Monday, 24 September 2012

On a wet Monday - Contempt of Court Act 1981 section 4

Crown Court at Manchester in the Rain !

At Manchester Crown Court, the Recorder (Judge Andrew Gilbart QC) made an order under the Contempt of Court Act 1981 section 4(2).  This was in relation to the cases of seven men accused of various murders in the Manchester area including Dale Cregan who is accused of four murders including those of two Police Officers at Hattersley, Greater Manchester on Tuesday 18th September.

The 1981 Act begins by defining the so-called "Strict Liability rule" as "the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so."   Section 2 of the Act is concerned with limiting the scope of the strict liability rule.  Section 3 provides for a defence of innocent publication or distribution.

For the purposes of contempt of court, proceedings are deemed to be "active" from the time of certain "initial steps" such as arrest without warrant - see 1981 Act Schedule 1.

The first two subsections of Section 4 are:

Contemporary reports of proceedings.

(1) 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.

(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.

Section 4(1) recognises the importance of the media being able to report what is happening in court cases held in public provided they do so in a fair and accurate way.  Such reporting is an essential element in open justice.  However, adverse publicity could give rise to a breach of the right to a fair trial and might constitute grounds for  a stay of proceedings.

An order under section 4(2) will prevent publication of reports about proceedings where the court perceives a risk of substantial prejudice to the administration of justice if such reports were to be published.

It should be noted that there are also various other statutory restrictions on what may be reported - e.g. in cases involving children and young persons etc.

The making of the section 4(2) order is considered by Siobhain Butterworth in The Guardian 24th September - "Judge imposes reporting restrictions in Dale Cregan case".  Here is the statement of the Recorder of Manchester which it is permissible to publish: 

                                                                                                T 2012 7595
T 2012 7482
T 2012 7506
T 2012 7560
T 2012 7492
Date: 24th September 2012                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          
Before :

- - - - - - - - - - - - - - - - - - - - -




1.      Dale Cregan was sent here on 21st September pursuant to section 51(1) of the Crime and Disorder Act 1998 charged with offences of murder. They include cases involving the tragic deaths of two young police officers, and the deaths of two other men, and they have attracted very widespread publicity and discussion in the media, about which this court has some considerable concern.
2.      The Chief Constable has, as one would expect of him, talked frankly and movingly of the force’s sense of loss at the death of the two officers, and of the risks which police officers must face. I am not concerned at those very proper expressions of loss by him or by others. My concerns relate to other material which has been published and to press conference answers and accounts, which have been widely disseminated on the internet, in broadcasts, and in newspapers.
3.      Understandably these events have attracted considerable interest from the media. The circumstances of the deaths of the two officers, and what is said to have occurred before them, and also what is said to be the background to them, has also been the subject of a great deal of comment by the Chief Constable, and material appears on the Greater Manchester Police website and has been reported widely. Many broadcasting media and newspapers have sought to publish other material about the events and about the deaths of the two other men, which have already led to other men (the other Defendants listed above) being charged with offences of murder, and with both of which Cregan is now also charged.  There has also been some comment from politicians, including those of the greatest seniority. The press and media coverage of such other material has continued since Dale Cregan was charged. For example one of the broadsheets on my Saturday morning breakfast table published material doing more than to report the nature of the charges against him and the other Defendants.
4.      The court is very much aware of the intense interest the public will have in what went on and why. It is also very much aware that in a democratic society, one would want and expect senior politicians, newspapers and the media to make comment when terrible events such as these occur, provided that they do so within the usual proper bounds. But the punishment of a man or woman charged with crime can only happen in a free democratic society if he is convicted after due process. It is critical to the maintenance of that due process that any Defendant who denies a charge receives a fair trial, in which trial the jury must decide the case on the evidence it hears put before it in court, presided over by a judge. It cannot and must not be decided on the basis of material published otherwise. In serious cases, the right to a fair trial by a jury is one of our most precious civil liberties. Deciding what happened in these current cases, and the determination of whether or not this or these Defendants or any other Defendant is or are guilty of this or any other crime, is a matter for a jury to consider, and not for  the Press, Broadcasting Media, Internet sites, Police or politicians. This court is determined to see that the fairness of any trial is not overborne by the publication of material or comment which could affect the jury.
5.      The Court must reiterate that Dale Cregan’s case is also said to be related to other prosecutions of the other Defendants already charged in other cases relating to the murders of a father and son earlier in the year.
6.      It is therefore the task of the court to ensure that any trials that take place, whether of Dale Cregan or of any other Defendant, are conducted fairly, and are not prejudiced by the publication of material about their cases, be that evidence (including so called background), comment, or opinions about the merits or otherwise of the prosecution or defence cases, and whether that opinion is well informed or otherwise, and from whatever source it is derived. Some of the extensive material that has been published in the press, or broadcast on the radio or television, or disseminated by the Police, has dealt with issues and evidence which may be relevant not just to Dale Cregan’s case, but also to the cases of those who were charged some weeks ago in respect of the deaths of the other two men. Whether or not it has stayed within the relevant bounds up to now will be for others to determine, and I express no view. But I must emphasise in the strongest terms that now that he has been charged, the time has come for that flow of material and comment to cease.
7.      Due process is an important safeguard not just for any Defendant, but also for the relatives of the victims and the public interest in seeing justice done. I remind everyone who is thinking of publishing or broadcasting anything in this case which lies outside the proper bounds, of the potential for prosecution under section 2 of the Contempt of Court Act 1981. Again, lest there be any doubt, I do not intend thereby to suggest that such liability did not exist before he was charged, given the position of the other Defendants.
8.      That restraint and respect for due process should extend to the presence of material on the websites of the broadcasting media, newspapers or the police, or indeed of anyone else. The principle applies as much to whatever material or comment has been published already but is then maintained in the public domain, as it does to that material or comment which is newly published after today.
9.      Nothing is these remarks is intended, or will have the effect, of preventing reporting in accordance with the law and in accordance with Article 10 of the European Convention on Human Rights. But if proper restraint is not exercised by all concerned, then the consequences may be profound, not least for the relatives of the victims and the wider public interest in seeing justice done. It may also have consequences for those who have not exercised restraint.
10.  Given the very real risk of prejudice, I shall therefore also make an order under section 4(2) of the Contempt of Court Act 1981 preventing the reporting of any proceedings in this matter until after the conclusion of the trial or further order. I make it plain that the order excludes from its restrictions the reporting of proceedings taking place before the jury at the trial. However if there are separate trials in the case of any charges, or of any Defendant or Defendants also charged in these cases, it will be for the trial judge to consider whether any further orders are made relating to the publication of proceedings before any jury.
11.  This ruling may be published.

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