Contempt

Key points

Being in contempt of court is a criminal offence that carries severe penalties.
Once legal proceedings become active, it is a criminal offence for media organisations to broadcast material which would create a substantial risk of serious prejudice or impediment to the proceedings.
Care must be taken when reporting legal proceedings or showing material that could relate to an ongoing case.

If a contributor is arrested, you must refer up immediately.

Introduction

Contempt is a criminal offence. There are two types of contempt: statutory and common law. Both involve interfering with legal proceedings in the UK. There is no exhaustive list of what constitutes "legal proceedings" but it includes, for example, proceedings in the main courts: Magistrates' Court, County Court, High Court and also Inquests, Military Courts and Employment Tribunals. Hearings before the Professional Conduct Committee of the General Medical Council are not included.

Being in “contempt of court” is a criminal offence, punishable by a range of penalties including imprisonment, a fine, or by confiscating the assets of the person responsible. Proceedings can be brought for all types of contempt but are most commonly brought where the publication concerned constitutes a “substantial risk of serious prejudice or impediment” to active proceedings.

From the point that someone is arrested or charged with a criminal offence, the proceedings are said to be “active”. From then until such time as they are finally convicted or acquitted, you have to be careful not to include anything that comments on or reflects on that person’s guilt or innocence, the proceedings themselves, or the evidence, witnesses or background circumstances to the case without having discussed it fully in advance with a content lawyer.

What is contempt?

The law of contempt bans the media from publishing or broadcasting comments or information (including on the internet) that would create a substantial risk of serious prejudice or impediment to active UK legal proceedings, in particular criminal proceedings heard before juries. The concern is that a juror might hear or see something outside of the courtroom that could influence their decision in deciding whether an accused person is innocent or guilty.

Contempt may also be committed (even where proceedings are not yet active) if there is actual intent to interfere with the administration of justice.

Penalties

There are a range of penalties available, the most severe being an unlimited fine and/or up to two years imprisonment of the relevant personnel responsible for the offending publication or broadcast – normally the editor.

Contempt and reporting legal proceedings

The laws that restrict the reporting of legal proceedings are numerous and varied. Many relate to the identification of children and the victims of sexual offences. A breach of most reporting restrictions amounts to a criminal offence.

Contempt rules

The legal test

In short, once legal proceedings become "active", it is a criminal offence for media organisations to broadcast or publish material which would create "a substantial risk of serious prejudice or impediment" to the proceedings. Criminal proceedings become "active" as soon as one of the following has occurred: a person is arrested, a warrant for arrest is issued, a summons has been issued, or a person has been charged. Generally, proceedings remain active until the accused has been acquitted/sentenced or there is another order bringing the proceedings to an end. Where a warrant has been issued, proceedings are deemed inactive once 12 months have passed without the suspect's arrest, or if there is an arrest, when the suspect is released without charge.

Civil proceedings, for example libel proceedings or proceedings for misuse of private information, become active when the hearing date for the trial is arranged and, in Scotland, when the record (written case) is closed.

Once a person has been acquitted or sentenced, or the proceedings come to an end in some other way, proceedings cease to be 'active' and there is much more scope for commenting on the proceedings and the convicted person and publishing material which could not have been published before or during the trial. In practice, in some cases once a defendant has been convicted, even if they have not been sentenced (sometimes sentencing is delayed), the media treats the proceedings as no longer 'active'. This is because sentencing in the Crown Court is carried out by professional judges who the law deems will not easily be prejudiced by media reports.

Finally, note that UK contempt laws only apply to legal proceedings that are taking place in the UK. You could not, therefore, be in contempt of US legal proceedings for broadcasting prejudicial material in the UK.

Who can be prejudiced?

It is not just potential jurors who might be prejudiced by what is broadcast. Witnesses may also be prejudiced by what they see or hear on television. In addition, although professional judges are largely considered to be immune to prejudicial media reporting, some courts are presided over by lay people (most Magistrates' Courts), and the law assumes that such people can be prejudiced.

Liability

Liability for statutory contempt is 'strict' – the broadcaster's and content-maker's knowledge or intention is irrelevant, as is the fact that no actual prejudice was caused in a particular case – the risk of prejudice is sufficient. If contempt is committed intentionally, however, it would be punished even more severely.

Liability for common law contempt consists of any other action (or omission) which is intended to create a real risk of prejudice to the administration of justice, for example a sustained campaign by the media to influence legal proceedings. Proceedings need not be active.

Examples

A classic example of contempt is the publication or broadcast, once proceedings are active, of the fact that a person charged with a criminal offence has a previous criminal record. The previous convictions of a defendant are quite often expressly withheld from the jury during the trial because they are deemed so prejudicial. Broadcasting this information, therefore, is likely to create a substantial risk that people who may later serve on the jury would be swayed in their consideration of the facts and when deciding their verdict.

Other activities capable of amounting to contempt include:

Obtaining or publishing details of jury deliberations. See 'Interviewing Jurors' below.
Reporting of court proceedings in breach of a court order or certain reporting restrictions.
Anticipating the course of a trial or predicting the outcome on television.
Publishing details of a defendant's lifestyle, if relevant to the charge.
Publishing a photograph or moving image or recording of a defendant where identification is an issue.
Publishing information obtained from confidential court documents in both civil and criminal proceedings.
Making payments to witnesses (note that this is also likely to be prohibited under regulatory rules.)
Filming or recording inside court buildings without permission. See 'Tape recordings, photographs and sketches' below.
Revealing the identity of victims of sexual offences without written consent, which can only be given if over 16 years of age.
Reporting proceedings concerning wardship, adoption, other children-related hearings, Mental Health Act applications and national security in a way contravening the law.
Reporting criminal proceedings and identifying a child as a defendant, witness or victim.
Breaching an injunction obtained against another party.

Third-party cost orders

The courts also have the power to force third parties (such as media organisations) to pay any costs which have been wasted in criminal trials, because of that party's "serious misconduct". Thus, in addition to the penalties for contempt, a media organisation could be faced with a bill for part of, or the total cost of, an aborted trial, where postponement or cancellation of the trial was caused by the prejudicial reporting of one of its journalists.

Fines made against media organisations for contempt where trials have been cancelled have traditionally been in the order of tens of thousands of pounds. Clearly, third-party cost orders could run into hundreds of thousands of pounds or even millions.

Accordingly, it is extremely important that all references to active legal proceedings in content are referred to the content lawyer at an early stage and that research is undertaken to ascertain the status of any legal proceedings.

Interviewing jurors

In England and Wales, it is a criminal offence under sections 20D to 20G of the Juries Act 1974 for a person to intentionally:

(a) disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury during their deliberations in proceedings before a court, or

(b) solicit or obtain such information.

Proceedings for an offence under this section may not be instituted except by or with the consent of the Attorney General and a conviction can lead to imprisonment for up to two years or a fine (or both).

In Scotland it is a contempt of court "...to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations in any legal proceedings".

On no account must content-makers make any approach or speak to jurors or potential jurors about the legal proceedings in which they are or were involved without taking legal advice.

Tape recordings, photographs and sketches

It is a contempt of court for anyone, i.e., public or press, to use, or take into court for use, a tape recorder or other recording device without the consent of the Court. Similarly, it is a contempt to use or publish any such recording. The Court may in its discretion allow such recordings to be made. To be safe, content-makers who are attending court should not take into court recording devices even where there is no intention of using them.

Taking photographs, filming and sketching (if intended for publication) are also prohibited in court. This includes not just inside the courtroom but anywhere within the court building and its precincts. Filming parties to proceedings as they arrive and leave the courthouse is also technically forbidden but in practice this rule is not enforced, e.g., pictures of defendants and witnesses arriving and leaving the Royal Courts of Justice or the 'Old Bailey' are commonly shown. Regarding sketching, whilst sketching in court is prohibited if intended for publication, attending court, memorising proceedings and then making a sketch afterwards is permissible.

Where court proceedings are open to the public and where there are no reporting restrictions in place, journalists may now use live, text-based communications (e.g. email or X, formerly Twitter) to communicate directly from courts in England and Wales where it is for the purpose of fair and accurate reporting. Anyone using electronic text is strictly bound by the restrictions on reporting court proceedings under the Contempt of Court Act 1981. Equipment should be unobtrusive, hand-held and silent. In Scotland, use by journalists of live, text-based communications from court requires permission from the judge, or specific registration.

Documents/information obtained from third parties to civil/criminal proceedings

Civil proceedings

In civil proceedings, relevant documents are released to the court by the parties to the proceedings during the process of 'disclosure'. There is an implied undertaking on parties not to use documents disclosed in this way for any other purpose than the proceedings, except in limited circumstances, for example where the document has been read to or by the court or referred to at a hearing in open court. To do otherwise is likely to be contempt. Similarly, a journalist publishing or broadcasting information emanating from such documents, knowing where it came from would be in contempt.

Advice should always be sought from the content lawyer.

Criminal proceedings

Similarly, in criminal proceedings, use of any document which is disclosed by the prosecution or defendant (or co-defendant) in the course of proceedings is likely to be restricted to use within those proceedings. One exception is that the accused may use or disclose the object or information contained in a document to the extent that it has been displayed or communicated to the public in open court. This is even more restrictive than the provisions governing civil proceedings.