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In a consultation opening today the Law Commission is asking whether the existing law on contempt of court continues to work effectively in light of the challenges posed by new media and the way these are used by the mainstream press and, increasingly, by citizen journalists.

The law governing contempt and what can be published when proceedings are active was written long before the widespread use of the internet. A number of recent, well-publicised cases have highlighted serious shortcomings in the existing law. In this consultation, the Commission raises questions about the law’s ability to protect the administration of justice by balancing the right to publish with the right of the defendant to a fair trial.

The internet, and the opportunities it offers media organisations and individual citizens to publish information and comment to vast audiences instantaneously, have radically changed the communication landscape. Blogs, Twitter, Facebook, Google+ and other social networking sites enable ordinary people to engage in public conversation and express their views on a scale and at a speed that has never before been possible.

Once information has been released on the web, it is very hard to contain. And, unless steps are taken to remove it, it remains easily available to anyone with access to the internet in a way that is not true of printed materials. The Commission is asking what safeguards can be put in place to prevent jurors searching for, and being able to find, potentially prejudicial material during the course of a trial, irrespective of when it was published. It is seeking views on whether: 

• jurors should be given more in-depth, specific education about their responsibility not to seek out information on the defendant,
• jurors should be subject to a new offence of intentionally seeking information relevant to the case they are trying, and
• the courts should be given statutory powers to require media organisations and others to take down potentially prejudicial content first published before proceedings became active.

The consultation also addresses the questions of when proceedings are “active”, and how media organisations and individual citizens can discover when proceedings are active. Under the existing law, proceedings are active from the point of arrest to when sentence is passed. Not knowing that someone has been arrested has led to media organisations being at risk of being in contempt of court. The Commission suggests that more can be done to protect media organisations by making it easier for them to know who has been arrested and when. It also asks whether the start and end points of active proceedings are the correct ones.

Professor David Ormerod, the Law Commissioner leading the project, says: “The purpose of our consultation is to ask how, in a modern, internet-connected society, the law of contempt can continue to support the principles that criminal cases should be tried only on the evidence heard in court.

We are seeking ways to protect the administration of justice and the defendant’s right to a fair trial while keeping to a minimum interference with the right of media organisations and private individuals to publish”.

The consultation also looks at the offence of contempt in the face of the court and seeks views on how the process for such hearings might be made fairer while still enabling the courts to deal effectively and quickly with disruption in the courtroom.

The consultation runs from Wednesday 28 November 2012 to 28 February 2013. The consultation paper is available on Law Commission website: www.lawcom.gov.uk

Notes for Editors

1. The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.

2. For more details on this project, visit www.lawcom.gov.uk

3. For all press queries please contact:
 Phil Hodgson, Head of External Relations:  020 3334 0230
Email:  communications@lawcommission.gsi.gov.uk

Contempt of Court