent to turn off the commenting function on news pieces that report on live criminal trials;
  2. If you choose to allow comments, consider monitoring the comment section vigilantly to ensure that no prejudicial content is posted; and
  3. Consider whether these stories should be posted on social media sites where reader comments are likely to be rife and out of your control.

Although the Contempt of Court Act became law more than 35 years ago – it certainly still has teeth!

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