Closes 8 Nov 2024
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We provisionally propose that for contempt by publication when proceedings are active, a defendant may be liable for contempt regardless of whether there was an intent to interfere with the administration of justice, but the applicant should be required to prove that:
(1) a defendant publisher was reckless as to whether proceedings were active, in the sense that they knew or had reason to suspect proceedings were active; and
(2) a defendant distributor was reckless as to whether the distributed material “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”, in the sense that they knew there was such a risk and unreasonably took that risk by distributing the material.
Do consultees agree?
In circumstances where more than one person or organisation may be the subject of proceedings for contempt by publication when proceedings are active, should the law prioritise some defendants over others?
If yes, which defendants should be prioritised and why?
Should any potential defendants be excluded from liability for contempt by publication when proceedings are active?
If yes, which potential defendants should be excluded from liability and why?
We provisionally propose that for contempt by publication when proceedings are active, the conduct threshold should be the same as that which currently applies under the Contempt of Court Act 1981. That is, the applicant should be required to prove that the publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
We provisionally propose that a publisher may be liable for contempt of court:
(1) where previously published online material subsequently creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced;
(2) the publisher has notice that relevant proceedings are active; and
(3) the publisher has notice of the specific material that is potentially prejudicial to those active proceedings.
We provisionally propose that it is appropriate to clarify the legal position when online publication occurs outside the jurisdiction.
Where online publication occurs outside the jurisdiction, how should place of publication be relevant? For example:
We provisionally propose that the definition of publication as “publication to the public at large or to a section of the public” remain unchanged and that there should be no further elaboration on the meaning of the definition.
Should criminal proceedings continue to be considered active from the point of arrest?
We provisionally propose that in extradition cases the current position should be maintained and proceedings should be active from the time a warrant for arrest is issued in England and Wales.
We provisionally propose that in criminal cases where there has been a conviction, proceedings should be considered active until sentencing has been handed down, which maintains the current law.
In family, Court of Protection or other proceedings where orders may be made and review hearings set down for the future, or in similar circumstances where the nature of proceedings is that they may be dormant for some time, what should be the status of proceedings between the hearings?
Where there is uncertainty about whether proceedings are active, how might that most effectively be addressed?
We provisionally propose that there should be a defence that ensures that public discussion of matters of public interest is not unnecessarily or disproportionately restricted when proceedings are active.
What form should a defence take?
