Blogger Jackie Danicki caused a stir several weeks ago when she published a cameraphone photograph on her blog of a young man who had allegedly harassed and assaulted her on the London Underground.
Dozens of other bloggers followed up by republishing the picture.
But on Friday, a man was arrested in connection with the incident. That means that proceedings are now active and it’s time for all the bloggers following the story to brush up on their British media law if they don’t want to risk prejudicing a potential future trial or even being held in contempt of court.
Writing on the blog of his University of Sunderland colleague Phillip Young, McNae’s Essential Law for Journalists co-editor David Banks reminds bloggers of the Contempt of Court Act 1981.
In fact, Danicki herself might want to reconsider the phrasing of her post about the arrest.
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What’s puzzling to me is that the police are fully aware of my blog posts about this, and have said nothing to discourage me from publishing the picture and writing about what happened. (I was, however, not to say anything that would jeopardise the investigation prior to the arrest.) It is expected that the person in question will plead guilty, as the evidence is so overwhelming, and a trial is not expected. I have to be honest, I’m not quite sure how to proceed.
If, as in this case, it is likely that no jury is involved, in a guilty plea before a Magistrate’s Court, why should either blogs or newspaper on-line archives be censored ?
Do not forget the Attorney General Lord Goldsmith’s ideas (circa 2004) about retrospectively censoring on-line newspaper archive websites and presumably blogs:
According to The Times:
See: Attorney General Lord Goldsmith tries to censor the web – another attack on the jury system.
In terrorism cases, where people are being held for up to 28 days, and if the Labour politicians get their way, for 90 days or longer, without even being charged, i.e. far longer than the normal attention span / “news cycle” of the media, then where is the Contempt of Court Act ?
There is no control over all the media speculation, hype, leaks and unattributed briefings of “background details” from UK police, intelligence and government sources, supplemented by leaks from Foreign intelligence and government sources, which is then further commented on in the blogosphere.
Eeek ! Apologies for the incomplete “blockquote” markup of the quotation from The Times above.
Jackie, WT,WU:
I’m no lawyer, but from what I have read, I believe all the material published before the arrest — that is, before “proceedings were active” — is fair game, which is why the police didn’t discourage you from talking about it.
According to McNae’s (p182) police appeals for information in the media theoretically risk contempt charges. But there is no known case of a publisher being held in contempt for helping police in this way, and during the debates over the 1981 Contempt Act, the Attorney General said publishers “have nothing to fear” if they publish “in reasonable terms” information that assists in a suspect’s apprehension.
As WTWU points out, there’s no question of everyone having to go back through their archives to clear out prejudicial statements published before the arrest.
The only issue seems to be new reporting after the arrest.
As Banks points out in the post I linked to, the most straight-forward thing to do is not to write anything that presumes the guilt of the person arrested. Notice that I wrote “a man was arrested in connection”, rather than “the man who attacked Jackie”. The reason is simple: as far as the law is concerned, we don’t actually know that it’s really the right guy they arrested.
The other thing to consider is that this guy is under 18, the Children and young Persons Act 1933 forbids identifying him as a defendent, including publication of any photograph.
Personally, I have long thought (like many bloggers) that a lot of the reporting restrictions in the British courts are somewhat anachronistic, silly and contemptuous of jurors’ intelligence.
But our opinion of the principles involved doesn’t really matter right now: What if smart barristers start realising that pre-trial blog publicity makes getting convictions at trial unlikely and start telling their clients to plead not guilty?
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Martin,
The reporting restrictions might well be viewed as silly and anachronistic if they were interpreted too literally by judges when applying the CCA 1981.
However, in a series of cases including those of the Krays, Rose West, Geoff Knights and many others, judges have affirmed very strongly what you allude to – credit jurors’ with some intelligence.
They have said that, especially if the prejudicial publicity comes well in advance of a trial, that the effect of the drama of a trial and the warning of a judge, will tend to eliminate from a juror’s mind that which he or she has seen or read before.
However, they have warned about avoiding matters which are particularly memorable and likely to remain in a juror’s mind at the time of trial.
The test is:
What is the likelihood of a potential juror reading this?
What effect will it have on an ordinary reader?
What will the residual effect be at the time of trial?
Blogs put alleged victims in a new position of being able to speak directly to jurors. Such material is quite capable of being strikingly memorable.
Bloggers at the moment seem to be relying on the somewhat shaky defence that not many people read them and so there is no great likelihood a juror will be exposed to prejudicial material.
This defence will only stand up if and as long as blogs are not seen by the courts as having an equivalence to newspapers or other media. I’m not sure how long that defence will stand up.
David,
Thank you very much for your comment That’s a very important clarification, but I think it raises two questions:
1. Why do you think the readership size issue is a “shaky” defense? It seems that in this case, the likelihood of a juror reading the blog post is relatively small, given that the 79 blogs that have linked to the picture (even if taken together) probably don’t have a particularly large readership in the UK.
2. Is all of this only an issue if there is a jury trial? What if a defendant decides to plead guilty?
‘Shaky’ in that the defence will only last so long.
I think it’s fair to say that many bloggers would like their efforts to be read by as wide an audience as possible, but the downside of that is that as they increase their readership, they increase the likelihood of their coming to the attention of the courts if they publish something that is libellous or in contempt.
And in libel size of audience is no defence at all.
In other words, if your blog is a well-read one, you become a victim of your own success.
This is indeed only an issue of there is a jury trial. But until someone enters a guilty plea, or elects trial by magistrates, that is always a possibility.
Technically proceedings are actually active until someone is sentenced, but in practice the media are allowed free rein once someone pleads guilty or is found guilty.
Another danger that people ought to be aware of since the Courts Act 2003 is the threat of a ‘wasted costs order.’
This allows a court that abandons a case to levy the costs of the case up the point of abandonment on the person whose ‘serious misconduct’ caused it to be abandoned.
This bit of law is separate to contempt and you don’t have to have committed something which amounts to contempt to be hit with one of these orders.
But the most serious thing about them is that, while contempt proceedings are brought on the authority of the Attorney General, the highest law officer in the land, a serious-minded chap who isn’t likely to do such things on a whim, a wasted costs order can be made by your local magistrate.
Of course you could appeal it to the crown court, but then you just start racking up more costs.
It’s not beyond the realms of possibility that a defence lawyer sometime in the near future will try to get proceedings abandoned on the basis of prejudicial blogging and then the mags might just be minded to make such an order.