Since the attack on Muslim worshippers near the Finsbury Park mosque in the early hours of June 20, in which 11 people were injured and one man died, there has been criticism of the way the incident has been covered by the media. In a statement, Finsbury Park mosque said:
We are extremely unhappy with the mainstream media not reporting this as a terrorist attack, whereas they are very swift in describing attacks involving individuals professing to be Muslims and acting in the name of Islam.
Yet the difference in coverage identified by the mosque and others in the immediate aftermath of the attack is likely to be because – unlike recent terrorist incidents at Westminster, Manchester and London Bridge – reporting of the Finsbury Park incident is governed by the Contempt of Court Act 1981. In this case, the suspect, who was held by members of the public at the scene until the police arrived and arrested him for terrorism offences, is alive and in police custody.
Contempt of court
The Contempt of Court Act attempts to protect the fairness and integrity of criminal and civil (non-criminal) trials. Under the Act, a contempt occurs where a publication creates a “substantial risk that the course of justice in [a trial] will be seriously impeded or prejudiced”. A contempt may be committed whether or not there was an intention to create the risk to justice.
However, a contempt under the Act may only occur if proceedings are active. Criminal cases become active when there is an arrest without warrant, a warrant is issued for an arrest, a summons is issued, or an individual is charged, orally, with an offence.
This explains at least some of the difference between the reporting of the Finsbury Park incident and the earlier terrorist attacks. In the earlier incidents, the attackers died during the attack – negating the possibility of them being tried and of any trial being prejudiced by reporting.
With the Finsbury Park incident, there has been an arrest, which means proceedings have become active, and the restrictions on reporting required by the Contempt of Court Act apply to protect the fairness of any resultant trial. In short, because the van driver in the Finsbury Park incident may stand trial, the media must be careful not to state as fact something that might be the subject of the trial.
That is not to say that there has to be a trial in order for there to be a contempt of court. As long as proceedings become active and a publication creates a substantial risk that a possible trial will be seriously prejudiced or impeded, there will be a contempt, even if there is no trial.
This occurred in the case of Christopher Jefferies, who was arrested on suspicion of the murder of architect Joanna Yeates in December 2010. Jefferies was innocent and released without charge and another man was later convicted of the murder. The reporting about Jefferies after his arrest was held to amount to a contempt of court because it created a substantial risk of prejudicing any possible proceedings even though Jefferies never stood trial.
The Contempt of Court Act applies to any publication, not just the mainstream media. So those using social media to comment on a live criminal or civil case may be found to have committed contempt if their message creates a substantial risk of serious prejudice or impediment.
What is allowed
The Act does not, however, prevent all published discussion about a live trial. It permits a “fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. This allows for daily media reports of a proceedings at a public trial, so long as they are fair and accurate. In fact, such reporting is one of the guarantees of a fair trial because it means that legal decisions are not hidden from public view.
The Act also states that a publication which discusses, in good faith, public affairs or matters of public interest will not be in contempt if the risk to the trial is merely incidental to that discussion. This permits discussion of matters of public interest – which may also have relevance for a live trial – but where the particular trial is not a central feature of the discussion. So, for example, a newspaper article that discussed the types of evidence that should be permitted in rape trials in a balanced and measured way would not amount to a contempt of court, even if it were published during a trial where such questions were an issue.
The Contempt of Court Act attempts to find the right balance between freedom of expression – by permitting discussion of matters of public interest and reporting of public proceedings – and protecting the fairness of trials. Those following reporting of the Finsbury Park attack, and any subsequent trial, should bear this in mind.