Are the new powers contained in Clauses 39 and 40 of the Criminal Justice and Courts Bill a step too far, with significant repercussions for the UK media?

Given the Attorney General’s enthusiastic support for the restrictions contained in the Contempt of Court Act, and the courts’ willingness to impose reporting restrictions, for me, the answer is an unequivocal yes.

Clauses 39 and 40, if passed into law, will give the Attorney General and the courts the power to require the removal of online archive material that might prejudice proceedings. The proposed penalty for non-compliance with such an order is an unlimited fine or imprisonment.

The media’s reaction to the proposals has been strong, with many news organisations coming together to object to the implementation of clauses 39 and 40.

The proposed clauses represent a significant infringement of the media’s Article 10 rights. In addition, it can be argued that the proposals are unnecessary in light of the fact that news organisations, in general, already carefully abide by the contempt of court rules, and also refrain from linking new articles to those in the archives that might be considered prejudicial.

Further, the media has rightly highlighted, in their submissions on the issue, that the same Bill contains provisions that make it an offence for a juror to research the case online. Therefore, a juror would need to actively search to find prejudicial material in online archives, and in doing so the juror would be committing an offence which he or she will have been specifically warned against committing.

Surely, it is therefore unnecessary for the material to be removed from the archives?

The media’s arguments are convincing, and the possibility that such orders for the removal of archived material may become commonplace is worrying for freedom of expression. In addition, should the use of such orders become routine, compliance will become extremely onerous for media organisations. And of course, the consequences of non-compliance will be far from trivial.

But even if the removal of archived material is genuinely necessary to avoid a substantial risk of prejudice – is it not already within the inherent jurisdiction of the criminal courts to order its removal?

I have recently been involved in a Crown Court case in which the removal of archived material relating to a previous trial of the Defendant, was ordered by the re-trial judge. The basis of his order was simply “the inherent jurisdiction of the court”, with no thought being given to any relevant statute. Whilst I don’t consider that the order was actually necessary in that case, it demonstrates that should the power to order removal be needed, in exceptional circumstances, it already exists.

As also highlighted in the submissions made my media organisations, should the new proposals become law, serious consideration needs to be given to the logistics of the orders in practice.

How long will media organisations be given to comply with an order? Will notice be given when the proceedings are concluded and the archived material can be restored? Will the Attorney General or the courts be required to justify the imposition of an order for removal? All of these questions, and more, need careful consideration if the proposals are going to work in practice.

But first and more importantly – are the proposals an unnecessary and unjustifiable infringement on free speech?

Any provision that impinges on freedom of expression is worrying, and given the potentially far-reaching implications, the proposals contained in clauses 39 and 40 of the Criminal Justice and Courts Bill are no different.

The Bill is currently awaiting a date for the Report Stage in the House of Commons to take place. In practice that means that the Bill is still some way from implementation. Nevertheless, at present it is on the road to becoming law – let’s hope for some significant diversions along the way!