PROPOSALS to give judges far-reaching powers over the media to prevent prejudice to trials are wrong and here are three quick reasons why.
The idea is included in the Law Commission’s consultation on contempt of court and means that judges could order the temporary removal of material from online archives before and during a trial if it might prejudice the case.
I will be submitting a detailed response to the commission’s consultation, but I wanted to set out a brief argument against that specific idea, in the hope it would prompt others in the media to realise the huge burden it will potentially place and on them and prompt them to respond to the consultation as well.
1. If you give judges this sort of power, they will exercise it too widely and too often
Often for the best of reasons, judges make orders which are simply beyond their powers in law. They may do so to preserve a fair trial, or to protect a vulnerable victim or witness, but they overstep what the law says they are allowed to do.
There are countless examples of the misapplication of orders under Section 4 and Section 11 of the Contempt of Court Act 1981 and Section 39 of the Children and Young Persons Act 1933.
At the Law Commission symposium held recently to discuss their proposals. One judge attending, unwittingly perhaps, gave a perfect example of this.
He had, he told the audience, been the judge in the trial of two police officers over the Hillsborough disaster. During that trial he had made an order banning publication of any photograph of the memorial to the 96 who died at Hillsborough. He explained that feelings were inflamed at at the time and they needed no further inflammation by publication of such an emotive picture.
There were various nods of approval from the audience when he said this.
The question is, under what power in law did he make such an order? Section 4 of the Contempt of Court Act 1981 allows for an order postponing the reporting of an element of a trial, or the entire trial, to prevent prejudice to proceedings. However, it only gives judges the power to postpone reporting of their proceedings, it cannot apply to events outside the court. The Hillsborough Memorial was not part of those proceedings, so ought not to have been subject of any order.
2. The practicalities of removal of material will impose a huge burden on publishers and ultimately render such orders ineffective.
The idea of these orders is that where someone has been the subject of previous proceedings or trials, widely reported, that an order can be made so that those reports are temporarily hidden from public view, so that a juror on their trial will not find them.
They will not work, and here’s why.
The idea is based on the premise that prejudicial material will be easy to find, identify and disable. Things are never that simple, even with the formidable technology at the disposal of publishers.
Let’s take the example of Gary Striker, Premiership footballer, leading goal scorer and well-publicised bad-boy.
Let us say, for simplicity’s sake, that stories about Striker fall into six categories:
1 Sport stories including match reports which feature him
2 Sport stories which feature Striker’s often very serious foul-play
3 News stories featuring Striker’s public appearances that contain innocuous material
4 News stories that detail Striker’s appearances in court on a variety of charges
5 Sport stories that mention his convictions in passing
6 Stories from all of the above, which include readers comments that mention his previous convictions
Let’s say Striker is up on a very serious charge, heading for Crown Court trial and the judge decides to make an order for removal of prejudicial material.
I don’t think any automated programme exists that would differentiate the above categories.
The only way you will be able to sort out the prejudicial from the innocuous is to have people read them, and in the case of someone as famous as Striker, that will mean sifting a vast amount of information. Who will that burden fall upon?
Will the defence, or judge, in seeking, or making an order, be required to specify which stories they want removed?
Or, as I suspect, will the power be to make a general order for removal of prejudicial material, leaving publishers to sift out the benign from the risky.
In a case like that of Striker, that will be almost impossible to achieve in a timely manner.
I do hope that publishers, of both new media and traditional newspaper websites, will respond to the Law Commission proposals and urge a rethink on this issue.
If they don’t, then pity the poor minions who have to weed out every prejudicial mention of Gary Striker.
David Banks Media Law 
Are they going to ban the wayback machine and similar others while they are at it? If someone wants to find it, it is almost impossible to remove content from the ‘net. One day, we will have someone who actually understands that advising these bodies. Sigh. Great post though!
A point I made at Law Commission event is that by ordering removal you create a value for that info – it will find a way out somewhere, you’re right.
And thanks for your kind comment.
We were interested to read your views about our consultation paper on contempt of court.
We would like to take this opportunity to clarify some matters. In our consultation paper, we propose providing judges with the power to order certain online articles, available to the public at large or a section of the public, to be temporarily disabled. There would be a hearing at which the judge would hear representations from the media before making any such order. This power would apply only where the judge was satisfied to the criminal standard (beyond reasonable doubt) that that particular article created a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced [the current test for contempt] and that disabling the article is necessary and proportionate to avoid that substantial risk. To be able to reach this threshold, the party applying for the order would necessarily have to identify the specific articles precisely, so that the judge could consider them. This means that the order would also specify the precise material to be disabled (for example, it would cite the url of the article). The order would also be only for a specific and limited period of time. This would mean that the publisher would not need to use an automated programme or manually search their entire archive – they would need only to temporarily disable the specific url stated in the order. Breach of this order would be a contempt only where the publisher had no good reason for their failure to comply with it expeditiously. We think that this system would not place an onerous burden on publishers and that, in fact, publishers would have greater protection than under the current law.
We look forward to receiving your response to our consultation paper and we would like to encourage other publishers, of both new media and traditional newspaper websites, to respond formally to our consultation.
Thanks very much for commenting Phil, and like you, I hope the consultation receives the fullest response from all parties (many of whom, I’m sure, won’t share my take on it)
It’s going to make for some interesting cases if this power does get as far as the stature books. In the scenario I describe it would be almost impossible to track down all the offending URLs – so will anyone bother?
If not, will that not create the danger that some defendants – those with a notorious and well-publcised past – will argue they have not had a fair trial because effective removal of prejudicial material was not available to them due to the sheer weight of it online?
The internet, it’s like that child’s toy were you hit one thing with a hammer and another pops up – just when you think you’ve dealt with one problem, along comes another.