Page 212 - Law and the Media

Contempt of Court
nine months before the woman’s trial was likely to take place. The judge felt that by the time
of the trial the contents of the article would have faded sufficiently from the minds of the
public for there to be no serious prejudice to the defendant. This is sometimes known as ‘the
fade factor’ (A-G v Unger (1998)).

By contrast, in the same year the BBC satirical news quiz Have I Got News For You called
Kevin and Ian Maxwell ‘heartless scheming bastards’ whilst they were awaiting trial for
fraud. Although the programme was broadcast some six months before the trial was due to
take place, both the BBC and the independent producers of the programme were fined
£10 000 (A-G v BBC and Hat Trick Productions Ltd (1997)).

Although the degree of risk and the seriousness of the prejudice will depend on the
circumstances of each case, published features will pose the most risk when they are
published close to or contemporaneously with a hearing or a trial, or contain information that
must not be heard by the jury.

Place of trial
The location of the trial is an obvious consideration when assessing the element of
substantial risk. For example, a story published in a local newspaper in Cornwall is unlikely
to cause a real risk of prejudice to a trial taking place in Newcastle. Place of trial will have
no impact on features published in national newspapers, national broadcasts or on the
Internet.

Content
The content of the feature is always the major factor when considering serious prejudice.
Whether a feature is seriously prejudicial will depend on the particular facts of each case and
the specific issues the court will have to decide. The prominence or publicity given to the
article or programme will have an impact on the degree of risk and seriousness of the
prejudice. However, the following matters are relevant in considering contempt:

Photographs
The defendant’s character and record.

Photographs
There is a duty to refrain from publishing photographs of a defendant or describing his
appearance where identity is an issue. Before publishing photographs of a person who has
been arrested or is the subject of a warrant, the media should check with the police or defence
lawyers to see whether identity is an issue. In 1994 the Sun published a photograph of a man
charged with murder shortly before he was to appear in an identification parade. Both the
paper and editor were found to be in contempt and fined a total of £100 000. However, where
the publication of a photograph is likely to assist the police in arresting a suspect and the
photograph has been issued by the police, there will be no contempt even though the
proceedings are active.
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