Report No. 200

(1) Publications concerning the character of accused or previous conclusions:

Pigot CB stated in R v. O'Dogherty (1848) 5 Cox C.C 348 (354) (Ireland) that

"Observations calculated to excite feelings of hostility towards any individual who is under a charge ... ... ... amount to a contempt of court."

Borrie and Lowe state (p 132):

"Publications which tend to excite 'feelings of hostility' against the accused amount to contempt because they tend to induce the Court to be biased. Such 'hostile feelings' can be most easily induced by commenting unfavourably upon the character of the accused." These also can be influenced on the Jury. "Such publications amount to gross contempt because they bring to the notice of the Jury facts very damaging to the accused, which they are not entitled to know, and which have a tendency to create bias against the accused."

Publication of past criminal record is recognized as a serious contempt, satisfying the 'substantial risk of serious prejudice' test used in Section 4(2) of the U.K Act of 1981 as well as under Common Law. The above authors quote Moffit P in AG(NSW) v. Willisee: (1980) (2) NSWLR 143 (150) that there is

"popular and deeply rooted belief that it is more likely that an accused person committed the crime charged if he has a criminal record, and less likely if he has no record".

See also Gisborne Herald Co. Ltd. v. Solicitor General 1995(3) NLLR 563 (569) (CA).

The need to prevent prejudice caused by past criminal record is one of the 'most deeply rooted and zealously guarded principles of the criminal law' (Per Viscount Sankey in Maxwell v. DPP (1935) AC 309(317) and such evidence will have to be treated as inadmissible. But still it may affect the adjudicator subconsciously, as stated in Chapter III of this Report.

In the famous case R v. Parke: (1903) (2) KB 432, after an accused was arrested and remanded on a charge of forgery, the Star published articles that he had admitted an earlier conviction for forgery and that he had been sentenced to imprisonment. Wills J held that that was "unquestionably calculated to produce the impression that, apart from the charges then under enquiry, he was a man of bad and dissolate character".

Again in R v. Davis: (1906) 2 KB 32 a woman was arrested on a charge of abandoning her child and the publication in a newspaper that she was convicted of fraud on more than one occasion, was treated as highly prejudicial.

In Solicitor General v. Henry and News Group Newspapers Ltd: 1990 COD 307, a person was arrested for robbery and an article was published that he had a previous conviction of rape and it was held to be contempt even under the strict rule in Section 2 of UK Act, 1981 as creating a 'substantial risk of serious prejudice' and the newspaper was fined 15,000 Pounds.

In another case reported in Times (31st March,1981), the Guardian Newspaper was fined 5,000 Pounds for revealing, during the middle of a long fraud trial, that the two accused had previously been involved in an escape from custody.

Borrie & Lowe refer (pp 135-136) to A.G of New South Wales v. Truth and Sportsman Ltd.: (1957) 75 WN (NSW) 70 where a newspaper was held to be in contempt for publishing an article describing a person charged for possessing a pistol without licence, as a 'notorious criminal'.

In R v. Regal Press Pty Ltd: (1972) VR 67 (Victoria), the newspaper was held to be in contempt for publishing that the accused, who was arrested and charged for driving under influence of alcohol, was earlier convicted of murder. The argument of the publisher that the public already knew about it was rejected on the ground that public might have forgotten it and the publication would bring it back to their memory.

In Solicitor General v. Wellington Newspapers Ltd: 1995 NZLR 45, Gisborne Herald and two other newspapers were convicted for contempt for reporting the previous conviction of John Giles at the time of his arrest in Gisborne on charges of attempted murder of a police constable. The argument that the prejudicial statement was casually made in a general discussion was rejected in Hinch v. AG (Victoria): (1987) 164 CLR 15 and in AG(NSW) v. Willesee: 1980 (2) NSWLR 143.

In Canada, it was stated in Re Murphy and Southern Press Ltd (1972) 30 DLR (3d) 355 that 'Except in the most unusual circumstances, the press should refrain from publishing criminal records of any accused person, alleged co-conspirator or witness'. Report of previous conviction was held to be contempt in Re AG of Alberta and Interwest Publications Ltd: (1991) 73 DLR (4th ) 83.

R v. Thomson Newspapers Ltd, ex parte AG 1968(1) AllER 268, a person awaiting trial under the Race Relations Act, 1965 was, according to the press publication, stated to be of bad character as he was a brothel keeper and property racketeer. The comment was held to amount to contempt.

In AG v. Times Newspapers Ltd, (1983) Times 12th Feb, several newspapers which published comments on the merits of the charges concerning Michael Fagan, who had intruded into the Queen's bedroom in the Buckingham Palace, were fined.