Criminal Justice and Courts Bill

Written evidence submitted by the Newspaper Society (CJC 24)

1. The Newspaper Society represents regional and local news media companies which publish around 1100 local newspapers, read by 30 million people a week, with 1700 local media websites attracting 79 million unique users each month and ever developing digital information services. We are therefore chiefly interested in the proposed amendments to the Contempt of Court Act 1981 and other freedom of expression issues.

Contempt of Court: Clause 37

2. We appreciate that the Bill acknowledges the concerns of the media expressed during the Law Commission consultation. The qualified defence under clauses 37 and right of statutory appeal under s 159 in clause 38 of the Bill are intended to help address the problem recently created by two rulings by judges presiding over two Crown Court trials in July 2012, on the meaning of publication for the purpose of the Contempt of Court Act 1981 and use of an injunctive power under the Senior Courts Act 1981 in Crown Court proceedings, to restrain a feared future contempt. In the immediate cases, these resulted in orders to take down articles from a historic online archive and restrain the broadcast of a television programme. Without clarification of the law, media organisations could therefore be at risk of contempt, injunction and under onerous burdens of monitoring and censoring their historic archives of material lawfully published prior to proceedings becoming active. Although the media has questioned whether those cases were rightly decided, the legal issues have not been considered on appeal to the higher courts.

3. We appreciate that the Government has also decided against the introduction of any new specific power to order media organisations to take down or expunge material from their archives.

4. We would suggest that the Government’s introduction of juror criminal offences addresses the actual problem, which is not the continued availability of material published prior to proceedings becoming active, but jurors searching out additional material, rather than reaching their verdict only upon the evidence presented to them in court.

5. Thus the Bill could clarify the contempt laws in a different way, without risk to fair trials or risk of undue development of the power of the Attorney General or the courts to interfere with freedom of expression which clauses 37 and 38 might permit.

6. In line with the media’s submissions to the Law Commission, the Bill could be amended to clarify the law by providing a statutory definition of ‘first publication’ or an unqualified statutory defence. The Bill would only require slight amendment to clause 37 achieve this, through modification of the proposed new defence. Clause 37 (5) introduces a new clause 4A into the Contempt of Court Act 1981. The adoption of Clauses 4 A (1) -(2) and (7) - (8) would introduce such a defence, restore the previous understanding of the 1981 Act and put beyond doubt that publishers are not at any risk of strict liability contempt for material published by them prior to proceedings becoming active, whether such material remains’ continuously available in online archives or otherwise.

After all, for many years, successive Attorney Generals and Lord Chancellors have all advised that the media is not at risk of contempt proceedings being brought against them if they do not publish links to historic/archived material in new reports published after proceedings have become active under the Contempt of Court Act 1981.

7. Indeed, the government’s own Impact Assessment suggests at para 43 that there is neither a problem with the mainstream media or individual tweeters. The Impact Assessment states that the Attorney General’s Office are aware of only two potential cases where the proposed notice procedure in the Bill would have been appropriate during the last two years (It is not clear whether or not these are the two cases adopting the problematic interpretation of the Contempt of Court Act 1981 and Senior Courts Act 1981).Even then, had it been available they would expect the mainstream media to comply with notices as they do now with advisory notices, rather than risk court proceedings, even if they disagreed with the notice.

8. Moreover, according to the Impact Assessment, the AGO think it unlikely that it would even issue notices, much less mount contempt proceedings against anyone outside the mainstream media, as individual tweeters would not meet the test for a notice, as they would not have enough followers to create a substantial risk of serious prejudice to constitute liability for contempt under the Contempt of Court Act 1981(para 43).

9. The Impact Assessment also acknowledges that the strict liability rule for contempt helps to reduce the availability of relevant material accessible by jurors.

10. We hope that the Government will consider amendment of the Bill to produce an unqualified defence covering online archives and other material lawfully published prior to proceedings becoming active which is still available

11. We do have concerns about the operation of clause 37 and the statutory recognition of an injunctive power under the Senior Courts act 1981 by virtue of clause 38. We would therefore welcome the opportunity to meet and discuss such concerns in more detail with the Ministry of Justice and the Attorney General’s Office.

12. Clause 37 of the Bill would establish a formal statutory framework for the Attorney General to issue notices stipulating that previously lawfully published material (including past court reports) should be withdrawn from public access, backed by direct legal sanction, deprivation of defence and indirect trigger of court order. Clause 38 then indirectly validates the criminal court’s powers of prior restraint to prevent publication to forestall a feared contempt, to require the withdrawal of material from the public through halt of current publication and take down of material published prior to proceeding becoming active.

13. From the point of principle, it is a potentially dangerous step for the Attorney General (a member of the Government of the day) to be given the statutory power to dispense notices to anyone – editor, publisher of newspapers, magazines, books or other material in any media, broadcaster, website owner, library, individual – suggesting that lawfully published archive material be removed from public view as a forerunner to court injunction and threat of contempt proceedings, with the service of that notice then removing a defence that would otherwise be available to the recipient if the server of the notice, the AG chooses to bring contempt proceedings. It appears that it is the service and receipt of the notice, not the validity of the AG’s legal opinion as to contempt, that would actually deprive any or all recipients of any defence which would otherwise available to them in contempt proceedings which the server of the notice, the Attorney General, might then bring against them. The issue of a notice by the AG is also apparently meant to act as a trigger to the court to injunct such material, presumably prior to any actual contempt proceedings in respect of that material and court rulings on whether the recipient was liable for contempt for its publication under the 1981 Act. The Government’s policy objective according to the Impact Assessment appears also to be deterrence by notice alone - it expects the mainstream media to take material down on receipt of a notice from the AG, through threat of court proceedings and risk of liability, (punishable by unlimited fine and imprisonment), even if they disagreed with the AG’s interpretation of the law and the AG’s view was actually wrong so that continued publication of the material would not actually constitute contempt of court, under the strict liability rule under the 1981 Act or otherwise. Local and regional media organisations would be very fearful of incurring the financial costs of challenge the AG’s view or formally contesting a notice, contempt proceedings and court order, even where they had strong legal grounds for doing so. They might also be fearful of some additional threat by a trial judge of third party costs order, even if the media organisation‘s conduct was not in fact unlawful, due to delay or non-compliance. Thus the media’s responsible approach could be used against it to effect unjustified removal of material from public access, if sufficient safeguards are not built it into the operation of the new regime.

14. The media’s concerns are increased because the Bill simply sketches out the procedure, without defining the precise nature of the Attorney General’s powers, or the precise purpose, effect and procedure of the notices, or whether there will be any safeguards for freedom of expression to curb the otherwise discretionary use of notices by the Attorney General and injunctions by the court.

15. It would be immensely helpful if the Ministry of Justice and AGO could provide detailed information, including drafts of the regulations and embark upon discussion and consultation with the media now, while the Bill is actually progressing through Parliament. This would allow any difficulties to be identified and necessary changes made, in tandem, to the content of the Bill and proposed text of the draft regulations. This would enable proper consideration of the Bill’s provisions in context. This is currently impossible in the absence of the regulations or any indication as to their proposed operation and content. More information and discussion would allow potential problems to be spotted and addressed, avoiding difficulties in practice for AG, court and media, with any necessary freedom of expression and open justice safeguards included.

16. This is important to the NS. While media organisations which do not receive a notice will have a new statutory defence to the new statutory extension of the contempt laws, the Impact Assessment does suggest that the media will be the prime target of the AG’s notices and notice system and also assumes that in practice the media will take down of material on receipt of a notice through fear of liability for contempt on receipt of a notice, even if they disagree with the AG’s assessment of contempt liability. The Bill and the regulations therefore need to prevent any possibility of unwarranted use of the notice and notice system to restrict availability of material which was lawfully published.

17. As the regulations have yet to be drafted, the Bill’s operation in practice is open to speculation, as the Bill does not define the ambit of the new function and powers of the AG and court in clauses 37 and 38. For example, the Impact Assessment suggests that the Attorney General and the trial judge are expected to work in tandem to ensure removal of material after issue of the notice. The Explanatory Notes suggest that the AG’s notice may simply indicate that proceedings are active in respect of which the publication may be contemptuous, without reference to any additional action by the court as well, but that its service then deprives the recipient of the new statutory defence in respect of actions for contempt, in respect of those proceedings: ‘ if the Attorney General gives the person a notice informing the person that there are active proceedings in respect of which the publication may be contemptuous, this defence ceases to be available to the person in connection with those proceedings.’(para 295).

However, para 40 of the impact assessment evidence base for the summary sheets says that ‘The notice procedure would allow the Attorney General to put a publisher on notice that relevant proceedings have become active and the Attorney General would locate or be notified of the relevant publication which should be removed. If after such notice the publisher did not remove the material following a hearing, the judge would have the power to order the temporary removal as under the current law if he or she was of the view that the strict liability test was met in the circumstances’.

18. We therefore submit that the Bill and regulations need to be evaluated together and in any event will require the incorporation of substantive and procedural safeguards for freedom of expression and open justice, both substantive and procedural (especially as orders affecting freedom of expression in criminal proceedings are excluded from the freedom of expression safeguards in section 12 of the Human Rights Act 1998). For example, the NS would welcome consideration and consultation on the following matters:

19. What safeguards are to be introduced to prevent routine issue of such notices by the AG, especially in respect of criminal proceedings? How would they operate in civil proceedings?

20. What safeguards are to be introduced, beyond a right of appeal under s 159 Criminal Justice Act 1988 in respect of orders under the Senior Courts at 1981 to prevent courts from routinely injuncting material which is the subject of a notice, even if the AG’s view is erroneous?

21. Can measures be taken to curb the powers of the courts, in order to deter routine applications and near automatic grant of such orders, perhaps as a ‘fail safe’, even if the media has already removed the material from public access, on receipt of a notice from the AG or by its own volition?

22. What safeguards will there be to ensure that any action by the AGO, AG or courts, be it deterrent threat or actual restriction, on media publication and availability will be kept to a minimum and actually be necessary, proportionate and temporary?

23. We do fear that routine ‘notification’ of the AG and routine issue of notices by the AG could develop into institutional practice of AG and AGO, or they could be put under pressure to do so. . Trial judges, prosecution, defence, police, other enforcement authorities, defendants’ associates, or indeed lobby groups and members of the public, might press for such action by the AG, as soon as they become aware or are alerted to the mere existence of any previously published online archive material held by local, regional or national media, which might refer to the defendant , or parties to the proceedings or anyone connected with the trial or the incident and pressing for issue of notices. What measures will be put in place to prevent this?

24. What procedures will the AG and AGO introduce prior to issue of notice, to investigate the previously lawfully published material and manner of publication/availability to the public and to evaluate the legal basis for any legal action by them?

25. In high profile cases, what safeguards are to be introduced to prevent blanket service of such notices upon media organisations by the AG? What safeguards will be introduced to ensure that notices are not issued merely because of concerns about the extent and effect of lawful media coverage, or perhaps the combination of lawful social media activity by anyone and lawful mainstream media publications, (as opposed to concern about any possible actual strict liability contempt in relation to any actual content of any individual publication by any media organisation or individual?).

26. What statutory provisions and safeguards will be created to ensure that the Attorney General can withdraw or vary the notice?

27. What safeguards will there be after any such withdrawal or variation or expiry of a notice to ensure that media organisation can thereupon continue to benefit from the new defence, once a notice has been issued and/or the material had been taken down, either prior to issue of the notice, or as a result of issue of the notice as a precautionary measure, as though its publication had been continuous for the purposes of a defence in those or other active legal proceedings?

28. How will the regulations ensure that the notice is issued by the AG and brought to the attention of the relevant media organisation in an appropriate fashion and in appropriate time for the media organisation to assess the notice, identify the material and implement any action necessary, including any provision for the media to seek clarification from the AG?

29. How will the Bill and regulations ensure that matters are considered coherently and consistently, with reference to other reporting restrictions and guidance as need be? It is vital that restrictions on publication are not decided in haste as the trial starts, without adequate notice to the media and opportunity to hear its submission, ensuring comprehensive consideration of the relevant law and its application to the actual circumstances of the case? It is essential the AG and court give any media organisations who might be the subject of a notice or application for an order, ample notice, enough time for informal discussion with the AG or court, both the opportunity and time to make informal and formal representations both prior to the making of the order and for variation and lifting of an order or withdrawal of a notice.

30. The media must be given the opportunity to query the notice, discuss it with the AG and ask the AG for clarification, review, variation and withdrawal. It must also have a swift route of legal challenge.

31. The media must also be given good notice of any application for a court order and the grounds for the application. Obviously, the court itself must notify the media in advance if the court itself is considering whether to make such an order and provide advance notice of the grounds for it. The media must have the opportunity to make informal representations as well as to be formally heard prior to the making of any such order, as well as for clarification, variation or lifting of the order when made, in addition to any formal right of appeal.

32. What safeguards will be introduced to ensure that the media can continue to benefit from the new defence in respect of those (or other) legal proceedings, if it has had to take material down voluntarily or in accordance with a notice or order which has subsequently not been made, withdrawn, or lifted, or expired or varied ? Will it still be able to claim the defence in those or other later legal proceedings or be disqualified from doing so due to the requirement for ‘continuous’ publication?

33. How will the Bill and regulations ensure that any notice issues by the AG contains all essential information needed by the media recipient: the precise identification of the proceedings which are active, the precise identification of the publication causing concern to the Attorney General – by way of specification of media organisation, the titles of the publication and identification of the relevant media platform, date, URL, headline, the precise subject of the notice – the precise text, image, extract; the legal basis for alleged liability, together with supporting reasons and evidence and why this particular course of action was necessary in the circumstances of the relevant active proceedings; the precise duration of the temporary restriction on publication or availability; when the notice will cease to apply; how the recipient can make an application for varying and lifting the notice in respect of any such material, in whole or in part , prior to that time, both immediately and in the event of any developments which would merit such an application; how the AG will notify the recipient of any variation of lifting or expiry of such a notice if the AG decides that there is no risk of contempt due to reconsideration or later developments.

34. How will the Bill and regulations ensure that any application for an order or consideration of by the court or any action by the court of its own motion to make such an order will contain the same requirements for precise identification of the material and grounds for the application?

35. The media has queried whether the cases were correctly decided in respect of courts’ power to injunct under the Senior Courts Act 1981. Clause 38 provides both statutory recognition and a right of appeal under s 159 CJA 1988. If this is the case, what will or can be done to fetter the use of such injunctive powers by trial judges? How will the regulations or the Bill prevent any trial judge from bypassing any safeguards, such as the imposition of an order only in the event of non-compliance with a notice served by the AG and liability under the strict liability rule, and stop the court from proceeding straight to making an order under the Senior Courts Act 1981 and injunction of any such archive or other material?

36. We would also like clarification of other matters:

37. How will the provisions interact with common-law contempt, since the Bill provides that this will not be affected by its amendments to the Contempt of Court Act 1981?

39. The effect of service of a notice could have wider chilling effect - what measures will be taken to avoid this? For example, if the Attorney General publicises that a notice has been served against one person in respect of a certain matter, would a publisher/distributor lose the innocent publication and distribution defence, i.e. could such publicity or knowledge mean that they have a reason for relevant suspicion? If so, could the helpful intention of the provision be neutralised and would publishers still be at risk of contempt proceedings, unless they searched out and suppressed all such previously lawfully published material which they were making available to the public or a section of it in any form?

40. Is there a danger that the ‘continuously over a period’ could be interpreted instead as ‘non-stop’, or other way contrary to that intended (to protect previously published material, perhaps in online archives, which is available when proceedings become active)? Is there any danger that non- availability of such material at any time for any reason for seconds, minutes, hours, days, weeks, months might be held to invalidate a defence? Would even website redesign and relaunch or a temporary website crash, prior to proceedings becoming active, mean that the defence could not apply, because the material had therefore not been made available to the public or a section of the public ‘continuously’? Would any intentional but temporary removal of the material which interrupted its continuous availability to the public invalidate the defence- removal while updating a story, making legal or compliance checks, for example due to additional information received, or investigation of complaint, or legal dispute, or in accordance with an earlier AG notice or court order or other reporting restriction in respect of the same material in the same proceedings but which had meanwhile been varied or lifted or expired?

41. The NS would welcome further consultation and discussion on these issues and careful consideration of Bill and regulations to address such concerns.

Clause 38

42. We recognise that the clause 38 has the helpful intention of enabling appeals to be brought to the Court of Appeal (but not beyond) under section 159 of the Criminal Justice Act 1988. The recent case law on the scope and use of such injunctive powers against media archives is of concern to the regional press. These powers are not reserved for rare use in high profile cases by the courts and have been used in other circumstances. The mere threat of use of such powers can also have a chilling effect  upon publication and availability of material in practice. For example, if the courts insist upon formal applications for variation or lifting, rather than entertain the media’s informal representations, the potential costs of formal legal challenge will deter editors and publishers from pursuing legitimate challenges.

Jury research

43. We suggest that the Bill enables academic research into jury decision making, in order to enable comprehensive and accurate assessment of the operation of the contempt laws, including the impact of any changes introduced by the Bill itself..

Other open justice and freedom of expression issues

Part 2

44. We note clause 15 on wrongful disclosure of information relating to persons in youth detention accommodation and the criminal offence designed to prevent disclosure of information relating to a particular offender. However, there could be additional circumstances where the employee should be allowed to lawfully make such a disclosure, which are not explicitly covered by the Bill, e.g. as a whistle blower, where public interest disclosure could include revelation of wrongdoing, which also requires disclosure of information about a particular individual ( e.g. as its victim); or in the context of a variety of legal action, where information about a particular individuals might be relevant to the issues and prohibition upon its disclosure render pursuit of the case difficult or impossible by the employee or any particular individual them self.

Part 3 Courts and tribunals

45. The regional and local press have interest in Part 3 Trial by single justice on the papers. Clauses 24 -28

46. We share the concern expressed during the Second Reading debate about the proposed departure of the fundamental principle of open justice, by the Bill’s introduction of a procedure whereby a single justice can try a case upon papers sitting in private and not in open court, (especially as the decision reached not just upon guilty pleas received but on the grounds of non- response, without proof that the accused had received the relevant notices that legal proceedings had been instigated against them).

47. The regional and local press wants to maintain public oversight of such cases and to report the work of the court. It may also want to investigate and report the effect of this departure from open justice in criminal cases, in relation to defendants or those concerned in any individual case or the wider ramifications for court process. We therefore welcome the Secretary of State’s and Minister’s assurances that, should the Bill ‘s provisions be implemented, all such cases will be included in advance court lists supplied to the local press and the Protocol agreed between the HM Courts and Tribunal Service, Newspaper Society and Society of Editors should continue to apply.

(See www.newspapersoc.org.uk

Protocol for Sharing Court Registers and Court Lists with Local Newspapers

o View the Protocol

o Letter

o Announcement by Jack Straw)

48. For avoidance of doubt, the Protocol applies to both supply of court lists and copies of the court register, the latter to enable publication of the ‘court results roundups- the courts’ decisions in each and every individual case by the local and regional media, with details of the defendant, charge, acquittal or conviction and sentence where relevant.. It is very important that the court registers as well as the advance court lists should continue to be supplied and continue to contain sufficient information to precisely and accurately identify defendants and the precise outcome of the precise charge pertaining to them. This enables comprehensive accurate reporting, while reducing the risk of confusion with others sharing the same name in the locality and attendant risk of legal action against the newspaper .

49. The local press and its reporters should also have access to the relevant court documentation which would assist accurate reporting of the cases, with any necessary changes made to criminal court procedure rules to enable this.

50. We also suggest that the Bill ought to be amended to include defences in respect of any information so provided so that its publications for the purposes of defamation and contempt benefit from the same defences as if it had been presented in cases considered in open court.

Part 4 Judicial Review

51. We would be concerned if the Bill would make it more difficult for challenges to official secrecy, challenges to restrictions on freedom of expression or challenges restrictions on open justice to be brought and to succeed, because of the importance of clarification of important points of law might be at issue, due to the new criteria or costs provisions in respect of bringing of actions or interventions.

52. The Newspaper Society hopes that all the above matters these points will be given careful consideration and we would obviously welcome the opportunity to discuss these issues in more detail.

March 2014