BCA v Singh: The Contempt of Court Act Now Applies

There is one significant legal consequence of the English High Court ordering a preliminary hearing for the libel case brought by the British Chiropractic Association against Simon Singh.

The Contempt of Court Act 1981 will now apply in full force to all media reporting of the run up to the hearing - including publications on the internet.

The case has become effectively sub judice until the outcome of the preliminary hearing, and it will be effectively sub judice again as and when a full trial is ordered.

The Act makes it a criminal offence for any person to now publish an item "which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".

The main purpose of "contempt of court" is ensure that the parties in a case have a fair hearing without there being distorting external pressures.

Accordingly, one of the triggers of the Act is when a hearing or trial is ordered.

This criminal offence is strict liability in that the intention of the publisher is completely irrelevant. It does not matter if the person making the publication did not intend to prejudice the trial, or even if they did.

In theory, the penalty can be up to two years in prison.

Although this offence is primarily aimed at reports which may affect jury trials (which in England means serious criminal trials and most libel trials), it also in principle covers civil trials before a judge alone (such as BCA v Singh).

It is rare - but not unknown - for there to be prosecutions in respect of jury-less civil trials.

The only defences are "innocent publication or distribution" or contemporaneous reports of public hearings or the "section 5 defence" for discussion of public affairs. Section 5 of the Act states:

"A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion."

The requirement of "good faith" means that it will catch a cynical attempt to circumvent the rule by dressing it up an article as a general discussion.

The key question is therefore what constitutes a publication which seriously impedes or prejudices the course of justice.

As the BCA v Singh preliminary hearing will (presumably) be before an experienced and senior judge, one would expect that the bar on what would seriously impede or prejudice a matter before him (or her) will be higher on this than it would be for a jury trial.

However, the mere existence of this rule explains why there will be now be no coverage of this case whatsoever in the mainstream media before the preliminary hearing (and I suspect not even in Private Eye ).

(That said, this case has had little mainstream media coverage so far!)

I am afraid it also explains why this Blog will now have to be more restrained in what is posted or linked to.

More broadly, however, it is interesting how one case on freedom of speech can illuminate one of the many other restrictions on free speech which exist under English law.

And that the rule supposedly covers online publications - including Blogs and message boards - highlights just how behind the law can seem to be in the internet age.