What we can be told

Reforms to contempt of court laws

The Law Commission has responded to concerns raised by national policing organisations and the government that riots in Southport last year might have been quelled if the police had been able to release more information about a suspect 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

Jonathan Hall KC, the independent reviewer of terrorism legislation, had suggested it would not have been prejudicial if the police had provided factual information about the person they had arrested — such as his name, nationality and age.

In a report published today, the government’s law reform advisers say:

We agree with consultees that the publication of certain suspect details — such as name, age, nationality, and ethnicity — is generally unlikely to create a substantial risk that the course of justice will be seriously impeded or prejudiced. This approach is reflected in recent interim guidance from the College of Policing and the National Police Chiefs’ Council, which recommends releasing such information in “high profile or sensitive investigations or operations” where there is, for example, “a policing purpose” or a “related risk or impact on public safety”.

However, the commission’s role is to advise on legislation, not to provide guidance. Its report says:

While such guidance is operationally useful, the legal test for contempt must be context-dependent and cannot be reduced to fixed categories. Attempting to define certain types of information as always safe to publish would risk creating false certainty that a substantial risk of serious impediment or prejudice would not arise.

For example, although a suspect’s immigration status may not usually meet the conduct threshold, it could potentially do so where the arrest concerns immigration offences and the immigration status is central to the case. In such instances, publication could prejudice the course of justice in the proceedings. Similarly, a suspect’s religion may, or may not, meet the threshold depending upon the factual context.

Covering the Law Commission’s provisional proposals on this point in March, I suggested that the attorney general could provide advice to the police on what information should be released.

But the commission disagrees:

We take the view that, although general or case-specific guidance from the attorney general can be helpful, it is neither a substitute for nor an enhancement of the statutory test. It would be both unfair and unrealistic to expect it to serve as such.

Professor Penney Lewis, the law commissioner responsible for the project, told reporters that the police now seemed more willing to share information than they had been at the time of the Southport attack.

Although the commission is not recommending any change in the threshold for that form of contempt, it thinks it should be for the attorney general to prove that the defendant was aware of the risk that proceedings were active rather than for the defendant to prove ignorance.

It is also recommending that proceedings should become “active” at the time a defendant is charged rather than at time of arrest, as at present.

Although the proposed reforms will require legislation, the commission’s views are seen as providing cover for police forces that choose to share important facts with the public after an arrest.

New contempts for old

The main purpose of today’s 330-page report is to recommend reforms that will be better able to protect the administration of justice. Although out-of-date distinctions would be scrapped and terminology would be clarified, the proposed changes would not alter the foundations of contempt law in England and Wales — under which more than 100 people receive prison sentences each year.

When proceedings are active, the law will remain as it has been: the test is whether a publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

If parliament agrees, contempt of court could be committed in four ways — set out in the commission’s 15-page summary:

This is a refinement of the three-part division suggested in a consultation paper that I covered last year.

Part 2 of the Law Commission’s report, dealing with powers and sanctions, will be published next year. Any legislation is not likely to take effect for at least a couple of years after that.

Responsible journalism

Anyone making video or audio recordings of court proceedings without permission risks being found in contempt of court. The commission recommends that the procedure rule committees consider the development of an authorisation process that would enable the responsible and secure audio recording of proceedings by accredited journalists.

“In our view,” says the commission, “there is a strong case to allow audio recording of proceedings for the purposes of responsible journalism without permission of the court being sought on every occasion.”

Although there is a statutory restriction, the commission suggests that some recordings would not breach the strict liability rule:

Where an accredited journalist makes a recording in good faith for the purposes of responsible journalism, does so unobtrusively, and stores the recording securely and for a limited time after which it is securely deleted, then it is not immediately apparent that conduct would constitute or create a substantial risk of interference with the administration of justice. It is also unlikely that the intention threshold would be met. However, we recognise that does not give media organisations or journalists the certainty they need.

Comment

One reporter (not me) said that permitting audio note-taking in court would be “transformational”. He’s right. Reporters without shorthand would have instant and accurate AI transcripts on their phones — so long all concerned were speaking loudly and clearly, or there was a public-address system in court. That would certainly lead to more accurate reports of hearings and judgments.

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