The Law Commission has launched a consultation into reforming the law of contempt of court with a view to “improving its fairness, effectiveness, consistency, and coherence”.

As the consultation paper explains, the law of contempt is “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.” Equally, courts and tribunals lack “meaningful powers” to address contempt when it arises such that, in the words of the Law Commission, the tools of coercion or punishment are blunt. It also points out that the law has failed to keep up with technological advances, and in particular the impact of social media.

Therefore, the Law Commission proposes the introduction of a new framework for liability, under which there would be three distinct forms of contempt:

• General contempt

According to the consultation this 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

This 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.

This final form of contempt largely mirrors that which already exists 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 explains, it thinks 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”.

The Law Commission also states that its provisional view is that it should be the applicant (i.e. the Attorney General) who should have the burden of proving the defendant was at fault, and that “fault must be established by proving that the publisher was reckless as to whether proceedings were active, or the distributor was reckless as to whether the material created the requisite risk of interference”.

The consultation also seeks views on when proceedings are deemed to be “active” for the purposes of this limb of the proposed regime. It points to longstanding arguments that proceedings should not be active from the point of arrest, but only from the point of charge, and concerns among the media that it can often be difficult to verify whether an arrest has taken place, particularly since the Supreme Court decision in Bloomberg LP v ZXC.

The deadline for responses is 8 November 2024, and the consultation can be read in full here.