In Contempt
By R. A. CLINE
ONIEMPT of court has recently become an ‘,../ editor's nightmare: In 1742 Lord Hardwicke the Lord Chancellor, asked to commit an editor for publishing a statement about a litigant, said: There cannot be anything of greater conse- quence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.' What a Pity that the Lord Chancellor did not add, 'that parties and the press may proceed with safety • • .' For there is little doubt that recent decisions on what constitutes contempt of court by news- Paper reporting have given rise to considerable anxiety amongst journalists. The Daily Sketch recently displayed a picture of an accused man and his bride, the latter smiling at the blanked- out image of her husband. At what point can an editor consider himself safe in reporting a crime? When is there no danger of poisoning the stream of justice? Before a charge is laid, or before an arrest is made, or before police questioning starts? Or is there always to be such danger from the moment a crime is committed? This is surely an area of law where both the public and the press are entitled to a clear and pre- cisely defined code. But both the common law of England and Scots law have been wary in their formulations; the minefield is still unde- fined and there have been two nasty explosions in Scotland in the last few weeks.
Obviously once an accused man is brought be- fore the court there should be the utmost cir- cumspection in publishing statements about the accused': an editor has only himself to blame if his newspaper contains material which may Interfere with the proper course of justice and Influence the decisions of judge and jury. But Lord Hardwicke's fluvial metaphor was long ago extended beyond such precise and narrow limits. in 1903 Mr. Justice Wills declared that it was `Possible very effectually to poison the fountain of justice ' before it begins to flow.' And in CrippetA 'case seven years later it was held that statements about an accused made while he was tinder arrest or in custody could constitute' con- tempt of .court. In 1927 Lord Hewart decided that 1hr Daily Mirror's publication of a photo- graph when the accused was under arrest and had been charged amounted to contempt because It ought to have been apparent that a question of identity might arise.' But the judge refused to be drawn on the question whether there may be contempt of court when proceedings are merely imminent but have not yet been launched. In the result the English law is silent but menacing
a question which is vital ‘to editors.
The Scottish view has been vigorously laid down this month by Lord Clyde in Stirling v. Associated Newspapers Ltd. The Scottish Daily Mail published an article and a photograph of a man who was not in fact charged until the day following the publication. He had, it is true, been detained' by the police the day before, but it is nowhere stated that the accused was under
arrest at the time when the photograph appeared. Was the editor in contempt because the man was likely to be charged, because he was being de- tained, or because a trial was imminent? Counsel for the newspaper asked the court for clear guidance (not a pretty tribute to the state of the law). There is only one test, was the answer- - will the steps that have been taken by the news- paper be such as to prejudice the impartiality of the ultimate trial, if a trial takes place? The publishers and the editor were fined £5,000 and £500 respectively.
The Lord Justice General also gave it as his view that the investigation of crime was a matter for the police exclusively and not for the press (nor, presumably, private persons), although he recognised that the police might well request the press to assist in their investigations, e.g. by pub- lishing photographs. But what of the editor who, to assist the police and at their request, publishes a photograph with the usual caption, 'This mai is wanted'? Is he safe from,the laws of contempt? There is always a chance that the question of identity will arise at the trial of the wanted man. Not even his legal advisers can say whether the issue of identity will arise until they have con• ferred with him, and sometimes not even then. Nor will it assist the editor to plead that the police requested the publication, for this is no defence to the breach of a rule, if rule it be, which is for the protection of the accused, not for the assistance of the police.
This is but one example which throws into relief the danger of the present law, on both sides of the border, as to contempt. It is all too easy to convict the press of 'pandering to sensational- ism,' as Lord Clyde put it, by their crime reporting, but less often recalled that the newspapers play an effective part in helping to enforce the law : first, a report may bring about the apprehension of a criminal; secondly, and far more important, by Stimulating interest in the events that precede a trial, the press give to the court's sentences the deterrent power which without publicity they would completely lack.
It is particularly ironical that the law should be so severe on the publication of statements and photographs by newspapers while at the same time encouraging the publication of the evidence given by the prosecution• and usually left unan- swered in the so-called committal proceedings of the English law (about which Lord Clyde is re- ported to have been somewhat scathing). Which tends to prejudice an accused person more effec- tively in the eyes of a jury: the widely reported evidence of this kind which everyone reads many weeks before the trial and which, because the case for the defence is usually reserved, is pro- visionally thought by the newspaper reader to be true? Or the publication of a photograph of an accused man already well known to the public?
Yet in the Scottish High Court of Justiciary the publishers of the Daily Record were fined £7,500 for including in an issue of the paper a photo- graph of a well-known footballer accused of an offence (the prosecution has since been dropped) at a time when he had yet to appear in court. The editor was not fined; he had been absent through sickness, and apparently the rule of English law that the editor must take the blame however inno- cent his conduct was not applied.
The legislation introduced by the Government this week can be welcomed as an improvement on Lord Shawcross's Bill, conferring, as it dces, upon persons convicted of contempt a right of appeal. in certain cases as far as the House of bardS; and there is at least an attempt at clarification of the common law position in the clause which provides that a person is not to be guilty of contempt of court on the ground that he has published any matter calculated to interfere with the course of justice in proceedings which are pending or immi- nent if he can show that, having taken all reason- able care, he did not know and had no reason to suspect that proceedings were pending or immi- nent. At last the minefield is beginning to be more clearly charted; and though the new Bill leaves some serious gaps, it should be possible to remedy them by amendment.
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