Law Commission consultation on contempt of court

We provisionally propose that the Attorney General should retain the power to bring contempt proceedings in the public interest.

Do consultees agree?

We have identified three possible options for consent or permission to institute proceedings for strict liability contempt by publication under the Contempt of Court Act 1981 (which, under our provisional proposals in Chapter 5, will become contempt by publication when proceedings are active).

Option 1 (the current approach): The consent of the Attorney General is required before proceedings can be instituted.

Option 2 (the parallel approach): Either the Attorney General’s consent or the court’s permission is required before proceedings can be instituted. The potential applicant would be able to choose whether to seek Attorney General consent or court permission.

Option 3 (the sequential approach): Either the Attorney General’s consent or the court’s permission is required before proceedings can be instituted. If the Attorney General refuses consent, the potential applicant would subsequently be able to seek permission from the court.

Which option do consultees prefer?

Should the position be different depending on whether the potential applicant is or is not a party to the active proceedings where the alleged contempt has occurred?

1. Where the potential defendant is a current or former member of either House of Parliament, and the allegation is of contempt by publication when proceedings are active, should the requirement to obtain the Attorney General’s consent to bring contempt proceedings be removed and replaced with a requirement to obtain permission of the court?

If so, should the Attorney General have a right to be joined as an intervener?

Should non-parties be able to institute proceedings for contempt by publication when proceedings are active?

Should a refusal by the Attorney General to bring contempt proceedings or consent to contempt proceedings be judicially reviewable in all circumstances?

Should a refusal by the Attorney General to bring contempt proceedings or consent to contempt proceedings be judicially reviewable where the potential defendant is a member or former member of either House of Parliament?

If decisions by the Attorney General were to be judicially reviewable, which of the following should be able to bring an application for judicial review?

1. (1) a party to the active proceedings;
2.  
3. (2) a person or body who was refused consent to bring proceedings;
4.  
5. (3) a person or body who has requested that the AG bring proceedings; or
6.  
7. (4) any person or body acting in the public interest.

Please select all that apply.

We provisionally propose that the Attorney General’s Office should publish a statement of practice setting out the process used for decision-making under the “The Contempt Code”, including the information that is typically gathered and relied upon, and indicative timescales.

Do consultees agree?

We provisionally propose that the Attorney General’s Office should publish a statement of its powers and practice in relation to searching and using publicly accessible information.

Do consultees agree?

We provisionally propose that police should continue to have the power to share with the Attorney General information it holds that is essential for the Attorney General to have to discharge their contempt function.

Do consultees agree?

We provisionally propose that police should continue to have the power to obtain information in relation to contempt only where there is a policing purpose for obtaining that information.

Do consultees agree?

We provisionally propose that the powers of police to obtain information in relation to contempt and to share information with the Attorney General should be expressly stated in statute.

Do consultees agree?

Should the Attorney General’s Office be empowered to request and require communications data that is essential for the Attorney General to carry out their contempt function?

If the Attorney General’s Office should be empowered to request and/or require data, should that power be explicitly limited to seeking the identity and address data of potential defendants?

If the Attorney General’s Office is empowered to request and/or require data, do consultees have evidence of a need to provide for urgent authorisations by a Designated Senior Officer within the Attorney General’s Office?

If the Attorney General’s Office is empowered to request and/or require data, do consultees have evidence of a need to provide for data retention orders?

We provisionally propose that the Attorney General should publish data relating to the exercise of their contempt of court functions.

Do consultees agree?

If the Attorney General is to publish category-based data, what data should be included?

We provide four possible examples below:

1. (1) Referrals to the Attorney General, including: date received; who from (for example, court, public, CPS, MP, or AG own motion); type of contempt (for example, breach of order, contempt by publication), jurisdiction (for example, civil, criminal, family);
2.  
3. (2) Requests made for consent of the Attorney General to bring proceedings under section 7 of the CCA 1981, including the same data as that for referrals;
4.  
5. (3) Decisions made by the Attorney General, including: for example, refer to police as offence; pre-action letter; advisory notice; contempt application; no action;
6.  
7. (4) Outcome of proceedings (if applicable): for example, court, finding, sanction (if applicable), case citation or link to decision.

Please select all that apply and provide any other examples in your answer.