The Contempt of Court Act 1981

The main law you need to know about in this context is the Contempt of Court Act 1981. Its main effect is to impose limits on what can be reported about, or published as comment about, ‘active’ criminal cases. But this Act also protects the administration of justice in civil cases – as explained later.

Under the 1981 Act, if a media organisation, editor or a journalist, or anyone else, is ruled by a court to have published more than the Act permits about an ‘active’ case, that could be judged to be a contempt of court – a type of offence. A person ruled responsible for such breach of the Act could be heavily fined and/or jailed for up to two years. Any media organisation ruled to be responsible can be heavily fined.                      

Who can initiate court proceedings so there can be a ruling on whether there has been a contempt by publication?  Proceedings for contempt may be begun by Crown courts, higher courts, the Attorney-General, or someone with the Attorney General’s consent. Note that magistrates’ courts cannot initiate such proceedings and must refer cases to the Attorney-General for action in the High Court.

What is meant by publication? Publication includes anything printed or broadcast (including photographs), anything said in a speech, play or concert or any other communication addressed to any section of the public, e.g. on website/social media.

EXAM TIP: Learn the basics of strict liability contempt below. 

As McNae’s explains, under the 1981 Act it is illegal to publish material which creates a substantial risk of serious prejudice or impediment to an ‘active’ case.

What ‘serious prejudice’ and ‘serious impediment’ mean in this context is explained later in this part of this guide.

Contempt is a ‘strict liability’ offence, which means it does not have to be proved that the publisher intended to create such a risk.

A criminal case becomes active when any of the following events occurs:

• a person is arrested;
• an arrest warrant is issued;
• a summons is issued;
• a person is charged orally; or
• a document specifying the charge is served on the accused person.

As chapter 19 in McNae’s explains, any of these events mean that there is a definite prospect of an individual facing trial. In court a charged person is referred to as the defendant.

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EXAM TIP: A mnemonic to help remember for the exam the above events is WASOD (warrant for arrest, arrest, summons, oral charge, document of charge).

A criminal case ceases to be active when any of the following events occurs:

• the arrested person is released without being charged (except when released on police bail or ‘under investigation’);
• no arrest is made within 12 months of the issue of an arrest warrant;
• the case is discontinued, either by the police telling the person in writing that he/she is no longer ‘under investigation’, which means that he/she will not be charged, or if there has been a charge, by that prosecution being dropped;
• the defendant is acquitted or sentenced; or
• the defendant is found unfit to be tried or unfit to plead, or the court orders the charge to lie on file.

Remember: chapter 19 in McNae’s has further detail on what these events are.

As said earlier, the Act bans the publication of anything which ‘creates a substantial risk of serious prejudice or impediment’ to an active case.

Prejudice in this context can be understood as ‘pre-’judging’ – that is, to reaching a conclusion too early on a biased or insufficient basis. The term ‘serious prejudice’ in this legal context means that the jurors could reach a wrong verdict on such a basis. That could happen, for example, because what was published in a media report interfered with how evidence was gathered, or given in court, such as when a witness grows confused and begins to doubt his or her memory of an event, because what was published contradicts that memory. Or it could happen because what was published could have caused jurors to form an opinion - on the character of the defendant or relevant events - which was based on information other than that which by law they can be given in the trial. For example, the law is that a jury is not usually told if the defendant has previous convictions, in case that knowledge means they ‘pre-judge’ him or her, and so pay less attention to whether he or she is guilty of the charge being tried.  Therefore, to comply with the 1981 Act, a media report published when the case is ‘active’ should not refer to the defendant’s criminal record, unless this is a quote of what the jury has been told of it in the trial. If the jury’s deliberations are seriously prejudiced, they may reach a wrong verdict or fail to agree on a verdict, so justice will not have been done.

Remember, the relevant part of the 1981 Act is in operation from an early stage of any criminal case – for example, an arrest. What is published then about the arrested person may be read by someone who months later ends up on the jury in that case. That juror may remember, for example, a media report which included that the arrested person has a criminal record, which why such a fact should not be included. That juror can be expected to tell the other jurors of the defendant’s criminal record, and so even more prejudice may have been caused. The jurors will almost certainly have been told by the judge, before the trial begins, to ignore all media reports of the case. But that does not mean that they do.

The term ‘serious impediment’ has a range of meanings but refers – for example - to a situation in which what was published about an active case stops (impedes) a person offering evidence (for example, to the police or to a defence lawyer) or stops a witness from attending court to testify, or inhibits what is said in such testimony, or puts a defendant under such stress that he or she may not be able to participate fully in the trial to help the conduct of his or her defence there. So, if there is such impediment, no-one can be sure that justice has been done in that case.

The Act itself does not define what the criterion ‘a substantial risk of serious prejudice or impediment’ means. But journalists can know from judges’ rulings in contempt cases which the types of material which could be deemed to breach the Act if published. A journalist reporting a court case will not breach the Act if the reports comply with its section 4, which is covered later in this guide. But publishing in or with the report material from an extraneous source, such as someone commenting on what has happened or been said in that court case, or a re-publishing quote about the alleged crime which was originally published before that case became active, could create a substantial risk of serious prejudice or impediment.

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What causes a substantial risk of serious prejudice or impediment?

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Assumptions of guilt – that is, publishing material linking the suspect or defendant to the crime e.g. reporting that police have arrested or charged the man who committed a crime; or otherwise stating or suggesting before the verdict that the accused person did it. For example, do not use the word ‘killer’ or ‘murderer’ to describe a person arrested or charged with a homicide offence, as this assumes guilt.

Previous convictions – publishing reference to the previous convictions of an arrested or charged person may prejudice jurors in the case (and/or create risk of impediment – see below).

Photos/descriptions of an arrested person or someone who has been charged or summonsed - to publish what such a person looks like may in some instances affect the process in which visual ‘identification’ evidence is gathered or given – for example, if a witness or witnesses saw a stranger committing the crime or at the crime scene soon afterwards. Such a witness may be asked by police to pick out in ‘an identity parade’ or describe in the trial the person seen. That witness may be confused or influenced when doing this if the media has published beforehand a description given by another witness of that seen person, or a photo of this suspect taken of them elsewhere (e.g. at their wedding). If there is such publication, did the witness properly rely completely on memory during the parade about who he or she saw, or was that memory contaminated by or overridden by what was published? Did what was published make it more or less likely that the witness would pick out the person seen earlier? These types of questions could throw doubt on and undermine any evidence from the parade. In 1994 the Sun newspaper published a photo of a suspect before his identity parade, and that publication meant that evidence from the parade was subsequently deemed inadmissible in court [see McNae’s page 319]. However, if it is very clear that such visual identification evidence is not going to be necessary in the police investigation or in the trial (for example, because the defendant, while denying guilt, agrees being at or was indisputably at the alleged crime scene), photos of defendants are published in England & Wales even while the case remains active, because in these circumstances there is no risk of prejudicing the evidential process by publishing the photo. 

Interviews with eye-witnesses – publishing when a case is active what a witness has said before the relevant trial about the alleged crime could breach the 1981 Act. This is because their evidence may for a legal reason be ruled inadmissible by the judge, and so would not be aired at the trial, but such publication may mean that the jury becomes aware of that evidence; or because the witness may genuinely change his or her mind about some details of the witnessed event, but feel obliged – for example, through fear of appearing foolish or unreliable - to stick in trial testimony to a version of events published previously by the media (say, from an interview given by the witness to a reporter at the crime scene). When the case becomes active, what a witness has said about an alleged crime should only be aired as stated in his or her court testimony at the trial, until all verdicts in the case are reached. Under the 1981 Act, a fair and accurate report of what a witness says in a trial can be safely published contemporaneously, unless a court order forbids this, because the court (including any jury) has heard that evidence – see later about the Act’s section 4.

Suggestions of bad character – any published portrayal of or comment about the suspect or defendant which puts that person in a negative light – for example, a suggestion or comment that he or she is dishonest or untrustworthy – could be ruled to breach the 1981 Act, as such material could prejudice jury deliberations by making jurors more likely to reach a guilty verdict, if they were to become aware of it. The Sun and Daily Mail were fined for contempt in 2011 for publishing a photo on their websites of a man posing with a gun, to accompany news reports of his trial for murder. The trial did not feature evidence about a gun, so this publication of the photo improperly suggested he was involved in crime other than the murder. See McNae’s page 317.

Impediment – remember that publishing when a case is active any material which suggests a suspect or defendant is guilty, or is a dangerous or dishonest person, could mean that someone with evidence will not come forward, and so their evidence will not feature in any trial. For example, if a newspaper reports that a suspect or an arrested person is or could be a habitual criminal, people may fear a reprisal from that person or his/her associates if they offer evidence helpful for the prosecution; or decide not to offer evidence which could help that person’s defence, because they do not want to help or be associated with a criminal. In the case of Chris Jefferies who was arrested in connection with the murder of Joanna Yeates in January 2011, two national newspapers were convicted of contempt because their reports of the arrest suggested he was guilty. The High Court ruled that their reports, by vilifying him, created a substantial risk of serious impediment, by making it less likely that people would come forward with evidence to clear him of involvement in the murder. It turned out that he had nothing to do with the murder and was not any type of criminal. See McNae’s page 315-316.

Because police accepted some time after the arrest that Mr Jefferies was not a suspect, he was not charged with any crime and so did not face any trial. The fact that the two newspapers were convicted of contempt illustrates that the 1981 Act can be used to punish the publishers of material which creates ‘a substantial risk of serious prejudice or impediment.’ It does not have to be proved that such prejudice or impediment actually occurred. The creation of such risk breaches the Act, whether or not any juror becomes aware of such material, and whether or not any prejudice or impediment actually occurs, and whether or not there is a trial.

Most of the examples above are concerned with circumstances in which it may become more likely, because of what was published, that a person is wrongly convicted at trial. But remember, the 1981 Act also protects the prosecution process, to avoid people being wrongly acquitted – for example, the Act’s effect (by governing what is published about an active case) helps ensure that prosecution evidence, as well as defence evidence, can be gathered and given well in court.