Contempt of court
THE LAW R. A. CLINE
The application to commit the editor of the Sunday Times for contempt has reminded jour- nalists of the need to familiarise themselves with the law of criminal contempt of court when writing about the law courts, the cases that are being heard there and the people who are figuring in them. A committee with no less a legal luminary than Lord Shawcross in the chair recently declared that this area of law is ill- defined and ought not to be so. But defining a law of this kind is easier said than done. There are two precisely contrary pressures which have to be kept under control. First there is the duty of the courts to administer justice free from the external influences of journalistic melo- drama. The slate should be completely clean when counsel rises to tell the jurors the facts he proposes to prove. They should, in theory, be hearing these for the first time.
But is this possible? It was extremely difficult in the days when everyone, including the jury, had read perhaps a month or two previously the prosecution's case as it had come out in the course of preliminary proceedings at the magi- strates' court. Now that legislation has cut such preliminaries down to size, at least there will be no more of that kind of prejudice. But the judge's warning to juries will still be necessary and can still be heard in the smaller cities and towns where some particularly lurid offence has found its way into the gossip of the market place. `Members of the jury, you are to dismiss from your minds anything you may have heard outside this court. You are to try this man on the evidence you hear in this court and nothing else.' At least nobody can blame the press for that kind of prejudice; before we became too high-minded about the dangers of such attitudes (or `prepossessions' as Lord Chief Justice Alverstone called them), it is worth remember- ing that the predecessor of the twelve men good
and true at the Old Bailey is the mediaeval jury of the county or hundred who were called into court precisely because they knew all about the accused and his reputation and were able to apply their local knowledge to good effect.
The contrary and conflicting pressure comes from the need and greed of the general public to know what is happening in the courts. They have the right to go and sit in the courts, if they have the leisure, and, because they have not, they deptite the press to do this for them. The newspaper are protected from libel actions as long as they report the proceeding fairly and accurately. That much is plain sailing. But what about discussions and comments on the deci- sions or the manner in which the proceedings are conducted, what about those chatty descrip- tions of the lawyers and witnesses? Are they permissible in law or are they contempt?
Some propositions can be stated with confi- dence, but very few. Clearly newspapers should tread more cautiously in reporting or discussing proceedings involving laymen than in cases where professionals are adjudicating. Unpaid justices of the peace and jurors should not be able to read in the papers something which is likely to influence their decision and which they have not heard in court. Obvious examples are the publication of an accused man's photograph with his name below; his identity may be a very important issue in the proceedings. Or the re- porting of the arguments that take place in court when the jury have been asked to leave the court. For the same reasons as long as the law prohibits the jury from knowing the accused man's past convictions, the press cannot be allowed to leak such secrets, D Notice or no D Notice.
Conversely the decisions of the courts are permissibly the subject of free and if necessary vehement discussion, and such comment has recently received the blessing of Lord Denning. But difficulties arise where a convicted nigi wants to appeal against his conviction or his sentence. An outburst of press comment may materially damage his prospects of success. Which ranks higher in the priorities of public interest, the predicament of the individual fight- ing for his liberty or the needs of the great watching public who ought to know what is happening in the courts? A particularly recent example of the problems raised by this conflict was afforded by the Mick Jagger furore. The judge who sentenced him became overnight a household word; the comment, adverse or favourable, reached an intensity that would have appeared incredible two years ago. It is certainly arguable that the vehemence of the reaction affected the environment outside the Court of Appeal which was to hear Jagger's appeal. And since in determining a deterrent sentence, the court has to consider the effect of their decision on the public, they must neces- sarily take into account the state of public sen- timent about the case. To that extent news- paper comment may well be said to have a direct impact on appellate sentencing.
The present Lord Chief Justice affirmed in 1960 that judges are in a very different position from a juryman. `Though in no sense super- human,' he said, `he has by his training no diffi- culty in putting out of his mind matters which are not evidence in the case. . . . This is all the more. so in the case of a member of the Court of Criminal Appeal who is dealing almost entirely with points of law. . . In that case the Daily Sketch had published an article about a man convicted of violence that he was an obscure thug and much more besides. The man's appeal
was pending at the time of the publication and he complained that his appeal was prejudiced. The court rejected the complaint but there was an ominous warning in the tail of the judgment: `We hope that nothing we have said will lead newspapers to think the court approves in any way of an article such as this. Not only do news- papers publish such articles at their peril in re- gard to proceedings for contempt of court, but the effect may well be that the prisoner will, however wrongly, be or has been prejudiced in his appeal.'
And so it cannot be asserted that any com- ment is permissible in the case of judges alone. The lines have not been clearly drawn and prob- ably cannot be. The law of contempt will remain fuliginous, obscure in the fog of a conflict that cannot be resolved, a conflict between the public need for controversy and news on the one hand and the court's desire to protect the parties that come to the judgment seat.
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