Contempt of Court by Publication: Tension Between Fair Trial and Freedom of Expression

CONTEMPT OF COURT
CONTEMPT OF COURT BY PUBLICATION: TENSION BETWEEN THE RIGHT TO
A FAIR TRIAL AND THE RIGHT TO FREEDOM OF EXPRESSION
Name of Student
University
Course
Professor
Date and Year
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CONTEMPT OF COURT
Legislation
Contempt of Court Act 1981
Cases
Rex v Davies Ex parte Delbert-Evans and sub nom Delbert-Evans v Davies and Watson [1945] 2
All ER 167 DC, [1945] 1 KB 435
A-G v Associated Newspapers Ltd and MGN Ltd [2012] EWHC 2029 (Admin) at [29], All ER
(D) 185 (Jul)
Attorney General v MGN Ltd [1997] Entertainment and Media Law Reports 284
R v Duffy ex p Nash [1960] 2 QB 188, 200
A-G v Channel Four Television Co Ltd [1988] Criminal Law Review 237
Attorney General v MGN Ltd [2011] EWHC 2074 (Admin), [2012] 1 WLR 2408 at [15]
Treaty
European Convention on Human Rights (ECHR)
Abbreviations
ECHR- European Convention on Human Rights
NSW- New South Wales
NSWLRC –New South Wales Law Reform Commission
EWHC- England and Wales High Court
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CONTEMPT OF COURT
Introduction
Contempt of court is an area in the law that handles any form of behavior that might affect court
proceedings1. The law has many forms including; the refusal to comply with court orders like a
subpoena, distracting court trials, an officer if court failing to perform his duties, and even
publishing prejudicial information that may influence the judges making the trial unfair2. The
latter is what this report will be looking at, and it has a collective term; contempt by publication3.
It is very critical to protect the system of justice, especially the right to a fair trial which has been
provided for in article 6 of the European Convention on Human Rights4. This is because in all
criminal prosecutions, the decision of the jury or magistrate should be from the evidence set
before the court. Evidence or rather information from outside is not subjected to jury
examination and either party. That means that the facts which a juror uses are mistaken or false.
Nonetheless, the law must preserve or instead protect the right to the freedom of expression5.
Still, court proceedings attract the concern of public6Who deserves to know what happens in
court in order to have the assurance that indeed the legal system works right. The two: right to a
fair trial and the right to the freedom of expression7Is what Bradley and Ewing see to conflict and
are responsible for a certain kind of tension among news reporters (among other people) because
of the fear of breaking the law for lack of certainty. The law of contempt of court, as Bradley and
Ewing suggest, precisely contempt by publication, has been set up to prevent these kinds of
unnecessary fears, but has it done so? This paper will dig into this matter to show the
effectiveness of the law in performing this duty.
Discussion
The law on contempt by publication strives to show the need of protecting the jury from getting
to see or find out information that ought to be utilised when making decisions. However, the law
should only do this in so far as it should protect a fair trial without going beyond what is needed
1 Great Britain: Law Commission, Contempt Of Court; Scandalising The Court, A Consultation Paper (The
Stationery Office 2012) 5.
2 C. J Miller and David Perry, Miller On Contempt Of Court (4th ed, Oxford University Press 2018).
3 New South Wales Law Reform Commission, Contempt By Publication (New South Wales Law Reform
Commission 2003) 56
4 European Convention on Human Rights
5 Bibha Tripathi, Contempt Of Court And Freedom Of Speech (Readworthy Publications 2010) 12, 75,195, 202
6 Great Britain: Law Commission, Contempt Of Court (n 1) 18
7 A. W Bradley and K. D Ewing, Constitutional And Administrative Law (Pearson Longman 2007).
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CONTEMPT OF COURT
to preserve that hearing. The offence of contempt by publication takes two forms. The first way
is by strict liability contempt8. This is whereby a publication is made at the time when the
hearing is active and thus the publication creates a considerable risk of a serious impediment to
the case at hand. The offence still stands regardless of the awareness of the publisher about the
threat created. To that extent, it is right to say the law on contempt of court is stringent and very
sensitive and therefore useful for that matter. Following the Sunday Times Case9, it was shown
that there was no way the newspaper could have influenced the judge hearing the case, making
prejudice and absent element the law of contempt was subject to substantial revision by the 1981
Act, and the European Court of Human Rights declared that the law on strict liability contempt
was not in line with the ECHR article ten.
The other form of contempt by publication is that one covered by common law as established
under the 1981 Act10. Common law, in other words, is case law, or rather judge-made law. This
form demands that one should not publish information with the outright objective of impending
or prejudicing a case despite it being inactive11. In English law, Schedule 1 to the Contempt of
Court Act 198112 for prosecution if the publication is made regarding an active case only.
Criminal cases are active from the point of issuance of the warrant or actual arrest, regardless of
which comes before the other. The period comes to an end when the accused person is found not
to be guilty, or is sentenced, or when the case is called off by the prosecution as it has been set
out in the Contempt of Court Act 198113. That goes up to the time the court gives it judgment on
appeal as it was decided in the case of Rex v Davies Ex parte Delbert-Evans and sub nom
Delbert-Evans v Davies and Watson14
The provision of Article 10 of the European Convention on Human Rights is that;
8 Section 1 of the Contempt of Court Act 1981 explains that “in this Act ‘the strict liability rule’ means the rule of
law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in
particular legal proceedings regardless of intent to do so”.
9 Sunday Times v UK (1979) 2 EHRR 245 (App No 6538/74).
10 Section 6(c).
11 David Eady, Anthony Arlidge and A. T. H Smith, Arlidge, Eady Et Smith On Contempt (Sweet et Maxwell 2001).
paras 4-118 and 4-121.
12 Section 2(3), s 2(4). Schedule 1 sets out in detail when proceedings are "active" and provides interpretative
provisions
13 Sch 1, para 6 Contempt of Court Act 1981.
14 [1945] 2 All ER 167 DC, [1945] 1 KB 435
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