Law Commission says contempt rules create uncertainty and may violate article 10 rights
The Law Commission has concluded that the current laws of contempt of court may breach the right to freedom of expression. The finding forms part of the first instalment of a two part report released yesterday following a three year review. The commission described the existing legal framework as beset by significant problems and in need of reform.
The review was commissioned in part after disorder in Southport last July following the murders in the town. According to the commission, some observers suggested that the unrest was indirectly linked to the operation of contempt laws, which they said contributed to an information vacuum. The commission noted that this vacuum allowed misinformation, disinformation and counter narratives to circulate unchecked.
One of the central recommendations concerns the point at which criminal proceedings become active for the purposes of liability under the Contempt of Court Act 1981. At present, proceedings are considered active from the moment a suspect is arrested. The commission proposes that this should instead begin when a suspect is charged. The shift would alter when publishers become exposed to possible contempt by publication.
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The commission said the current approach is undermined by police practice. It explained that the police are the only body capable of confirming or denying whether an arrest has taken place, yet force policy is not to release that information. As a result, the commission said media organisations cannot reliably determine when proceedings have become active. It found that this uncertainty places publishers at risk and limits their ability to regulate their conduct.
The review attributed this situation partly to the development of privacy law, which gives additional protection to suspects who have not been charged. The commission stated that the lack of clarity surrounding arrests means individuals cannot foresee when their actions may trigger liability. It added that the current position may amount to a violation of publishers’ article 10 rights under the European Convention on Human Rights, which protects freedom of expression.
The commission set out several reasons why changing the threshold to the point of charge would not compromise a suspect’s right to a fair trial. It identified the so called fade factor, in which the passage of time between publication and trial reduces the likelihood that jurors will recall prejudicial material. It also highlighted the role of judicial directions instructing jurors to disregard irrelevant publicity and the availability of juror misconduct offences.
More broadly, the commission recommends removing the distinction between civil and criminal contempt. It proposes replacing the existing categories with a single liability framework containing four types of contempt. These would consist of general contempt, contempt by breach of court order or undertaking, contempt by publication, and contempt by disrupting proceedings. The commission said this framework would provide greater clarity and coherence.
The report also addressed the question of whether to adopt a broader public interest defence. Some consultees had argued for a defence based on releasing information in the interests of public safety. The commission decided against recommending such an expansion. It concluded that existing protections and legal tests were sufficient and that widening the defence could weaken the effectiveness of contempt laws in safeguarding the administration of justice.
The second part of the commission’s review will examine further aspects of the contempt regime. The government is expected to consider the recommendations in due course.