The University of Stirling Podcasting Society
Contempt of Court is a STRICT LIABILITY Offence it comes under the Contempt of Court Act 1981
Strict liability is applied to those working in media regarding the laws surrounding Contempt of Court. It is primarily focused on the Publication of information that could be “seriously prejudicial” to the execution of justice. This means that the media can not publish certain information. This means those working in the media should know before Publication if a case is active and if the information is a substantive risk to serious prejudice an active case. Defences of not knowing if the information is a substantive risk of seriously prejudicing an active case; or not knowing if the case was active are not applicable.
Strict liability is the highest standard of liability, in that a persons legal responsibility is not determined by mens rea (intent) only by actus reas (criminal act). This means that Strict Liability is not about: your intent to commit a crime, your reason for doing so, or your ignorance of the law. These motives and mitigating circumstances (contributing factors) may affect the sentence (legal punishment) handed out if found guilty. They will not affect the determination of guilt, as opposed to crimes such as murder and culpable homicide (roughly equivalent to England’s manslaughter laws) – where the determination of guilt and even type of guilt (such as determining voluntary or involuntary culpable homicide) is dependent on ones mens rea as well as mitigating circumstances. Regarding Strict Liability, it is an offence that is determined based on an act that breaks the law with no consideration of motive, intent or mitigating circumstances.
Contempt of Court Defences
There are three primary defences for contempt of court, Fair, Accurate and Contemporaneous Reporting is the primary one used. The other two, are Innocent Publication and Public Interest – these are both extremely rare to come up, and even harder to win when facing the criminal charge of Contempt of Court.
Fair, Accurate and Contemporaneous Reporting
Fair, accurate and contemporaneous reporting of a case – essentially, the information published was fair, was accurate, and was timely (not published too far after the event) and that, like with the defamation defence of veritas (truth) – is essentially that the crime did not occur. It is the most common defence.
Innocent Publication is very hard to prove because of strict liability; it is the defence that the publisher had no way of knowing the case was active. Essentially this requires that the publisher made numerous and appropriate checks with authorities who assured the publisher that the case was not active – appropriate authorities being Police Scotland and The Crown Office and Procurator Fiscal Service (COPFS). It still requires that the publisher made every effort to learn that the case was active or not and that they trusted the word of those who should know.
The final defence, possible, is that of Public Interest; this is a rarely used defence and essentially requires that relatively inconsequential reference to an active case was made in the process of a broader and important public debate was ongoing. Such as a Public Interest discussion of Fire Safety in Hotels, and a hotel has a fire that is being investigated and proceeding through the court systems – and an inconsequential reference (perhaps as ‘an example’) to the hotel fire.#
Strict liability applies only to Contempt of Court that is in statute (in written and codified law, via acts of parliaments) – Contempt of Court also has ‘common law’ or ‘case law’, that as opposed to the Strict Liability Statute Contempt of Court, it does require evidence mens rea (motive). It is a very rare type of contempt of court, but the motive must have been to publish information that deliberately impedes and-or prejudices a case, whether that case is active or not.
Publication: What does it mean to ‘publish’?
“Limitation of scope of strict liability. (1)The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, [F1 programme included in a cable programme service] or other communication in whatever form, which is addressed to the public at large or any section of the public.”Contempt of Court Act 1981, Chapter 49, Article 2
What can’t you report?
- Previous Convictions of the Accused (in Criminal Cases) – where this is not previously discussed in open court.
- Implication or Speculation of Guilt
- Dock Identification (photographs of the accused)
- Motive details (except where this is previously discussed in open court)
- Any information not discussed in open court that could be seen as evidence
- Identification of the accuser and/or victims in sexual offence cases – this is granted for life, regardless of if the accused is found guilty, not guilty or not proven.
- Identification of under 18’s is generally restricted (but not always)
- Jigsaw Identification: Where identification would be Contempt of Court, jigsaw identification would be the ability to piece together the identity of someone through information (like in defamation, where innuendo are enough to identify someone – e.g. The tall dark handsome Mexican who works in my local MacDonalds, I live on the Raploch, Stirling; or where the piecing together of information across publications can lead to the identification of someone who is protected: such as “The Father raped his teenage daughter” whilst another publication “Mr Jones is guilty of raping a child”; or where there is enough common details within a report for the identity to be determined (by piecing the details together) – starting with ‘the Victim used to work in at a local supermarket” and later “Tesco’s have refused to comment on their previous employee’s accusations against the stores general manager” and “The victim alleges that the accused assaulted them behind the bred counter where she worked”. The media tends to adopt a principal of adopting the naming of the accused and not naming the relationship with the victim.
What can you report?
In certain cases, the courts and judiciary will place limitations on what can be reported beyond the aforementioned, such as limiting when a case may be reported on – with regards to the Publication of reports and how long they are not allowed to be published for; or the restriction of the reporting on the identity of specific people, such as a witness’ name; generally, this is put in place where do to name publicly would impede the progression of justice, such as when knowing the identity of an individual might actually cause more harm than good.
Essentially, and generally, the media may report the name of the accused, and what they are accused of, and whether the accused has submitted a defence of “not guilty” or “guilty”. The media may report that which is discussed in court, generally.
Filming in Court
Audio-visual (Filming) & audio recordings, and photography are not automatically allowed in courts in Scotland, and special permission on a case-by-case basis must be sought from the court in question and is determined by the Lord President, Scotland’s most senior judge who sits in Parliament House, Edinburgh. Permission of everyone involved in the case may also be required, including the case’s presiding judge. Permission may be granted when it is considered to be in the public interest, public interest is defined as:
“Anything affecting the rights, health, or finances of the public at large. Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal.”The Legal Dictionary: Public Interest accessed: December 2020
Accredited journalists are now allowed to live-tweet from court where the information tweeted falls within the rule: Fair, accurate and contemporaneous reporting of a case.
The following is a statement from the ‘Scottish Courts and Tribunal Service[‘s]’ “Media Guide”, and addresses what would be considered an ‘accredited journalist’ or ‘bona fide journalist’:
“If the person is unknown to you and asking for information provided only to the media you will need to be shown some form of identification or accreditation that you can check for authenticity. This may be a NUJ membership card or a UK Press card or other identification which satisfies this purpose.”Scottish Courts and Tribunal Service[‘s] “Media Guide”, p. 4, accessed: December 2020
Which essentially tells us that an accredited journalist is someone with an NUJ membership card or a UK Press card or a verifiable form of press credentials (perhaps a Press Card from an international news organisation, such as a staff card for CNN or APF).
Substantial Risk is where the information published carries a significant (even if only theoretical, the risk, however, is not improbably and it is not easily dismissed or forgotten, that is to say, it is not inconsequential, but very serious) risk of seriously prejudicing a case, which could lead to a miscarriage of justice or a failure of justice to be executed.
Serious prejudice is where the information published might lead to the change in the outcome of a case; where a jury has to be discharged (dismissed from being the jury); a case may have to be abandoned as the accused can no longer receive a fair trial; or the case has to move to a new area to receive be a fair trial
Active proceedings are cases at any part of the court system which are not closed or finished. This means that a case becomes active as soon as an individual is arrested or a warrant for their arrest is issued in criminal cases. And as soon as court hearing date is set in civil cases. The only time a case is not-active, after these events have happened, is when the case is concluded. And/or when the time-limit imposed by a judge on reporting is lifted or finished. The conclusion of a case may be when a verdict is reached by the court, or when charges are dropped. A case that has to be abandoned because of a previous contempt of court is still active.