We have previously blogged on the Law Commission’s Consultation regarding reform of Contempt of Court and its Report on juror contempt. The Commission also recently published its follow-up Report on publication contempt.
The Law Commission’s proposals were, broadly speaking, enthusiastically adopted by the Government and in some respects the Government now seeks to go further than the Commission’s recommendations. Consistent with the urgent timescale that the Commission was working to, the Government has set out substantial reforms to the law of contempt in the Criminal Justice and Courts Bill 2014. The Bill is currently at Report stage. We will comment more fully when the Bill receives Royal Assent but the headlines are as follows.
The Bill proposes creating three new offences of juror misconduct (clauses 44-46). Most of the activities covered by these provisions already constitute contempt of court. The proposed offences are:
- Research by jurors during trial period (e.g. by internet) of information relevant to the case being tried. ‘Information’ is defined very broadly indeed and includes researching the defendant, witnesses and events relevant to the case; the trial judge; the lawyers in the case; the law relating to the case and the law of evidence; and court procedure.
- Sharing of research with other jurors. If a juror conducts prohibited research it is not merely an aggravating feature to have shared this with fellow jurors but a separate offence in its own right.
- Other prohibited conduct. Essentially this criminalises intentionally disregarding the juror oath, e.g. by stating a desire not to try to the case based only on the evidence.
- The offences each carry a maximum of 2 years’ imprisonment. Any prosecutions would require the consent of the Attorney General.
Reflecting concerns about juror research, use of social media during trials and maintaining secrecy of jury deliberations, the Bill also proposes a new power to compel jurors to surrender electronic communications devices while they are present in the court building (clause 42).
New exception to secrecy of jury deliberations
Section 8 of the Contempt of Court Act 1981 is to be repealed and replaced with detailed provisions which will become part of the Juries Act 1974 (clause 47). The current regime in s8 is re-enacted but a new ‘miscarriage of justice’ exception to s8 is created. In an attempt to avoid defining a ‘miscarriage of justice’ (which would have awkward implications elsewhere) the Bill has detailed provisions which cater for what is deemed to be a miscarriage of justice e.g. revealing jury deliberations if the discloser reasonably believes that the conduct of a juror may provide grounds for appeal against conviction. Such revelations must be to prescribed persons e.g. the trial judge, the police, a judge of the Court of Appeal. These do not include a lawyer with whom the disclosing juror / person may wish to consult.
Despite the recommendation of the Law Commission, no new exception to the secrecy of jury deliberations relating to approved academic research is created.
Publication contempt – take down powers for archive material:
Clause 39 of the Bill inserts a new section 4A into the 1981 Act. It controversially enacts the questionable Beggs / Harwood rulings that publication on the internet is continuous publication for the purposes of contempt from the moment of posting. It provides that where proceedings become active for the purposes of contempt during the life of such an internet publication, the publisher has a statutory defence to contempt under the strict liability rule unless the publisher has been served with a ‘take down’ notice from the Attorney General. Provision for the making of rules relating to such notices is made in the Bill. A notice would not automatically compel publishers to remove any material. It would merely remove the defence to the strict liability rule, leaving it to publishers to assess whether material creates a substantial risk of serious prejudice, and if so whether to challenge the notice at the hearing of any injunction to remove the material or in any contempt proceedings.It is unclear who is responsible for drawing potentially offending material to the attention of the Attorney General (e.g. the trial judge, the defence). The Bill does not state that a court must review the notice at a hearing at which the publisher may make representations. Presumably when the trial court exercises its injunctive powers to order removal of such material (following service of a notice), that would be with prior notification to the publisher. The Bill also creates a statutory right of appeal against such an injunction (clause 40).
The intention is to create a balance: avoiding the need for publishers continuously to monitor their archive material (i.e. material published before proceedings became active) while at the same time seeking to ensure that seriously prejudicial pre-arrest material is taken down (at least for the duration of the trial).
It is rare for Law Commission Reports to be acted upon so swiftly and with such alacrity, which emphasises how seriously the Government views the issue of contempt of court in the internet age. The media has expressed concerns about aspects of these fairly radical proposals (see for example the written evidence submitted to the Public Bill Committee by a consortium of broadcasters and newspaper publishers). We will give our own detailed views when the Bill becomes law.
Alex Bailin QC and Edward Craven are members of Matrix