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But resurrecting the old law is surely an empty threat
Russell Brand is off the front pages today — but not, I suspect, because of the attorney general’s advice that the media might be in contempt of court if they publish material that “could prejudice any potential criminal investigation”.
Victoria Prentis KC MP is clearly standing by her advice and some lawyers have offered her their support.
I argued yesterday that what has been published so far could not amount to “strict liability” contempt — unintentional interference with the course of justice — because there is no “active” case at the moment.
But lawyers point to section 6(c) of the Contempt of Court Act 1981, which expressly preserves the common-law contempt rules that existed before the law was reformed by parliament.
The courts have confirmed that a finding of contempt under this heading requires intent to be proved. But there is no need for a criminal case to be active.
Is that what Prentis had in mind? If so, her attempts to resurrect the old law have been condemned by a well-known legal writer:
Professor Gavin Phillipson adds that it’s “rare” to find journalists accused of common-law contempt. The allegation is also difficult to prove:
But, as Jonathan Caplan KC rightly says, it’s “the attorney general’s historical function to uphold the principle of fair trial and to be proactive in preventing interference with the course of justice”. He adds:
The media may be the investigatory watchdog but it cannot then be judge and jury.
And Caplan, who has long experience in this area of the law, reminds me of a case from 19881 in which the publishers of the Sun were found to have been in contempt under common law, even though the criminal case involved was not yet active.
But that involved a private prosecution, supported by the newspaper, of a doctor who had been accused of raping a child. The court found that the publishers had the necessary intention to prejudice a fair trial by bringing to the attention of their readers, including potential jurors, damaging information about the doctor that would be inadmissible evidence in criminal proceedings.
This seems very different from the Brand case. As I said yesterday, any trial — if it happens at all — must be years off. No juror is likely to remember the detail of what has been published so far.
Nor is there any evidence that journalists intend to prevent any such trial from being fair. Indeed, no trial would have been possible without the media’s investigations.
For the time being, we can surely put common-law contempt back in its box.
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Just in case you missed my story yesterday afternoon. One of today’s newspapers certainly didn’t.
Attorney General v News Group Newspapers  3 WLR 163,  QB 110.