Page 205 - Law and the Media

Law and the Media
10.2.1 The strict liability rule
Under Section 2(2) of the CCA, strict liability applies to any publication that:

. . . creates a substantial risk that the course of justice in the proceedings in
question will be seriously impeded or prejudiced.

The CCA limits the period during which strict liability applies. The only publications that are
subject to the rule are those occurring while proceedings are ‘active’ within the meaning of
the CCA.

The four elements to the rule are:

1. Strict liability
2. A publication
3. Active proceedings
4. A substantial risk of serious prejudice.

10.2.2 Strict liability

Strict liability means that a publisher may be found in contempt of court irrespective of
whether or not he intended to cause a substantial risk of serious prejudice.

In criminal law, the prosecution must usually prove that the defendant committed the
physical act of the offence and did so with mens rea, or a guilty mind. Thus, for a man to
be guilty of murder the prosecution must prove that he fired the gun and did so with the
intention of killing the victim or causing the victim serious harm. For a man to be convicted
of theft, the appropriation of property by the defendant must be established as well as the
defendant’s dishonest state of mind.

However, for some offences Parliament has dispensed with the need to prove a guilty mind.
In these cases liability is said to be strict.

In the case of contempt under the CCA, if the publisher creates a substantial risk of serious
prejudice to proceedings that are active, it is no defence that this was not what he intended.
The prosecution does not need to prove intent, recklessness or even negligence. For example,
an editor or producer summoned before the court for contempt will not escape conviction by
pleading that the feature was published only after he took great care, took extensive legal
advice and pondered long and hard over the rights and wrongs of publication. Such a plea
may establish that he did not have personal culpability, but would still only amount to
mitigation and not a defence.

It follows that motivation is irrelevant in contempt proceedings. Newspapers or television
programmes may be able to establish convincingly that they are performing a public service in
exposing the other wrongdoings of a person already facing charges, but that will be to no avail
if their publication creates a substantial risk of serious prejudice to that person’s trial.
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