Chapter 4
Reforming publication contempt

Reforming the law

4.64We have reached a preliminary view that some change is needed to the law of contempt as it relates to publications. There are significant conceptual and practical problems in applying the current real risk test and reasoning in the age of the Internet. The lack of clarity around the threshold for contempt is also problematic.

4.65We suggest that it might be time to consider a different approach and focus more on preventing certain types of information that would normally give rise to a real risk of prejudice to a fair trial from being publicised rather than placing reliance on contempt to prevent that risk. One of the main difficulties with contempt currently is uncertainty over its ambit. Those publishing material need to essentially second guess where a court may ultimately place the line between contemporaneous discussion and prejudicial reporting.

4.66Uncertainty over where the line is to be drawn can have a chilling effect if the media and others reporting or commenting on public events take too cautious an approach. On the other hand, uncertainty may mean too robust an approach is taken and anything goes, which jeopardises fair trial rights.

4.67This is very much the concern expressed by the Supreme Court (majority judgment) in Siemer v Solicitor-General:136

A system which leaves publication decisions (particularly the assessment whether a publication will prejudice fair trial rights) entirely to third parties (who may be neither dispassionate nor fully informed) creates a risk that those third parties will get it wrong, resulting in prejudice to fair trial rights which cannot be remedied, after the fact, by prosecution for contempt of court.

4.68The Court in that case was discussing the question of whether contempt of court (including the power to grant an injunction to restrain a threatened contempt), as well as other mechanisms short of suppression,137 were adequate to protect fair trial rights and the administration of justice. The Court said that the New Zealand view has been that these do not adequately protect fair trial rights and the administration of justice. The Court considered this a well-founded view.138

4.69We favour an approach that provides greater upfront clarity and precision for the reasons discussed. The rules to which both mainstream and new media are subject must be clear and readily ascertainable. We suggest that, rather than leaving publication decisions in relation to potentially prejudicial material in the hands of publishers, there should be an approach that prohibits for a limited period the publication of certain limited information.

4.70We think that the constraints on freedom of expression during the course of a trial should be kept to the absolute minimum necessary to achieve the policy objective of a fair trial. We also suggest that the authority for these constraints should be derived from statute rather than the High Court’s inherent common law jurisdiction.

Proposed framework

4.71We are proposing that common law publication contempt be replaced with the following:

(a) A statutory provision that prohibits the publication or reporting of a defendant’s previous convictions and any concurrent charges during a specified period leading up to the trial for an offence unless an order is made by the court permitting publication. (It would be a statutory offence to breach the provision.)
(b) A statutory provision under which a court may make an order forbidding publication of any report or account of any other information during the period leading up to a trial if satisfied that suppression of that information is necessary to protect a person’s right to a fair trial. (It would be a statutory offence to breach a suppression order.)
(c) A statutory offence to replace the current common law publication contempt. It would cover any publication that (regardless of whether it also breached the provision in (a) or any suppression order made under (b)) created a real risk, as distinct from a remote possibility, of interference with the administration of justice by prejudicing a fair trial. (We have used the language of real risk to indicate that the test is the same as the current one, however, as discussed further below, we would favour a change to that terminology for the reasons already discussed in the Issues Paper.)

4.72The new statutory provisions would also include a system providing for take-down orders where a publication breached one of the provisions.

Statutory prohibition on publication of certain materialTop

4.73As discussed earlier, publicly disclosing a defendant’s previous convictions or concurrent charges before he or she has been tried will almost always constitute contempt at common law. As well as creating a real risk of undermining the accused’s right to a fair trial, it also seriously interferes with the court’s authority to decide what information will be admissible at trial according to the Evidence Act.

4.74In our view, the potential harm arising from disclosing this information justifies a statutory provision prohibiting the reporting of this information. The provision would need to specify the time period during which the restriction applied. It could, for example, begin from the date on which the charges are filed and, subject to variation by the court, remain in place until after the verdict has been delivered. It might also be appropriate to provide some facility for the court to extend the prohibition on publishing the information beyond that time where circumstances, such as an appeal, require the order to remain in place longer.

Exemptions should be available

4.75We suggest that the court should be able to make an order permitting publication of any of the details that would otherwise be prohibited. Because the statutory restriction represents a greater infringement of freedom of expression than the current post facto application for contempt or an injunction, we think it would be appropriate for any person to have standing to apply to the court for an order. The grounds for making such an order could be set out in the statute. These might include that:

Publication in breach an offence

4.76We propose that it would be an offence for any person to breach the statutory prohibition and disclose in any publicly accessible forum, whether directly or indirectly, any previous convictions of the defendant or any concurrent charges. Disclosing the fact that a defendant is facing other charges might also constitute a breach of the proposed new provision. However, publication of matters relating to bail and matters dealt with at any bail hearings are already covered by the restrictions on reporting contained in the Bail Act 2000.139 That regime would continue to apply to matters covered there.

Suppression orders for other informationTop

4.77We also propose a new provision under which the court could make a suppression order prohibiting the publication of other information during the period leading up to a trial if satisfied that suppression of that information is necessary to protect a person’s right to a fair trial. At present, the High Court has an inherent power to make such suppression orders as are necessary for the administration of justice and the protection of fair trial rights.140 We see advantages in having the breadth of that power shaped by statute. We would anticipate that the power to suppress would be the minimum necessary to achieve the policy objective of a fair trial. We envisage that this provision would replace the use of the High Court’s inherent jurisdiction to make general suppression orders against non-parties during the pretrial phase.

4.78A breach of a suppression order made under the provision would be an offence.

Real risk to the administration of justiceTop

4.79The question then remains what additional response, if any, is needed to deter the news media and also new media from publishing information that risks undermining the rights of the accused to a fair trial or otherwise interfering with the administration of justice. For example, how should the law respond to a social media campaign demanding preventive detention for an accused person before they have stood trial, or how should the law respond to a website that publishes damning witness statements or video clips pertaining to the trial that may or may not be admitted at trial?

4.80If the courts are to retain their authority and the confidence of the community in this new communications era and if accused persons are to retain their right to a fair trial on the evidence adduced at court, it would seem necessary to have an offence to replace publication contempt. The new offence would cover publications that pose a real risk of interfering with the administration of justice by prejudicing a fair trial – regardless of whether they breach the statutory prohibition discussed earlier or any suppression order. This new offence would essentially be a statutory form of contempt replacing the common law.

Defining the boundaries of the offence

4.81A key question law reformers and drafters face when codifying contempt is whether to attempt to exhaustively define the range of conduct caught by the offence or whether to describe it more generally and allow the courts to develop and apply the test in the unique circumstances of each case. We suggest that the latter approach to codification is the most appropriate in this context. The advantage of this approach is that it retains the flexibility currently available in the common law. However, the disadvantage is that the approach may not provide as much clarity or precision as a more prescriptive approach.

4.82The current test that a publication poses a real risk as opposed to a remote possibility of interfering with the administration of justice should probably form the basis of the offence. However, as we have discussed, there may be a case for reframing the test using different terminology to try and better encapsulate the essence of contempt. Reframing would also distinguish it more clearly from the test applying when a stay of prosecution is sought. There is not sufficient separation between these different tests at present because of the similar language. The test could be reframed to make it clear that the test sets a lower threshold than these others. The bar would be set at whether the publication creates more than a remote risk to the trial.

4.83As we discussed earlier, many of the factors that the courts have weighed when determining under the common law test whether a particular publication created a real risk of prejudicing a trial, such as time and place of publication, have become problematic in an age when information is permanent. That said, the core propositions and principles to be weighed have not changed, and this would be reflected in the offence.

Questions

Q5 Do you think that the common law test of real risk has become problematic?
Q6 Do you have any comments to make on the proposed statutory prohibition?
Q7 Do you have any comments to make on the proposed suppression power? Should it replace the common law power of suppression?
Q8 Do you agree that the common law offence of publication contempt should be replaced with a statutory offence as we have proposed? How should the test be framed?

136Siemer v Solicitor-General, above n 69, at [173].
137In particular, judicial warnings about publication, hearing a case in camera or permitting witnesses to give evidence without disclosing their names or otherwise in circumstances that should protect their anonymity. There is also jurisdiction to grant an injunction to restrain a threatened contempt: Siemer v Solicitor-General, above n 69, at [172].
138Siemer v Solicitor-General, above n 69, at [173].
139Bail Act 2000, s 19.
140Siemer v Solicitor-General, above n 69, at [174]–[175].