Page 210 - Law and the Media

Contempt of Court
10.2.5 Substantial risk of serious prejudice

Section 2(2) of the CCA states that the strict liability rule only applies to publications that
create a substantial risk of serious prejudice to the course of justice in the relevant
proceedings. Those in the media are well advised to remember the relevant test for contempt:
is there a substantial risk of serious prejudice?

The court has made it clear that this a twofold test. The risk must be substantial and the likely
prejudice has to be serious:

First there has to be some real risk that the proceedings in question will be affected
at all. Second there has to be a prospect that if affected the effect will be serious.
The two limbs of the test can overlap but they can be quite separate.
(A-G v News Group Newspapers (1986))

The threshold is not a high one. ‘Substantial’ risk does not mean ‘weighty’, but merely more
than minimal or remote risk. The time at which the risk is to be assessed is the time of
publication.

At the time of writing, the trial against the Leeds United footballers, Lee Bowyer and
Jonathan Woodgate, has been halted because of an article published in the Sunday Mirror
newspaper. An order of the court is currently in force restricting discussion of this case. It is
possible to say, however, that the Attorney General is considering whether the contents of the
article created a substantial risk of serious prejudice to the proceedings. That matter will be
determined at a later date.

Prejudice can include stopping the hearing, moving the hearing elsewhere, or discharging the
jury.

The following factors should be among those considered by the media when assessing
whether a feature is likely to be a contempt:

The court
Date of hearing
Place of trial
Content
Circulation
Undermining or intimidating of witnesses, the parties or a juror
Anticipating the verdict
Civil proceedings.
The court
The issue of whether there is a real risk that a publication will affect the course of justice in
proceedings frequently depends upon the type of court hearing the proceedings, or the mode of
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