New Media Costs’ Risk for Aborted Trials

From today, for the first time, courts will be able to make media organisations pay potentially massive costs’ bills if a criminal trial is aborted due to prejudicial reporting. 

Under s.93 Courts Act 2003 and the Costs in Criminal Cases (General) (Amendment) Regulations 2004, magistrates courts, the Crown Courts, and the Court of Appeal may make orders as to the payment of costs incurred by parties to criminal proceedings by a third party where there has been “serious misconduct (whether or not constituting a contempt of court)” by the third party and the court considers it appropriate. While the provision is equally applicable to non-media organisations, it is likely to be the media who are most at risk.

Important points to note about the new power include:

• Penalties could be much larger than fines for contempt of court: if the Sunday Mirror had been fined for the aborted Woodgate and Bowyer trial, costs could have been in the millions, as opposed to the £75,000 fine the paper received; conversely, there is no risk of imprisonment.
• There is no requirement that the criminal burden of proof be satisfied as to ‘serious misconduct’, as there is with contempt.
• Precisely what constitutes ‘serious misconduct’ is not stated and will be left to trial judges on a case-by-case basis.
• Unlike contempt of court, there is no need for the Attorney General’s consent before any action can be taken.
• Under the Regulations the Court must allow the third party to make representations and may hear evidence, and there is a right to appeal.

Links

• Media to face liability for ‘wasted’ trial costs – Media Guardian