The ECtHR, in the Sunday Times case,
recognised the “pressure principle”
referred to by the House of Lords, and held that it was sufficiently certain.
The Court also considers that there can be no doubt that the
‘pressure principle’ was formulated with sufficient precision to enable
the applicants to foresee to the appropriate degree the consequences
which publication of the draft article might entail. In Vine Products Ltd
v Green,
Mr Justice Buckley had formulated the law in this way:
It is a contempt of this court for any newspaper to comment on
pending legal proceedings in any way which is likely to prejudice
the fair trial of the action. That may arise in various ways. It may
be that the comment is one which is likely in some way or other
to bring pressure to bear upon one or other of the parties to the
action, so as to prevent that party from prosecuting or from
defending the action, or encourage that party to submit to terms
of compromise which he otherwise might not have been
prepared to entertain, or influence him in some other way in his
conduct in the action, which he ought to be free to prosecute or
to defend, as he is advised, without being subject to such
pressure.
Pressure can be exerted either directly on the individuals concerned or by means
of publication aiming to mobilise public opinion. Inflammatory publications
intended to influence a jury or court, witnesses or parties can be either contempt
or perverting the course of justice: the leading case is Tibbits and Windust.
Pressure can be exerted either directly on the individuals concerned or by means
of publication aiming to mobilise public opinion. Inflammatory publications
intended to influence a jury or court, witnesses or parties can be either contempt
or perverting the course of justice: the leading case is Tibbits and Windust.
Discussion of public affairs
5. A publication made as or as part of a discussion in good faith of
public affairs or other matters of general public interest is not to be
treated as a contempt of court under the strict liability rule if the risk of
impediment or prejudice to particular legal proceedings is merely
incidental to the discussion.
6. Nothing in the foregoing provisions of this Act—
(a) …
(b) …
(c) restricts liability for contempt of court in respect of conduct
intended to impede or prejudice the administration of justice.
The meaning of “impeding” was discussed in Attorney General v MGN Ltd and
News Group International Ltd:
The issue of impeding the course of justice outside the trial processes
has been less well trodden. However, as Oliver LJ observed in
Attorney General v Times Newspapers Limited,
cited by Simon
Brown LJ in Attorney General v Unger:
The course of justice is not just concerned with the outcome of
proceedings. It is concerned with the whole process of the law,
including the freedom of a person accused of a crime to elect, so
far as the law permits him to do so, the mode of trial which he
prefers and to conduct his defence in the way which seems best
to him and to his advisers. Any extraneous factor or external
pressure which impedes or restricts that election or that conduct,
or which impels a person so accused to adopt the course in the
conduct of his own defence which he does not wish to adopt,
deprives him to an extent of the freedom of choice which the law
confers upon him and is, in my judgment, not only a prejudice
but a serious prejudice.
Although Oliver LJ, at the end of this passage, referred to prejudice,
these are examples, but not a comprehensive list, of occasions when
the course of justice would be impeded. Another such risk may well
be found in a well justified submission that the trial should be stayed
on the basis of the contents of the article in question, or the trial
moved (see for example, Attorney General v British Broadcasting
Corporation
and Attorney General v Birmingham Post and Mail
Ltd
“Impeding” also seems to include influence on parties, which distorts the conduct
or result of the proceedings rather than preventing them from happening: it is
distinguished from “prejudice” because the distortion does not take the form of
influencing the judge or jury.
In our judgment, as a matter of principle, the vilification of a suspect
under arrest readily falls within the protective ambit of s 2(2) of the
1981 Act as a potential impediment to the course of justice. At the
simplest level, publication of such material may deter or discourage
witnesses from coming forward and providing information helpful to
the suspect, which may, (depending on the circumstances) help
immediately to clear him of suspicion or enable his defence to be fully
developed at trial. This may arise, for example, because witnesses
may be reluctant to be associated with or perceived to be a supporter
of the suspect, or, again, because they may begin to doubt whether
information apparently favourable to the suspect could possibly be
correct. Adverse publicity may impede the course of justice in a
variety of different ways, but in the context we are now considering, it
is not an answer that on the evidence actually available, the
combination of the directions of the judge and the integrity of the jury
would ensure a fair trial. The problem is that the evidence at trial may
be incomplete just because its existence may never be known, or
indeed may only come to light after conviction.
This sort of “impeding” is connected with the “pressure principle” discussed in the
Sunday Times case.
We have found nothing in the debates directly relevant to the meaning of
“impeding”, or to the distinction between impeding and prejudicing.
A.44 The debates about when the “active” period should run, discussed below,
contain some discussion of the effect of publicity between the time of the arrest
warrant and the time of charge. Those in favour of the earlier date pointed out the
prejudicial effect of publicity during this period. Those against pointed out that the
right sort of publicity could assist in the suspect being found. But neither devoted
much, if any, attention to the possible effect of publicity in enabling the suspect to
escape, which would be a form of “impeding”.
The distinction between “impeding” and “prejudicing” has some, but not a
complete, correlation to two other distinctions.
(1) The distinction between intentional contempt and contempt under the
strict liability rule. “Impeding” is more likely to fall within intentional
contempt, as it can take the form of pressure on courts, witnesses or
parties other than by means of publication. As pointed out, however, the
correlation is not absolute: the statutory description of each of the two
forms of contempt speaks of “impeded or prejudiced”,
so all four
permutations are possible.
(2) The distinction between the “pressure principle” and the “prejudgment
principle” in the Sunday Times case. Pressure, whether or not by means
of publication, is more likely to impede the proceedings. Prejudgment is
generally a function of publications, and as the name implies, is generally
feared as prejudicial.
Similarly, the two latter distinctions have some resemblance between
themselves: pressure is more likely than prejudgment to be intentional.
read more here;http://lawcommission.justice.gov.uk/docs/cp209_contempt_of_court_appendix-a.pdf
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