The Attorney-General (Mr Dominic Grieve)
I am announcing today the Government’s intention to table amendments to the Criminal Justice and Courts Bill [HL Bill 30] which would omit clauses 51 and 52 from the Bill. Clause 51 would amend the Contempt of Court Act 1981, in particular, to provide that a publication will not be treated as being in contempt of court under the strict liability rule in connection with legal proceedings where the publication is first made available before those proceedings are active. Under this clause, this defence would cease to be available on my giving notice to the publisher. Clause 52 would provide a related right of appeal against court injunctions.
The genesis of clause 51 was the Law Commission report Contempt of Court (1): Juror Misconduct and Internet Publications (Law Com No 340). The Commission’s consultation and review revealed concern among the mainstream media at their vulnerability to proceedings for contempt in relation to online archive material. The concern was that the law as it currently stands means prejudicial online material, even if published before proceedings became active, is still subject to the laws of contempt. The Commission acknowledged this and put forward a proposal that the Attorney-General should be responsible for alerting publishers to the presence of material which was potentially prejudicial and that proceedings were active. Until such time as an Attorney-General’s notice was served, a publisher would have a defence to contempt proceedings. The proposal was intended to provide the media with a measure of protection and reassurance while at the same time enabling the integrity of proceedings to be safeguarded. The Government agreed with the Commission’s legal analysis and believed the proposal struck the right balance between the right to a fair trial and the freedom of the press.
Although intended as a measure designed to assist and protect the media, the clause has been criticised on the grounds that it gives too much power to the Attorney-General. These representations were made to me, in particular, by the Society of Editors who in addition do not accept that this clause addresses a pressing problem and have suggested that the current powers available are sufficient to protect proceedings. In addition, the Joint Committee on Human Rights—14th Report of Session 2013-14—while considering that the provisions of the Bill are
“in principle an improvement on the position under the current law”,
have raised concerns about the safeguards connected with the notice procedure.
The Government have considered these concerns very carefully. Although the Government remain of the view that this is a balanced and measured proposal, they recognise the disquiet surrounding the proposal. Given that this measure was designed to assist the media, it is significant that representatives of the media consider that this provision does not do so. While the Government consider that the notice provision would be an improvement for the media, courts and Attorneys-General alike, it is satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal proceedings. On this basis, the Government have decided not to pursue this measure or the related clause on rights of appeal. The Government will accordingly table amendments to omit these clauses at the first opportunity.