The disappearance of Sarah Everard, the subsequent finding of human remains and the arrest of a serving Metropolitan police officer has been shocking. It has led to much speculation in the press, on TV and radio and on social media.
Such commentary is an understandable response. There is a danger, though, that any public suggestion that the person arrested is guilty – or, indeed, innocent – of a crime may amount to a contempt of court. This is a concern for all reporters – but is a particular hazard for users of social media who, unlike trained journalists, may be unaware of the rules of contempt.
A past case of contempt of court illustrates the danger, though it concerned the press rather than social media. In 2010, Christopher Jefferies was arrested for the murder of his tenant and neighbour, Joanna Yeates. Some media outlets began to trash his reputation in a way which suggested he was guilty. For example, the Daily Mirror falsely claimed on its front page that he was a “peeping Tom”. And the Sun’s front page referred to him as “The strange Mr Jefferies” while the inside pages stated that he was “weird” and “creepy”.
Jefferies was, in fact, wholly innocent. Another man, Vincent Tabak, was later arrested and convicted of Yeates’ murder.
Both the Daily Mirror and the Sun were subsequently held to be in contempt of court. This is because their stories about Jefferies created substantial risks to the course of justice. If there had been a trial, its impartiality could have been significantly damaged by their reporting. The papers were fined £50,000 and £18,000 respectively.
Forms of contempt
There are various types of contempt of court but they all exist to protect the authority, impartiality and fairness of court trials. The type of contempt in the Jefferies case – and which I write about here – is known as “contempt by publication”. It exists to ensure that cases are tried only on the basis of evidence that is heard – and which may be challenged and tested – in the court room, rather than on the basis of rumour, gossip, insinuation or anything else that is external to the trial but which may influence the outcome.
This type of contempt is governed by the Contempt of Court Act 1981. It’s committed when a publication creates a “substantial risk” that a trial may be “seriously impeded or prejudiced”. The act defines publication as any “communication in whatever form, which is addressed to the public at large or any section of the public”.
This clearly includes social media – and this is why I say that the users of social media are a particular concern. Unlike trained journalists, many social media users will be unaware of the law of contempt and how it restricts what they should post or tweet (though, as the Jefferies case demonstrates, even the professionals get it wrong sometimes).
Under the 1981 act, contempt by publication may be committed when proceedings are active. This has various meanings but, generally speaking, criminal proceedings become active after an arrest.
The upshot of all this is that, once someone has been arrested, any social media post which creates a substantial threat to the impartiality of a subsequent trial may amount to a contempt of court. And the penalties for committing a contempt are significant – a substantial fine or up to two years’ imprisonment.
Ignorance is no excuse
Simply being ignorant of the law of contempt does not protect you from it. For example, the actress Tina Malone was given an eight-month suspended prison sentence and ordered to pay £10,000 costs after breaching a court order protecting the identities of the killers of James Bulger. She had shared on Facebook an image and name, purportedly of one of the killers.
Malone was found in contempt even though she told the court she did not realise she was doing anything wrong by sharing the post. This was contempt by breaching a court order, rather than by a publication risking the impartiality of a trial, but the same principle applies.
The 1981 act also defines contempt by publication under something called the “strict liability” rule. This means that a person may be found to have committed contempt even if it was not their intention. You may, for instance, tweet without meaning to influence – without even thinking of — a future or ongoing trial and still commit contempt.
And as the Christopher Jefferies case also shows, there can be a contempt even if there is no trial – contempt is committed by creating a substantial risk of serious prejudice, even if the risk does not materialise because the person in question never goes to trial.
None of this means that there can be no discussion about Sarah Everard’s disappearance. The Contempt of Court Act explicitly permits publication of material, which could be in news outlets or on social media, as part of a discussion of general public interest as long as the risk to any trial is incidental to that discussion. So, for instance, press or social media discussions, in the context of this case – about the violence that women often face from men – may not be a contempt of court. Unless, for example, it is suggested that the person arrested was guilty.
Social media has the potential to be an incredible force for good, making freedom of expression a reality for more people than ever before. Yet, there is also the potential for significant harm. There will be few who are unaware of the sometimes brutal abuse and bullying that takes place on social media. But, there will also be few social media users who are aware of the danger of committing contempt of court and of the serious penalties that committing contempt may bring them.
John McGarry does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.