Chapter 68: Contempt

In this chapter, we see the ways in which the courts protect their dignity and their independence. We see the ways in which this may cause difficulties for journalists, and how these difficulties can be avoided.

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What is contempt?

As we saw in Chapters 64 to 66 on court reporting, in democracies the courts decide what is true and what is not, who is in the right and who is in the wrong.

When they have decided, they usually make a decision which will put matters right. They may order a person to stop doing something which is wrong; they may order a person to pay compensation to somebody he has wronged; they may punish a person who has broken the law by fining him or sending him to prison.

Court proceedings would be a waste of time if nobody needed to do what the court told them, or if the court had no power to enforce its orders.

Contempt of court is disregarding the court's orders, or in any way interfering with the way the court does its job. Most courts take this very seriously, and have great power to deal with offenders.

There are two types of contempt - civil contempt and criminal contempt. Of the two, criminal contempt is the one which is most likely to concern the working journalist, so let us consider that first.

Criminal contempt

As we have seen, the courts can only operate effectively if they are able to enforce their will. That is the main purpose of the law relating to civil contempt. However, in order to operate properly, the courts also need to be free from outside interference and to maintain their dignity. That, too, is protected by criminal contempt.

It is the business of the legislature to pass laws, but it is the business of the courts to administer them; when members of a government try to interfere in court proceedings or to influence court judgments, they are likely to be reminded sternly that they are interfering. If they persist, they may well find themselves in contempt of court, even if they are government ministers. Nobody is above the law.

Similarly, the courts will protect themselves from interference by people attempting to bribe or threaten anyone connected with a case. They will also protect themselves from interference by journalists, and we shall look in detail in a moment at exactly what journalists may and may not write during a court case.

Courts also guard their dignity. This is not because judges consider themselves to be special people, but because they see themselves as representatives of the law itself. It is the law which must be respected by all citizens, and in order to ensure that respect, the courts insist on maintaining dignity. Courts are usually large and imposing buildings with national emblems above the bench where the judges or magistrates sit; judges often wear robes and wigs and people bow to them in court. All of these things represent the great stature and dignity of courts, which in turn are meant to encourage people to respect and obey them.

Both these things - freedom from interference and maintenance of dignity - are protected by the law relating to criminal contempt. The following things are prohibited:

Outrages on judges in court

It is criminal contempt to assault or manhandle a judge, or to throw eggs or fruits at them.

Insolence to the court

It is criminal contempt to persist in being noisy in court, or to keep interrupting the proceedings, or to refuse to answer questions which have been properly put. Even something as simple as an onlooker – or journalist - reading a newspaper in court could be regarded by a judge as insolence.

Interference with witnesses or officers of the court

Officers of the court are the judge or magistrate, the clerk, lawyers, translators, jurors (if any) and anyone else involved in hearing the case. Interference generally means threats or bribes intended to influence the way in which the person does their job - either offering money in return for the desired verdict, or threatening violence if the unwanted verdict is returned.

Any publication which offends the dignity of the court

Judges are not above criticism, but there are limits to how extreme that criticism can be. For example, it would be criminal contempt if a newspaper, radio or television report suggested that judges were habitually drunk in court, or that they took bribes.

Any publication which prejudices the course of justice

A report of a court case which gives details of the defendant's previous criminal convictions, before the end of the trial, would be criminal contempt. This is because it may prejudice the judge, magistrate or jury against the defendant, if there are many previous convictions. This would reduce the chances of a fair trial. Previous convictions (often called antecedents or priors) may not be revealed until after the verdict has been reached. They are then considered by the court to help it to decide on an appropriate punishment.

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Civil contempt

The authority of the courts is protected by the law relating to civil contempt. There are three types of civil contempt. These are:

Wilful disobedience of court orders

Courts may make many kinds of orders. They may issue an order that a person must do something (an order of mandamus), such as return a child who has been declared a ward of court. They may issue an order that a person must not do something (an injunction), such as not walk on a neighbouring clan's land. Once an order has been made, people must obey it. If they wilfully disobey it, they will be in contempt of court. (To "wilfully" disobey means to do it deliberately.)

Failure to comply with court judgments

At the end of a divorce hearing, the judge may award custody of the children to one of the parents. If a child is staying with its father, but the judge grants custody to the mother, then the father must hand the child over to the mother. If he does not do so, he will be in contempt of court.

Disobedience to a subpoena

If the court wants a particular person to attend court to give evidence, but knows that the person does not want to do so, it can subpoena that person. A subpoena is an order to attend court and give evidence, and it must be obeyed. If the person fails to attend court as ordered, even though the court has met any necessary expenses, the person will be in contempt of court.

Penalties

For a criminal contempt, you may be fined or jailed for a fixed period of time.

For a civil contempt, you may be jailed for as long as the judge wishes, generally until you have purged your contempt. This usually means, in practice, until you have apologised sincerely to the court and have agreed in future to abide by the court's orders.

If the contempt results from your refusal as a journalist to obey a court order to identify a confidential source of information, that contempt can be purged either by obeying the order or by coming to a circumstance where the judge feels the order is no longer necessary. For more on this, see Chapter 60: Sources and confidentiality.

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Risks for journalists

As far as a working journalist is concerned, criminal contempt is the main danger to be avoided. You are unlikely to wilfully disobey a court order, fail to comply with a court judgment or disobey a subpoena - at any rate, not in the course of your profession.

In contrast, there is always a real danger that, in reporting and commenting on the business of the courts, you may inadvertently commit a criminal contempt. The four main danger areas are dealt with in detail later. First, though, let us consider who is responsible if a report published in a newspaper is deemed to be in contempt. It is not just the reporter who wrote it. In fact, in many countries, the following are all responsible in law:

• Owner
• Publisher
• Editor
• Reporter
• Printer

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Four main dangers

The four main areas where a working journalist is likely to run the risk of committing contempt are the following:

Scandalising the court

The courts rightly protect themselves against anything which will undermine their dignity or interfere with their independence. However, this does not mean that they cannot be criticised.

If a court makes decisions which outrage public opinion - such as a rapist being jailed for six months while a bicycle thief is jailed for three years - then it is the duty of the media to provide an outlet for that outrage. Bad decisions can and should be criticised in the media.

However, great care must always be taken in the way in which the courts' decisions are criticised. Anything written or broadcast which is likely to lower the authority of the court system as a whole or bring it into public derision and contempt may be held to scandalise the court.

For example, you may criticise a judgment on the grounds that it is inconsistent with other judgments; or that it is out of touch with the public mood regarding the crime in question. That kind of criticism, strongly but fairly argued, should not be held to scandalise the court. However, the suggestion that a judge deliberately made an unjust decision, or that he was biased, or drunk, or incapable of carrying out his job, would be held to scandalise the court.

You may discuss the issue, but you may not attack the person.

Interfering with the course of justice

We saw above that threatening or bribing witnesses or officers of the court is contempt. You are unlikely to interfere with the course of justice in this way, but there is another way which is a real danger to be avoided.

When a big crime has been committed, journalists want to interview anyone who saw it happen, in order to be able to report the story. That is perfectly all right. The problem arises later, because those people may also be the witnesses in the court case.

As soon as a person has been charged, or is about to be charged, in connection with the crime, no potential witness should be approached for an interview. The reason for this is that witnesses may later change their evidence in court to fit in with what they have told reporters. Only after they have given evidence and been cross examined should you contemplate interviewing them for any article or program to be published or broadcast after the trial has ended.

Publishing matter likely to prejudice a fair trial

Once a case is sub judice, several kinds of publication may prejudice a fair trial. One has already been mentioned - publishing details of the defendant's previous convictions.

Another is publication of details of the background of the case. Whenever there is a big trial, journalists gather together details of the defendant's past life and other background information, ready to publish them at the end of the trial. Once the trial is over, and is no longer sub judice, then all this material can be published. However, if any of it is published during the trial it may be held to prejudice a fair trial.

Care must also be taken regarding a murder case. Until the case is over, you cannot refer to the crime as a "murder". The only established fact is that a person has been killed, not that he has been murdered. The court may decide that the killing was manslaughter, or justifiable homicide, neither of which is murder.

You may refer to an "alleged murder", but only if somebody has actually been charged with murder. Even then, to state as a fact that there has been a murder could be held to prejudice a fair trial. It is safe to refer to the "killing" and "the dead man"; only if the court finds the defendant guilty of murder can you refer to "the murder victim".

It is also important not to report anything about an accused person while their case is sub judice – apart from things said in the charge or during the trial - which could have a bearing on the case.

An example of this was provided in England in 1949, where the editor of a national newspaper was jailed for three months and fined 10,000 pounds for a report published after a man had been arrested and charged with the murder of a woman. The newspaper report did not name the man, but it said of an unnamed man in custody on a murder charge: "So far five murders have been attributed to him." The report named the victims and described the way the murders had been committed. There was little doubt about the identity of the unnamed man in custody. The editor was jailed and fined, even though what he published later proved to be true - the man later confessed to nine similar murders. The fact was that, at the time when the report was published, it could have prejudiced the man's fair trial. It was therefore contempt of court.

Of course, criminal courts in England have juries, who are much more likely than judges to be influenced by what they read in the newspapers, hear on the radio or see on television.

Generally speaking, countries which do not have a jury system may be far more tolerant of media reports than countries which do have juries. If there is no jury, then what is written or broadcast is not so likely to prejudice a fair trial, since the judge will be more able to ignore it.

Nevertheless, even in countries without juries, there are limits to what will be tolerated and care should be taken not to interfere with the proper course of justice.

Voir dire
One special danger to be aware of when reporting on jury trials is that of voir dire proceedings. These are circumstances before a trial or within a trial when arguments are made in the absence of the jury, most usually so that the judge and the lawyers involved can determine whether a particular piece of evidence or witness should be presented to the jury - who are usually sent out of the court room while voir dire argments are discussed. Because the jury is not told what happens in voir dire discussions, journalists must not report them either. In some jurisdictions voir dire discussions may be reported once the trial is finished, i.e. when the jury is no longer involved.

Refusing to name a source of information

As we have already seen, anyone who refuses to answer questions properly put by a court of law will be in contempt of court. The same rules usually apply in commissions of inquiry established by governments. The rules apply to journalists as much as to any other members of society. This can lead journalists into an ethical dilemma.

Journalists can only do their job if people tell them things. Sometimes, people will tell you things in confidence. This may be because they know of bad things which are happening, which ought to be made public, but they are afraid of losing their job or suffering in some other way if they openly make the facts public.

This is not a rare occurrence - in countries where the press is used to reveal corruption and other kinds of malpractice in government, business and other areas of life, confidential sources of information are the life blood of the media.

However, people will only tell you such secrets if they feel sure that you will never reveal who gave you the information. It is therefore vital that journalists never reveal their sources of information.

However, a court or commission of inquiry may sometimes wish to know who gave certain information to the press. It may subpoena a reporter to appear and it may then ask for the source of the information. As far as the law is concerned, the reporter must answer if it is "necessary in the interests of justice". As far as journalists are concerned, their professional ethics must take priority over the demands of the law, and journalists in many countries regularly refuse to reveal their sources of information, even if this means that they are sent to jail. This ethical question is looked at in detail in Chapter 60: Sources and confidentiality.

The law does recognise that certain people have professional ethics which prevent them revealing information they have gained in confidence - for example, priests are generally not expected to reveal things they have been told in the confessional, and doctors are not usually expected to reveal confidential information about their patients - but in most countries the law does not recognise the journalist as having a similar professional demand. Journalists in many countries feel that their law should be changed in this respect.

However, unless journalists have a special legal status in this respect in your country, the situation is quite clear. If you refuse to name your source of information, when asked to do so by a court or a commission of inquiry, you will be in contempt of court and must expect to be sent to jail.

The Cojuangco Case

In one celebrated Australian case in 1988, journalist Peter Hastings was held in contempt for refusing to name two people who gave him information on the suspect dealings of a Philippines businessman Eduardo Cojuangco who had extensive business interests in New South Wales.

Hasting's article started:
"In Indonesia and Thailand, graft and corruption, often on a large scale, are part of the scenery - a form of political and economic overhead. In the Philippines they have been elevated to an art form.
One of the leading local US banks maintains that of the Philippines' $US26 billion foreign debt, the President and close 'cronies' like coconut king Eduardo Cojuangco, and sugar baron Roberto Benedicto, not to mention the First Lady, have totally squandered $US9 billion of it."

Cojuangco prepared to sue Hasting's paper, the Sydney Morning Herald, for defamation and the businessman's lawyers asked a judge to order Hastings to reveal who gave him crucial information. Hastings refused and was found in contempt. The matter was resolved when Hastings' lawyers told the judge they would not rely on the defence of qualified privilege to support evidence from the unnamed source in any defamation trial. The judge removed the contempt finding and Cojuangco won the defamation case. [The High Court decision can be read at:
http://www.austlii.edu.au/au/cases/cth/high_ct/165clr346.html]

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Pictures and sound

It is not only the written or spoken word which can lead a journalist into contempt. Pictures and sound recordings can also cause problems.

In many countries, photographs, drawings and sound recordings may not be made in the precincts of the court, nor may such pictures or recordings be published or broadcast. It should be noted that photographs includes television and film as well as still photographs.

The precincts of the court are not just the inside of the court room, but may include the whole of the court building and even the road outside, if the court house is included in the picture. The reason which is usually given for this is that such practices will be likely to encourage witnesses and defendants to perform for the media rather than to concentrate on the real business in hand.

Some countries do permit photography, video and sound recordings in court, but traditionally most countries which have adopted or inherited the English legal system do not. However, drawings have often been allowed in many places, and even in England now it is becoming common for sound recordings of court proceedings to be permitted.

It is up to the journalists in each country to ask the courts for permission to take photographs and to make sound recordings in court. If the judge or magistrate grants permission, then there will be no problem. However, if photographs are taken or electronic recordings made without the court's permission, the journalists involved may well be held to be in contempt of court.

In recent years, some countries - even England and Wales - have softened their rules against electronic recording in court, especially where the recording is only of the judge delivering a judgment. Many countries which now allow some recording of judgments still ban recording of the trials themselves. Others, such as New Zealand, allow judges to make their own decisions on whether to allow media to record and broadcast cases before them. In New Zealand, the media must apply to the individual judge in advance for permission and the judge can allow all or only parts of the proceedings to be recorded and broadcast.

As a journalist, it is your responsibility to know the laws of your country on electronic recording and broadcast of court proceedings. Ask the court registrar or clerk of the court for advice on what is permitted and how procedures work.

There is another way, too, in which photographs can lead a newspaper or television station into contempt. If they publish a photograph of a man who is wanted by the police in connection with a crime, and if identification is likely to be an issue at the trial, then the newspaper or television station may be held to be in contempt.

The reason for this is clear. If a witness is asked at the trial to identify the man who committed the crime, the witness may point at the defendant and say: "That's him!" The defence lawyer may then argue that the witness recognises the man not from the crime itself, but from the photographs which were published in the newspapers and shown on the television screens.

Publishing the photograph actually interferes with the course of justice, and is therefore contempt. If the police ask a newspaper to publish a photograph of a wanted man, the newspaper should always ask first whether identification is likely to be an issue at the man's trial. If the police say no, then it should be safe to publish the photograph.

The media use technical methods to show images without revealing the identity of an accused person – or a child in court proceedings. In newspapers they may ink a bar across their face, blur the photograph or show only an artist’s sketch without clear features. Television often shows film of people with their faces electronically pixelated (broken up into pixels) to blur their features.

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Appeals

Strictly speaking, all proceedings are sub judice until the end of appeal hearings, if any, or at least until the time allowed for an appeal has lapsed. For a long time, it was considered that no comment should be made on any case until this time was over.

In practice, this is extraordinarily difficult. The length of time which is allowed for an appeal to be lodged means that the case has faded from the public mind long before any comment can be made. In practice, too, convicted people have found that they can avoid comment by lodging an appeal and then quietly withdrawing it weeks later, hoping that the press will not notice. It has often worked.

For these reasons, it has come to be normal for cases to be subjected to comment even if an appeal is still to be heard. Even in countries which have a jury system, appeals are usually heard only by senior judges, who are not likely to be influenced by what they read, see or hear in the media. Responsible comment is therefore usually considered acceptable as soon as the trial has ended, whether or not there is going to be an appeal.

Indeed, in 1968 the English Attorney-General told parliament that "the press is free to comment responsibly on the verdicts and sentences of criminal courts, even where an appeal is pending."

The crucial word, however, is "responsibly". A comment in one English newspaper that "if the sentences are not reduced on appeal ... there ought to be more demonstrations" was held to be in contempt, because the Lord Chief Justice said it went "well beyond the limit of responsible comment". However, plenty of other newspapers in Common Law countries have commented on verdicts and sentences, but without suggesting or inciting street demonstrations, and have not been in contempt.

The situation may not be the same in every country, however, and you should take great care to check on the views of your own courts.

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Military courts

Members of the armed forces can be tried by military courts, sometimes called courts martial. (A person tried by one of these courts is sometimes said to be court-martialled.) It is important to note that convictions and sentences in a court martial are not usually valid until they have been confirmed - usually by the commanding officer.

Any press report of court martial proceedings which have ended in a conviction should therefore carry the sentence: "The court's findings and sentences are subject to confirmation."

The proceedings remain sub judice until the decision of the confirming authority has been announced. After that, comment on the verdict and sentence are permitted, even though there may still be an appeal.

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Defence against contempt

Generally speaking, there is not much that you can say in your defence when you are hauled up before the judge for contempt, unless you can prove that it was not you who said or wrote the words which were contemptuous.

However, there is one important exception to this - one vital defence against one type of contempt, which all journalists should know.

We have already seen that it is contempt to publish any details of the background of a case once it is sub judice. That means that, once a person has been charged with a crime, or more accurately when a person is about to be charged, nothing more can be said about the crime itself, other than certain established facts, such as that a person died or that goods went missing.

Journalists need to be very careful, therefore, when reporting a crime, since a report which is safe while nobody has been charged may be contemptuous as soon as charges are imminent.

It is the journalist's responsibility to ask the police whether anybody has been charged. It is then the responsibility of the police to tell journalists the answer. If a newspaper, radio or television station reports details of a crime, after someone has been charged, they will be in contempt unless they can prove that they did not know, and had no reason to suspect, that proceedings were pending or imminent.

For example, if you have made every effort to find out from the police whether anybody has been arrested or charged with a murder, and the police cannot give the information, you should go ahead and publish the full story of the crime.

If it later turns out that a man had already been charged with the murder, and that the report is likely to prejudice his fair trial, it will be a defence against contempt that you did not know and had no reason to suspect that proceedings were pending, in that you had tried to find out and had not been given the information which you sought. Note, though, that you must prove that you did not know. It is vital that you keep an accurate note of who you contacted, and at what time, together with an accurate note of what was said; you can then produce your notebook in court as evidence.

Of course, if the newspaper, radio or television station had used the same report without making any effort to find out whether anyone had been charged, they would undoubtedly be guilty of contempt.

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Contempt of parliament

In countries which have a Westminster-style system of parliamentary government, the parliament is also protected by laws of contempt, just as the courts are, and for much the same reasons.

Criticism which tends to undermine the authority of parliament, or to ridicule the institution of parliament or to discredit it, or anything which would interfere with the functioning of parliament, is contempt.

For example, in 1947 an English newspaper alleged that some MPs were drunk in parliament; that was held to be contempt of parliament. In 1956, another English newspaper published an MP's private telephone number and suggested that anyone who disagreed with his views should phone him and tell him so; this was held to be contempt of parliament, as it was an improper attempt to deter the MP from doing his duty. In 1987, Papua New Guinea's Electoral Commissioner said that people who were criticising an educational video which he had commissioned were doing so because they wanted a crooked election; this was held to be contempt of parliament, because many of those criticising him were MPs, and his remarks reflected upon their honour.

Normally, criticism of individual MPs should be safe from contempt, as long as it does not bring the institution of parliament into disrepute. The extent to which this is permitted will naturally vary from one society to another. Robust criticism of leaders which is acceptable in Melanesia or Europe may be quite unacceptable in Polynesia or Africa.

In England, where this legislation originated, the present position was clearly stated in 1965, by an MP who was opposing another MP's motion of complaint about newspaper criticism. He said: "If it were passed, it would be regarded as an attempt by parliament to interfere with freedom of comment in the press, on television, on the radio and on the public platform on the actions of Members of Parliament who, by seeking and accepting membership of the house, have laid themselves open to comment, criticism, ridicule, satire, whether in good or bad taste, and ruthless and relentless comment. I think this is the kind of comment upon which the free functioning of democracy completely depends."

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TO SUMMARISE:

There are two types of contempt of court:

• Criminal contempt, by which courts protect their independence and dignity

• Civil contempt, by which courts assert their authority

Journalists run four main risks of committing a criminal contempt:

• Scandalising the court

• Interfering with the course of justice

• Publishing matter likely to prejudice a fair trial

• Refusing to name a source of information

• Unauthorised photographs and sound recordings may be contemptuous

It is a defence against publishing prejudicial matter while a case is sub judice that you did not know, and had no reason to suspect, that proceedings were pending or imminent

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