Tuesday, June 7, 2011

In contempt of court

A man is helping police with their enquiries.

The Contempt of Court Act 1981 was designed to ensure before and during a trial, the press did not influence a jury or interfere with the proceedings.

Over the years the press have ignored this at their peril and faced hefty fines and some court cases have been re-run.

Judges who have issued injunctions use this Act to stop people spilling the beans. If Imogen Thomas told anyone CTB was Ryan Giggs she would be in contempt of court and would go to prison as well as be fined. And this is why she is gagged.

The Act was not intended to cover injunctions and hence we have this ludicrous situation where Judges and the Attorney General are holding thousands of Tweeters, bloggers, commentators and pub gossipers in contempt of court for even mentioning certain injunctions.

Contempt of Court 1981 Act: A summary

Contempt of court is where their is interference with the course of justice in particular legal proceedings regardless of intent to do so.

Interference can come from publication (speech, writing, cable programme service or other communication in whatever form), which is addressed to the public at large or any section of the public.

Here is how a Tweeter would defend themselves:

There is a defence of innocent publication or distribution as stated in the Act.

A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active.

A person is not guilty of contempt of court under the strict liability rule as the distributor of a publication containing any such matter if at the time of distribution (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so.

Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.

Discussion of public affairs: A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.

So there you go.

The chance of a Tweeter being in contempt of court is minimal.

Which is a good thing because there are more serious crimes and legal matters that need sorting out.




  1. For Twitterers the best defences are public domain, insubstantiality and lack of seriousness. Innocent publication is unmoderated web hosts.

    Extract from contempt chapter of a wiki I'm writing on privacy injunctions...

    Strict liability

    The main cases on criminal contempt have been newspapers writing about criminal trials, typcially leading to a fine of £10,000-£25,000. Where, unusually, an individual reporter was found guilty he was fined £500. The only main case on interference with a civil order was Spycatcher, which one might think does not compare with revealing a premiership footballer chose to have an affair with a famous self-publicist who planned to sell her story.


    Strict liability means you are liable regardless of intent if the applicant proves beyond reasonable doubt you published something tending to interfere with justice in civil or criminal proceedings.

    This means creating a substantial (more than
    minimal) practical risk (considering circulation) of serious impedence (obstruction) or prejudice (detriment) during active proceedings by publishing virtually anything to at least a section of the public.

    Although each of several publications can create its own prejudice, members of the public are likely to argue that even if the information was not in the public domain, their worthless speculation in Tweets, conversations down the pub, etc could not have created 'substantial' prejudice and in any event they are not famous enough for their publication to have been to a 'section of the public'.


     Reasonable care

    Publishers have a defence if they took all reasonable care yet did not know and had no reason to suspect relevant active proceedings, eg they were secret and they thought they were speculating on someone else without an injunction. The same defence is open to unwitting distributors.

     Public affairs

    Another defence is publication in good faith to discuss (does not need to be a debate) public affairs if the risk of prejudice is merely incidental (incidental consequences of expounding main theme), eg debate on privacy injunctions, and the prosecution would have disprove it.

     Public domain

    Obviously another way of avoiding liability is, although strictly not a defence, to deny what was disclosed was within the injunction by showing confidence had been lost by moving into the public domain, so further publication cannot cause substantial or any prejudice. Information ceases to be confidential when it is known by a substantial number of people, public knowledge, made generally available to the general public, unless perhaps only disclosed to limited part or in the public domain (generally accessible). For example, this ought to work for public Tweeters, and maybe celebrity Tweeters, but the first few to leak or recycle (often celebrities) are on stickier ground as the cat might not have been out the bag until their intervention.

  2. They must be hoping to nail someone who was 'in the know'. Perhaps a dopey celebrity, tabloid journalist or 'former friend'....