Where an individual who has been arrested by the police is released ’under investigation’ the case remains active for the purposes of strict liability contempt until they are told in writing that the investigation is being discontinued.

It is contempt of court under the strict liability rule to publish material that creates a substantial risk of serious prejudice to active proceedings. Proceedings become active when a person is arrested and continue to be active throughout an investigation and prosecution until the end of a trial or the case is discontinued.

Where individuals are released on police bail, proceedings had always remained active, however in February 2018 the law was changed without the media being consulted to extend that protection to those released ‘under investigation’. There has been a substantial increase in those released ‘under investigation’ rather than on bail since a 28 day time limit on police bail was introduced in 2017. Many have criticised the way police use ‘released under investigation’ for long periods saying it leaves individuals in limbo in the same way as being released on police bail for an extended period had prior to the introduction of the time limit. This was one of the reasons a time limit was introduced, as some had been left on bail for many months.

For those reporting on cases after an arrest has been made, it is important to remember that the strict liability rule applies equally whether the person is released on police bail or ‘under investigation’. If a case has been dormant for some time, it will be necessary to check whether the case has been discontinued, or whether the person remains ‘under investigation’ in order to assess the potential contempt of court risks.