The Irish Law Reform Commission
Conference 2012
David Ormerod
Contempt of Court
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Background
 Reference from Crim. Proc. Rules Cttee
 Part of 11th Programme of Law Reform
 Expedited because of high profile cases in
relation to publication contempt and juror
contempt
 General concerns about the effectiveness of the
law in a world of internet and modern media
communications
Stages of reform process
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Project Initiation
 Informal meetings with stakeholders and interested groups
 Identify pressing problems in practice
 Identify scope of project
 Project initiation document to be approved by
Commissioners
Consultation
 Liaise with Govt Departments and AGO
 Liaise with judicial college, experts
 Appoint and work with Advisory Board
 Academics
 Judges
 Practitioners
 Publish consultation paper
Process
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Knowledge
 Accurate evidence not assumption
 Surveys
 Stakeholder fact finding meetings
High quality research
 Comparative
 Interdisciplinary
 Comprehensive
 ECHR
Preparing Impact Assessments and costings
Thinking about solutions beyond the statute book
 Guidance
 Protocols
 Education and tool kits
Inclusive consultation
The publication
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Consultation Paper in hard copy and on line
On line only appendices
 Background
 ECHR
 Overseas jurisdictions
 Survey work
 Lists of contempts
 Statutory material
 Impact assessments
Summary for non-specialists
Publication contempt
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Clarify the practical application of the law governing
when proceedings are “active”
 Guidance on when to release arrestees’ names
 Active proceedings to end at verdict not sentence
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What may be published?
 “Substantial
risk”
 Serious prejudice”
 “Serious impediment”
Correct thresholds?
 Clarifying the relationship between these concepts
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Publication contempt
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Court orders
 Section 4(2) – order made in open court
postponing publication of specified matters
Proposal
 Order in writing following judicial college formula
 Emailed to central office
 Media organisations register with the office
 Orders emailed to all on the database
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Clear, efficient, consistent
Publication contempt
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Trial process
 Presently in DC with civil procedure
 Concerns for citizen journalists in particular
Proposal
 Trial by jury
 Or trial by judge alone in Crown Court
Sanctions
 Currently 2 year max or fine
Proposal
 Increase flexibility
 Community
penalty
 Corporate fines based on turnover
Publications and Modern Media
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Liability under 1981 Act turns on “publication”
 Includes “communication in whatever form”
 Facebook, SBS, Twitter, Digg, Delicious…. all within
that definition
 “Publisher” unlikely to include “intermediaries”
responsible as conduits, cachers or hosts
Time of publication
 The problem of archived material
 P publishes before proceedings are active
 D is arrested
 P’s material is still available on line and poses a
substantial risk of serious prejudice
 Is P in contempt?
Modern media
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Proposal
 A power to make an order when proceedings are
active:
 To
remove a publication temporarily;
 That was first published before proceedings became active;
 The publication creates a substantial risk that the course of
justice in the proceedings in question will be seriously impeded
or prejudiced.
 Against a publisher within the meaning of the 1981 Act;
 Failure to comply with such an order without reasonable
excuse shall be a contempt of court.
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Similar power where necessary to order non-publisher
with sufficient control of the offending article
Jurors
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Prohibiting research
 Jury DVD
 Jury Manager
 Judge’s homily
 JSB Bench Book
 R v Thompson (2010) “collective responsibility” of
jurors
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And yet….
 R v Dallas (2012)
 Statistics from Are Juries Fair?
 12%
of jurors admitted some forbidden research
Juries
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Proposals
 Better education
 Clearer more consistent information to jurors
 Explain to jurors the reason for the restriction
 New offence?
 Powers to take mobile phones from jurors
 Facilities to store mobiles etc
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If new offence should it be tried on indictment or by
judge alone in Crown Court?
Juries
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Section 8 prohibition
 it is a contempt of court to obtain, disclose or solicit any
particulars of statements made, opinions expressed,
arguments advanced or votes cast by members of a jury in
the course of their deliberations in any legal proceedings.
Exception if juror reveals to court
Problem of modern media breaches – R v Fraill (2011)
Does s 8 inhibit research?
Does s 8 inhibit revelation of miscarriage?
Proposals
 Facilitate jury revelation to listed organisations: police,
CCRC etc
Contempt in the Face
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Preserve powers of judges to maintain order and
respect in court
Ensure alleged contemnors have safeguards against
arbitrary detention
 Contact to third party
 Legal advice
 Bail
Render the Courts’ powers more consistent for Crown
Court and Magistrates’ Court.
Consider application of hearsay rules
Consider appropriateness of penalties available
What next?
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Series of stakeholder events
Symposium at University College London 16/1/2013
Consultation closes 28/2/2013
Analysis of responses
Policy paper
Instruct Parliamentary Counsel
Produce Report and draft Bill by spring 2014