Law Commission Report on Contempt of Court: controversial reforms seek to secure fair trials and freedom of speech – Alex Bailin QC

10 12 2013

Law CommissionThe Law Commission has produced its eagerly awaited Report on juror misconduct and internet publications, following extensive consultation. The Commission had been urgently tasked with considering reform in this area, following a number of high profile contempt cases involving errant jurors and eager publishers.

The Government has sufficient time to legislate in this area before the next election. A separate Report on contempt by publication and contempt in the face of the court will be published next year.

Three key reforms are proposed by the Commission:

New criminal offence of juror contempt

The Commission recommends the creation of a new criminal offence to deal with jurors who deliberately search for extraneous material relating to a case they are trying. The offence would carry the same maximum penalty as contempt of court (two years’ imprisonment) but would be triable before a jury, rather than in the High Court (as occurs for contempt).  What about other juror misconduct relating to the internet but not involving research e.g. social media misuse? Would jurors be more likely to report misconduct by fellow jurors if they know they will become prosecution witnesses in the trial of their former fellow juror? Will juries be prepared to convict other jurors for conduct they may secretly have committed themselves?

The Commission was heavily influenced by the position in Australia, in which there is already such an offence.  The reform would obviously correct the anomalous position that juror contempt is effectively already criminal conduct at present and has resulted in prison sentences but does not enjoy the full range of protections normally associated with a criminal offence (e.g. indictment, disclosure, criminal legal aid etc.) It might also send a clearer message to jurors who are unsure of the status of the trial judge’s directions not to conduct internet research about the case they are trying. There is evidence that, at present, juries are unclear about the limits of the restrictions which are placed on them regarding internet use during trial.

The Commission also recommends that the juror oath be modified to make specific reference to trying the case based only on the evidence heard in court.  The Government is likely to support this recommendation as necessary to ensure that jury trial, to which it is fully committed, can continue in the internet age.

Archive material – statutory defence and temporary take-down

The Commission proposes that material on the internet is deemed as being continuously published from the moment it is put online until it is removed – giving statutory effect to the controversial decisions of Beggs (No. 2) and Harwood. However to avoid the need for the media continuously to monitor all their archive online material, the Commission proposes a statutory defence for material which is published before proceedings became active for the purposes of contempt. So, the internet material which was published before PC Harwood’s criminal trial about his disciplinary record (which was inadmissible at his trial) would fall within this exception. But if the Attorney General notifies the publisher that the proceedings have become active and identifies the offending material then exception does not apply. The trial judge then has the power to order (after a hearing at which the media are present) the media temporarily to remove the archive material (until verdicts).

The proposal is an attempt to balance the need to secure fair trials in high profile cases (which often attract pre-arrest publicity) with not placing an unwieldy burden on the media. The media are likely to resist these proposals, not least because the correctness of the Beggs and Harwood decisions is certainly open to argument.

Jury deliberations – new exceptions

The Commission proposes that new exceptions be created to the blanket ban on revelation of jury deliberations in s8 of the Contempt of Court Act 1981. It recommends that jurors who genuinely believe they are exposing a miscarriage of justice can go to a court official, the police or Criminal Cases Review Commission and reveal their deliberations to that extent – even after verdicts have been returned. Will this result in an outbreak of juror remorse from dissenting jurors? How is miscarriage of justice to be defined? Will such jurors need lawyers (who are not included in the exception)?

The Commission also proposes that regulated academic research be permitted into juror deliberations. Jury research is already possible (contrary to popular belief) but not into specific deliberations – making it hard to base the need for any reforms on hard evidence. The permitted research would be anonymised and other safeguards are proposed.  In the absence of strong evidence for the need for such a reform, the Government is unlikely to support this proposal.

Conclusion

The Report is a well-balanced, thoughtful response to difficult, ongoing problems. It will not be welcomed by all but is undoubtedly a genuine attempt to ensure fair jury trials whilst securing freedom of speech – no mean task in the internet age.

Alex Bailin QC, Matrix, The author was a member of the Law Commission’s Working Group on Contempt of Court which was consulted during the preparation of its Report.


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