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The Law Commission reports on Contempt of Court
By Steven | August 23, 2017
A press conference ignored
A press conference on the Todd Barclay affair rather gazumped the launch of the Law Commission’s report on contempt of court in June. No-one from the media turned up. That’s a shame, because the Commission is recommending some significant changes.
Some notable recommendations
In 2014, I commented on the Commission’s discussion paper, where the Commission mooted most of the reforms it now formally recommends. They include:
- Statutory take-down powers for courts to order temporary removal of online material that creates risks for the fairness of court proceedings
- Codification of the law of scandalising the judiciary and publication contempt (the “sub judice rule”), including a new public interest defence
- A new statutory procedure for managing contempt in the courtroom
- New rules for dealing with jurors, including a system of warnings and explanations, and new offences stopping jurors Googling for information or disclosing information about their deliberations (or others soliciting such disclosure).
- A new statutory regime for dealing with breaches of court orders
The law of contempt is a grab-bag of powers, some of them ill-defined, that the courts can use to ensure that litigants’ cases aren’t compromised by activities inside or outside the courtroom – the publication of suppressed or prejudicial material, the intimidation of witnesses or jurors, violation of court orders, disruption in the courtroom, unfounded attacks on the integrity of judges.
As the Commission notes, the law of contempt isn’t easy to find, or to understand. It’s outdated. It’s seldom enforced. The Commission is surely right that it’s ripe for reform.
In general, the Commission’s recommendations make sense to me. In particular:
- it’s better to have crimes on the statute books rather than in the common law;
- the current powers exercised by judges in cases of courtroom disruption – where the judge is effectively witness, prosecution and judge – are too draconian;
- we need to respond to the fact that jurors increasingly are going to conduct searches about their cases, even when they are told not to;
- it would be terrific to effectively abolish the distinction between civil and criminal contempts, or at least stop that unworkable distinction from mattering;
- it’s a great idea to clean up the nebulous and unjustified law of scandalising the judiciary;
- it’s sensible to clarify the courts’ powers to issue take-down notices for prejudicial material.
Again, in general, the research seems thorough and the discussion thoughtful.
The sub judice reform
That’s not to say I agree with it all. As I’ve discussed, it doesn’t make much sense to me to claim that statutory implementation of the sub judice rule suddenly makes it “clear”. It really doesn’t. It’s still about as well-defined as a cloud of mosquitoes. Yes, it’s good to know that publishing previous convictions or related charges with a trial looming is a contempt, but that was already pretty clear. True, it would be nice to be sure that the contempt rules don’t apply until someone is arrested. And it will be helpful to give the court power to rule early on about some of the other things that can’t be published.
But the new statutory test contains all the vagueness of the current common law one, revolving around “a real risk that the publication could prejudice the arrested person’s right to a fair trial”. In fact, it may create more uncertainty, because the courts would have to figure out whether this was intended to represent a change.
Still, the Commission has set out a list of statutory factors for determining what counts as a real risk, including a set of things – such as publications that dwell on defendant’s bad character, poor credibility or gang associations – that may be treated as creating a real risk, and that may be about as much as we can hope for. I note, though, that this list of factors seems to be drawn from the common law, and seems untouched by the burgeoning social science evidence on what sorts of things in fact tend to prejudice jurors. That social science research – especially by world authorities Neil Vidmar and (in NZ) Warren Young – is not even mentioned in this report, which I find baffling.
A public interest defence
Most interesting is a proposed new public interest defence. I don’t recall this being mooted in the discussion paper. It applies where “the publication was in good faith made as a contribution to or part of a discussion of public affairs or matters of general public interest”. I’m a fan of public interest defences, but the courts have generally drawn a very strong line here. As Thomas J put it in R v Burns:
[O]nce … it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from, not balanced against. There is no room in a civilised society to conclude that, ‘on the balance’, an accused should be compelled to face a fair trial.
Is the Law Commission saying that a good faith discussion in the public interest will not be in contempt even if it creates a real risk of prejudice to someone’s trial? It seems to be.
What will the government do?
In what reads to me like a pretty lukewarm response, the government is only promising to “carefully consider” the recommendations and respond in due course. Here’s Justice Minister Amy Adams:
We need to consider how these recommendations would work in practice so that any changes we make are effective and fair.
Silly old Law Commission for not bothering to think about how its recommendations would work in practice and whether they are effective or fair! On my reading, considerations of practicality, effectiveness and fairness are threaded into the Commission’s discussion throughout. Has the Minister read it? Or is she signalling some disagreement? Who knows! But I’m not holding my breath for a new contempt bill in the near future.
I’ll blog on the reform of scandalising the judiciary shortly.
Topics: Contempt of Court | 62 Comments »
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