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9 min readThe strict liability rule and when it applies
Section 2 of the Contempt of Court Act 1981 creates the “strict liability rule”: a publication that creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced is contempt of court, regardless of intent. Critically, the rule only applies when proceedings are “active” within the meaning of Schedule 1 to the Act.
Schedule 1 sets out when different types of proceedings become active — and the trigger point differs by court type. Understanding those trigger points is the first step in assessing contempt risk for any court report.
- Criminal proceedings (magistrates’ and Crown Court): active from arrest without warrant, issue of a warrant for arrest, issue of a summons, or oral charge.
- Civil proceedings: active from the time the case is set down for trial (or in some cases when a date for trial is fixed).
- Appellate proceedings: active from the date when leave to appeal is applied for or, if no leave is required, from the date of lodging the notice of appeal.
- Proceedings become inactive when they are disposed of, discontinued, or abandoned.
Magistrates' courts
Magistrates' courts handle the overwhelming majority of criminal cases in England and Wales — around 95 per cent of all criminal proceedings begin and end here. Proceedings become active from the moment of charge, issue of a summons, or arrest without warrant. Given the high volume and fast-moving nature of the list, active status can attach and be discharged rapidly.
Common contempt risks in magistrates' court reporting include: naming defendants before their case is called (where a contempt risk arises if the case proceeds to Crown Court); publishing prior convictions that have not been placed before the court; and identifying witnesses or victims who have been granted anonymity. Youth Court sittings carry additional automatic protections under the Children and Young Persons Act 1933 s.49 — no report may identify a defendant or witness under 18.
Magistrates can impose s.11 CCA 1981 orders withholding names or other matters from public announcement. These orders must be checked at every hearing. Automatic restrictions also apply to committal proceedings under the Magistrates' Courts Act 1980.
Crown Court
Crown Court proceedings become active under Schedule 1 when the defendant is arraigned — that is, when the indictment is read and the defendant enters a plea. Before arraignment, the strict liability rule does not apply, although serious prejudice to proceedings can still amount to common law contempt.
The central concern in Crown Court reporting is jury prejudice. During a trial, publishing previous convictions, inadmissible evidence, interviews with witnesses, or information about the defendant's character that was not before the jury risks a contempt finding. The Attorney General can bring contempt proceedings; penalties include unlimited fines and up to two years' imprisonment.
What is generally safe to report during trial: the charges, evidence adduced in open court, closing speeches, the verdict, and the sentence. What to avoid: anything said in the jury's absence, evidence that has been ruled inadmissible, and comment on the defendant's guilt before the verdict.
Family courts
Family courts carry the strongest anonymity protections in the English legal system. Section 97 of the Children Act 1989 prohibits publication of any material that identifies or is likely to identify a child involved in Children Act proceedings, whether or not those proceedings have concluded.
Section 12 of the Administration of Justice Act 1960 makes it a contempt to publish information relating to proceedings heard in private where the proceedings: relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; are brought under the Children Act 1989; or otherwise relate wholly or mainly to the maintenance or upbringing of a minor. This covers CAFCASS reports, expert evidence, and the substance of judgments in private law children cases.
Since 2009, accredited journalists have had a right to attend most family court hearings, but the right to attend does not equal the right to publish everything heard. The Family Procedure Rules 2010 govern the conduct of proceedings and the limits on reporting. Always take advice before identifying any party, child, or professional from family court proceedings.
Civil courts and Chancery
In civil proceedings, the strict liability rule activates when the case is set down for trial or a trial date is fixed. The prejudice threshold is generally set higher than in criminal cases — there is no jury to prejudice in most civil hearings. The greater risk in civil litigation for journalists is not contempt by publication but injunction: parties frequently seek interim injunctions preventing publication of information said to be confidential, private, or defamatory.
Committal for contempt remains available in civil proceedings for breach of court orders (including injunctions and undertakings). Super-injunctions — orders that also prohibit publication of the existence of the injunction itself — are rare but have been used. Any journalist who believes they may have been affected by an injunction they cannot identify should take urgent legal advice.
Tribunals and inquiries
Many statutory tribunals — including the Employment Tribunal, First-tier Tribunal, and Immigration and Asylum Tribunal — are not “inferior courts” for the purposes of the CCA 1981. The strict liability rule in s.2 therefore does not automatically apply to publications about their proceedings.
However, tribunals can and do make reporting restriction orders under their own statutory powers. The Employment Tribunals Act 1996 allows restrictions in cases involving allegations of sexual misconduct or national security. The Tribunal Procedure Rules (First-tier and Upper Tribunal) also give the tribunal power to restrict reporting. Breach of such orders can lead to criminal penalties separate from the CCA 1981 framework.
Public inquiries under the Inquiries Act 2004 are not courts and have their own rules. The chair can impose restrictions on disclosure of evidence under s.19. Failure to comply with a restriction notice is an offence under the Act.
Inquests and coroners' courts
Coroners' courts are not criminal courts. An inquest is an inquisitorial fact-finding exercise to establish who died, and how, when, and where. It is not a trial and cannot determine criminal liability or civil liability. The active test under Schedule 1 CCA 1981 does not apply to inquests in the same way as criminal proceedings.
Since the Coroners and Justice Act 2009, the outcome of an inquest is a “conclusion” rather than a “verdict”. Short-form conclusions include accidental death, natural causes, suicide, and unlawful killing. A narrative conclusion allows the coroner or jury to describe the circumstances without assigning personal blame. Journalists must not report an inquest conclusion in terms that imply criminal responsibility — such reporting risks defamation liability.
Rule 23 of the Coroners (Inquests) Rules 2013 allows the coroner to exclude the press and public in limited circumstances. Jurors at inquests are protected from identification. Where a jury inquest is held, the jury cannot be approached before, during, or after the inquest.
Key risks by court type
Magistrates’ court
Fast-moving active-proceedings trigger (charge or warrant). Youth Court anonymity automatic. Check for s.11 and committal-hearing reporting restrictions before filing.
Crown Court
Jury prejudice is the central concern. Proceedings active from arraignment. Never publish prior convictions, inadmissible evidence, or out-of-court interviews during trial.
Family court
Strongest anonymity regime. Children Act 1989 s.97 and AJA 1960 s.12 apply. Attending does not mean you can publish what you hear. Take advice before every report.
Coroner’s court
Not criminal proceedings. Cannot determine criminal liability. Report conclusions accurately and avoid implying personal blame — defamation risk is real.
Key legislation
“The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”
“Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.”
Leading cases
The Divisional Court fined the Daily Mirror and Sun £50,000 each for contempt of court over pre-trial coverage of Christopher Jefferies (later cleared) in the Joanna Yeates murder investigation. Confirmed the width of the s.2(2) Contempt of Court Act 1981 strict-liability rule during active proceedings.
The Daily Mail and Daily Mirror were fined for publishing photographs of a murder defendant holding a firearm during the trial. The Divisional Court held that publication of images liable to prejudice the jury was strict-liability contempt.