Contempt of Court: Open Justice?

The idea behind the 1981 Contempt of Court Act was pretty honourable. Everybody deserves a fair trial and to have their guilt decided by a jury rather than be convicted by the ‘Press’.

Since then it has come under increasing pressure from the right to freedom of expression, first in the printed media and more recently the internet, which allows anyone to bellow an opinion in complete ignorance of the Act.

Attorney Generals have generally turned a blind eye to this conflict. Now Dominic Grieve has decided to join the battle with a series of prosecutions. In July the Sun and the Mirror were fined a total of £68,000 over their reporting of the Joanna Yeates murder case. In one year Grieve has brought more prosecutions than his predecessors over a decade (read the full text of his recent speech here).

At a time dominated by press misbehaviour and the Leveson Inquiry, perhaps this determination is to be admired, even if it isn’t possibly to prosecute every prejudicial tweet or blog. The hope is that the message goes out that a fair trial is paramount. Fair enough. Perhaps it would be a good thing if the Act was better known by the public.

But at its heart the Contempt of Court is based on a delusion that jurors begin a case equipped with entirely open minds. As if they were twelve virgins who must be carefully protected from the evil, perverted world outside.

Every fact they are given is carefully controlled. They are given access to some some pieces of information, but kept in ignorance of others. They are sent out of the room while the judge decides what they should or shouldn’t hear. They are told not to investigate the case themselves, or carry out research on the internet. They are told to decide a case based on the evidence presented, no matter how poorly or partially presented.

These instructions now take up ten minutes at the start of the case, and are usually rammed home again in summary at the end of each day.

The problem is that everybody in the court knows that it is a complete farce (or as one journalist put it, ‘a comfortable fiction’). The jury almost certainly do go home and look the case up on the internet, or chat to their partners about it, or do a bit of research into a subject they felt wasn’t properly explained. They certainly talk about the case in small groups when not all twelve of them are present.

Where is the research showing this is disastrous for justice? The great miscarriages of justice have tended to be based on flawed police investigations and prosecutions rather than prejudicial reporting.

All this isn’t a necessarily a problem with the Contempt of Court Act. Rather it is a lurking flaw in the justice system itself. Jurors are not virgins, and neither should they be. It is accepted that they can bring their past experience to bear on a case, even if they are a lawyer or a doctor or a police officer (providing they haven’t been excluded from serving on the case for this reason). To this extent they are trusted to approach the case fairly.

So why can’t a jury be trusted to hear the arguments for and against the relevance of a piece of evidence, such as previous convictions? Why can’t the whole process be held in the open?

The argument is that without the Contempt of Court Act the powerful media would run rampant over the course of justice. But it seems a little absurd to trust juries only part of the way. We don’t try to balance juries with regard to gender, sexual persuasion, past experience or political orientation, so why do we pretend that we can protect them from the information and opinion bombarding them every second of every day?

There must be a better way. After all, the Contempt of Court Act came about as a result of the Sunday Times’ reporting of the thalidomide scandal when it was under injunction. Given that the trend is now towards more information, not less, perhaps it is time for the system to change with the times, rather than the other way round.