The Law Commission has published a supplementary consultation paper in relation to its work on reforming the law of contempt.

We previously commented on the original consultation paper here. It sought to overhaul the existing law which the Law Commission described as “disorganised and, at times, incoherent. It has developed over centuries, but has done so piecemeal, and now comprises an unsystematic amalgam of statute and common law”.

In its place, a new framework for liability was proposed, under which there would be three distinct forms of contempt:

• General contempt which would “encompass any conduct that interfered with the administration of justice to a non-trivial degree, or that created a substantial risk of a non-trivial interference with the administration of justice“. The fault element would depend upon the type of conduct engaged in: for general contempt by publication, a person must intend to interfere with the administration of justice; whereas for general contempt by conduct other than publication, recklessness may well be sufficient.
• Contempt by breach of order or undertaking which would apply where (a) a person breaches an order or undertaking (where it was clear that such a breach would constitute contempt), (b) the person knew that the order existed and that they were bound by it, (c) the relevant act that constituted the breach was deliberate, and (d) the person had knowledge of the facts that made the conduct unlawful.
• Contempt by publication when proceedings are active which would largely mirror the position in the Contempt of Court Act 1981. Unlike for general contempt by publication, proving intent to interfere with the administration of justice would not be required under this form of contempt where proceedings are active. As the Law Commission explained, it thought that this “reflects appropriately the paramount importance of protecting a litigant’s right to a fair trial when proceedings are active…and the corresponding need to prohibit the publication of material that might seriously impede or prejudice those proceedings“.

Supplementary Paper

The supplementary consultation paper concerns the final category of contempt, and addresses the question of what information or opinions someone can lawfully publish from the time of a person’s arrest. As the Law Commission explains, “contempt operates here to prevent the publication of material that substantially risks seriously impeding or prejudicing the administration of justice in active criminal proceedings and, in so doing, is part of ensuring that the trial of the arrested person is fair”.

The Law Commission was prompted to publish the supplementary paper following the events last summer surrounding the murders in Southport and subsequent rioting. Some have suggested that the disorder was, in part, a consequence of the current contempt laws insofar as the restrictions placed on what information public authorities could disclose led to an information vacuum which was subsequently filled by mis- and disinformation.

In response, the Law Commission acknowledges that these events have raised an issue that was not directly addressed in its original consultation paper, namely whether there may be circumstances that justify the publication of information which would otherwise fall within the scope of liability for contempt of court.

The paper explores whether a broad public interest defence should be introduced which would permit the publication of material that risks undermining a person’s right to a fair trial if the material were to be published for the purposes of public safety or national security.

The Law Commission acknowledges the problems that would accompany such a defence, including how it would be established that the publication was for the purpose of enhancing public safety, and whether this would be established according to an objective or subjective test. As Jonathan Hall KC put it: “[It] is difficult to see how an effective public interest defence could be worded, which would have the practical effect of both tolerating a substantial risk of serious prejudice to criminal proceedings in deserving cases, whilst preserving the prohibition in unmeritorious cases”.

The Law Commission makes two provisional proposals in relation to this subject, and invites responses from consultees:

1. For contempt by publication where proceedings are active, the conduct threshold should be the same as that which currently applies under the Contempt of Court Act 1981. In other words, the applicant should be required to prove that the publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
2. There should be a defence that ensures that public discussion of matters of public interest is not unnecessarily or disproportionately restricted where proceedings are active. The Law Commission also invites recommendations on what form such a defence would take.

The deadline for responses is 31 March 2025, and the supplementary consultation paper can be found here.