IS OUR contempt law working? The main purpose of the law of contempt of court is to preserve the integrity of the administration of justice and prevent interference with due legal process. The recent publication of notices by the Attorney-General warning the media about coverage of the alleged rape by premiership footballers at the Grosvenor House hotel, before arrests were made, was therefore rather puzzling. Why did he do it?
Until 1981, contempt was governed by the common law, under which contempt could be committed when proceedings were pending or imminent, and material published was calculated to prejudice or interfere with them. The Contempt of Court Act 1981 enacted the strict liability rule providing that, regardless of intent, a person could be guilty of contempt where publication caused “a substantial risk of serious prejudice” and proceedings were active. Since then, the Human Rights Act 1998, incorporating Article 6 (the right to a fair trial) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights, has introduced a balancing exercise for the courts.
Criminal proceedings are deemed active when an initial step has been taken. This is usually an arrest, or a warrant for arrest being issued. It does not include voluntarily helping the police with their inquiries.
In the Grosvenor House case the massive coverage of the allegations occurred before any arrest, and the Attorney’s September 30 notice giving warning of the dangers of creating a substantial risk of serious prejudice therefore fell on stony ground. No doubt the Attorney’s intention was to remind editors well in advance of the risks that they were taking. Now he has reinforced his earlier warning with a further notice specifically drawing attention to proceedings being active. That is probably why the frenzy of speculation has died down.
Even then, there have been several cases where the media have been prosecuted for publications after proceedings were active and they have been unsuccessful. Those cases involved reporting at an early stage and the media relied on the delay that occurred between proceedings commencing and trial (which is normally at least a year). The Geoff Knights case, in which Gillian Taylforth’s boyfriend allegedly beat up a minicab driver and attracted massive publicity, is an example. Even though the trial was abandoned, no serious prejudice was established because of the delay.
Likewise, in the Paul Magee case, ITN and a number of newspapers were prosecuted for publishing material concerning Magee, who was a convicted IRA terrorist and who had escaped from prison while serving a life sentence for the murder of an SAS officer. Magee had been arrested a few days earlier on charges of murdering a special constable and it was argued, successfully, that the details of his convictions and previous offences would not have influenced the jury at trial as it was unlikely that any member of the jury would have retained the information by the time the case came to trial.
So if none of the media were at risk before (and possibly after) the arrests in the Grosvenor House case, why is the Attorney so touchy? For a number of reasons. It is only a year ago that the Sunday Mirror was fined £75,000 over the publication of an article while the jury was considering their verdict in the Leeds footballer trial. The trial had to be abandoned at huge cost to the public purse. There is also the concern over the Soham trial, which is coming up shortly. There was unprecedented publicity before and after the arrests, and the Attorney is genuinely concerned at arguments being put forward that a fair trial would be impossible. Other recent examples of potential contempt were in the John Leslie alleged rape case and in the Toby Studabaker case.
And then there is the internet. Cyberspace is a fertile source of gossip and rumour, on bulletin boards, in chat rooms and in multiple-user domains. While all can be reviewed by the operator, and there is software available to filter messages, chatrooms are in real time. Terms and conditions can apply and there are codes of conduct but chat rooms operate with such speed that they are virtually impossible to control. This happened at the time of the speculation over the alleged Grosvenor House rape. Chat rooms can also be jurisdictionally difficult to police. Internet service providers can be held to account but there are grey areas in relation to knowledge and acting reasonably. As for the authors of the events, they could disappear into the ether.
Libel comes to the aid of the Attorney as it does to any victim of defamatory material, for example the allegations about David Beckham on Popbitch, a celebrity gossip website. But libel cannot solve the problem alone, and the Defamation Act 1996 and E-Commerce Directive provide possible defences to libel actions. Also, the Attorney can look to the Press Complaints Commission’s code of practice to apply its beefed up clause preventing payments to witnesses.
Could the Attorney apply for an injunction? There are problems when it comes to the internet and bulletin/message boards. It is possible to obtain an injunction against a non-party to a suit. A recent case involved protecting the identity of the convicted murderers of James Bulger. A local paper was found guilty of contempt by publishing on its website (and in the paper) information likely to lead to the identification of the convicts. The Attorney could therefore try to make an example of one website in the hope of stemming the tide.
As a last resort, if the Courts Bill goes through, the courts will have the power to order costs against the media for “serious misconduct”.
On balance the contempt laws do work. The Attorney’s answer to a rampant media is to fire a warning shot across the bows. Time will tell whether it works.
The author is head of defamation at Lewis Silkin
Privacy International and the Foundation for Information Policy Research will hold a public meeting on the proposed regulations on communications data tomorrow from 2.15pm-5pm at the New Theatre, East Building, London School of Economics, Houghton Street, WC2
