Author: Law Commission contempt project team<\/span><\/h4>\n![\"\"](\"https:\/\/infolawcentre.blogs.sas.ac.uk\/files\/2024\/10\/Screenshot-2024-10-14-at-13.25.39-1024x887.png\")
<\/p>\n
In July 2024 the Law Commission of England and Wales published a consultation paper<\/a> that sets out provisional proposals for reform of the law of contempt.<\/span><\/p>\nThe Commission is seeking views on a number of data protection and related issues, including:<\/span><\/p>\n\n- Police powers to share data with the Attorney General\u2019s Office<\/span><\/li>\n
- Powers to obtain information from social media platforms<\/span><\/li>\n
- Contempt on criminal records databases and criminal records certificates<\/span><\/li>\n
- Recording, sharing and publishing data on contempt findings and sanctions<\/span><\/li>\n<\/ul>\n
This post begins by explaining what contempt of court is, the role of the Attorney General in contempt proceedings, and the challenges that give rise to issues regarding police powers to share data and powers to obtain information from social media platforms. It then turns to the third and fourth of the issues above.<\/span><\/p>\nIt concludes with some information about a forthcoming event at the Information Law and Policy Centre and how to respond to the Commission\u2019s consultation.<\/span><\/p>\nContempt of court and the role of the Attorney General in contempt proceedings \u00a0<\/strong><\/span><\/p>\n\u201cContempt of court\u201d refers to a wide variety of conduct that impedes or interferes with the administration of justice. It may be something that happens in a court (such as assaulting court staff or witnesses) or it may happen elsewhere (such as by failing to comply with a court order, or by publishing material that prejudices a criminal trial). \u00a0<\/span><\/p>\nThe Attorney General (AG) plays a constitutional role in bringing contempt proceedings in the public interest. For instance, the AG may bring proceedings against a person who has published material that creates a substantial risk that the course of justice in an active criminal case will be seriously impeded or prejudiced.<\/span><\/p>\nThe AG requires certain information before they can bring contempt proceedings. Some information is essential, such as the identity and address of the defendant as well as proof of the alleged conduct (for example, a screenshot of a social media post which declares that a defendant in active criminal proceedings is guilty). Other information may simply be helpful in determining whether it would be in the public interest to bring proceedings. This may include whether the defendant has been found in contempt previously or has any criminal convictions.<\/span><\/p>\nThe Attorney General\u2019s Office (AGO) plays an important role in obtaining information to assist the AG. However, it can sometimes be difficult for the AGO to obtain information. For example, online publications may be made anonymously, so it is not always easy for the AGO to determine against whom the AG should consider whether to bring proceedings. Without access to information on past criminal convictions or contempts, the AG may not be able to determine whether it would be in the interests of justice to bring proceedings.<\/span><\/p>\nPolice powers to share data with the Attorney General\u2019s Office<\/strong><\/span><\/p>\nThe consultation paper considers the legal framework governing the sharing and obtaining of personal data, in particular, the powers of the police to share with the AGO information that is already held by the police. Under the existing legal framework, the police may share essential information, but not information that is merely helpful. The current law also provides a power for the police to obtain information on behalf of the AGO, but only under very limited circumstances.<\/span><\/p>\nThe Commission\u2019s provisionally concludes that the AGO should be able to obtain the information the AG needs to bring contempt proceedings and so, although the law is satisfactory, it needs to be clarified in statute.<\/span><\/p>\nIn the consultation paper, see paragraphs 7.132 \u2013 7.154 (Consultation Questions: 57, 58, 59).<\/span><\/p>\nInvestigatory powers of the Attorney General\u2019s Office: obtaining information from social media platforms<\/strong><\/span><\/p>\nWhere the AGO cannot ascertain the identity of a person who appears to have committed contempt \u2013 for instance, it has not received information about in a referral from the CPS, or the data has not been obtained and lawfully shared by police \u2013 then the AGO is presently unable to obtain that information.<\/span><\/p>\nThe Law Commission does not provisionally propose that the AGO should have powers \u00a0to request and require communications data. Rather, it asks an open question of consultees about whether the law should provide an avenue by which the AGO can obtain such information. It asks consultees for their views on whether it is necessary and proportionate for the AGO to have powers to obtain information from social media platforms.<\/span><\/p>\nIn the consultation paper, see paragraphs 7.155 \u2013 7.179 (Consultation Questions: 60, 61, 62).<\/span><\/p>\nContempt on criminal records databases and criminal records certificates <\/strong><\/span><\/p>\nThirdly, the Commission considers that there is a lack of clarity as to when contempt is entered into the central criminal records database (the Police National Computer (PNC)) and appears on a criminal record certificate (as generated by the Disclosure and Barring Service (DBS)). The practice of recording contempt is not consistent or well understood, with the result that it sometimes, but not always, appears on a certificate.<\/span><\/p>\nContempt is not a criminal offence and does not result in a conviction. The Commission provisionally concludes on the basis of the existing legislation that contempt should not be entered into the PNC and should not appear on a criminal record.<\/span><\/p>\nThe Commission also considers that this position is right and should be made clear: it provisionally proposes that that a finding of contempt and any associated sanction should never be entered into the PNC, and should never appear on a criminal record.<\/span><\/p>\nIn the consultation paper, see paragraphs 10.215 \u2013 10.237 (Consultation Questions: 122, 123).<\/span><\/p>\nRecording, sharing and publishing data on contempt findings and sanctions<\/strong><\/span><\/p>\nFinally, the Law Commission observes that contempt findings and sanctions are not recorded systematically in the justice system and that this represents a significant data gap: it is not clear how many people have been found in contempt of court, what sanctions have been imposed (and when no sanction has been imposed), in what courts, and in what circumstances.<\/span><\/p>\nThe Commission considers that making such data accessible would enhance consistency and fairness in sanctions, ensure transparency surrounding the number of committals for contempt and length of sentences, assist the AG in deciding whether to institute proceedings against a potential defendant, and assist the courts in deciding what sanction should be imposed on a contemnor.<\/span><\/p>\nThe consultation paper asks consultees whether such data should be recorded and provisionally proposes that there should be annual publication of data in relation to committals for contempt.<\/span><\/p>\nIn the consultation paper, see paragraphs 10.238 \u2013 10.248 (Consultation Questions: 124, 125).<\/span><\/p>\nInforming the consultation: an event at the ILPC<\/strong><\/span><\/h2>\nOn 21 October 2024<\/strong> <\/span>the Information Law and Policy Centre and the Law Commission will be hosting an event at the ILPC that aims to inform the Commission\u2019s consultation and its final recommendations.\u00a0 Speakers include:<\/span><\/p>\n\n- Professor Penney Lewis (Commissioner for Criminal Law, Law Commission)<\/span><\/li>\n
- Jo Easton (Director of Policy and Advocacy, Unlock)<\/span><\/li>\n
- Graham Smith (Of Counsel, Bird & Bird LLP)<\/span><\/li>\n<\/ul>\n
Attendance is free. \u00a0Register to attend<\/span> here<\/span>.<\/a><\/strong><\/span><\/p>\nResponding to the consultation<\/strong><\/span><\/h2>\n
<\/p>\nThe Commission is seeking views on a number of data protection and related issues, including:<\/span><\/p>\n This post begins by explaining what contempt of court is, the role of the Attorney General in contempt proceedings, and the challenges that give rise to issues regarding police powers to share data and powers to obtain information from social media platforms. It then turns to the third and fourth of the issues above.<\/span><\/p>\n It concludes with some information about a forthcoming event at the Information Law and Policy Centre and how to respond to the Commission\u2019s consultation.<\/span><\/p>\n Contempt of court and the role of the Attorney General in contempt proceedings \u00a0<\/strong><\/span><\/p>\n \u201cContempt of court\u201d refers to a wide variety of conduct that impedes or interferes with the administration of justice. It may be something that happens in a court (such as assaulting court staff or witnesses) or it may happen elsewhere (such as by failing to comply with a court order, or by publishing material that prejudices a criminal trial). \u00a0<\/span><\/p>\n The Attorney General (AG) plays a constitutional role in bringing contempt proceedings in the public interest. For instance, the AG may bring proceedings against a person who has published material that creates a substantial risk that the course of justice in an active criminal case will be seriously impeded or prejudiced.<\/span><\/p>\n The AG requires certain information before they can bring contempt proceedings. Some information is essential, such as the identity and address of the defendant as well as proof of the alleged conduct (for example, a screenshot of a social media post which declares that a defendant in active criminal proceedings is guilty). Other information may simply be helpful in determining whether it would be in the public interest to bring proceedings. This may include whether the defendant has been found in contempt previously or has any criminal convictions.<\/span><\/p>\n The Attorney General\u2019s Office (AGO) plays an important role in obtaining information to assist the AG. However, it can sometimes be difficult for the AGO to obtain information. For example, online publications may be made anonymously, so it is not always easy for the AGO to determine against whom the AG should consider whether to bring proceedings. Without access to information on past criminal convictions or contempts, the AG may not be able to determine whether it would be in the interests of justice to bring proceedings.<\/span><\/p>\n Police powers to share data with the Attorney General\u2019s Office<\/strong><\/span><\/p>\n The consultation paper considers the legal framework governing the sharing and obtaining of personal data, in particular, the powers of the police to share with the AGO information that is already held by the police. Under the existing legal framework, the police may share essential information, but not information that is merely helpful. The current law also provides a power for the police to obtain information on behalf of the AGO, but only under very limited circumstances.<\/span><\/p>\n The Commission\u2019s provisionally concludes that the AGO should be able to obtain the information the AG needs to bring contempt proceedings and so, although the law is satisfactory, it needs to be clarified in statute.<\/span><\/p>\n In the consultation paper, see paragraphs 7.132 \u2013 7.154 (Consultation Questions: 57, 58, 59).<\/span><\/p>\n Investigatory powers of the Attorney General\u2019s Office: obtaining information from social media platforms<\/strong><\/span><\/p>\n Where the AGO cannot ascertain the identity of a person who appears to have committed contempt \u2013 for instance, it has not received information about in a referral from the CPS, or the data has not been obtained and lawfully shared by police \u2013 then the AGO is presently unable to obtain that information.<\/span><\/p>\n The Law Commission does not provisionally propose that the AGO should have powers \u00a0to request and require communications data. Rather, it asks an open question of consultees about whether the law should provide an avenue by which the AGO can obtain such information. It asks consultees for their views on whether it is necessary and proportionate for the AGO to have powers to obtain information from social media platforms.<\/span><\/p>\n In the consultation paper, see paragraphs 7.155 \u2013 7.179 (Consultation Questions: 60, 61, 62).<\/span><\/p>\n Contempt on criminal records databases and criminal records certificates <\/strong><\/span><\/p>\n Thirdly, the Commission considers that there is a lack of clarity as to when contempt is entered into the central criminal records database (the Police National Computer (PNC)) and appears on a criminal record certificate (as generated by the Disclosure and Barring Service (DBS)). The practice of recording contempt is not consistent or well understood, with the result that it sometimes, but not always, appears on a certificate.<\/span><\/p>\n Contempt is not a criminal offence and does not result in a conviction. The Commission provisionally concludes on the basis of the existing legislation that contempt should not be entered into the PNC and should not appear on a criminal record.<\/span><\/p>\n The Commission also considers that this position is right and should be made clear: it provisionally proposes that that a finding of contempt and any associated sanction should never be entered into the PNC, and should never appear on a criminal record.<\/span><\/p>\n In the consultation paper, see paragraphs 10.215 \u2013 10.237 (Consultation Questions: 122, 123).<\/span><\/p>\n Recording, sharing and publishing data on contempt findings and sanctions<\/strong><\/span><\/p>\n Finally, the Law Commission observes that contempt findings and sanctions are not recorded systematically in the justice system and that this represents a significant data gap: it is not clear how many people have been found in contempt of court, what sanctions have been imposed (and when no sanction has been imposed), in what courts, and in what circumstances.<\/span><\/p>\n The Commission considers that making such data accessible would enhance consistency and fairness in sanctions, ensure transparency surrounding the number of committals for contempt and length of sentences, assist the AG in deciding whether to institute proceedings against a potential defendant, and assist the courts in deciding what sanction should be imposed on a contemnor.<\/span><\/p>\n The consultation paper asks consultees whether such data should be recorded and provisionally proposes that there should be annual publication of data in relation to committals for contempt.<\/span><\/p>\n In the consultation paper, see paragraphs 10.238 \u2013 10.248 (Consultation Questions: 124, 125).<\/span><\/p>\n On 21 October 2024<\/strong> <\/span>the Information Law and Policy Centre and the Law Commission will be hosting an event at the ILPC that aims to inform the Commission\u2019s consultation and its final recommendations.\u00a0 Speakers include:<\/span><\/p>\n Attendance is free. \u00a0Register to attend<\/span> here<\/span>.<\/a><\/strong><\/span><\/p>\n\n
Informing the consultation: an event at the ILPC<\/strong><\/span><\/h2>\n
\n
Responding to the consultation<\/strong><\/span><\/h2>\n