The Law Commission has begun a consultation on the law of Contempt, citing these recent cases as highlighting the need for a review of the law:
- A juror, University lecturer Theodora Dallas, who was sent to prison having been found to have researched the defendant on the internet;
- The first internet contempt by publication. This concerned the online publication o, by the Daily Mail and The Sun, of a photograph of Ryan Ward, who was on trial for murder, holding a gun;
- Contempt proceedings for the vilification of Chris Jeffries during the investigation into the murder of Joanna Yeates; and proceedings for contempt by publication following the collapse of the prosecution of Levi Bellfield.
In the face of a threat from the internet – the volume of information and ease of access to it could be considered virtually uncontrollable – the Law Commission appears keen to try and toughen up the rules.
Currently, once proceedings have become ‘active’ (usually when a person has been arrested), it is illegal to publish anything which would “create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”
Practically, the question lawyers currently ask is: if this article is seen by someone who ends up on the jury, will it create a substantial risk of serious prejudice to their finding of guilt or innocence?
Much debate has been provoked by the Commission’s consultation.
At one extreme is the suggestion of compelling publishers to remove potentially prejudicial content from the internet, even if it was entirely lawful at the time when it was published. I don’t think I can overstate the impact that this would have on regional newspapers.
There is not the time, money or manpower to do this – it would present a logistical nightmare. I also believe it would widen the gap between ‘conventional’ publishers and users of social media.
Whilst the press would find a way of abiding by the new obligation, I can’t imagine the average Twitter user would pay much attention to it.
Fortunately, the Commission has set out at this very early stage that they think this proposal would be too “onerous” on publishers.
As a compromise measure, they suggest giving judges the power to order an online publisher to remove a particular article or articles from their online archive in rare circumstances when an historic report, which is still available, creates a substantial risk of serious prejudice.
The Commission is also consulting on a number of proposals to manage the behaviour of jurors. These include the possibility of establishing a specific crime, committed by a jury member, of looking up information on the internet about the case they are trying; greater education about the role and importance of jury service; and more frequent and clearer warnings to jury members that they could go to prison if they do certain things.
Surely, once the jury has been selected, transferring the onus of avoiding prejudicial information onto those 12 people is more proportionate than requiring publishers to monitor what information is available to the public at large? After all, the Lord Chief Justice himself has said that jurors must be trusted to obey the directions given by the trial Judge.
This consultation presents the possibility of clarifying an area of law which is frequently being undermined in our internet age.
Whatever the outcome, I believe it is crucial that jurors are compelled to take responsibility for avoiding prejudicial information rather than shifting too much of the burden onto publishers.