What can we be told?

Are trials at risk when the police come clean? Or is there a better way?

The Law Commission has responded to concerns raised by national policing organisations and the government that the riots in Southport last summer might have been quelled if the police had been able to release more information about Axel Rudakubana, who was subsequently convicted of the murders of three young girls at a Taylor Swift-themed dance class in the Merseyside town.

Southport, July 2024

A consultation paper on contempt of court was published by the government’s law reform advisers in July 2024, three weeks before the killings sparked widespread disorder.

In December, the Law Commission received a combined response from three policing organisations:

• Counter Terrorism Policing — a collaboration of UK police forces working with the UK intelligence community;

• the National Police Chiefs’ Council; and

• the College of Policing.

The policing bodies pointed out that their counterparts in Austria had been allowed to release detailed information about suspects immediately after a foiled plot to attack a Taylor Swift concert in Vienna last August.

“When the public in the UK look at media reporting of cases like this and see that the Austrian public is being given information that policing in this country would say cannot be shared at that stage in order not to prejudice a trial,” the policing bodies said, “they have every right to wonder if this is true.

“That can lead to some people believing the police and other authorities are deliberately withholding information for reasons other than to ensure a fair trial can be held. This risks creating a corrosion of trust in policing and distrust in the state, both factors that could also contribute to public safety being put at risk in the longer term.”

The policing bodies told the Law Commission:

Over the last 10 years, social media has grown exponentially but the framework in which the police can communicate details of investigations has not adapted to account for this and the way in which the public consume information.

We would welcome recognition of the role unchecked misinformation and disinformation about high-profile criminal incidents that rightly concern the public can have in creating a febrile environment where the risk of disorder breaking out is higher. We would like the legal framework to acknowledge that this risk exists.

We would welcome more clarity on the strict liability test. We do not believe an exhaustive list of information that can be released would necessarily be workable because every decision would depend on the circumstances of the case. But we do believe there is room to offer stronger reassurance in cases where a tipping point has been reached and where releasing information that could help counter misinformation and disinformation to address public safety risks would be helpful.

The policing bodies published their response last Friday. Matt Jukes, an assistant commissioner with the Metropolitan Police and head of Counter Terrorism Police, said:

I believe that policing needs to find ways of saying more about our investigations when public safety or confidence demands that and I know the public agree. But how we do this relies on partnership with prosecutors and work with the courts.

Whilst exploring changes to the law, I hope the Law Commission will also explore what more can be achieved within the existing framework to tackle mis- and disinformation which itself may undermine justice.

The delivery of justice is not something that should be tampered with lightly or altered to satisfy the urges of social media. However, we owe it to the public to consider how we communicate with them about incidents and what we know.

Yesterday, the Law Commission published a supplementary consultation paper on contempt of court. This disclosed that the government had asked it to expedite its recommendations on issues relating to the Southport attacks. As a result, some recommendations will be published in the autumn.

The commission’s provisional recommendations on these issues remain unchanged. However, further comments are invited by the end of this month in the light of developments. Two questions now arise:

the extent to which misinformation and disinformation can be countered by a public authority without risking liability for contempt of court; and

whether there are circumstances that would justify the publication of information that would otherwise come within scope of contempt of court liability.

Jonathan Hall KC, the independent reviewer of terrorism legislation, had suggested it would not be prejudicial for the police to provide factual information about an individual — such as name, nationality and age. But the commission, while accepting that confirming a person’s country of birth would rarely cause prejudice, said that nationality might turn out to be an issue at a future trial. “Similarly, the more commonplace the publication of certain categories of information, the more conspicuous would be its absence in a particular case.”

Under the commission’s provisional proposals, the test for contempt of court where proceedings are active would continue to be whether publishing information creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

The commission is still provisionally proposing a defence “that ensures that public discussion of matters of public interest is not unnecessarily or disproportionately restricted where proceedings are active”.

It would be possible to allow prejudicial material to be published by creating a much wider public interest defence. But that might make it impossible for the defendant to receive a fair trial — in which case charges would have to be dropped.

Counter Terrorism Policing had told the Law Commission that significant risks to public safety or national security were “tipping points” that would lead them to make public comment. But that raised more questions for the commission: how would exceptions to the law be worded — and how could the risk to national security be proved in open court without itself prejudicing national security?

The Law Commission suggests that these problems could be dealt with by directing a jury to ignore prejudicial material or even by allowing the defendant to be tried without a jury. But it has not come up with a clear answer that would resolve the issues raised by the police while preserving the defendant’s rights.

Comment

There is, however, a way through these problems.