Reforms to the 'disorganised and, at times, incoherent' law of contempt of court are proposed by the Law Commission today. In a 500-page consultation paper published today the commission notes that many courts and tribunals lack meaningful powers to deal with contempt when it arises. Another issue is the impact of social media on the administration of justices. 

To resolve the confusion, the commission recommends creating three distinct forms of contempt.

  • General contempt would cover conduct creating 'substantial risk of non-trivial interference with administration of justice, or actual non trivial interference', either by publication or 'conduct other than publication'. This would be accompanied either by intention to interfere or 'recklessness'.
  • Contempt by breach of court orders or undertakings. This would apply when the breach was deliberate and the person knew the facts that made the conduct unlawful.
  • Contempt by publication while proceedings are active. This covers publications creating 'substantial risk' that proceedings will be seriously impeded or prejudiced and where a publisher or distributor was reckless. 

For all these breaches, the commission proposes to retain the current maximum sentence of two years imprisonment. 'However, as there is a strong public interest in knowing about proceedings that are before the courts, the commission is seeking views on whether the option of imprisonment should be removed when freedom of expression is engaged and a defendant’s culpability is lower, for example because the defendant did not intend to interfere with the administration of justice.'

Other proposals include: 

  • Extending contempt protection and powers to tribunals, many of which are not covered by the current law. 
  • Expanding sentencing options 'to include community orders, which may include unpaid work, drug or alcohol treatment, and restrictions on places that a person may go or where they must live'.
  • Ensuring that a contempt finding is not entered on the Police National Computer and does not appear on a criminal records check, as contempt is not a criminal offence. 

The commission is also seeking views on whether criminal proceedings should continue to be considered ’active’ from the point at which a person has been arrested, or whether they should not be considered 'active' until a person has been charged. Such a change would expand what the media may report during criminal investigations.

Introducing the consultation paper, Professor Penney Lewis, commissioner for criminal law said: 'It is important that the laws governing contempt are both fair and clear to provide justice for all those involved in court proceedings. This includes not only the parties involved but those observing or reporting on proceedings.'

The consultation is open until 8 November 2024. 


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