Influencing a Case

Contempt out of court in relation to a particular case may take the form of improper pressure on a party or on witnesses or jurors, improper communication with a judge, or published comment tending to prejudice the case by revealing inadmissible evidence, pre-judging the outcome or pre-empting a party's case by doing anything to make meaningless a possible judgement in his favour.

R v Bolam (1949) 93 SJ 220, DC

Three day's issues of the Daily Mirror contained illustrated articles about Haigh, then accused (and later convicted) of murder, describing him as a "vampire", and giving details of other murders he had supposedly committed. The Divisional Court considered this a very serious contempt of "a scandalous and wicked character", and the editor was sent to prison for three months.

R v Thompson Newspapers ex p Attorney-General [1968] 1 All ER 268, DC

This case arose out of R v Malik, discussed above. While M was awaiting trial on a charge of inciting racial hatred, The Sunday Times published an article on race relations generally which included a picture of M and a caption describing him as a former brothel-keeper, procurer and property racketeer. The Divisional Court accepted that there had been no intention to prejudice the trial, but said there had been a serious contempt nevertheless and fined the newspaper £5000. (M's appeal against conviction, using this as one of the grounds, was dismissed.)

Attorney-General v News Group Newspapers [1988] 2 All ER 906, DC

A doctor was accused of raping an eight-year-old girl, but the DPP decided there was insufficient evidence to support a prosecution. The Sun newspaper took up the girl's case and agreed to fund a private prosecution. The paper then published over several days a series of interviews with the girl's relatives and articles naming the doctor and attacking him in very emotive language. Watkins LJ said that although proceedings did not formally begin until some weeks later, they were clearly imminent at the time of publication and there was a real risk - even perhaps an intention - that publication would interfere with the course of justice. The newspaper was therefore in contempt of court. (In the event, the doctor was acquitted.)

Attorney-General v Hislop [1991] 1 All ER 911, CA

Sonia Sutcliffe brought a libel action against Private Eye, which had alleged she knew about her husband's activities as the "Yorkshire Ripper". Three months before the trial the magazine published two articles repeating these allegations and adding others. The Attorney-General brought proceedings for contempt of court, and the Court of Appeal, overruling Popplewell J, imposed fines of £10k each on the editor and publishers. The articles went beyond fair and temperate criticism or (as DD claimed) a private warning before trial of possible cross-examination. They amounted to improper pressure on S to abandon her claim and there was a risk that potential jurors at the trial might be prejudiced by the articles.

Attorney-General v Times Newspapers [1991] 2 All ER 398, HL

Interlocutory injunctions were granted against The Observer and The Guardian prohibiting any publication of extracts from Peter Wright's book Spycatcher pending trial of the action brought by the Attorney-General for breach of confidence. The Sunday Times subsequently published extracts from the same book, and the Attorney-General brought proceedings against them for contempt of court. The Court of Appeal and House of Lords affirmed the judge's finding that DD were in contempt, but remitted the fine because DD had acted on legal advice based on a ruling of Browne-Wilkinson VC but subsequently (after DD's publication) reversed on appeal. The clear purpose of the injunctions was to avoid nullifying the purpose of the trial, and by putting into the public domain material that the Attorney-General claimed should be kept confidential DD had knowingly interfered with the course of justice.

Attorney-General v Punch (2001) Times 30/3/01, CA

The Attorney-General sought and was granted an interim injunction against several newspapers, prohibiting them from publishing any information obtained by the former MI5 officer David Shayler in the course of his work. Another magazine DD subsequently published articles by S, and the Attorney-General brought proceedings for contempt of court. Dismissing the action, Lord Phillips MR said the "third party" effect of injunctions is restricted to conduct which had and was intended to have an adverse effect on the proper administration of justice. In the instant case the Attorney-General had not proved the necessary mens rea, and the action failed.

Observer & Guardian v UK, Sunday Times v UK (No.2) (1991) 14 EHRR 153, ECHR

Several newspapers challenged the Spycatcher injunctions as a violation of their right of free expression. The Court said some limitations on freedom of speech can be justified, and the original injunctions were legitimate to avoid prejudice to the Attorney-General's position as a litigant in forthcoming proceedings. But once the book had been published in the USA and no serious attempt had been made to prevent its importation into the UK, the injunctions should have been lifted. At that stage any prejudice to the trial had already happened: the only interest to be protected was the reputation of the Security Service, and that was not enough to justify interference with the newspapers' freedom to publish matters of legitimate public concern.

Attorney-General v BBC [1997] EMLR 76, Times 26/7/96, DC

Remarks were made on the TV comedy show Have I Got News For You, clearly implying that the Maxwell brothers had been guilty of fraud. Auld LJ said these remarks created a risk of prejudice to the brothers' pending trial. The fact that they were meant only as a joke did not excuse them: some viewers might well have taken them seriously.

Contempt in relation to a particular case has largely been codified by the Contempt of Court Act 1981, the contents of which were influence by the adverse decision of the European Court of Human Rights in the Sunday Times thalidomide case. It creates a strict liability offence with some important exceptions, but preserves the common law offence as well where a specific intent can be shown.

Contempt of Court Act 1981 s.2

The strict liability rule applies only in relation to ... a publication which creates a substantial risk that the course of justice in ... active proceedings ... will be seriously impeded or prejudiced.

A substantial risk need not be large, but must be more than a remote possibility. Criminal proceedings become active as soon as any formal step is taken (e.g. a suspect is arrested), and remain active until the defendant has been convicted or acquitted. Civil proceedings do not become active until the case is set down for trial.

Attorney-General v News Group Newspapers [1986] 2 All ER 833, CA

Ian Botham brought a libel action against The Mail on Sunday over allegations that he had smoked cannabis, and the newspaper entered a defence of justification. After the case had been set down for trial, the News of the World threatened to print similar allegations based on their own independent enquiries, and the Attorney-General sought an injunction to prevent them. Leggatt J granted such an injunction, but this was lifted by the Court of Appeal. Lord Donaldson MR said the case was about the interaction of the right to free speech and the right to an unprejudiced trial by jury. Prior restraint is not normally imposed on a defendant who pleads justification (though if his plea fails the repetition may affect the damages), but it will be appropriate where there is a substantial risk of serious prejudice to the trial. In the instant case, however, the trial was at least ten months away, and the risk of prejudice was remote.

R v Knights (1995) unreported, Judge Saunders

A media personality D was charged with unlawful wounding, but the judge in the Crown Court ordered that the proceedings be stayed. Coverage of the case by tabloid newspapers had contained a lot of material prejudicial to D, including references to his lifestyle and activities and details of his previous convictions. The judge did not believe a fair trial by an unbiased jury would be possible. (News report, 10/10/95)

Attorney-General v Daily Mail (1996) unreported, DC

Five national newspapers were prosecuted for contempt of court in relation to R v Knights above, but the Court ruled that the stories were not prejudicial: D had been in the public eye for at least two years, with regular articles about his past. Schiemann LJ said it was hard to see how any one of the publications in the spring of 1995 could have created any greater risk of serious prejudice than that which already existed. They might have had that effect collectively, but that law did not cover that situation. (News report, 1/8/96)

Attorney-General v Unger (1997) Independent 8/7/97, DC

A home help G was trapped on video stealing money from her client; she was charged with theft and told reporters she did not intend to contest the charges. Before G's trial, a national and a local newspaper each published details of her activities. At the trial G pled guilty, but the Attorney-General brought proceedings against the papers for contempt of court, on the grounds that the reports would have been prejudicial had the case in fact gone to the jury. The court said newspapers must understand that the fact that a defendant had apparently confessed did not exclude the operation of the strict liability rule; but on the facts of the instant case there would have been no substantial prejudice. The action was therefore dismissed.

Contempt of Court Act 1981 s.3(1)

A person is not guilty of contempt of court under the strict liability rule as the publisher ... if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active.

Contempt of Court Act 1981 s.3(2)

A person is not guilty of contempt under the strict liability rule as the distributor ... if at the time of distribution (having taken all reasonable care) he does not know that it contains [prejudicial] matter and has no reason to suspect that it is likely to do so.

The burden of proof under either part of s.3 rests on the defendant.

Attorney-General v Observer [1988] 1 All ER 385, Knox J

Following the granting of interlocutory injunctions in the Spycatcher case, Derbyshire CC applied to the court to determine whether they could lawfully (i) purchase and lend copies of the book, now readily available abroad, and/or (ii) purchase and make available a selection of newspapers without first checking they contained nothing that might prejudice the trial. The judge said the purpose of the injunctions was to prevent the contents of the book becoming public knowledge until the determination of the confidence action, so to make the book available would be an interference with the administration of justice. But failing to examine newspapers to see whether they contained any information arising from Wright's work would not be a contempt of court in any case.

Contempt of Court Act 1981 s.5

A publication made as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is purely incidental to the discussion.

Attorney-General v Times Newspapers [1973] 3 All ER 54, HL

A large number of people born with physical deformities because their mothers had taken thalidomide during pregnancy sued the Distillers Company who had produced the drug. The preparation for the litigation dragged on over many years, and the Sunday Times published an article suggesting the Distillers Company should compensate the victims voluntarily and at once rather than stand on their legal rights. The Attorney-General decided this did not amount to contempt, and did not proceed, but when the paper ran a second article examining the evidence pointing towards negligence, the House of Lords said this amounted to contempt of court even though there was no significant risk that a judge trying the case without a jury would be prejudiced.

Sunday Times v United Kingdom (1979) 2 EHRR 245, ECHR

PP complained that the decision above was a violation of their right to free expression. The Court declared that freedom of expression is to be balanced against upholding the authority of the court: neither automatically trumps the other. In the instant case, however, the Court came down 11-9 in favour of free expression: the restraints imposed by the House of Lords' decision went beyond what was necessary in a democratic society. (This decision was a major factor in the framing of the 1981 legislation.)

Attorney-General v English [1982] 2 All ER 903, HL

The Daily Mail published an article endorsing the position of a parliamentary candidate who was strongly opposed to any action or inaction by doctors that would hasten the death of severely handicapped babies. The article commented that it was unlikely that a baby born without arms (as the candidate had been) would be allowed to survive today. Unfortunately, the article was published during the widely-publicised trial of a doctor (Dr Arthur) for the alleged murder of a Down's syndrome baby; he was acquitted, but the Attorney-General brought proceedings for contempt of court. Lord Diplock (with whom the other Law Lords agreed) said the article was protected as a discussion in good faith of a matter of public importance, the risk of prejudice being merely incidental.

Attorney-General v Times Newspapers (1983) Times 12/2/83, DC

Michael Fagan was charged with burglary after being found in the Queen's bedroom. Several newspapers published reports and articles relating to this matter, and both The Sunday Times and The Daily Star were found to have been in contempt of court. The Mail on Sunday published an article suggesting a homosexual liaison between him and one of the Queen's police bodyguard, but the Divisional Court said the security of the Queen was a matter of serious public concern and the risk of prejudice, though undoubtedly present, was incidental; The Mail on Sunday was therefore protected by s.5.

Members of Parliament have complete immunity from civil or criminal proceedings in relation to anything they say in Parliament, but the rules of Parliamentary procedure (enforced by the Speaker and the House itself) prohibit discussion of matters which are sub judice.