Status: Work has commenced on this project. We aim to open a consultation in winter 2012 and produce our final report in spring 2014
Recent well-publicised cases have highlighted shortcomings in the current law on contempt committed by way of publication of information about imminent or active proceedings.
There are two different forms of this type of contempt: one at common law and the other, a strict liability offence, in the Contempt of Court Act 1981. However, despite a number of initiatives, including the Lord Chief Justice’s interim guidance on the use of social media in court proceedings, many aspects of the law have failed to keep pace with cultural and technological advances that mean information about trials can be easily published on the internet. This poses particular problems since, once material gets onto the internet, the original publisher can very easily lose control of it and any precautions he or she takes to minimise impact on a trial may be ineffective. In addition, the growth in the use of blogs and social networking sites means that members of the public have the opportunity to publish opinions and information about imminent and on-going criminal proceedings that can reach a wide audience.
The law in this area is further complicated by the fact that there are a number of offences scattered across different statutes relating to publication of specific information in criminal proceedings. The number of and variations between these offences make the law in this area unnecessarily complex.
The powers of the criminal courts to deal with contempt committed in the face of the court or by way of breach of court order are also unsatisfactory. While the powers of the magistrates’ courts are found in statute, those of the Crown Court and Court of Appeal come from the common law. There is uncertainty as to the scope of the common law powers, gaps in the statutory provisions and unjustifiable inconsistency between them.
Although the Criminal Procedure Rule Committee has made important progress in clarifying the position, the substantive law remains unclear and the Committee itself referred this topic for consideration by the Law Commission as an item in the Eleventh Programme. The following areas of difficulty have been identified:
- It is uncertain whether the Crown Court and Court of Appeal have the power to detain or bail a person pending determination of an allegation of contempt.
- The magistrates’ courts do not have the power to deal with contempt in the face of the court the day after it occurred and to compel attendance at such a hearing.
- While the Crown Court and Court of Appeal have the power to suspend a committal to custody, it is uncertain whether the magistrates’ courts have the same power.
The project
This project will consider how the current law on contempt committed by way of publication should be reformed to ensure that it takes into account and deals effectively with the way people use the internet and other modern technology. It will also rationalise and simplify the various criminal offences relating to publications and the existing procedural rules to ensure that the courts have the powers they need to deal most effectively with behaviour amounting to contempt.
