Page 218 - Law and the Media

Contempt of Court
While there is plenty of uncertainty about the precise meaning of ‘imminent’, it is reasonably
clear that criminal proceedings are ‘pending’ when a person has been arrested and is about
to be charged.

Although prosecutions under the offence are unusual, they do take place. In 1986 the Sun
newspaper announced that it was funding a private prosecution against a doctor who was
alleged to have raped a child. Although there was medical evidence that the girl had been
raped, the only evidence against the doctor was the word of the child. Because she was only
nine years old, the Director of Public Prosecutions thought a conviction was unlikely and
decided not to prosecute. Unfortunately, by announcing that it was going to finance the
private prosecution the Sun gave the clear impression that the doctor was guilty. In fact, the
doctor was not arrested and charged until 53 days after the report in the Sun. Despite
the significant passage of time between the report and the arrest, the court held that in the
circumstances, taking into account the fact that the Sun was funding the prosecution, the
proceedings were imminent. The court went on to say that:

. . . the common law is not a worn out jurisprudence rendered incapable of further
development . . . it is a lively body of law capable of adaptation and expansion to
meet fresh needs all for the exertion of the discipline of law.

The Sun was fined £75 000 for contempt (A-G v News Group Newspapers Ltd (1988)).

The decision extended the restraints imposed upon the media by the contempt laws. Few
would have thought that a report published more than seven weeks before a person was
arrested could be punishable as a contempt. Indeed, doubts about the validity of the court’s
decision were openly expressed by the court in a case involving charges of contempt brought
against the editor and publishers of the Daily Sport following the publication of the previous
convictions of a man sought by police in connection with a missing schoolgirl (A-G v Sport
Newspapers (1992)). The prosecution failed because the court was not satisfied that the
defendants had the necessary intent to cause prejudice. Even though the decision of the court
did not turn on whether the proceedings were ‘pending or imminent’, one of the judges
declared his belief that the case involving the Sun was wrongly decided and the other judges
expressed reservations about it.

As a result, unless an editorial decision is made to publish material with the intention to
prejudice proceedings, it is difficult to imagine circumstances where common law contempt
would apply.

Recent guidance has been issued which provides that a contempt at common law is likely to
be committed where a report of proceedings is published where the jury has been asked to
withdraw from court. Publishing a report in such circumstances would defeat the object of
the jury’s withdrawal. (See Reporting Restrictions in the Crown Court, published by the
Judicial Studies Board.)
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