Law Commission Consultation Paper No 209 CONTEMPT OF COURT A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Lloyd Jones, Chairman, Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is Elaine Lorimer. Topic of this consultation: To consider the law and procedure on some aspects of contempt of court. This consultation paper addresses: . contempt by publication, . the impact of the new media, . contempts committed by jurors, and . contempt in the face of the court. Geographical scope: This consultation paper applies to the law of England and Wales. Impact assessment: An impact assessment has been published on our website. Online appendices: We have prepared some additional information relevant to this consultation which we have published on our website as a set of appendices, as follows: Appendix A: Background to the Contempt of Court Act 1981 Appendix B: Contempt of Court and the European Convention on Human Rights Appendix C: Contempt in overseas jurisdictions Appendix D: Survey results Appendix E: Jurisdictional basis for a court or tribunal to act on a contempt in its face Appendix F: List of contempts and associated statutory provisions Availability of materials: The consultation paper, appendices and impact assessment are available on our website at http://lawcommission.justice.gov.uk/consultations/contempt.htm. Duration of the consultation: We invite responses from 28 November 2012 to 28 February 2013. Comments may be sent: Online to https://consult.justice.gov.uk/law-commission/contempt OR By email to [email protected] OR By post to Criminal Law Team, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0200 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically (for example, on CD or by email to the above address, in any commonly used format). After the consultation: In the light of the responses we receive, we will decide on our final recommendations and present them to Government. iii Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://update.cabinetoffice.gov.uk/resource-library/consultation-principles-guidance. Freedom of Information statement Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes (such as the Freedom of Information Act 2000 and the Data Protection Act 1998 (DPA)). If you want information that you provide to be treated as confidential, please explain to us why you regard the information as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the DPA and in most circumstances this will mean that your personal data will not be disclosed to third parties. iv THE LAW COMMISSION CONTEMPT OF COURT CONTENTS Paragraph Page GLOSSARY xi CHAPTER 1: INTRODUCTION 1 The need for reform 1.1 1 Background to this project 1.4 1 The way we have worked 1.6 2 The problems we address 1.10 3 This consultation 1.16 3 Acknowledgements 1.18 4 CHAPTER 2: CONTEMPT BY PUBLICATION 5 Introduction 2.1 5 The rationale for contempt by publication 2.4 5 Active proceedings under the 1981 Act 2.9 7 Present law 2.9 7 Problems and potential solutions 2.14 7 Substantial risk of serious prejudice or impediment under the 2.25 10 1981 Act Who can be prejudiced? 2.25 10 Present law 2.29 12 Substantial risk of serious prejudice 2.30 12 Substantial risk of serious impediment 2.42 15 Problems and potential solutions 2.44 16 Section 5 of the 1981 Act 2.50 18 Present law 2.50 18 v Paragraph Page Problems and potential solutions 2.53 18 Intentional contempt by publication 2.56 19 Evidence and procedure 2.58 20 Present law 2.58 20 Problems and potential solutions 2.60 21 Reporting restrictions under the 1981 Act 2.78 26 Present law: section 4(1) 2.78 26 Present law: section 4(2) 2.82 26 Present law: section 11 2.92 29 Procedure 2.96 30 Problems and potential solutions 2.100 32 Sanctions 2.106 33 Present law 2.106 33 Problems and potential solutions 2.110 35 CHAPTER 3: PUBLICATIONS, PUBLISHERS AND THE NEW 38 MEDIA Introduction 3.1 38 Publication 3.5 39 Speech 3.9 40 Writing 3.10 40 Programme included in a programme service 3.13 40 Communication in whatever form 3.18 42 Addressed to the public at large or any section of the public 3.23 43 Who is responsible for a publication? 3.30 44 The time of the publication 3.50 50 Present law 3.50 50 On what basis is the power to be ordered? 3.80 57 Who might apply to the court for such an 3.83 58 order to be made? What penalty will follow? 3.84 58 vi Paragraph Page Place of publication 3.87 59 CHAPTER 4: JUROR CONTEMPT 62 Introduction 4.1 62 Jury instructions 4.5 64 Jurors seeking information 4.17 68 Present law 4.17 68 The problem 4.21 69 Proposed reforms 4.33 74 Jurors disclosing information 4.41 77 Present law 4.41 77 The problem 4.50 81 Proposed reforms 4.57 84 Evidence and procedure 4.63 86 Present procedure 4.63 86 Problems 4.67 87 Proposed reforms 4.68 88 Preventative measures 4.77 90 Education and pre-trial information 4.78 91 In-trial procedures and judicial directions 4.82 92 CHAPTER 5: CONTEMPT IN THE FACE OF THE COURT 97 Present law 5.2 97 What amounts to contempt in the face of the court 5.2 97 The proscribed conduct 5.3 97 The proscribed circumstance: “in the face 5.7 98 of the court” The proscribed consequence: interference 5.8 98 with the administration of justice The mental element 5.9 99 Recording proceedings 5.11 99 Particular kinds of contemnor 5.14 100 vii Paragraph Page How contempt in the face of the court may be dealt 5.25 103 with Action by the court itself or application to 5.25 103 the Divisional Court Other than by contempt proceedings 5.27 104 By contempt proceedings in the Crown 5.31 105 Court Power to remand on bail or in custody 5.33 105 prior to a finding of contempt Hearsay evidence 5.36 106 Immediate enquiry 5.42 108 Sanctions 5.43 109 Appealing from the Crown Court 5.47 110 Contempt proceedings in the magistrates’ 5.48 110 courts Procedure 5.53 112 Bail procedures in magistrates’ courts 5.56 112 Appealing from the magistrates’ courts 5.57 113 The main problems with the present law 5.58 113 Definition of the offence 5.59 113 Procedural difficulties 5.62 113 The immediate enquiry procedure for dealing with 5.72 115 contempt in the face of the court Contempt in the face of the court as a unique form of 5.83 118 proceedings Provisional proposals for reform 5.86 119 Crown Court 5.86 119 Detention of the alleged contemnor 5.90 120 The maximum penalty 5.100 122 Hearsay evidence 5.101 122 Other aspects of criminal procedure 5.106 123 Magistrates’ courts 5.109 124 Power to suspend an order of committal 5.109 124 viii Paragraph Page Power to adjourn the enquiry into the contempt and power to remand into 5.110 124 custody pending the contempt hearing CHAPTER 6: PROVISIONAL PROPOSALS AND QUESTIONS 125 FOR CONSULTEES Contempt by publication 6.2 125 Contempt under the 1981 Act 6.2 125 Active proceedings 6.2 125 Substantial risk of serious prejudice or 6.6 125 impediment Section 5 6.10 126 Intentional contempt by publication 6.11 126 Evidence and procedure 6.12 126 Reporting restrictions under the 1981 Act 6.18 127 Sanctions 6.20 127 Modern media 6.24 127 Publication 6.24 127 Addressed to the public at large or any section of 6.25 127 the public The time of the publication 6.26 128 Who might apply to the court for such an 6.30 128 order to be made? What penalty will follow? 6.31 128 Place of publication 6.33 129 Juror contempt 6.34 129 Jurors seeking information 6.34 129 Jurors disclosing information 6.35 129 Evidence and procedure 6.37 129 Preventative measures 6.43 130 Education and pre-trial information 6.43 130 In-trial procedures and judicial directions 6.44 130 Contempt in the face of the court 6.53 131 ix Paragraph Page In the Crown Court 6.53 131 In the magistrates’ courts 6.55 132 The immediate enquiry procedure for dealing with 6.56 132 contempt in the face of the court Provisional proposals for reform: Crown Court 6.57 132 Detention of the alleged contemnor 6.58 132 The maximum penalty 6.64 133 Hearsay evidence 6.65 133 Other aspects of criminal procedure 6.66 133 Provisional proposals for reform: magistrates’ courts 6.67 133 Power to suspend an order of committal 6.67 133 Power to adjourn the enquiry into the contempt and power to remand into 6.68 134 custody pending the contempt hearing x GLOSSARY This is a glossary of terms and abbreviations used in this consultation paper.