25 October 2014

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Law Column: Common sense prevails on contempt?

Back in April, I wrote about the proposed new powers for the Attorney General, which are contained in the Criminal Justice and Courts Bill (“the Bill”). Well, there is some good news – the plans have now been dropped.

The new clauses, if passed into law, were going to give the Attorney General and the courts the power to require the removal of online archive material that might prejudice proceedings. The penalty for non-compliance with such an order was set to be an unlimited fine or imprisonment.

Unsurprisingly, the media reacted very strongly to the proposals, with rigorous pressure coming from the Newspaper Society, the Society of Editors, and the Media Lawyers Association.

Had they become law, the clauses would have infringed the media’s right to freedom of expression, as well as being a logistical minefield in practice.

Last week, the Attorney General released a statement explaining the decision:

“Although intended as a measure designed to assist and protect the media, the clause has been criticised on the grounds that it gives too much power to the Attorney-General. These representations were made to me, in particular, by the Society of Editors who in addition do not accept that this clause addresses a pressing problem and have suggested that the current powers available are sufficient to protect proceedings.”

The statement went on to say:

“Given that this measure was designed to assist the media, it is significant that representatives of the media consider that this provision does not do so. While the Government consider that the notice provision would be an improvement for the media, courts and Attorneys-General alike, it is satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings. On this basis, the Government have decided not to pursue this measure….The Government will accordingly table amendments to omit these clauses at the first opportunity.”

The Bill is still due to bring provisions into law which make it an offence for a juror to research the case online, or to share the research with other jurors. These new offences will help to reduce the risk of contempt, without the need to remove archived material.

It seems eminently sensible to put the onus on jurors not to research the case, rather than on the media to remove material, to the detriment of their freedom of expression.

So, what is the message on contempt going forward?

As I have noted previously, the current Attorney General, Dominic Grieve, is very keen to ensure that journalists, publishers and broadcasters comply with contempt provisions, and as a result, has sanctioned a higher number of prosecutions than any of his immediate predecessors. Although the new clauses are being dropped, I fear that the move may not signal a softer approach on contempt.

What I think the move does signal is an acknowledgement that lawmakers need to work with the media to ensure that improvements to the contempt provisions are both fit for purpose, and workable in practice.

The overall message is unchanged: in the current climate, pushing the boundaries on contempt is a dangerous game, which is played at your own peril (or that of your Editor!).

1 Comment

  1. Antiquarian

    I am a fan of the current Attorney General. He is actually a very positive advocate of the role of a free press in this country; the reason he sanctioned a higher number of prosecutions than his immediate predecessors was because, quite rightly in my view, he could see things drifting into dangerous territory, and felt the need to re-draw the legal line in the sand. By the way, this is an excellent article – but PLEASE don’t use that horrendous Americanism “going forward”. It ruins everything.

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