Contempt Act of Court - Essay Example

Contempt of court can be described as any wilful act of disobedience to, or disregard of, or court order or any misconduct in the presence of the court; action that interferes with a judges ability to administer justice or that insults the dignity of the court and contempt of court is punishable by fine or imprisonment or both. In ‘American Jurisprudence’ it is stated: “…he whose conduct tends to bring the authority and administration of the law into disrespect or disregard, or otherwise tends to impede, embarrass or obstruct the court in discharge of its duties, is guilty of contempt…”1 The test as to what constitutes contempt of court was enunciated by Lord Russell in the English case of R v Gray: ‘Any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court.’2 In every court proceeding, what every litigant is in search of is a good judgment and in most court proceedings involving trial by jury, having a good, reasonable and unbiased jury is the key to that. Taking a view from the Attorney General’s speech, it is true that the law of contempt was meant to arrive at a middle ground between competing interests. There are so many opposing interests to every trial. The law of contempt has at least three fundamental objects – providing a fair trial, ensuring compliance with the court’s orders and generally protecting the administration of justice. If these competing interests are balanced, it is the only way which requires the court process to be fair and that the community accepts the court’s decisions and obeys their orders. It is the duty of the trial judge always to warn the jury of the likely consequences of which any pre-trial publicity may have on the trial. The jury must always and constantly be cautioned to try the case on the basis of the evidence it hears and not on the basis of anything it reads in the newspapers or heard on radio or television. A question that should be asked at this point is that is this a reasonable position? If this is reasonable, how will the law be successful is protecting the rights of those concerned with a trial from intrusion by the media? How does the law attempt to balance the conflicting interest of all parties to the trial, and in particular, in relation to freedom of speech/freedom of the press and the right to a fair trial? Are the any dangers of a miscarriage of justice with regards to pre-trial publicity? It should be noted that a lot of jurors have become passionate to depiction of trials in television series such Matlock, LA Law and a host of other similar programmes. Although what the jury gets from the media becomes part of the jury’s knowledge base, a juror should be more accustomed to obtaining information relating a trial visually than orally. That is to say the courtroom is the best place where a juror can obtain information. Being a juror requires so many things and the jury must know this. To be a jury exclusively and unavoidably calls for more of listening in the courtroom – listening to the evidence, examination-in-chief and cross-examination of witnesses, the submissions of both legal representatives, and these will usually last for hours. The jury should know this and should not rely on an easy style of ascertaining information from the media. Generally and as per Lord Denning MR, trust is placed in the category of men and women sitting as jury: ‘Judges at a trial were not influenced by what they might have read in the newspapers… Nor are the ordinary folk who sit on juries. They are good, sensible people. They go by the evidence that adduced before them and not by what they may have read in the papers.’3 This position was also upheld by Lord Hope in Montgomery v HMA when he stated that: ‘the entire system of trial by jury is based upon the assumption that the jury will follow the instruction which receive from the trial judge and they will return a true verdict in accordance with the evidence.’4 If a juror leans on the media, he or she should not be up to the task of being a juror. The key quality of a juror is to listen closely and deliberate for long periods. If the juror relies of the media to pass a verdict, it would mean much of our verdicts would no longer be trusted. A juror should not rely on the easier-way-the only-way of the media in finding a point to hold a person liable. The jury is obliged to arrive at a verdict only on the basis of what is heard in the courtroom, and to steer clear of what has been reported by the media; not to take into account anything they may previously have been told in the media. If this is not done, then his deliberations should be plainly incorrect and highly detrimental to the carriage of justice and should therefore be taken out as forming no part of a fair trial. As put by Lord Reid, “The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should in my judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary, but it cannot be allowed where there would be real prejudice to the administration of justice.” 5 Section 30 of the Constitution provides: “ (1) Every person has the right to freedom of speech and expression, including: 1 (a) freedom to seek, receive and impart information and ideas; and 2 (b) freedom of the press and other media. 1 (2) A law may limit, or may authorise the limitation of the right to freedom of expression in the interests of: … (e) maintaining the authority and independence of the courts …. but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.” This was observed by Lord Denning said in McElraith v. Grady6: “No man’s liberty is to be taken away unless every requirement of the law has been strictly complied with.” Art 6 (1) of the European Convention on Human Rights makes this point clear. It states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. Art 6(2) European Convention on Human Rights equally states that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Therefore, it is always possible that the issues of freedom of speech of the press and the right to a fair trial can at times be competing and this is going to have an effect on the administration of justice. This is also based on the evidence that the trial judge is provided with evidence to prove that the jury was influenced by some sort of media reporting. Section 8 of the Contempt of Court Act 1981 states that: it is contempt of court to disclose or solicit any details of opinions or arguments, or votes cast, by members of the jury during the course of their deliberation. However, it there is fair and accurate reporting by the media, Section 4 if this same act states that: a person is not guilty of contempt 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. The position of the law under common law will not change. According to common law, there must be strict liability for any publication which gives rise to a real possibility of prejudicing a trial.7 This will however be in respect of an ongoing, pending or imminent proceeding. In AG v Times Newspaper, the court recognized that any conscientious media coverage should be fair and reasonable, although it should not go without notice that some sections of the public will be wrongly influenced by medial coverage. If the public is misled that searching for the truth is easy, disregard for the due process of law will be evident. Hence, unpopular people and unpopular causes will fare very badly. But the law on this issue should be clear. It will be easier for every court proceeding if the law states in unambiguous terms that it is not permissible to prejudge issues in pending cases. However, the court took a different view in the later case of The Sunday Times v. The United Kingdom8, but warned that the mass media must not overstep the bounds imposed in the interests of the proper administration of justice. The court stated that freedom of expression amounts to one of the most indispensable fundamentals of any free thinking society. The law in relation to freedom of expression should be appropriate not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. These principles should evenly be pertinent to the field of the administration of justice, which is meant to safeguard the interest of the general public and which equally calls for the collaboration of a free-thinking public. It should be noted that there is no way in which the courts can function without the general public. Thus, while courts should be regarded as media for the settlement of disputes, it is equally important to state that it is unreasonable to use the courts to bar any attempt by the press or general public to make reasonable comments of court proceeding either before the trial or during the trial. The media therefore has a double function to play. First, the media must only act within the confines or limits set by the law in the interests of the proper administration of justice. Secondly, it is expected of the media to communicate information and ideas relating to legal proceedings just as in other areas relating to issues of public interest. Keep in mind that the task of disseminating information is analogous to the duty of the public to receive information.9 Although the above case takes a different approach in relation to freedom of press and contempt of court, it does not in any way change the common law position in relation to the same issue. Keep in mind that section 6(c) Contempt of Court Act 1981 states that nothing in this Act restricts liability for contempt in respect of conduct intended to impede or prejudice the administration of justice. Thus, there is still strict liability for publications where there is a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced.10 When do proceedings become active? Civil proceedings become active when arrangements are made for the hearing of the action i.e. when the trial date is fixed or the case is set down for trial. Appellate proceedings become active when permission to appeal is applied for or when a notice of appeal is lodged. In AG v Mirror Group Newspaper Ltd and Others,11 Schieman LJ gave a very solemn comment on the issue of substantial risk when he stated that: when assessing whether the risk of prejudice, the following factors need to be taken into consideration (1)    the likelihood of the publication coming to the attention of a potential juror including -         whether the publication circulates in the area from which the jurors are likely to be drawn, and -         how many copies are circulated. (2)    the likely impact of the publication on an ordinary reader at the time of the publication, including -         the prominence of the article in the publication, and -         the novelty of the content of the article in the context of likely readers of that publication (3)    the residual impact of the publication on a notional juror at the time of trial, including -         the length of time between the publication and the likely date of trial -         the focusing effect of listing to prolonged evidence in the case -         the likely effect of a judge’s directions to a jury. The strict liability rules applies only in relation to publications, and for this purpose ‘publication’ includes any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public.12  Section 2 (2) Contempt of Court Act 1981 creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. However, there exist certain defences in relation to freedom of speech and contempt of court and the burden of proof on the publisher/distributor as per S.3 (3) Contempt of Court Act 1981 For a plausible defence on the part of the publisher, the publisher must have taken all reasonable steps and must not know or has no reason to suspect that relevant proceedings are active. A person is not guilty of contempt of court… as the publisher of any matter… 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.13For a plausible defense on the part of the distributor, it must be established that there was no notice that publication contains prejudicial material. A person is not guilty of contempt of court… 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.14 Can the media be trusted to strike a balance between the public interest in the free flow of information and the privacy interests of individuals? Uplifting the public’s right to be in charge of the broadcasting of information above all other considerations, including the ability of the press to report pre-trial or trial proceedings, can be a step towards calamity for the courts. It is without doubt true that media intrusions into issues relating to court proceedings command attention. In this present-day society, it is not really possible for the court to operate in a vacuum. Nor would it be sought-after if it were possible. But the law should curb any form of media excesses. The court need not stifle any fair and reasonable flow of information. Thus, we should not use the law of contempt simply to maintain a decorum of the trial process or to make one conflicting interest override the other, but as observed by Lord Salmon in AG vs. BBB15 “The description `Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.” The law of contempt should not be stretched too far. Keep in mind that the purpose of contempt power is not to vindicate or uphold the majesty and dignity of the court but only to enable the court to function.16 Further Reading Eric Barendt, Freedom of Speech (2nd Ed, OUP, 2005) Ch 9 Joanne Armstrong Brandwood, ‘You say: “Fair Trial” and I say "Free Press”: British and American Approaches to Protecting Defendants’ Rights in High Profile Trials’ (2000) 75 New York University Law Review 1413 Read More