Yousaf & Anor v Luton Crown Court

For common-law contempt by prejudicial publicity, an intention to disrupt proceedings cannot substitute for an act amounting to publication. The prosecution must establish publication creating a real, non-insubstantial risk of prejudice to pending or imminent proceedings, together with a specific intent to create that risk. Conduct which remains merely preparatory, even if accompanied by that intent, is not a completed contempt. The criminal-law distinction between preparation and attempt applies to this form of contempt.

The appellants, the father and sister of a man whose death was the subject of an ongoing murder trial, were summarily convicted of contempt in the Crown Court at Luton. The trial judge found that they had created a document appealing for justice and intended it to be circulated so as to interfere with the trial. The only proved dissemination was an email to a local MP’s assistant, which the judge did not treat as creating a real risk of prejudice.

The judge nevertheless held that creating the document with an intention that it would later be circulated was itself a common-law contempt. The appellants appealed against their convictions. The central issue was whether production of the document, without relevant dissemination, was a completed contempt rather than conduct merely preparatory to one.

1. Appeals allowed; convictions quashed. The trial judge convicted the appellants of completed common-law contempt by producing the document, not by its proved dissemination to the MP’s assistant.

2. For the form of contempt alleged, the necessary conduct was publication of material calculated to prejudice the fairness of pending proceedings. The court accepted that the publication must create a real, rather than remote, risk of prejudice and must be accompanied by a specific intention to create that risk. The judge’s finding that the appellants intended later circulation did not establish that they had already published the document.

3. The distinction between an attempt and preparatory conduct applies to criminal contempt. Applying the reasoning in Balogh v St Albans Crown Court [1975] QB 73, the production of the document was merely preparatory. Further acts of circulation were required before it could amount to the relevant publication. Accordingly, intention to interfere with the trial could not turn the preparatory act into a completed contempt.

4. The court also expressed substantial concern that counsel had understood the allegation to be one of strict-liability contempt under the Contempt of Court Act 1981, whereas the judge had intended to proceed at common law. It was unnecessary to decide that issue because the convictions failed on the preparation point. However, the misunderstanding could have prejudiced the appellants, including by influencing their decision to call no evidence.

• Court of Appeal (Criminal Division): Allowed the appeals and quashed the convictions: [2006] EWCA Crim 469.
• Crown Court at Luton: Treacy J summarily convicted both appellants of contempt on 25 January 2005 and gave reasons on 4 February 2005. No penalty was imposed.