Contempt of Court: Common Law vs Statutory — What Journalists Need to Know

The two contempt regimes: an overview

Contempt of court in England and Wales operates through two overlapping legal frameworks. The Contempt of Court Act 1981 (CCA 1981) codified and reformed the law in response to the Sunday Times v United Kingdom judgment at the European Court of Human Rights. Common law contempt predates the Act and survives alongside it.

The strict liability rule: CCA 1981 s.2

Section 2 of the CCA 1981 provides that a publication which creates a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced is contempt of court, and this is so regardless of the intent of the publisher. This is the “strict liability rule.”

Three elements must be established by the prosecution: first, that the proceedings are active within the meaning of Schedule 1; second, that the publication creates a substantial (not merely possible) risk; third, that the risk is of seriously (not merely marginally) impeding or prejudicing the proceedings. The double threshold — “substantial” risk of “serious” impediment — was designed to give the press room to report without the constant threat of prosecution for minor coverage lapses.

In practice, courts assess the risk by asking what a member of the jury might have read, whether the publication is local or national, whether there is a lengthy time gap between publication and trial, and how prejudicial the content is. A national tabloid publishing an interviewee's detailed account of a defendant's alleged previous offences during a running jury trial is the paradigm case. For more on the active-proceedings trigger, see our guide on active proceedings.

Common law contempt: scope and intent requirement

Common law contempt is not abolished by the CCA 1981; s.6(c) of the Act expressly preserves it for publications made with intent to impede or prejudice the administration of justice. The intent requirement is the defining difference: the prosecution must prove beyond reasonable doubt that the publisher intended to interfere with justice, not merely that the publication had that effect.

Common law contempt is particularly relevant in two scenarios for journalists:

• ›Pre-proceedings publication: where a journalist publishes material that prejudges a case before proceedings are active within CCA 1981 Schedule 1 — for example, publishing a detailed account of a suspect's guilt before arrest — common law contempt can apply if intent can be established.
• ›Deliberate defiance: where a journalist publishes in deliberate breach of a court order or in open defiance of a reporting restriction, the intent element is usually easily established, and common law contempt supplements the civil contempt route.

The Sunday Times v UK case arose under the old common law. The House of Lords held that the article prejudged the litigation against Distillers (the thalidomide manufacturers) and put improper pressure on the parties. The ECtHR disagreed, finding that the public interest in the article outweighed the speculative risk of prejudice. That tension between free expression and protecting judicial integrity is now managed through the CCA 1981 framework, but the common law remains a residual backstop.

Sunday Times v United Kingdom: the case that changed contempt law

In the 1970s the Sunday Times sought to publish an article examining the suffering of children born with birth defects caused by the drug thalidomide, and criticising the level of compensation being negotiated by Distillers. The House of Lords in Attorney General v Times Newspapers Ltd [1974] AC 273 granted an injunction restraining publication on the ground that the article would prejudice ongoing litigation and put improper pressure on Distillers as a litigant.

The Sunday Times applied to the European Court of Human Rights. In 1979 the ECtHR unanimously held that the injunction violated Article 10 ECHR: the restriction was not “necessary in a democratic society” because the public interest in the subject matter of the article was substantial and the risk of prejudice was speculative given the protracted nature of the litigation. This was the first finding of an Article 10 violation against the UK.

The judgment prompted the then-government to reform contempt law through the CCA 1981, which introduced the strict liability rule (replacing the broader common law test), the public interest defence in s.5, and the AG's exclusive power to bring criminal contempt proceedings for strict liability contempt. The case remains the foundational ECtHR authority on the relationship between Article 10 and the administration of justice.

Defences under the CCA 1981

The CCA 1981 provides three principal defences to strict liability contempt:

• ›Section 3: innocent publication — the publisher did not know and had no reason to suspect proceedings were active. Requires genuine ignorance; a newsroom that had been tracking the case cannot easily rely on this.
• ›Section 4: contemporaneous reporting of proceedings — a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith, is not contempt. This is the basis for protected court reporting. It does not cover commentary or editorial.
• ›Section 5: public interest discussion — a publication made as part of a genuine good-faith discussion of public affairs where the prejudice to proceedings is merely incidental. The discussion must be genuine and not a pretext to prejudge the case.

The s.4 defence is the journalist's workhorse: it protects accurate real-time reporting of what happens in open court. It does not protect reconstructions, backgrounders, or commentary that goes beyond what was said in court. For a detailed breakdown of active-proceedings triggers by court type, see our guide on contempt by court type.

Civil contempt: breach of court orders

Civil contempt arises from breach of a court order rather than from publication. For journalists, the most common civil contempt scenarios are:

• ›Breach of an injunction: publishing in defiance of an interim injunction against disclosure — whether a super-injunction, privacy injunction, or commercial confidentiality order.
• ›Breach of a reporting restriction order made under s.4(2) or s.11 CCA 1981: publishing information that a court has ordered should not be published.
• ›Disclosure of a juror's deliberations: s.20D of the Juries Act 1974 (inserted by the Criminal Justice and Courts Act 2015) criminalises research into jurors and disclosure of jury deliberations.

Civil contempt is punishable by up to two years' imprisonment and/or an unlimited fine. The party harmed by the breach (for example, the claimant in whose favour an injunction was made) usually brings the committal application, though in criminal contempt the AG acts. The standard of proof for civil contempt is the criminal standard: beyond reasonable doubt.

The Attorney General's role in contempt prosecutions

Under the CCA 1981, criminal contempt proceedings for breach of the strict liability rule can only be brought by the Attorney General (in England and Wales) or the Solicitor General acting in their place. This acts as a check on vexatious prosecutions: private parties cannot bring criminal contempt proceedings for breach of the s.2 strict liability rule, though they can bring civil contempt applications for breach of orders in their favour.

The AG assesses complaints using a two-stage test: is the conduct clearly contemptuous, and is prosecution in the public interest? The AG's office can receive complaints from any person. Historically, complaints have come from judges, court officials, parties to proceedings, and rival news organisations.

Notable AG actions against media organisations have included proceedings against tabloids that published previous convictions or highly prejudicial interviews during jury trials. Fines have reached six figures for major publishers. Individuals (editors, journalists) can face both fines and, in principle, imprisonment, though custodial sentences for journalists remain rare.

Magistrates' vs Crown Court contempt powers

Magistrates' courts have a summary power to deal with contempt in the face of the court — for example, a journalist who disrupts proceedings or defies a direction from the bench in open court. The maximum penalty in the magistrates' court is one month's imprisonment and/or a fine. This power is immediate and does not require the AG to act.

The Crown Court and High Court have inherent jurisdiction to deal with contempt, including the power to commit for up to two years and impose an unlimited fine. Criminal contempt by publication in the context of Crown Court proceedings is dealt with in the King's Bench Divisional Court (not by the trial judge), with the AG bringing proceedings.

For journalists covering trials at both levels, the practical upshot is: magistrates can act immediately against disruptive conduct in court, but publication contempt is dealt with separately by the Divisional Court on the AG's application. A robust editorial and legal process before publication is the best protection. See also the active proceedings guide and the legal read process.

Related guides

Primary sources

• Contempt of Court Act 1981 (legislation.gov.uk)
• Sunday Times v United Kingdom (ECtHR, 1979) — Council of Europe
• Attorney General v Times Newspapers Ltd [1974] AC 273 — BAILII
• Attorney General's guidance on contempt (gov.uk)
• The Judiciary of England and Wales — contempt resources (judiciary.gov.uk)
• BAILII — case law database

Frequently asked questions