As recently as June 2017, the then Chief Justice called for reform of the powers afforded to the Courts to deal with posting on social media in prejudicial to pending and ongoing Court cases. In October 2017 a private member’s Bill was presented to Dáil Eireann by Deputy Josepha Madigan relating to contempt of court. Since introduction of the Bill, Deputy Madigan has been promoted to the cabinet post of Minister for Culture, Heritage and the Gaeltacht. The Bill seeks to place on a statutory footing a number of disparate elements of the common law which relate to the conduct of court proceedings and the administration of justice. The contents of the Bill are an attempt to deal with the difficulties which a 24 hour news cycle and social media present for the administration of justice.
Contempt of Court
The Bill classifies criminal contempt of court as either publishing or doing anything which scandalises the court, prejudices the due course of any judicial proceedings or interferes with the administration of justice. The Bill provides for a Judge to summarily and immediately deal with criminal contempt of court when it occurs in his or her presence.
The Bill classifies civil contempt of court as wilful disobedience of court orders whether by action or failure to act.
The Bill seeks to make both criminal and civil contempt criminal offences with the maximum penalty being life imprisonment and/or an unlimited fine.
Publication including online publication
The Bill seeks to provide the Courts with general powers to place restrictions on publication of material where it appears to be necessary to avoid risk of prejudice to the administration of justice.
The Bill specifically provides for judicial powers to direct removal of material from websites and/or the disabling of public access to websites where it appears to be necessary to avoid risk of prejudice to the administration of justice. The Bill seeks to introduce novel powers for the Courts to order online hosts or internet providers to disable specified sections of websites for limited periods.
Balancing the power
In order to maintain appropriate checks and balances on the significant judicial powers proposed, the Bill provides for a number of specific defences to allegations of contempt of court. They include a defence of Innocent Publication or Distribution available to those who have taken reasonable care in publishing the material. The stated defences also include a defence of Discussion of Public Affairs where the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion. The Bill also seeks to protect reports of public legal proceedings which are fair and accurate, published contemporaneously and in good faith.
The Bill seeks to set out a number of rules governing the conduct of jurors including a rule stating that it shall be contempt for a member of a jury to intentionally investigate or research information when they know the information may be relevant to the case before them.
Before it becomes law the Bill must travel through the legislative process but it seems there is a genuine wish in political circles and amongst the judiciary for clear and unambiguous legislation in this area so as to protect the integrity of the judicial process whilst ensuring a free and fair press.
A link to the Bill can be viewed here.