Law Commission Says Tribunals Should Be Able to Jail People for Contempt of Court

Police offices stand on duty outside the Old Bailey, England's Central Criminal Court, as they await the sentencing of British police officer Wayne Couzens for the murder of Sarah Everard in London on Sept. 30, 2021. Daniel Leal/AFP via Getty Images

The Law Commission has recommended extending the power to imprison people for breaching the Contempt of Court Act from criminal courts to immigration tribunals and other bodies.

It is one of a number of changes to the law surrounding contempt of court, the principle which is supposed to protect British citizens’ right to a fair trial before an unprejudiced jury.

The commission recommended retaining the maximum sentence of two years in custody which is available to crown court and higher court judges in England and Wales.

After conducting a review, the commission has said, “We have not heard evidence that the two-year limit of committal or the unlimited fine is inappropriate or ineffective.”

Currently, magistrates courts can impose a custodial sentence of up to a month and a fine of up to £2,500 but in the report it recommends extending this power to industrial and immigration tribunals and other bodies, which currently have no power to impose a legal sanction.

The commission also proposes, “expanding sentencing options to include community orders, which may include unpaid work, drug or alcohol treatment, and restrictions on places that a person may go or where they must live.”

Tommy Robinson leaving the Royal Courts of Justice in London on April 21, 2021. Victoria Jones/PA

In 2018 Tommy Robinson was jailed for nine months after being found in contempt of court after he filmed men accused of the sexual exploitation of young girls and live-streamed the footage on Facebook, in breach of a reporting ban, outside Leeds Crown Court in May 2018.

In January, Liz Hull, the Daily Mail’s northern correspondent and co-host of “The Trial of Lucy Letby” podcast, told The Epoch Times, “judges are increasingly encountering issues with ‘commentators’ on social media.”

In November 2023, during a murder trial at the Old Bailey, several anonymous Twitter accounts commented on live tweets from the trial and included prejudicial information, including allegations about one of those in the dock, who had given evidence and testified against one of his co-defendants.

In June 2022, the Law Commission of England and Wales was asked by the government to review the law on contempt of court and, “consider reform to improve its effectiveness, consistency, and coherence.”

The current legislation restricting what can and cannot be said about criminal proceedings is the Contempt of Court Act, which dates from 1981.

‘The Law is ... Disorganised and at Times Incoherent’

The commission said: “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.”

“Many courts and tribunals lack meaningful powers to deal with contempt when it arises. Even when courts do have such powers, the sanctions available to them—as tools either of coercion or punishment—are blunt,” they added.

Professor Penney Lewis, from the Law Commission, said: “It is important that the laws governing contempt are both fair and clear to provide justice for all those involved in court proceedings.”

“This includes not only the parties involved but those observing or reporting on proceedings,” she added.

The commission acknowledges the law on contempt affects both professional reporters and “citizen journalists,” meaning bloggers and others who cover courts while not being employed or commissioned by media outlets.

The commission has proposed a new framework with three distinct areas:

• General contempt.
• Contempt by breach of order or undertaking.
• Contempt by publication when proceedings are “active.”

Conduct considered under the general contempt category would range from “threatening a lawyer during proceedings” to “publishing confidential trial material online.”

Under the third category, the prosecution would not have to prove, “the person intended to interfere with the administration of justice.”

But the prosecution would have to prove, “a publication creates a substantial risk” of prejudicing a trial and that, “the publisher was reckless as to whether proceedings were active.”

The Law Commission is an independent body established to make recommendations to government on how to reform the law in England and Wales.

Scotland and Northern Ireland have their own laws.

The Law Commission consultation will seek the opinion of judges, lawyers, the media, police officers, prison staff, academics and court users, and will remain open until Nov. 8, 2024.