The danger of contempt

Opening the inquest into the deaths of Holly Wells and Jessica Chapman on Friday, the coroner, Mr David Morris, questioned the conduct of the media over the past few weeks. He expressed concern over the rewards offered by the newspapers and their interference with police investigations, their continual speculation and their criticism of police conduct.

On Sunday, it was reported that the police were suggesting that the media had been in breach of the Contempt of Court Act and could jeopardise the prosecution of Ian Huntley and Maxine Carr. Roy James, solicitor to Maxine Carr, suggested that a fair trial might not be possible because of the media coverage. Similar fears were expressed in the press yesterday.

Over the past few days, and since charges were brought, there has been a slowing-down in detailed media coverage that at times has bordered on the hysterical. That is because of our law of contempt and the penalties that can be imposed if its rules are broken. The Contempt of Court Act 1981 has a "strict liability" rule, which treats any publication creating a substantial risk that the course of justice will be impeded or prejudiced, as a contempt. It is a criminal offence, and intent is not relevant – ie, innocence is not a defence.

Contempt cases are rare. When they are brought, it is by the attorney general; and, more often than not, if there has been a contempt published, it usually occurs just before or during a trial. In the Sunday Mirror contempt action over an article that led to the abandonment of the trial of two Leeds footballers and a retrial, the editor promptly resigned, and the paper acknowledged its guilt.

The Act starts to apply when proceedings are "active". Strictly speaking, proceedings are active when an arrest is made or when it is likely that charges will be brought. The gap between arrest, charge and trial, however, has resulted in an increasing tendency for the media to treat the moment when charges are brought, rather than arrest, as the time to stop any potentially prejudicial reporting. Trials often take place a year or more after someone is charged, and it is reasonable to assume that a judge can direct a jury to put out of their minds any prejudicial stories that they may have read. Not many will be able to recall a specific story published many months earlier, is the theory.

In the Soham tragedy, the facts, and the way events have unravelled, have made it difficult for the media to know when to stop their investigative stories. The unusual circumstances of the case and the public demand for answers have placed many obstacles in their way. Confusingly, the police announced that Ian Huntley had been arrested for the murder of the girls, without mention of suspicion, on the 17 August, and it was three days before he was charged.

Relationships with the police have been unhappy, and the rewards offered by the media have, to some, looked like a cheap attempt to cash in on the murders that has interfered with the police's investigations. On the whole, the media have done an impossible job well. Some tabloids, such as the News of the World, have gone too far, but as their stories have been published at such an early stage, it would be surprising if contempt proceedings were successfully brought. The News of the World seems willing to take that risk, no doubt believing that there is a likelihood that one of those charged may never face trial anyway.

The Contempt of Court Act could be improved, but on the whole it works. In the United States, the absence of any contempt controls allowed a media farce in the O J Simpson trial.

Few would question the need for controls, but their application does need review in an age of 24-hour news reporting. Perhaps the best thing would be more dialogue between the police and the media to improve communication, which has in this case been poor, and for the Press Complaints Commission to discuss ways to improve reporting of such awful events.

Rod Dadak is head of defamation at the law firm Lewis Silkin