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Law Commission on contempt
By Steven | May 23, 2014
The Law Commission has released its discussion paper on contempt of court.
It covers changes to the sub judice rule (under which you can be punished for publishing something that interferes with fair trial rights), scandalising the judicary (under which you can be punished for suggesting judges are biased or corrupt), contempt in the face of the court (under which you can be punished for disobeying a judge’s instruction or throwing a dead cat at him or her), civil contempt (under which you can be punished for disobeying court orders), and rules regarding jurors (under which they can be punished for googling the defendant or tweeting their views during a trial and the media can be punished for seeking to interview them afterwards).
The good
It’s a thoughtful and generally thorough paper and contains much to admire. It is grounded in principles, which are set out. It surveys historical developments. It provides an excellent summary of the existing law. It is alive to the challenges created by burgeoning technology, the needs of the modern media and the signficance of freedom of expression in discussing the courts.
Many of the (preliminary) recommendations strike me as entirely sensible. They think we should jettison the ancient offence of scandalising the judiciary. I agree. They suggest that when someone commits contempt in the face of the court, they should have the right to a hearing before another judge if they are to be punished beyond locking them up for the day. You bet. They think we should dump the vexed distinction between civil and criminal contempt. Yes.
In general the Commission favours codifying the law. This is because the law of contempt is largely not a creature of statute. It’s the only crime that remains defined by judges not Parliament. The Commission says that there’s a constitutional issue here: Parliament should set the parameters of the criminal law; the judges’ role it to interpret the criminal law, not create it. That’s surely a good point.
The missing
But I wonder whether it misses another constitutional issue: don’t judges need to control the reach of the power to punish those who impede the administration of justice? If Parliament defines what sorts of behaviour might threaten the administration of justice, Parliament can change those definitions. And let’s not forget that it’s sometimes MPs themselves whose statements create grave risks to the administration of justice. For example, National MP Nick Smith was punished for contempt of court for his scathing criticisms of the court and one of the parties in an ongoing Family Court case. What happens if Parliament sets boundaries for acceptable criticism of judges, or behaviour in court, or compliance with court orders, that judges think are so loose they threaten their ability to dish out justice? In other words, is the executive (the Law Commission) recommending that the legislature (Parliament) muscle in on judicial terrain? Does this threaten the separation of powers?
I suspect I’m overstating the problem here, and I don’t see anything in the width of the the Commission’s recommendations (which still leave a lot of power with judges to preserve the authority and operation of the courts) to be much concerned about. Still, I’m a bit surprised not to see any mention of the issue.
There’s another omission I’m surprised and disappointed about. The Commission didn’t see any need to look at the contempt laws relating to influencing parties or witnesses or judges. There are some great big grey areas here, and I wish the Commission had tackled them. For instance, there are mixed messages in the cases about whether it can be a contempt to publish something in prejudicial when a case is before a judge alone. Some cases say that judges are specially trained and experienced in putting media comment out of their minds and will never be influenced by it. Others say that judges are human and might be swayed by something in the media. Which is it to be? Of is it to be some halfway house – it can be contempt to publish prejudicial material in a judge-alone case, but the threshold is higher? If so, can the law please describe that different threshold more clearly so that we know where it is?
Another problem is that the general rule with publication contempt is that it must create a real risk of prejudice to the fairness of a trial. But influencing contempt can be found when there’s no real risk – if someone intends to influence the court or a witness etc. So technically, it’s a contempt for an unrepresented litigant who doesn’t know any better to write to the judge seeking to affect the outcome of a case against him or her. I don’t think it should be. I think real risk should be the touchstone across the board.
Finally, it can be a contempt to publish something about a civil case if it goes beyond fair and temperate criticism and “might inhibit suitors generally from resorting to the courts to vindicate their rights”. What the hell does that even mean? Pretty much any article painting a party in a bad light potentially triggers this rule. But it’s hardly ever invoked. This should be tackled too.
All these things are potentially within the Commission’s terms of reference for this project.
The bad
I’m not sure this next bit is exactly bad. Perhaps the heading should be the “open to criticism.”
The Commission is dead right when it emphasises that a significant problem with the current law of contempt is its lack of clarity. In fact, the Commission uses the words “clear” or “unclear” or “clarity” no fewer than 64 times in its report. It knows that this leads to confusion about the law, and that in turn this confusion can affect freedom of expression when people are commenting on courts. It’s right. It is to be congratulated for explicitly setting out to make the law more clear, particularly in the area of sub judice or “publication” contempt.
Plainly, the Commission thinks its recommendations achieve this clarity. But I can’t agree. I think their publication contempt proposal makes the law less clear, and what’s more, I think it widens the net so that it captures even more speech.
The current rule is basically this: it is a contempt of court to publish something that creates a real risk – as opposed to a remote possibility – of prejudice to the fairness of a trial. (An example: a newspaper publishes information about a defendant’s previous convictions, something the jury is usually not told because it’s their job to focus solely on the evidence against the defendant in relation to this particular accusation).
The problem is that this test is nebulous. Yes, we know it covers previous convictions, and appearances at court on other charges, but how much more does it cover? Reporting that the accused has confessed, when that may not be admissible in trial? That’s almost certainly contempt. Showing photos of the accused when identity is at issue? That is too, since witnesses memories may be influenced by seeing the photos. Reporting on old gang associations? Reporting about previous accusations of misconduct? Discussing the evidence in an unbalanced way? Calling for a conviction? These may well be contempts too. But it’s not clear exactly when they will be.
Whether the publication creates a real risk of prejudice might depend on when the story was published, how widely it was read, how splashy it is, how accurate it is, what the trial issues are, and many other factors. That’s now complicated by the fact that once it’s published, it’s probably available online awaiting jurors to Google it a year later when the case comes to trial.
At the press conference on Monday, the Law Commissoners said they believed their recommendations would tighten and clarify this test. Let me say at once that these are laudable aims. Now, let’s look at what they recommend”
1. Make it a crime to publish a defendant’s convictions or concurrent charges in a specified period leading up to trial without the court’s permission.
Well, this is mostly fine. It’s good that this rule would be set out in statute. And it creates a bright line. But it seems to apply to judge-alone trials, even when the convictions have been mentioned in court. Those might not have been regarded as contempt under the old rules. Still, I doubt anyone would prosecute. On the other hand, this merely codifies the easy part of the law of contempt. There is never much doubt that publishing these things will be a contempt.
2. Empower the courts to make advance rulings setting out what information cannot be published because it will endanger the trial.
In fact, the courts have this power. But they hardly ever use it. The threshold for such injunctions is very high. The Commission implies that we should get over that, but doesn’t say why. In fact, I agree. The chilling effect of a law is related to how clear the rule is, and how certain and severe the punishment is. A set of detailed prohibitions in the lead-up to a court case might actually be less chilling than the current nebulous and poorly understood rule banning anything that might “prejudice the administration of justice.”
Problem is, it’s hard to see how this will operate in practice. The judges are surely not going to want to act as censors, going through proposed publications line by line. The media aren’t going to want that either. And the things that need to be banned will depend to some extent on what the trial issues are. (For example, if identity isn’t at issue, you don’t need to worry about banning photos of the defendant.) It won’t always be clear early on what the issues are. Some very prejudicial publications come out of the blue and aren’t likely to be the subject of a prior order – for example, an expose on a defendant published the day before trial, that reveals that her family hate her. Who’s going to think to ban that in advance?
I like the idea of more communication between judges and the media in the period leading up to and during the trial. This is happening already in some jurisdictions. And it makes sense to give clear rulings in advance about some particular evidence or categories of evidence that can and can’t be published. But I doubt this can be taken too far. And I can see judges being very unwilling to engage in any of it, particularly if by proscribing some particular thing they can be taken as approving something else by implication.
3. Making it an offence to create a real risk, as opposed to a remote possibility, of interfering with the administration of justice by prejudicing a fair trial. (Or better still, says the Commission: making it an offence to create “more than a remote risk” of interfering with the administration of justice by prejudicing a fair trial).
I have to say, I can’t see how this helps improve the clarity of the law. The first one is the same test. The second one looks like it’s lowering the boom. The Commission disagrees: it says it is not designed to change the law. But I look at that second test and say “the emphasis seems to be on the remoteness of the risk – if it passes that remoteness threhold, it’s a contempt”. The benchmark is remoteness. A remote risk is a pretty damn small one. I look at the old test and say “the emphasis seems to be on there being a real risk – that means there has to be a solid, substantial, appreciable risk. Remoteness is mentioned, but only to emphasise that the risk must not be fanciful. The benchmark is a real risk. That’s something bigger than a pretty damned small one.”
If I’m right, then the Law Commission just recommended making contempt even wider. And even if I’m not right about that, this proposal surely makes the law less clear.
Now there are reasons for this change, and they are not stupid ones, but they are complicated and you’ll have to read about them for yourself in the discussion paper. My point is that none of this creates the clarity the Commission says it has achieved.
I have to admit, I’m not sure it’s possible. But I would have been interested to see the Commission’s analysis of how a similar codification has fared in the UK. That was in 1981. My impression is that their law is still just as nebulous as ours. But the Commission doesn’t discuss this.
A final gripe
I’ve banged on about this before… If we are in the business of reforming our law of publication contempt to ensure that it is only used to punish people when they are jeopardising the justice system, then why on earth aren’t we looking at the burgeoning social science research into how jurors are affected by publicity? I really don’t understand it. Professor Neil Vidmar has been doing this work for decades and publishing his findings.
I can only repeat something I wrote in a column after the Fairfax contempt case:
Judges routinely say that the social science research isn’t very helpful. But I think it tells us a lot about what sorts of coverage creates the sort of prejudice that’s likely to stick in the minds of people and taint their views if they later become jurors. Mostly it suggests that the risks aren’t big. One-off stories don’t generate much prejudice.
Interestingly, stories published during a trial aren’t usually harmful (jurors just laugh at the inaccuracies), unless they contain information that jurors aren’t allowed to see. Jurors tend to forget the details of stories quickly.
On the other hand, potential jurors do tend to remember stories that evoke a strong emotion, affect their sense of community and welfare, involve public figures, and are reinforced by earlier stories and, in turn, fuel gossip. It’s the interplay of media coverage and gossip that matters, and the combined effect of different forms of prejudice.
I think we really need to feed that research back into our contempt laws to ensure that the limits we are placing on speech are actually justified – and whether they need to be expanded. One example from Vidmar’s research is that serious prejudice can arise from media coverage shortly before the trial – even if that coverage is not about the trial. Imagine a defendant charged with sex crimes involving children. A local newspaper runs a huge feature the day before the trial decrying the failure to take strong action against pedophiles. Even if that feature has nothing to do with the trial or the defendant, it is going to cause serious prejudice. Our current laws almost certainly don’t touch it.
This feels to me like an opportunity missed. Still, this is a discussion paper. So nothing is fixed in stone and the Commission is encouraging us to make submissions. This is pretty much my one. I’ll blog some thoughts on their recommendations on Googling jurors later.
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