Reporting the Leveson Inquiry and the risk of contempt

As the Leveson Inquiry shapes up and witness hearings approach, reporters have been wondering about how much legal protection they have to cover the proceedings.

Questions have arisen around the issues of defamation and contempt of court and, more importantly, on whether it will be safe to report just any information made public during witness statements, considering they may be prejudicial to ongoing police investigations and future trials.

There is a possibility that part of the evidence which may be made public during the inquiry – especially during witness statements and cross-examination – may pose a substantial risk of serious prejudice to the criminal proceedings active at the moment (17 people have been arrested so far by Operations Weeting and Elveden).

How safe?

The Hacked Off campaign received legal advice from a top solicitor, who specialises in media law, about reporting the inquiry without risking contempt under the Contempt of Court Act 1981.

She said journalists wishing to report the proceedings can be “reasonably confident in relation to anything made public by the Inquiry”.
According to the solicitor, “it is the Inquiry’s considered decision to put it [information] into the public domain.”

She added the Leveson team are taking care not to prejudice any future trials “and the Met [Metropolitan Police Service] have an opportunity to make representations to Leveson LJ regarding any information they have which might be problematic.”

Indeed the Met and the Crown Prosecution Service have already made joint representations to Lord Justice Leveson regarding the disclosure of potentially prejudicial information at a preliminary hearing on October 31.

The Leveson Inquiry is being held under the Inquiries Act 2005, which, amongst other things, gives Lord Justice Leveson the power to subpoena witnesses to give evidence under oath.

For journalists reporting the inquiry, section 37 of the Act provides the protection of absolute privilege if reports are published contemporaneously and qualified privileged, under part 1 of schedule 1 of the Defamation Act 1996, if publication is non-contemporaneous and if the requirements of both these defences are met.

In terms of contempt of court under the Inquiries Act 2005, according to McNae’s Essential Law for Journalists, by David Banks and Mark Hanna, the High Court would have power to punish for contempt of court anyone who discloses and publishes any item of evidence or documents which have been restricted by Leveson LJ. The same applies for identifying anonymous witnesses when their anonymity is granted under section 19 of the Act.

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