Status: We published our report on scandalising the court on 19 December 2012, and our recommendation to abolish the offence was implemented in the Crime and Courts Act 2013. The consultation on the rest of the contempt of court project closed on 28 February 2013. Following an initial assessment of the responses, we decided to publish three separate reports. The first of these reports (published on 9 December 2013) covered the modern media and contempt by jurors. The second (published on 26 March 2014) covered practical problems with the current arrangements relating to reporting restrictions. The third (due to be published in late 2015/early 2016) will deal with contempt in the face of the court and the remainder of the project on contempt by publication.
Contempt of Court
“Contempt of court” covers a wide variety of conduct which undermines or has the potential to undermine the course of justice, and the procedures which are designed to deal with them. The law governing contempt of court is vast. The Law Commission’s consultation paper on contempt of court was published in November 2012. It focused on a number of areas including:
- Contempt by publication
The law on contempt by publication must balance the right of a defendant to a fair trial, with the right of the publisher to freedom of expression. There are also concerns that the procedures for dealing with this form of contempt may not be as fair and efficient as possible.
- The impact of the new media
Many of the contempts which we are examining are contained in the Contempt of Court Act 1981. This Act pre-dates the internet and there are concerns that the current law cannot adequately deal with contempts committed through the new media.
- Contempts committed by jurors
In relation to contempts committed by jurors, there is also a need to ensure that the laws and procedures strike a balance between the public interest in the administration of justice, the defendant’s right to a fair trial, and the rights of the jurors concerned.
- Contempt in the face of the court
The powers of the criminal courts to deal with contempt committed in the face of the court are also unsatisfactory. There is uncertainty as to the scope of the common law powers (which apply to the Crown Court), gaps in the statutory provisions (which apply to the magistrates’ courts) and unjustifiable inconsistency between them.
- Reporting restrictions
Under section 4(2) of the Contempt of Court Act 1981, the courts have a power to order that contemporary court reporting be postponed, where this is necessary to avoid a substantial risk of prejudice to those or other imminent or pending legal proceedings. There is presently no formal system for communicating the existence of such orders to the media, which creates obvious practical problems and reduces the efficacy of the regime.
The consultation period closed on 28 February 2013. Following an initial assessment of the responses, we decided to publish three separate reports. Our recommendations in the first two of these reports are summarised below. We hope to publish the third report in late 2015/early 2016
Recommendations in our first report on Juror Misconduct and Internet Publications
We published a report explaining and setting out our recommendations in this area on 9 December 2013 (Law Commission Report No 340). Our recommendations would:
- Create a new criminal offence for jurors conducting prohibited research. This would increase clarity and consistency for jurors on the boundaries of prohibited conduct, increase the legitimacy of the offence, which would then emanate from Parliament rather than the courts and introduce the usual criminal procedural and sentencing regime in place of the current civil process in the Divisional Court.
- Create an exemption of contempt liability for publishers relating to archived online material. Under the present law, a publisher is liable for prejudicial material which remains online, even when it was posted entirely legitimately before legal proceedings became active. This places an onerous burden on the media to monitor online archives to check whether they relate to newly active legal proceedings. Our recommendation would lift that burden by providing an exemption from liability until and unless the Attorney General specifically notified a publisher of the existence of online prejudicial material.
- Create a limited exception to the prohibition on jurors revealing their deliberations. At present, any disclosure of the content of jury deliberations is completely prohibited. Our recommendation would create a limited exception to that prohibition, in order to allow jurors to reveal miscarriages of justice to the competent authorities, or to participate in carefully controlled research into how juries operate.
Recommendations in our second report on Court Reporting
We published a report explaining and setting out our recommendations in this area on 26 March 2014 (Law Commission Report No 344). Our recommendations would:
- Ensure that court reporting postponement orders are all posted on a single publicly accessible website (a similar website currently operates in Scotland).
- Include a further restricted service where, for a charge, registered users could find out the detail of the reporting restriction and could sign up for automated email alerts of new orders.
- Greatly reduce their risk of contempt for publishers, from large media organisations to individual bloggers, and enable them to comply with the court’s restrictions or report proceedings to the public with confidence.