Q&A: Journalists in contempt

The jury in the case of two Leeds United footballers accused of attacking a student was discharged following the publication of a "prejudicial" newspaper article.

BBC News Online asks:
How can journalists be in contempt of court?

Journalists are severely restricted in what they can report about a trial or criminal investigation once a case is "active".

When a warrant is issued for a suspect, an arrest is made or charges are brought, reporters must be careful not to publish or broadcast anything which poses a "substantial risk" of seriously prejudicing a fair trial.

What is prejudicial to a trial?

Though an ill-defined concept, roughly, news reports must not suggest the guilt of a person in custody or before the court. Such material could be argued to "prejudice" the deliberations of the jury.

For example, using the headline "Police arrest cat burglar" would land a reporter in hot water. "Man arrested in cat burglar case" would not.

Spicing up news reports with tales of a defendant's past behaviour (including any former convictions) will also probably result in contempt proceedings.

While journalists have a duty to openly report court proceedings, they must also take care not to mention any legal arguments made while the jury has been sent out or any evidence which has been deemed inadmissible.

So what is a "substantial" risk?

As with much legal language, what constitutes a "substantial" risk (according to the Contempt of Court Act of 1981) is open to debate.

In 1983 the Lord Chief Justice, Lord Lane, said: "A slight risk of serious prejudice is not enough, nor is a substantial risk of slight prejudice."

A questionable story hidden deep inside a newspaper is less likely to anger the court than a front page splash.

Likewise, a story in a local paper circulated in a region far from the court (and unlikely to be read by jurors) will not be as harshly treated as a report by a national publication.

Can pictures be in contempt?

When the question of a defendant's identity is central to a case, publications and broadcasters must avoid using their picture. A court might decide witnesses asked to link the defendant to the scene of the crime were influenced by images in the media.

What are the penalties?

In the Dr Harold Shipman trial, the judge hauled in a local radio manager and warned that two presenters had narrowly escaped a prison sentence for contempt of court.

Before the jury reached its verdict, Mark Kaye of Preston-based Rock FM complained about the high cost of the trial and added that Shipman was "innocent until proved guilty as sin", to a chorus of "guilty, guilty" from colleague Judith Vause.

In 1997, the Evening Standard was fined £40,000 (plus £50,000 legal costs) for revealing that three of the six men on trial for an escape from Whitemoor Prison were convicted IRA terrorists.

Do other countries share our contempt laws?

Even within the UK, contempt laws vary. For instance, Scottish reporters are renowned for being more scrupulous than their colleagues across the border.

In the United States there are no contempt laws as such.

How has the internet changed contempt laws?

Judges, lawyers and journalists are still struggling to work out how to accommodate the net into their understanding of contempt.

While a newspaper report usually ends up in the bin, online news archives often hold vast amounts of information (written about a person before their case became active) which could potentially prejudice a trial.

If such material represents a "substantial risk" has yet to be decided, but some defence lawyers are beginning to argue online archives do prejudice fair trials.

That the internet allows Britons easy access to foreign-based media outlets (which are not subject to our contempt laws) may also create headaches for the courts in the future.