Protecting a Fair Trial

Right to a Fair Trial

Article 6 – European Convention on Human Rights‘In the determination of his (her) civil rights and obligations or of any criminal charge against him (her), everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

Article 7 – African Charter on Human and Peoples Rights

Article 10 – Universal Declaration of Human Rights

Law of Contempt of Court

‘The law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with the due administration of justice. Its application is universal.’

Lord Donaldson in Attorney General v Newspaper Publishing (1988)

Law of Contempt of Court

Strict Liability - Contempt of Court Act 1981Common Law contempt

Scope of strict liability rule:Applies in respect to publications – speech, writing, programme or other communication addressed to the public. (Section 2(1))Must be substantial risk justice will be seriously impeded or prejudiced. (Section 2(2))Proceedings must be Active at the time of publication. (Section 2(3)).

Ten governing principles on the application of the strict liability rule

1. Each case decided on its own facts.2. The court will look at each publication separately and test the matters at

the time publication was made.3. The publication must create some risk that the course of justice will be

impeded or prejudiced by the publication.4. The risk must be substantial.5. The substantial risk is that not only will the course of justice be impeded,

but it will be seriously so.6. A conviction for contempt will only occur where the court is sure that the

publication has created a substantial risk of the serious effect on the course of justice.

Ten governing principles on the application of the strict liability rule

7. In making the substantial risk assessment, matters for consideration would include: the likelihood of the publication coming to the attention of a potential juror; the likely impact of the publication on an ordinary reader at the time of publication; and the residual impact on a notional juror at the time of trial.8. In assessing the likelihood of the publication coming to the attention of a juror, the court’s considerations will include whether the publication circulates in the area the jurors are likely to be drawn from and how many copies are circulated.9. In assessing the likely impact of the publication a court will consider the prominence of the article in the publication and the novelty of the content of the article.10.In assessing the residual impact on a notional juror at the time of trial, factors will include the length of time between publication and trial; the focussing effect of listening over a prolonged period to evidence in a case; and the likely effect of a judge’s direction to a jury.

Substantial risk of serious impediment

Type of CourtProminence and geographic range of a publicationTiming

Attorney-General v Associated Newspapers (2011)

First contempt case involving online publication

Photograph available on websites for less than 24 hours.

Jury in murder trial had not accessed photograph

Material that may cause Substantial Risk

Reference is made to previous convictions

Information that casts a person in a bad light e.g. they are dishonest or dangerous (Att-Gen v MGN (2011)).

Information that links a person to a crime in which they are a suspect.

Any other information suggesting they may be guilty.

Publishing a witnesses account of an event.

Active Proceedings

Schedule 1 – 1981 Act Proceedings are Active when:1. An arrest is made without a warrant2. The issue of a warrant for an arrest is made3. The issue of a summons to appear4. The service of an indictment or other document specifying the

charge5. An oral charge is made.

Proceedings no longer Active

Person under arrest is released without charge.

No arrest made within 12 months of warrant being issued.

Person is acquitted or charged.

Defendant is considered to be either unfit to be tried or unfit to plead.

Allowable material that may be published

Once a person is charged the name of the person charged and the offence they are charged with.

Basic, non prejudicial information.

Material used in assisting the Police.

Defences

Fair and accurate report of public proceedings published contemporaneously and in good faith s.4(1) (Note however section 4(2) allows a court to postpone publication).

Discussion in Good Faith of public affairs (section 5). (Attorney General v BBC (1997) (Attorney-General v English (1983)).

Innocent publication or distribution (section 3). (HM Solicitor-General v Henry (1990)).

Common Law contempt

Intent RequiredProceedings do not need to be Active