UK: Developments In Contempt Of Court 2011 – 2012 - Very Trendy: Contempt And The Tweet… And Is The "Fade Factor" Fading?

Last Updated: 15 March 2012
Article by Nick Armstrong

The Fade Factor

The rules on contempt of court, specifically the Contempt of Court Act 1981, are an essential part of ensuring that a Defendant's right to a fair trial is protected. Publications are in contempt if they create "a substantial risk that the course of public justice will be seriously impeded or prejudiced". Among other rules, the Act provides for strict liability - regardless of any intent to interfere with the course of justice.

Contempt applies only to legal proceedings which are "active" at the time of publication: "active" means (among other things) where the suspect has been arrested.

As the CPS guidelines point out, whether there is a "substantial risk" is examined as at the time of publication: "the longer the gap between publication and the trial (the 'fade factor'), the less the substantial risk of serious prejudice is likely to be".

So some – especially the tabloids - thought coverage of an arrest could be full, even lurid – the 'fade factor' would mean that by the time of the trial, a year or so later, there would no longer be "substantial risk" and hence no contempt.

There have been signs lately that the Attorney General (whose job it is to police the contempt of court laws) is taking a more draconian approach to potential contempt of court, even for publications in the immediate aftermath of an arrest and months or a year or more before any possible trial.

In the case of Christopher Jeffries, the landlord of murdered Joanna Yeates, his arrest was accompanied by what the Attorney General called "extreme" coverage. Even though Jeffries was subsequently released without charge, the papers were pursued and two convicted of contempt on the basis that, judged at the time of publication, the coverage was such as would seriously have impeded any defence Mr Jeffries might have had to mount.

One day in August 2011, eight titles apologised in open court to Jefferies, followed by the Sun being fined £18,000 and the Mirror £50,000 in the contempt proceedings.

In addition, over the past year there have been signs that the Attorney General is being much more active in sending out prior warnings about coverage of arrests etc. – and the role of online coverage is increasingly preoccupying the Attorney General's office.

Online contempt

Also in 2011, the Sun and the Daily Mail were found guilty of contempt of court for publishing online only a picture of a murder trial Defendant posing with a gun. The photographs were published online for only a matter of hours before being ordered to be removed. Neither published the photograph in its print edition.

But this had happened actually during the murder trial itself, and the newspapers were fined £15,000 plus costs.

On the other hand, in 2012 the Attorney General decided not to prosecute QPR's Joey Barton over some robust tweets which he broadcast about John Terry, ahead of Terry's trial this summer for allegedly racially abusing Anton Ferdinand. Barton's remarks were placed tweeted in early February.

The Attorney General has written about his perception of the role of contempt of court in the internet age.

He contrasted "major news organisations, which on the whole act in a responsible and measured manner" with "the inhabitants of the Internet" who he said "often feel themselves to be unconstrained by the laws of the land".

He acknowledged the difficulties with attempting to police the internet but said that it didn't follow that because enforcing the law could not be perfect and universal, there is no point in doing anything at all.

He said because in one particular case (i.e. Barton) he thought that a tweet was improper but unlikely to cause serious prejudice or impede the course of justice, it should not be assumed that another tweet about another case would not require action under the Contempt of Court Act.

The same might apply in the event of any further Twitter activity similar to that seen last summer when Ryan Giggs's name was widely tweeted in defiance of the anonymity order and injunction granted by the High Court. Disobeying court orders is a different brand of contempt of court to the 'criminal reporting' contempt covered elsewhere in this article, but the vigilance of the Attorney General is likely to apply to both equally.

Secrecy of Jury deliberations

In another legal development, the Times tried to challenge its conviction under another part of the Contempt of Court Act, which protects the secrecy of jury deliberations. The foreman of a jury (Mr Seckerson) contacted the Times and spoke of his concerns about the outcome of a shaken baby case, and the use of expert medical evidence, on the strength of which the newspaper published two articles. They were prosecuted under that Act and Mr Seckerson was fined £500 and the Times £15,000 with £27,000 in costs.

The Times tried to challenge this in Europe but the European Court of Human Rights ruled the challenge inadmissible. The conviction and fines were not a breach of the Article 10 right to freedom of expression. The secrecy of jury deliberations is a crucial and legitimate feature of English trial law, and the Attorney General had adopted a proportionate approach by basing the contempt action only on small sections of the articles. The absolute rule about confidentiality during and after jury deliberations is compatible with Article 10.


The message for broadcasters and others seeking to cover criminal proceedings and the events leading up to a trial starting with arrest, is increasingly to be cautious and take legal advice.

No photographs should ever be published without legal advice once a case is "live".

Particular attention and training should be given to those who will be employing social media such as Twitter to report on or express opinions about anything to do with criminal process. This is especially relevant since the Lord Chief Justice allowed Court reporting on Twitter as of December 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nick Armstrong
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