Contempt of Court – prout de jure

The naming of suspects by police at the point of arrest and charge has become a hot topic. The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales. She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen. The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous. Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence. By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction). There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested. Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge. There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done. We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell. Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates. What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer. However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel. The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt. Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person. From the point that a person is charged it is clear that the Contempt of Court Act rules kick in. These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance). The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences. With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak. However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument. Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier. However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active. Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest. This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested. Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have. However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye. This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.

Some crimes attract a great deal of public interest and with almost rolling updates on the progress of investigations through twenty-four hour news channels that interest can be intensified. There is a risk that comes with this level of publicity in criminal investigations though. In all of the UK’s legal jurisdictions there exists the presumption of innocence. That means all persons accused of a crime are, no matter how heinous the alleged crime, presumed innocent until such times as they are found guilty by a court (and of course they may not be found guilty). A finding of guilt may be as a result of an admission (a plea of guilty) or following a verdict of guilty by the judge/jury. There exists also, enshrined in the Human Rights Act 1998, a right to a fair trial. It is essential that if we are to have confidence in both the judicial process and the verdicts of our courts that the process is fair and beyond serious criticism.

In order to ensure that proceedings against a criminal accused are fair there exists the Contempt of Court Act 1981. Once proceedings against an individual are “live” the provisions of the 1981 Act take effect and restrict the rights of everyone else in society in respect of freedom of speech. This restriction is absolutely necessary to ensure that trials are not prejudiced by comments made publically. In the past it was really only newspapers, TV, radio and other such media outlets that had to worry about contempt of court as it was only really them who had the capability of prejudicing a criminal trial. However, with the advances in technology we have seen everyone becoming a publisher and become affected by the 1981 Act (whether they know it exists, understand it, want to be or care).

Recent high profile cases have demonstrated just how little the general public understand about contempt of court and the risks in publishing potentially prejudicial material. Cases such as the John Terry public order trial and the PC Simon Harwood trial both resulted in huge discussions on public Facebook groups and on Twitter before and during the trials. These discussions made clear pronouncments on the guilt or innocence of the defendants in those cases. The Attorney-General even considered whether to bring proceedings under the 1981 Act in the John Terry case following tweets by another premiership footballer.

More recently, the investigation into the death of Tia Sharp has revealed more issues around Facebook and Twitter, the public and the law. Some people fail to understand that their posts on Facebook and on Twitter are not like their conversations in a pub or in their living room amongst friends. Their tweets and Facebook postings have the capability of being seen by literally millions of people as they get re-posted or re-tweeted. The effect that this can have on a criminal trial is drastic. It seems as though some people fail to understand, and really need to understand, that if a trial is sufficiently prejudiced it may not be able to continue. That would mean that the accused is acquitted and walks free from court. If people really care about justice in these high profile cases as they state they are in their Tweets and Facebook posts then they really should be careful what they Tweet and write on Facebook. It might seem inconceivable that a Tweet or Facebook post by a “nobody” could have such an effect, but as your friends Re-Tweet/Re-post it and their friends do the same and so on the cumulative effect could be enormous. How many potential jury members are reading these posts? While mentioning this case in particular I would like to point out that criminal proceedings are active in this case and that the 1981 Act has now taken effect. The individual charged and the individuals currently on police bail in this case are entitled to the presumption of innocence and are entitled to a fair trial.

The failure of some people in society, who often make themselves all too vocal on Facebook and Twitter, to allow due process to take place is concerning. A lot of people seem to fail (or refuse) to understand that arrest and/or charge does not equate to guilt. Some people seem to bestow super-human qualities on the police. Some people take the stance that “there’s no smoke without fire” or that “they must be guilty” once someone is arrested or charged with an offence. We have seen a number of fairly high profile cases where people arrested, charged and even convicted have later been shown to be completely innocent (and that’s innocent in that they didn’t do it rather than innocent because the Crown couldn’t prove it or because of some technicality, not that there’s any real difference in law).

Last year a young man, Dane Williamson, was arrested and charged with serious offences in relation to the mass public disorder that took place last summer. The offences with which he was charged carried a potential maximum penalty of life imprisonment. His name was widely publicised and the usual Facebook groups were set up where abusive remarks were posted about him. He was abused in prison and lost everything when his flat was set on fire while he was on remand. Even prison officers, it was reported, were abusing him while he was in custody. In his own words “I was being treated as if I was already guilty.” He hadn’t been involved in the riots. He had been working all day and then indoors in the evening that the offence in question took place. His case underlines clearly the serious problems we have in our society that threaten to undermine the criminal justice process.

Another case is the more widely reported one of Chris Jefferies. He was arrested on suspicion of Murder in the Joanna Yates murder investigation. He was subjected to demonization by the press and again social media sites were jumping down the process and treating him like he had been convicted of the offence. The “hang ’em” mob were out in full force more or less from the moment his arrest was made public. Again, he was innocent of any involvement in that crime. Another man, Vincent Tabak, was convicted in that case.

There are numerous other examples of such cases which could be given. They underline the need for the Contempt of Court Act. They should also be acting as lessons for those who jump to the conclusion that everyone arrested or charged must be guilty of whatever it is they have been charged with. The 1981 Act exists to protect the innocent, to protect the guilty and to protect the public. It helps to ensure that those who are accused of a crime face justice in a fair way and it protects the public by trying to ensure that things that substantially prejudice the trial are not put into the public domain. It would not be in the interest of public safety to have dangerous people walking the streets because their trial had to be stopped on the grounds that it had been so substantially prejudiced as to render it unfair. Such a scenario means that the victims don’t get justice, offenders go unpunished and the wider public are at risk.

Social media is an excellent tool, but the Contempt of Court Act 1981 was written long before the advent of social media. The technological advances which mean that we have moved away from companies being the only publishers who can reach large audiences with members of the public regularly publishing material that can reach thousands of people within minutes; this creates a problem for the operation of the law. How do we ensure that those who use Twitter and Facebook are aware of the 1981 Act and what it means for them? How do we ensure that everyone understands that Facebook and Twitter are not forms of private communication between their friends? Twitter and Facebook, contrary to the belief of some, is not just like being down the pub with your mates. The messages posted on these (and other) social networking sites are mostly capable of being seen by anyone in the world. There are serious questions and it is essential that these are looked at to protect the integrity of the criminal justice system. It is my view that this is too serious a problem to react to when it’s too late. Action is needed before a serious case collapses due to prejudice stemming from Twitter, Facebook or another social media outlet.

Links
Contempt of Court Act 1981
Human Rights Act 1998
Police got the wrong man: Salford teen charged with Miss Selfridge arson during Manchester riots is cleared (Manchester Evening News)
The Lesson of Joey Barton’s tweets (The Guardian)
Contempt laws are still valid in the internet age (Comment is free, the Guardian)

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I have left the comments section open for now. If any comments are posted below which are (or may be considered as) a contempt of court will be removed. Please comment sensibly.