Contempt and reporting restrictions in criminal cases: the new legislation – Alex Bailin QC

The Criminal Justice and Courts Act 2015 has received Royal Assent and important provisions concerning contempt and reporting restrictions will come  into force on 13 April 2015. Giving effect to certain of the Law Commission’s recommendations in its Report [pdf], four new criminal offences to deal with juror contempt and misconduct are created by the Act.

These provisions have effect in England and Wales and cover misconduct by jurors in the criminal, civil and coroners’ courts, and also misconduct by members of the Court Martial. The offences are indictable only and carry a maximum of two years’ imprisonment. Prosecution requires the Attorney General’s consent.

• Juror research (s71): jurors intentionally seeking information relating to a trial they are trying commit a new criminal offence, not merely contempt. Information includes information about the trial judge, lawyers, law and rules of evidence relating to the case and court procedure.
• Juror sharing research with other jurors (s72): this is a separate and additional offence to research itself. This catches the Dallas situation.
• Other prohibited conduct (s73): jurors who intentionally engage in conduct “from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue”. This catches the juror who intentionally disregards the juror oath / affirmation e.g. the Davey
• Disclosure of jury deliberations (s74): the existing prohibition in s8 of the Contempt of Court Act is repealed and replaced with detailed provisions which maintain the confidentiality of jury deliberations (breach of which is a new criminal offence) but permit disclosures by the trial judge or by a reporting juror in order for an investigation into possible juror contempt or the new juror offences to take place

Aside from the possible reluctance of jurors to become prosecution witnesses in the trial of fellow jurors, some key issues will need to worked out:

• Will jurors who are questioned by the trial judge about irregularities (e.g. internet research) need to be warned about the possibility that they may incriminate themselves in relation to the new criminal offences?
• The Protocol on Jury Irregularities issued the President of the Queen’s Bench Division will need to be amended in a key respect – at present a trial judge who considers that a juror may have committed a contempt refers the matter to the Attorney General for investigation (and possible contempt proceedings in the High Court). In future, errant jurors will be prosecuted by the CPS in the Crown Court. But the trial judge has no power to refer the names of jurors to the police for investigation without the prior authorisation of the Criminal Court of Appeal (Criminal Division). The CACD Registrar’s continued involvement is preserved by s74.
• Since contempt powers in respect of jurors are not abolished by the Act but supplemented by the new offences, how will the two operate in tandem and what guidance will be published about this?

Reporting restrictions regarding young persons

Section 78 of the Act makes provision for lifelong reporting restrictions for victims and witnesses aged under 18 in criminal proceedings – by inserting a new s45A to the Youth Justice and Criminal Evidence Act 1999. This address the lacuna considered in the JC decision that, currently, reporting restrictions made under s39 of the Children and Young Persons Act 1933 expire when the young person in question reaches 18 whereas under s46 of the 1999 Act adult witnesses may obtain lifelong anonymity.

Section 79 of the Act will restrict the power to impose discretionary reporting restrictions regarding young persons in s39 of the Children and Young Persons Act 1933 to civil proceedings (an amendment already made in 1999 but never brought in to force). Instead, s45 of the Youth Justice and Criminal Evidence Act 1999 will finally be brought into force and will apply to adult criminal proceedings – the delay in activation was recently noted and described by the Court of Appeal as “bizarre”.

Section 79 also alters the wording of the section to include publication of online material (a defect noted in MXB).

Schedule 15 of the Act addresses the position of information society services in respect of offences (as amended by the 2015 Act) under s39 of the 1933 Act and s49 of the 1999 Act. The Schedule contains detailed provision exempting “mere conduits”, “caching” and “hosting” from liability.

Alex Bailin QC is a member of Matrix.