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Hillsborough: The Contempt of Court Act - can it work?

Contempt of Court has been somewhat been in the limelight recently, particular in relation to the Katie Rough trial and of course, the charges stemming from the Hillsborough disaster. I intend to focus on the latter case in this particular article.

The Contempt of Court Act 1981 (the '1981 Act') creates an offence that to interefere with the course of justice, as outlined by section 1 of the 1981 Act. This is a strict liability offence, which essentially means that an offender will be guilty by simply carrying out the motion of committing contempt, regardless of their background intention. This means that there is a lower standard of proof. The issue for any defendant(s) in this instance would be that they have very little chance of dodging such charges if there is enough evidence to suggest that they have committed the act.

It should also be noted that section 2 of the 1981 Act outlines the scope of liability and what is required in order for the strict liability offence to be triggered. There has to be a form of 'publication', which includes: "any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public." There is a further requirement that the publication has to "create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."

With regards to the Hillsborough disaster, and the charges that have been made in relation to that, complications arise. The history of inquests and investigations into these unfortunate events have been, what one can imagine to be, very frustrating for the families of those who were lost that day. To indicate just how complex this is, the Crown Prosecution Service (CPS) spent some six months examining evidence against a rather large pool of 23 suspects, all of whom had been identified by the two criminal probes that took place in 2012. Whilst these charges arrive nearly 30 years after the events that unfolded, Campaigners said the charges "send a message about accountability",

In particular, four of those six people charged face charges regarding statements or comments they have made. They are: Norman Bettison, Peter Metcalf, Former Chief Superintendent Donald Denton of South Yorkshire Police and Former Detective Chief Inspector Alan Foster of South Yorkshire Police. The accusations are that either witness statements were materially altered in order to cover up the events that unfolded, or that individuals have told lies.

Whilst it would seem that this would be a "cut and dry" case on the basis that the CPS have spent a significant period of time examining the evidence and bringing such charges, it must be remembered that the evidence being presented to the court is not in the public domain in its full form (i.e. there are no full versions of such witness statements). As a result, the outside world can only speculate as to what can happen in these proceedings. With that said, it would appear, at least from my perspective, that there is a real prospect that charges under the 1981 Act would be successful.

Again, whilst the evidence to be used is not in the public domain, there are defences are afforded to the Defendants under section 3 of the 1981 Act. It is unlikely, however, that these defences can be relied upon. The first exception is where section 1 applies, but at the time of publication (having taken all reasonable care) the Defendant does not know and has no reason to suspect that relevant proceedings are active. It is highly unlikely this would have any grounding in the case on the basis that Hillsborough is one of the most notorious cases that the UK has seen. There have been numerous investigations and inquiries that would have provided an opportunity to give an honest account.

The second is where the creator of a publication containing any such matter (in this case false information) if at the time of distribution (having taken all reasonable care) they do not know that it contains such matter and have no reason to suspect that it is likely to do so. Hypothetically, it is plausible that this particular defence may have some more success, although it places a large burden on the Defendant to prove that they had no reason to suspect that there was false information in, for example with Hillsborough, their witness statement/comments.

It should be remembered these are speculative comments at best on the basis that the evidence is not before the general public.It is likely that the case will be taking place in Chester in the not so distant future, although this needs to be confirmed. It is guaranteed that when the outcome of the proceedings is announced, there will be significant media coverage regardless of who wins in this instance. It may perhaps, become a drawn out saga. What can be said for certain about this case is that there is a lot hinging on it for all of those involved. The Defendants can potentially lose their liberty, albeit for a maximum of two years in a superior court and a very modest one month in an inferior court as outlined by section 14 of the 1981 Act. On the other hand, the families of the victims could potentially see the men responsible for the loss of their loved ones being brought to justice.

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