But journalists were surprised to see the statement given that there are currently no active proceedings in relation to allegations of sexual assault made against Brand first reported by The Times and Sunday Times and Channel 4 Dispatches. Brand has denied criminality, saying all his relationships were consensual.
Times journalist Sean O’Neill wrote in response in a column on Monday: “The Attorney General is either poorly informed about the law of contempt or has taken it upon herself to issue a thinly veiled threat intended to have a chilling effect on reporting of the Brand allegations.”
Under the Contempt of Court Act 1981, it is contempt to publish material that creates a substantial risk of serious prejudice or an impediment to active legal proceedings.
A criminal case becomes active when a person is arrested, an arrest warrant is issued, a summons is issued or a person is charged orally – all steps that mean there is a definite prospect of that person facing a trial.
Contempt of court is a strict liability offence, meaning whoever published the material – whether in a newspaper, website or social media – does not need to have intended to create a prejudicial effect.
However Brand has not been arrested, nor have any of the other steps that make a case active taken place. The Met Police has said it has received a number of non-recent sex offence allegations in the wake of reporting about Brand, but no arrests have been made.
Attorney General’s contempt of court statement over Russell Brand
Nonetheless in a statement issued by the Attorney General’s office, Victoria Prentis MP said: “Following the airing of Russell Brand: In Plain Sight: Dispatches on 16 September 2023, there has been extensive reporting about Russell Brand.
“The Attorney General, the Rt Hon Victoria Prentis KC MP, wishes to amplify the importance of not publishing any material where there is a risk that it could prejudice any potential criminal investigation or prosecutions.
“Publishing this material could amount to contempt of court.
“Editors, publishers, and social media users should take legal advice to ensure they are in a position to fully comply with the obligations to which they are subject under the common law and Contempt of Court Act 1981.
“The Attorney General’s Office is monitoring the coverage of these allegations.”
Common law contempt of court
Noting the mention of common law, media law expert David Banks questioned the intervention, saying Prentis “appears to be trying to reinstate the common law definition of contempt where ‘proceedings are pending or imminent’ a definition abolished 40 years ago”.
The Crown Prosecution Service’s current legal guidance on contempt of court states: “Common law contempt may be committed where proceedings are pending or imminent (albeit not necessarily active for the purposes of the 1981 Act), and where there is actual intent to interfere with the administration of justice in those proceedings.”
However, as the media law bible McNae’s states, the Contempt of Court Act 1981 was designed to “replace some aspects of the common law of contempt, and give greater certainty about what constitutes a contempt”.
O’Neill of The Times questioned in response to the Attorney General’s statement: “Is the government telling reporters to stop interviewing women who have courageously come forward, stop pursuing legitimate and important public interest journalism? Meanwhile, Brand is free to pontificate on social media channels.”
He described it as a “shocking overreach”, adding: “It is not her job to tell reporters to stop reporting on issues where there is merely the ‘potential’ for criminal proceedings. It is the job of reporters to uncover misconduct and wrongdoing, to gather evidence that could lead to criminal trials. What will she do next? Curtail all reporting of crime and criminal justice? Or is she only concerned with cases involving celebrities?”
The Met Police said on Monday it has received a number of non-recent sex offence allegations in London and elsewhere following the reporting about Brand, but that no arrests have been made.
A week earlier the force said: “On Sunday 17 September, the Met received a report of a sexual assault which was alleged to have taken place in Soho in central London in 2003. Officers are in contact with the woman and will be providing her with support.
“We first spoke with The Sunday Times on Saturday 16 September and have since made further approaches to The Sunday Times and Channel 4 to ensure that anyone who believes they have been the victim of a sexual offence is aware of how to report this to the police.
“We continue to encourage anyone who believes they may have been a victim of a sexual offence, no matter how long ago it was, to contact us.”
The Attorney General does on occasion issue warnings when they deem press coverage or social media comments in relation to an active case may be crossing a line. For example, in 2020 the Attorney General’s office monitored coverage of a terror attack in a Reading park and warned against the publication of anything that “asserts or assumes the guilt of any of those who have been arrested”.
In the same year, then-Attorney General Suella Braverman issued a contempt of court warning to regional newspaper The Mail in Barrow, Cumbria after receiving reports of potentially prejudicial comments about an ongoing court case in which a 19-year-old was charged with perverting the court of justice over false allegations of rape, although the publisher had removed the comments before the letter arrived. The woman, Ellie Williams, was this year jailed for eight-and-a-half years.
And in 2018 then-Attorney General Jeremy Wright issued a contempt reminder ahead of the trial of several men with offences linked to the Hillsborough disaster.
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