APPENDICES
the disclosure is damaging and the person makes it knowing or having reasonable cause to believe that it would be damaging, s5(3).
¶5.78 Further, it is an offence contrary to s5(6) of the Official Secrets Act 1989 for a person to
disclose any information, document or other article which they know or have reasonable cause to believe to have come into their possession as a result of a contravention of s1 of the Official Secrets Act 1911.
¶Contempt of court 5.79 The law of criminal contempt of court is found in both the common law and the Contempt
of Court Act 1981. In broad terms, criminal contempt can take one of two forms, contempt in the face of the court (for example a refusal to give evidence), or indirect contempt (for example publication of an article on a forthcoming trial). The law of contempt is based on the principle that the courts cannot and will not permit interference with the due administration of justice.488
¶5.80 At common law, contempt of court is an act or omission calculated to interfere with the due
administration of justice: Att- Gen v Times Newspapers Ltd [1992] 1 AC 191. Examples of contempt of relevance include as follows.
¶5.81 It is contempt to publish material that is so defamatory of a judge or a court as to be likely
to interfere with the due administration of justice by seriously lowering the authority of the judge or the court: R v Gray.489 It is only in exceptional cases that this jurisdiction will be exercised and this species of contempt was described as virtually obsolescent by Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd.490 The offence will be made out where the publication is intentional, the article is calculated to undermine the authority of the court and the defence of fair criticism in good faith is inapplicable, see Ahnee v DPP.491 It has been acknowledged that restrictions on the freedom of expression will be necessary in some circumstances in order to maintain the authority and impartiality of the judiciary within the meaning of Article 10(2) of the ECHR: see Munby J in Att-Gen v Harris.492
¶5.82 It is also an offence to publish matter calculated to prejudice a fair trial. To establish the
offence of contempt at common law it must be established that a) the publication of the material created a real risk of prejudice to the due administration of justice, and b) that the material was published with the specific intention of causing such a risk.493
¶5.83 The question is whether the publication created a substantial risk that the court of justice
would be substantially impeded or prejudiced. The court must assess the risk of prejudice by looking at the prejudice from the date of publication. It is no defence that no prejudice was in fact caused, for example because there was no possibility that jurors saw the publication.
¶5.84 Contempt of court in this context may include publishing material which may prejudice a jury
1941against an accused, publishing the photograph of a person charged with an offence where it is reasonably clear that the identity of the accused has arisen or may arise, by revealing matters
¶Appendix 4 | Legal Materials
which might be inadmissible in evidence and which may influence jurors or by sensational and misleading coverage of a trial.494
¶5.85 There is no common law power to make an order postponing the publication of a report of
proceedings conducted in open court. This power is conferred by statute in some instances, for example the Contempt of Court Act 1981, the Children and Young Persons Act 1933, and the Administration of Justice Act 1960, s12.
¶Contempt of Court Act 1981 5.86 The Act has a twofold purpose – to remove liability for technical but venial contempt and to
clarify the balance between a fair trial and a free press.495 The Act restricts limited liability for contempt under the "strict liability rules", deems specific conduct to be contempt of court and makes provision for penalties for contempt.
¶5.87 The strict liability rule imposed by the Act in s1, i.e. that conduct can be treated as contempt
of court without requiring intent to interfere with the course of justice, applies to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, where the proceedings in question are active at the time of publication.496
¶5.88 The application of the strict liability rule to publications was considered by the Court of Appeal
in Att-Gen v News Group Newspapers Ltd, which noted that there was a need to balance the public interest in general discussion being permitted and to ask whether the proceedings sought to be protected were sufficiently proximate to the apprehended publication to require protection.497 In Re Lonrho plc the House of Lords explained that the question whether a particular publication, in relation to particular legal proceedings which are active, creates a substantial risk that the course of justice will be impeded or prejudiced by a publication must depend primarily on whether the publication will bring influence to bear which is likely to divert the proceedings in some way from the course which they would otherwise have followed.498
¶5.89 The risk that has to be assessed is that which was created by the publication of the allegedly
offending matter at the time when it was published. The Court should look at each publication separately as at the date of publication and consider the likelihood that it would be read by a potential juror, the likely impact of the article on an ordinary reader at the time of the publication and its residual impact on a notional juror at the time of the trial.
¶5.90 Section 2(2) sets out two separate risks, impede and prejudice.499 Impede means to slow
1942down, delay, hinder or obstruct. Prejudice is to say or do that which is detrimental or injurious to the interest of that thing or person.500