The Law Commission has published the first part of its report on contempt of court, setting out proposals for a new ‘liability framework’.

The report follows a consultation published last year (on which we commented here) which sought to bring some coherence and consistency to an area of law which the Law Commission described as “disorganised and, at times, incoherent”.

A key source of this incoherence was the distinction between ‘civil contempt’ and ‘criminal contempt’, a distinction the Law Commission says has “led to confusion and serves little practical purpose”. Therefore, the Report recommends discarding it altogether, and replacing it with a new ‘liability framework’ comprising four separate forms of contempt:

Liability for general contempt would arise where a person: (a) interferes with the administration of justice in a non-trivial way, or their conduct creates a substantial risk of such interference; and (b) acts with the intention to interfere with the administration of justice in a non-trivial way.

Here, the Law Commission recommends a lower fault threshold than for general contempt on the basis that the defendant would have been made aware of their obligation – or given a voluntary undertaking – to behave in a certain way.

Liability would be established where the order has been served and published in accordance with the directions and rules of the court and the court has issued a contempt warning to the person (unless the order was sealed, in which case the court hearing the contempt application will have discretion to dispense with this requirement provided that doing so would not result in injustice). A number of defences would be available to a defendant, including that the conduct was accidental or they had made an innocent mistake of fact.

In this instance, liability would arise if the person engages in abusive, threatening, or disorderly behaviour that results in the disruption of proceedings, and the person both intended to perform the act and was aware that legal proceedings were taking place.

Finally, this would be established where (a) the defendant publishes material which creates a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced and (b) the defendant was aware of a risk that proceedings were active.

Importantly, the Law Commission recommends that criminal proceedings should be considered ‘active’ from the point at which a suspect is charged rather than arrested (although it points out that general contempt will still apply prior to charge).

Furthermore, whilst a higher fault threshold is proposed on the basis that the right to a fair trial is put at risk, a defendant would no longer bear a reverse burden of proof. Instead, the applicant would be required to show beyond a reasonable doubt that the defendant was aware of a risk that proceedings were active.  In addition, a defence would be available if the publication formed part of a good faith discussion of public affairs or matters of public interest, provided that any risk of impeding or prejudicing specific legal proceedings was ‘merely incidental’.

The Report can be read in full here. A second part which will address “all remaining issues” will be published next year.