Page 217 - Law and the Media

Law and the Media
The leading authority on this defence is A-G v English (1983), in which the House of Lords
held that an article in the Daily Mail by Malcolm Muggeridge that argued for a Pro-Life
election candidate and referred to an alleged practice among doctors of allowing deformed
babies to die was not in contempt of the contemporaneous trial of a doctor on a charge of
murdering a baby with Down’s Syndrome. The House of Lords held that Section 5 was
intended to prevent the:

. . . gagging of bona fide discussion of controversial matters of general public
interest merely because there are in existence contemporaneous legal proceedings
in which some particular instance of those controversial matters may be in
issue.

The court found that although the article was likely to create serious prejudice in the doctor’s
trial, it met the requirements of Section 5 and was not, therefore, a contempt. In other words,
the report was part of a bona fide discussion of a matter of public interest, and the prejudice
was merely incidental to that discussion.

However, if a publication concentrates on the specific issues of a particular case that is
active, there will be a risk of prejudice to particular legal proceedings and Section 5 will not
provide a defence.

10.2.8 Scope of the Contempt of Court Act 1981

Section 19 provides that the strict liability rule applies to the proceedings of ‘any tribunal or
body exercising the judicial power of the state’.

This has led to discussion as to what qualifies as a tribunal or body under the CCA. Apart
from all cases heard in criminal and civil courts, employment tribunals, coroner’s courts,
mental health tribunals and courts martial are courts included in the rule. However, the
General Medical Council is not a body exercising the judicial power of the state (General
Medical Council v British Broadcasting Corporation (1998)).

10.3 Common law contempt

10.3.1 Interfering with ‘pending or imminent’ court proceedings

The common law offence is unaffected by the CCA. The position at common law is that a
person is guilty of contempt if he publishes material that is calculated to prejudice or
interfere with proceedings that, at the time of publication, were ‘pending or imminent’. For
a prosecution to succeed, it is necessary to establish that the publisher intended to cause the
prejudice or was at least reckless in that he was aware of the future proceedings and knew
the nature of what he published.
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