Contempt of Court: Twitter was ablaze with speculation on the Yeates murder investigation and the arrest of a potential suspect; with some tweets potentially veering towards publication of material deemed likely to jeopardize a fair trial.
UPDATE: FRIDAY 31 JANUARY 2010
The coverage by The Daily Mirror, Daily Mail and The Sun has been astonishing….
Newspapers warned over contempt law
The Independent: The Attorney General warned newspapers today to be mindful of the contempt of court laws in their coverage of Joanna Yeates murder suspect Chris Jefferies. Dominic Grieve indicated he was considering what action he should take to ensure that the course of justice was not impeded in any way.
“We need to avoid a situation where trials cannot take place or are prejudiced as a result of irrelevant or improper material being published, whether in print form or on the internet, in such a way that a trial becomes impossible,” he told BBC Radio 4’s The World At One.
Asked whether he was preparing to issue an advisory notice to newspapers, he said: “Clearly, we are considering what I have seen in the newspapers today and we will try to take such action, and it is right to ensure that the course of justice is not in any way impeded.”
Mr Grieve stressed that there was “freedom of the press”, but newspapers have to comply with the Contempt of Court Act to avoid prejudicing possible future trials.
Strict Liability Contempt under the Contempt of Court Act 1981
Strict liability contempt (refer to the law earlier in this chapter) applies to publications (including broadcasts) addressed to the public at large or any section of the public, which create a substantial risk that the course of public justice will be seriously impeded or prejudiced. The strict liability rule only applies to legal proceedings that are “active” at the time of the publication, and may render the publication a contempt regardless of any intent to interfere with the course of justice in the proceedings. (Archbold 28-59 to 28-61).
The absence of the requirement to prove intention distinguishes it from the common law variant. Common law contempt may be committed where proceedings are pending or imminent (albeit not necessarily active for the purposes of the 1981 Act), and where there is actual intent to interfere with the administration of justice in those proceedings.
“Active”, for the purposes of section 2(3) of the 1981 Act, is defined in Schedule 1 of the Act as including the issue of a summons or the arrest without warrant of a defendant (Archbold 28-62). Proceedings cease to be active for the purposes of the Act where they conclude by, inter alia, acquittal/sentence, any other order bringing proceedings to an end, or by discontinuance/operation of law. Where a warrant has been issued, proceedings cease to be active once twelve months’ have elapsed without the suspect’s arrest, and – where there has been an arrest – when the suspect is released without charge otherwise than on bail.
Whether the publication creates a substantial risk of serious prejudice is judged at the time of publication. The longer the gap between publication and the trial (‘the fade factor’), the less the substantial risk of serious prejudice is likely to be. (Archbold 28-74 to 28-76).
A number of lawyers on twitter, and one MP, pointed out the dangers of tweeting about the matter, referring to the Contempt of Court Act 1981 and the CPS guidance, and while we could be accused of being pompous or po faced – there is a very real issue that publicity and speculation could prejudice a fair trial. Another difficulty of the modern internet age? It is very difficult to argue against the ideal of fair trials. In an extreme case it is possible to envisage a situation where, if a suspect is released without charge, that a tweet could amount to a libel? One for the libel specialists?
Police demand new powers to stop and search terror suspects
Guardian: Top officers tell government they want to replace section 44 law that was scrapped by human rights ruling
Most people will be able to accept and understand the need for Police to have power to combat terrorism. The problem lies in the use of that power. It became clear that Police abused s.44 powers.
The Guardian noted: “A previous law allowing counter-terrorism stops without suspicion, section 44 of the Terrorism Act 2000, was scrapped this year by the home secretary, Theresa May, after European judges struck it down for breaching human rights.
This extract focuses the mind on the key issue:
Shami Chakrabarti, director of Liberty, said that with the right safeguards her organisation might not oppose the new power: “The devil will be in the detail. What safeguards will there be, who can trigger the power, what is the threshold for turning it on, what public scrutiny will there be?”Under the old power all of London was designated for months on end as a place where police could stop people without suspicion. Chakrabarti said: “The geographical area can’t be an entire county or all of London as it was before, but an area no greater than a square mile. It must not be for months on end but for a specific period of 24 to 48 hours.
“It must target specific places, not classes of people, on the basis of intelligence and risk for narrow windows of time, with adequate authorisation and transparency. Then it will satisfy proportionality and equal treatment whilst providing a rational, flexible aid to anti-terror policing.”
Ben Bowling, a professor of criminology at King’s College London and founder member of Stopwatch, which campaigns against alleged police abuses of stop and search powers, warned the new power could be used to discriminate against ethnic minority Britons: “Where officers have the maximum discretion, that is where you have the greatest racial discrimination in the way police have used their powers. We would want to be absolutely certain that police are not targeting ethnic minority communities for unfair stops and searches.”
The debate about the proposed new power will be shaped by the memory of section 44.