Contempt or 'Sub-Judice' Rules
What does it mean to be in contempt?
Also known as the 'sub-judice' rules, 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, the main courts: Magistrates' Court, County Court, High Court and also Inquests, Military Courts and Industrial Tribunals. Hearings before the Professional Conduct Committee of the General Medical Council are not included.
What is protected?
Statutory contempt law bans the media from publishing or broadcasting, including on the internet, any comments or information that might seriously prejudice active 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 would sway him/her when he/she is deciding whether an accused person is innocent or guilty.
The legal test
In short, 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" 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, and they remain so until such time as the accused has been acquitted or convicted. 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 it was not possible to disseminate before or during the trial. In practice, 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 for statutory contempt is 'strict', which means that the broadcaster's and programme-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.
Common law contempt consists of any other action which is intended to interfere with the administration of justice, for example a sustained campaign by the media to influence legal proceedings. Proceedings need not be active.
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 in making their verdict.
Penalties for contempt
Contempt of court is a criminal offence and carries severe penalties: an unlimited fine and/or up to two years imprisonment of the relevant personnel responsible for the offending publication or broadcast - normally the Editor. The law has tended to be interpreted more strictly in Scotland although it should be noted that recently in England the authorities appear equally willing to prosecute for contempt.
Third Party Costs 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, as a result of that party's "serious misconduct". Thus, in addition to the penalties for contempt, a media organisation could find itself 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 costs 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 programmes are referred to the programme lawyer at an early stage and that research is undertaken to ascertain the status of any legal proceedings.
Here are some further activities that would or could be in contempt:
- Obtaining or publishing details of jury deliberations. See below.
- Reporting of court proceedings in breach of a court order or certain reporting restrictions. See 'Reporting Legal Proceedings'.
- 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.
- Making payments to witnesses (note that, in addition, this is likely to be prohibited under regulatory rules. See 'Crime').
- Filming or recording inside court buildings without permission. See below.
- Revealing the identity of victims of sexual offences without written consent, which can only be given if over 16 years of age. See 'Reporting Legal Proceedings'.
- Reporting proceedings concerning wardship, adoption, other children related hearings, Mental Health Act applications and national security in a way contravening the law. See 'Reporting Legal Proceedings'.
- Reporting criminal proceedings and identifying a child as a defendant, witness or victim. See 'Reporting Legal Proceedings'.
- Breaching an injunction obtained against another party.
In England & Wales it is now a criminal offence under sections 20D to 20G of the Juries Act 1974 for a person intentionally—
(a) to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or
(b) to 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 a term not exceeding 2 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 programme-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 & 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, programme-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 court house 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 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 permission for journalists to use live, text-based communications from court requires permission from the judge.
Documents/Information Obtained from Parties to Civil/Criminal Proceedings
In civil proceedings, relevant documents are released to the court by both parties, 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 a contempt. Similarly, a journalist publishing or broadcasting information emanating from such documents, knowing where it came from would be in contempt.
For example, a programme-maker may be researching a programme about negligence in the medical profession and looking at particular cases of litigation. One of the parties to the litigation passes him documents which they have received from the other side. This may be a contempt and the programme-maker's use of such documents in any programme may be a further contempt. In addition cases involving children or family law have restrictions regarding who is entitled to access documents. Seek legal advice.
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. For example, a programme-maker may be investigating a miscarriage of justice and the person convicted may pass him documents/statements that were disclosed to him/her by the prosecution to look at. These actions could give rise to an offence which a programme-maker could have incited by the investigation. Legal advice should always be sought.