Current laws of contempt of court may constitute a violation of the right to freedom of expression, the Law Commission states today following a three-year review of an area currently ‘beset by some significant problems’. 

The finding appears in the first of a two-part report on contempt laws, inspired in part by the disorder that followed the murders in Southport in July last year. It was suggested the disorder was an indirect result of contempt of court laws, ‘which helped to create an information vacuum into which misinformation, disinformation and counter-narratives could spread unchecked’, the Law Commission said.

One recommendation the commission makes is that the point at which criminal proceedings should be considered ‘active’ - after which liability for contempt by publication under the Contempt of Court Act 1981 arises - should move from the moment a suspect is arrested to the moment a suspect is charged.

Part of the reasoning behind the proposal is ‘the law is rendered insufficiently precise by police practice’, which leaves the media unable to establish whether proceedings are active. The commission states: ‘Given that the police are the only body that is in a position to confirm or deny whether an arrest has taken place, yet its policy is to refuse to do so, it is not possible for a publisher to ascertain such information reliably.

‘Consequently, in practice a publisher cannot identify the point at which proceedings become active and thus the point from which the law applies.’

Police policy is in part due to the development in the law of privacy, which protects suspects in criminal investigations prior to their being charged, the commission explains. It added the current law does not enable individuals to regulate or foresee the consequences of their conduct and therefore may constitute a violation of a publisher’s article 10 rights.

The change would not deprive suspects of the right to a fair trial because of the ‘fade factor’ - where the time which elapses between publication and the criminal trial leaves jurors less able to recall prejudicial publicity - the effectiveness of judicial directions such that material should be disregarded, and juror misconduct offences, the commission states.

Overall, the commission recommends discarding the distinction between civil and criminal contempt, setting out a new 'liability framework' containing four forms of contempt. These are: General contempt; contempt by breach of court order or undertaking; contempt by publication; and contempt by disrupting proceedings. 

It has decided against recommending a broader form of public interest defence on the grounds of 'releasing information in the interests of public safety', which it had sought views on earlier this year.

Part two of the report will appear next year.