Danicki tube arrest: how should bloggers respond?

Significant developments in the Jackie Danicki tube 'attack' story present interesting new challenges for the many bloggers who have taken up her case.

Here's what my University of Sunderland colleague and co-editor of Essential Law for Journalists, David Banks says:

As someone has been arrested proceedings are now active for the purposes of the Contempt of Court Act 1981 - this means that, regardless of intent, you must not publish anything which would cause a substantial risk of serious prejudice.

Over the years the courts have defined matters that will cause such prejudice as:

• Photos where identity is at issue (ie the defendant is saying 'wasn't me guv')
• Publishing a defendants previous convictions
• Assumptions of guilt - such as saying police have arrested THE man who committed the crime

I would suggest that Jackie and those commenting on her blog appear to have posted items which fall into the third category.

The UK judicial system, as with the US, operates on the assumption of innocence, and so publications which endanger that assumption are liable to be punished for contempt.

In the normal course of things a victim might well comment to family and friends that police have caught THE offender, but such comments carry no substantial risk. However, when you blog such remarks, you are potentially publishing to a much wider audience. At this stage, probably not sufficiently large an audience to amount  to substantial risk.

The likelihood of Jackie, or whoever hosts her site being prosecuted is probably very small, because prosecutions are only brought on the authority of the Attorney General.

However, as blogs become more widely read it will not be too long before a smart defence barrister attempts to get a client off because prejudicial blog publication has prevented the defendant from having a fair trial.

Those commenting in terms that police have caught THE offender might wish to reflect how they might feel were the defendant to be found not guilty because of the very things they have posted.

Also note, contempt of court is punishable by an unlimited fine.

Comments

[Watching Them, Watching Us]

How is a blogger, or even the person in charge of well funded on-line newspaper and media archives, actually meant to know that a particular unsolved crime has resulted in an arrest and a court appearance before a jury ?

Why are juries somehow assumed to be incapable of ignoring rumours and irrelevant or unsubstantiated allegations, when a Magistrate or even a panel of High Court Judges is deemed, magically, to be immune from such influences ?

Surely if a Judge does decide to impose reporting restrictions on a particular case before a jury, then there should be an authoritative website, with RSS/XML syndication feed, email lists etc. which publishes the minimal details required for responsible media and bloggers to temporarily censor their archives during the court proceedings, and to restore them after the verdict has been announced ?

What about foreign based media and blogs ?

In terrorism cases, where people are being held for up to 28 days, and if the Labour politicians get their way, 90 days or longer without even being charged, i.e. longer than the normal attention span / "news cycle" of the media, then where is the the Contempt of Court Act ?

There is no control over all the media speculation, hype, leaks and unattributed briefings of "background details" from UK Police, intelligence and Government sources, and from foreign intelligence and government sources, which is then further commented on in the "blogosphere".

[David Banks]

Quite a bit to deal with there but here goes:

1 How are you supposed to know...? The courts expect you to check. There is a defence in the Act if you don't know or have no reason to suspect an arrest has been made, but you have to have checked.

2 Why are juries...? We might not agree that juries are less or more vulnerable than magistrates or judges, but that's the law, or at least, that's how judges have interpreted the law. If you want to avoid a prosecution culminating in an unlimited fine you have to operate within that law.

3 Surely if a judge...? The restrictions of the Contempt of Court Act are not 'imposed by a judge' they automatically apply once a person is arrested. The UK judicial system does not take it upon itself to maintain e-mail lists of interested parties. It places the onus on those publishing to check before they do so. It's easy enough to do, pick up the phone or send an e-mail to the investigating police force.

4 Foreign-based media and blogs are not bound by UK law. Yes, UK jurors have access to them, but the courts figure more of them have more access to UK media. See above re it's the law, work with it.

5. In terrorism cases the rules are the same, once someone has been arrested then proceedings against them are active and so the Act starts to bind you.

6 "There is no control..." Depends what you mean by control. No, most of the time there might not be, but now and again someone comes a cropper when they push too far and reveal too much before a trial.

But, remember, Philip started this discussion with reference to ethical behaviour by bloggers. The underpinning ethic of the Contempt of Court Act is the preservation of the judicial process, the assumption of innocence and the right to a fair trial. These are fairly fundamental principles in free societies.

Bloggers do themselves a disservice if they argue that their right to comment on whatever they want, whenever they want somehow trumps a person's right to justice.