Contempt of Court: Active Proceedings Explained

What is the strict liability rule?

Section 2 of the Contempt of Court Act 1981 imposes what lawyers call the “strict liability rule.” You can commit contempt of court without intending to, and without knowing that proceedings are active. If you publish material that creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced, you are in contempt — full stop. There is no requirement to prove intent, knowledge, or recklessness.

The rule applies to publications addressed to the public in England and Wales when proceedings are “active.” When proceedings cease to be active — following acquittal, conviction, sentence, discontinuance, or the making of an order — the strict liability rule no longer applies to those particular proceedings, though common law contempt can still apply in exceptional circumstances. Understanding when proceedings become and cease to be active is therefore fundamental.

A separate statutory defence protects contemporaneous reporting itself: s.4 of the Contempt of Court Act 1981 provides that a fair and accurate report of proceedings held in public, published contemporaneously and in good faith, is not a contempt under the strict liability rule — even while those proceedings remain active.

When proceedings are active and when they are not

Note: where a linked case (e.g. a co-defendant’s trial) remains active, caution still applies even where one set of proceedings has concluded.

When this matters for journalists

• 1You are about to publish a detailed background piece on a defendant who was arrested yesterday — the strict liability rule applies from arrest.
• 2A celebrity is charged with fraud — a previous conviction from 10 years ago is in your archive. Publishing a link to that story during active proceedings could be contempt.
• 3A jury is deliberating — you tweet a reaction piece about the defendant's likely guilt. This is high-risk contempt territory.
• 4A witness in an active trial has a complicated history you want to explore — character attacks during active proceedings can meet the prejudice test.
• 5Your editor wants to run an investigation timed to coincide with a high-profile arrest — the arrest itself may trigger active status before you even publish.
• 6You schedule social media posts in advance for a story published before proceedings became active — check whether any scheduled posts will go out during the active period.

Red flags in your copy

• ⚠Previous convictions, charges, or criminal history not yet put before the jury.
• ⚠Confessions, statements, or admissions not admitted in evidence.
• ⚠Photos of the defendant at scenes or in circumstances prejudicial to their defence.
• ⚠Character attacks, descriptions of the defendant as dangerous, violent, or dishonest.
• ⚠Identification evidence where ID is in issue at trial — publishing photos can prejudice a dock ID.
• ⚠Material that contradicts the defendant's stated defence before the defence has been heard.
• ⚠Live social media commentary during a jury retirement or deliberation.
• ⚠Automated re-promotion or newsletter distribution of old prejudicial material.

Pre-publication contempt checklist

• I have confirmed whether proceedings in this case are currently active.
• My copy contains no references to previous convictions, prior charges, or past criminal behaviour not before the court.
• I am not publishing confessions, admissions, or statements not admitted in evidence.
• I have checked whether identification is in dispute — if so, I am not publishing photos of the defendant.
• I have assessed whether the overall tone and content of my piece creates a substantial risk of prejudice.
• I have checked whether any linked case is also active and whether my copy touches on shared facts.
• I have reviewed any social media scheduling to ensure no posts go out that would be contempt during active proceedings.
• I have considered whether any archived content that I am promoting creates a fresh publication risk.

Common mistakes

• ›Thinking you need to intend to prejudice proceedings — the strict liability rule requires no intent.
• ›Assuming "it's already out there online" is a defence — it is not, though courts may take wide dissemination into account.
• ›Forgetting that arrest, not charge, is when criminal proceedings become active.
• ›Running archived content as a sidebar or related article without checking whether it contains prejudicial material.
• ›Tweeting from court without checking what stage the proceedings are at.
• ›Posting historical social media content that was scheduled before proceedings went active.
• ›Assuming that because a trial has concluded, a linked co-defendant's trial has also concluded.
• ›Relying on the "fade factor" — that jurors won't remember something published weeks earlier. Courts do not always agree.

Related guides

Primary sources

Frequently asked questions