The Law Commission is seeking views on whether a case should be considered “active” from charge instead of arrest – potentially expanding the scope of what the media can report during a criminal investigation.
Currently legal proceedings are considered active in criminal cases from the point of arrest. But because arrests are now treated as private, and therefore secret, it has become hard for publishers to know if their reporting is potentially risking contempt of court.
The Commission noted media stakeholders said it has become harder to ascertain whether proceedings are active unless the journalists know through other sources who has been arrested, because police no longer share the identity of a suspect until they are charged.
The News Media Association told the Commission that “often the media are unaware that an arrest has taken place and it can be difficult to verify this as this information is no longer routinely confirmed by police forces following ZXC”, a reference to a case against Bloomberg that reached the Supreme Court which ruled a person under criminal investigation should not be named before charge.
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The Commission said: “As a result, there is a chilling effect because the media cannot publish information about a person for fear that the person may be under arrest, but there is no way they can know with any certainty.
“Additionally, it was explained to us that the bar for arrest can be very low, whereas the bar for charging presents a higher threshold, and a lot of arrests do not lead to charge.
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“The effect is that journalists can end up effectively self-censoring when there is no need, which may itself erode freedom of the press and freedom of expression.”
The Commission has “provisionally” proposed keeping arrest as the point proceedings become active but is asking for further views as it opens a consultation to run until November.
“For the active period to commence at charge may significantly increase the risk of serious prejudice to proceedings as a result of reporting between arrest and charge, particularly in high-profile cases and where the identity of the arrestee is known to the public from the very point of arrest,” it said.
Contempt of court reform proposal to do away with ‘significant onus’ on publisher
The wider consultation sets out proposals to “do away with centuries-old distinctions between ‘criminal contempt’ and ‘civil contempt’ in favour of a modern, streamlined set of contempt laws”.
It proposes that there should be three types of content of court:
- “General contempt” would include issues taking place within the courtroom such as abusing court staff or witnesses, disrupting a hearing or making unauthorised recordings of proceedings.
- “Contempt by breach of court order or undertaking” – for example protesters entering land when they are barred from doing so by an injunction or litigants in high value commercial disputes taking assets out of the country in contravention of a “freezing order”
- “Contempt by publication when proceedings are active” – the most relevant for the media as this would cover reporting that creates a substantial risk of prejudice to active proceedings.
A crucial change to the latter type of contempt would reverse the burden of proof: currently a defendant must establish a defence for whatever they published but the proposal suggests the applicant (generally the Attorney General) should instead have to prove the publisher was reckless.
Currently a person is “not guilty of contempt of court under the strict liability rule” if a publisher or distributor did not know and had no reason to suspect at the time of publication/distribution that proceedings were active, as long as they had taken reasonable care.
The Commission said: “The current law places a significant onus on a publisher or distributor who seeks to avoid liability for creating a substantial risk that the course of justice in particular proceedings will be seriously impeded or prejudiced.
“Our provisional view is that, if liability is to be avoided in these circumstances, it is right that a person proposing to publish material should have made direct and specific inquiries about whether proceedings are active. Similarly, distributors of material that will potentially carry such a risk should have systems in place to prevent publication.
“However, our further provisional view is that – in keeping with our analysis of the CCA [Contempt of Court Act] 1981 as being a statute that does not impose strict liability but is fault-based – the defendant should not bear the burden of proving that they took all reasonable care.”
The Commission said requiring the applicant to prove a publisher or distributor was reckless as to whether material met the threshold of risk of interference with justice “sets a higher threshold than the current law”.
It added: “The effect of changing the law so that the applicant must prove that the defendant was at fault by establishing recklessness is not simply to change who bears the burden of proof but to shift the balance towards freedom of expression, by requiring that any infringement be justified by the party seeking to restrict expression.”
Should journalists and members of the public be treated the same?
The threshold for liability should remain the same as in the CCA 1981, the Commission proposed, meaning it must be established that the publication “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.
The Commission heard suggestions in its initial consultation that there should be different levels of thresholds for trained professional journalists and lay people posting on social media because the former are able to “judge more effectively what can and cannot be published”.
But it said: “While it is clear that a trained journalist will be better able to navigate the waters of contempt, our provisional view is that this does not mean thresholds should be different. The potential consequences of prejudicial publicity do not vary with the status of the publisher, and the need to prohibit and deter prejudicial publicity dictates the need for a single threshold.
“A variable threshold would also pose practical challenges. There would be an inevitable challenge of determining into what category a publisher would fall, and academic or legal professionals active on social media may be as well (or much better) trained in the law of contempt than journalists.”
The Commission also said it had heard from stakeholders that it may be “unfair to pursue proceedings against individual journalists or editors where a prosecution could be brought against a media corporation instead”.
However it came to a provisional view that “no potential defendant should be excluded from liability and that culpability may attach to any person or organisation responsible for publication and distribution.
“The potential exposure to liability serves to protect the right of a defendant to a fair trial in a criminal case by incentivising those involved in the publication or distribution of material to ensure that seriously prejudicial material does not reach the public or a section of the public.
“It may be that the AG might take the view in any given case that there is a public interest in instituting contempt proceedings against only some defendants, but our provisional view is that there is no case for legal exclusion of some defendants.”
The Law Commission’s consultation on the proposals will run until 8 November.
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