Sub judice and contempt of court rules compared

What sub judice means in practice

Sub judice describes the period when a case is pending and publication can be punished as contempt of court. The aim is to protect jurors, witnesses and the trial from outside influence. Each jurisdiction sets its own test, its own start and end points and its own penalties.

An allegation reported during this period is still only an allegation. The European Union rule on the presumption of innocence bars public authorities from describing a suspect as guilty before guilt is proved ⁷. The rule is addressed to public authorities and to judicial decisions other than those on guilt ⁷.

England and Wales: strict liability and active proceedings

The Contempt of Court Act 1981 creates a strict liability rule. It applies only to publications addressed to the public, only where the publication creates a substantial risk of serious prejudice, and only when proceedings are active ¹. Intent to prejudice is not needed ⁸.

Schedule 1 sets the timing. Criminal proceedings become active at the first of these steps: arrest without warrant, issue of a warrant, issue of a summons, service of an indictment or an oral charge ². They stop being active at acquittal, sentence, discontinuance or another order ending the case ². A case ordered to lie on the file is not active ². Proceedings started by a warrant stop being active after 12 months if no arrest follows ².

Civil proceedings become active when arrangements for the hearing are made, such as fixing a trial date, or when the hearing begins ². Proceedings under the rule need the consent of the Attorney General, or the motion of a court with jurisdiction ⁸.

Australia, Singapore and India

In New South Wales the common law test asks whether a publication has a tendency to influence pending proceedings ⁴. The NSW Law Reform Commission described the rule as aimed at material with a real and definite tendency to prejudice proceedings as a matter of practical reality ⁴. Its 2003 report recommended a substantial risk test instead, and recommended that criminal proceedings become pending at arrest or charge ⁴. These were the Commission's recommendations ⁴.

Singapore codified contempt in the Administration of Justice (Protection) Act 2016. The Ministry of Law said the Act keeps the common law real risk test and that intent to prejudice is not required ³. The rule applies only when proceedings are pending ³. The maximum penalty in the High Court and Court of Appeal is a fine of S$100,000, three years in prison, or both ³. In the lower courts it is S$20,000, 12 months, or both ³.

In India, the Contempt of Courts Act 1971 defines criminal contempt to include a publication that prejudices or tends to interfere with a judicial proceeding ⁹. The Law Commission of India noted that a fair and accurate report of a judicial proceeding is not contempt, and that truth can be a defence since a 2006 amendment if it serves the public interest and is raised in good faith ⁹.

Canada and the United States

Canada relies on targeted publication bans in the Criminal Code. At a bail hearing, a justice may order, and must order if the accused asks, that the evidence, information, representations and reasons not be published ⁶. The ban lasts until the accused is discharged at a preliminary inquiry or the trial ends ⁶.

The United States has no general sub judice rule for the press. In Nebraska Press Association v. Stuart, decided on 30 June 1976, the Supreme Court struck down a gag order on reporting a murder case ⁵. It said prior restraints carry a heavy presumption against validity ⁵. The Court listed other tools for a fair trial, such as change of venue, postponement, juror questioning, jury instructions and sequestration ⁵.

Comparison table