Reporting on criminal activity is one of the areas of journalism which carries the most potential risk for a journalist, broadcaster or publisher, because the law around what can and cannot be said is extremely strict, and there is little leniency for anyone who is found to break it; even inadvertently.
The two prohibited acts a journalist risks committing when reporting on a crime are contempt of court (just referred to as contempt) and prejudice.
Contempt is a legal offence regarding the publishing of prejudicial material while a case is active. An example of this would be the case of Christopher Jefferies, in 2011, in which eight newspapers were found to be in contempt of court and ordered to pay damages to Mr. Jefferies after publishing more than 40 (collectively) articles containing libellous allegations about the claimant, following the murder of Joanna Yeates.
In this case the newspapers had published articles which heavily implicated Mr. Jefferies in Joanna Yeates’ murder, which meant that any juror would likely have seen some of the articles and would instantly be prejudiced against him. The result of this could have been that even if Mr. Jefferies had in fact killed Ms. Yeates, his case may have been ruled a mistrial because of the prejudicial material. Or on the other hand, the innocent Mr. Jefferies may have gone to prison because a jury had been influenced by what they had seen said about him in the news.
Prejudice refers to matter (material) published while a case is active that could influence a fair trial. This means any information published before or during a trial that might affect a jury’s perception of the case. If published information could potentially sway a jury towards thinking a defendant is guilty/innocent then it would be regarded as prejudicial.
In the news this week, footballer Adam Johnson was alleged to have committed a sexual act with a 15-year-old girl. The Sun were the first to report the story, with everyone else following suit soon after, despite the fact that Johnson’s identity had not been confirmed by the police.
Legally, police are allowed to identify suspects, however there is a strong argument that this should not be the case, and that, especially in the case of suspected sex offenders, that a suspect should not be identified until after they have been found guilty.
The ramifications of being identified as a sex offender are severe, even if a suspect is later found to be innocent, they will never escape the allegations. Along with being morally dubious, identifying an individual as a potential sex offender before they have stood trial, would also clearly be considered prejudicial.
A case goes through several stages, with each stage involving it’s own processes and rules for reporting on it. It is important to know when a case has changed stage, i.e. when a case is legally active and when it’s not, in order to understand what the risk of prejudice is, and what information can and can’t be published at each stage.
- The first stage of a case is when a crime is reported. At this point, while the police are still hunting for suspects and no arrests have been made, all information is reportable. Police will in all likelihood be appealing for witnesses and will probably have released details of the crime and descriptions of the perpetrators. All of this can be reported with no risk of prejudice, as any coverage will aid the investigation.
- Once the police do make an arrest, or issue an arrest warrant, or announce that a person is ‘assisting with enquiries’, the case becomes legally active and enters a new stage. Now that the case is legally active, the information that can be published becomes very limited. There is now a risk of prejudice, particularly with any description of the suspect/s. At this point the story almost shuts down; legal professionals will likely be consulted before any information is published, if any is in fact published at all.
- The case next changes stage after police lay charges and a trial becomes a definite prospect rather than a speculative one. Now only facts which are completely incontestable can be reported. By this stage, to ensure coverage is secure and without risk of contempt, news reports will start to focus on adding ‘colour’ to the story, rather than reporting facts. This entails describing the atmosphere in the community (i.e. shock/distress/unease), interviewing local figures, detailing the scene by showing shots of people laying flowers etc.
- The final stage is a Magistrates court hearing. From this point onwards only seven facts can be reported until the case ceases to be active. These are:
- Names, ages, addresses, occupations of defendants
- Charges faced by the defendants or a close summary
- Name of the court and and names of Magistrates
- Names of solicitors or barristers present
- Date and place of adjourned case (if case is adjourned)
- Whether bail has been posted, and if so, details of bail arrangements
- Whether legal aid was granted
It’s important for a journalist to be aware when reporting, of what stage the case is at. Some cases may move quickly, and the information which can be reported may change hourly.
In the case of the murder of Lee Rigby, in 2013, two men were filmed and photographed standing by the body, brandishing bloodied weapons, and confessing to the murder. Within hours the video “confession” was everywhere; with both news outputs and the general public sharing the video online and on social media, which sparked a debate about how contempt law applies to online content.
The two men were arrested, making the case legally active, and meaning that technically, contempt laws were in effect. They had not yet stood trial, meaning the video (and photos) was by all definitions, prejudicial material, and that the sharing of it should amount to contempt of court. But it would be ridiculous to prosecute everyone who shared the video (with the exception of journalists/news outlets, who arguably should be found in contempt), and it would be impossible to track down and delete the myriad of videos and photos; so what options remain to ensure a fair trial in a digital age?
There are certain restrictions when reporting on cases involving children and young people – this applies from the age of criminal responsibility (10-years-old) until legal adulthood (18-years-old).
- Defendants and witnesses MUST have anonymity both in youth courts (under section 49 orders) and in adult proceedings (under section 39 orders)
- Youth courts are less formal, and are presided over by magistrates specially trained to deal with young offenders
- Youth courts are not open to the public, although journalists can still attend
- Reporting restrictions apply to all aspects that might identify a defendant or witness, so as to avoid Jigsaw identification
The key element, which allows journalists to report on crime and the courts without fear of legal action against them, is absolute privilege. Privilege (absolute and qualified) is a crucial tool for journalists, which I will discuss in greater depth in a later post.
As long as a journalist’s court reporting adheres to three basic rules, everything they publish will be completely protected. These rules are:
- Fair – reports must be balanced between both sides, prosecution and defence, over the course of the whole trial.
- Accurate – any quotes/verdicts/rulings must be published in their exact form. As electronic recording equipment of any kind is still prohibited in UK courts, shorthand remains an important tool for this purpose.
- Contemporaneous – i.e. any reports must be published at the first possible opportunity