The last issue of the College Tribune looked at some of the basic elements of the Contempt of Court Bill 2017, including its origins, the statutory definitions of criminal and civil contempt, and the penalties involved. Now, part two is here to note how the Bill seeks to update the law on court reporting in the digital age.
The ability for the public to attend ongoing proceedings is a key part of the modern legal system. Issues arise in respect of some elements of court reporting, usually in criminal cases. Section 4(1) of the Bill makes it contempt of court to record proceedings without permission, or use recordings of proceedings in certain ways. Judicial approval is granted by discretion, and can be subject to whatever conditions the court believes to be necessary.
Section 1 defines ‘publication’ as including ‘any speech, writing, broadcast, online publication or other communication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) which is addressed to the public at large, any section of the public or to court.’ This is an extremely broad definition, which is key when reading the rest of the Bill.
Traditional notions of publications being newspapers is shifting towards a broader idea of speech. This links in with section 5, and the test as to how a publication can be in contempt. It is sufficient if it ‘creates a substantial risk, according to the circumstances at the time of publication, that— (a) members, or potential members, of a jury or a witness or witnesses, or potential witness or witnesses, in legal proceedings could: (i) encounter the publication; and (ii) recall the contents of the publication at the material time; and (b) by virtue of those facts, the fairness of the proceedings would be prejudiced.’
Firstly, there must be a ‘substantial’ risk, judged on the facts at the time of publication. The fear is that potential jurors or witnesses could read the material, which would alter their perception, thereby breaching the elementary requirements of fair proceedings, which is a cornerstone of the judicial system. In order to protect proceedings, a judge can ‘direct the restriction on publication removal or restriction of any publication for such period as the court thinks necessary for that purpose.’ Section 5 (2) reflects the issues in the Keena case, and whether or not a journalist can protect their sources on the witness stand. Disclosure can be ordered in in the interests of justice, national security, or for the prevention of crime, as decided by the judge.
Online publications, covered under Section 6, have been one of the most talked about aspects of the Bill. The Bill gives the judiciary the power to order that ‘any material related to the proceedings, or any part of the proceedings, may direct the removal of such material from websites and or the disabling of public access to that material for such period as the court thinks necessary for that purpose.’
The test requires it appearing to be necessary to avoid a ‘substantial risk of prejudice to the administration of justice’ in certain proceedings. The use of ‘appears’ suggests an objective standard. Per section 6 (2), it can ‘order that any material related to the proceedings … may make such order directing websites to take such steps as the court sees as being reasonably necessary to prevent the publication of such material for such period as the court thinks necessary for that purpose.’
They key is section 6 (5), which states that ‘failure to comply with a court order made under subsections (1) and (2) will be a contempt of court on the part of the website, notwithstanding the fact it was not responsible for the publication of the material.’ Section 6 (6) goes further; ‘in the event of a failure to comply with an order made under subsections (1) and (2) the courts may order online hosts or internet providers to disable public access to specified sections of websites for such period as the court thinks necessary for that purpose. Failure to comply with this order will be a contempt on the part of internet providers.’
A defence to 6 (3) is offered in subsection 7; steps taken to prevent publication went beyond what was ‘reasonably necessary’, or the online host/distributor, having taken all reasonable care, were unaware and had no reason to be aware it contained prejudicial information. It is also a defence that ‘websites or hosts had no knowledge that the publication contained the offending material and they had taken reasonable care.’ However, the burden of proof to subsections 5 and 6 is on the defence.
Section 7 sets out the defence of innocent publication, while section 8 covers the discussion of public affairs. Per section 9, it is permissible to produce fair and accurate reports of ‘legal proceedings held in public, published contemporaneously and in good faith.’ The court can order the report to be postponed, though.
The reliability of juries has always been a controversial issue. When hearing a case, they are only supposed to listen and weigh-up the evidence presented during the trial. Evidence correctly admitted before the court is compliant with all evidential requirements, so both sides will be aware of what is being presented. Advances in technology have added another layer of problems to ensuring the jury does their job.
Section 11 of the Bill makes it a contempt of court offence for a jury member to ‘intentionally to investigate or research information when they know or ought reasonably to know that it is or may be information relevant to the case.’ A simple mistake like this can easily collapse a trial. Jurors must also tell the court of any potential conflicts of interest they may have, while there is a general prohibition, subject to relevant exceptions, on revealing details of a jury’s deliberations.
Cian Carton – Editor