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Common law offence of contempt of court to be put on a statutory footing

On 24 October 2017, the Contempt of Court Bill 2017 was presented to Dáil Eireann. The Bill seeks to clarify the law on contempt of court in Ireland and modernise the law in light of developments in mainstream and social media.

The law relating to contempt of court has developed as a means for the courts to act to prevent conduct that tends to obstruct, prejudice or abuse the administration of justice. Until now, the courts in this jurisdiction have dealt with the offence of contempt on an ad hoc common law basis. The Bill is significant as it puts the offence of contempt on a statutory footing and gives legislative definition to civil and criminal contempt.

The Bill comes in the wake of concern expressed over the use of social media in the recent Jobstown trial, as well as remarks by the former Chief Justice, Susan Denham, in June 2017, that new procedures were needed on how contempt of court laws apply to posts on social media.

Key aspects of the Bill

Part 2 of the Bill defines both civil and criminal contempt. Criminal contempt is contempt which is calculated to prejudice the course of justice, including disruptive behaviour in courts, failing to answer subpoenas or scandalising the court. This Bill will give courts immediate power to deal with criminal contempt on a summary basis where the conduct has occurred in the presence of the judge and it is considered an immediate threat to the authority of the court or the integrity of the proceedings. The offence shall be triable on indictment (save in relation to District Court proceedings). Civil contempt is a failure to abide by court orders whether by action or failure to act. Both civil and criminal contempt are considered offences. If there is confusion on whether a contempt is civil or criminal, it is for the courts to make the determination.

The most innovative part of the Bill is the power it gives courts to deal with contempt of court occurring on social media. Courts are given the power to direct that posts be removed or not posted by way of suppression or take-down orders. If necessary, court orders may be made against social media providers who fail to abide by these orders. For the first time the Bill places an onus on social media platforms and other online sites to take some vicarious responsibility and accountability for comments made online that may have an intended or unintended prejudice towards the outcome of a criminal trial.

The legislation also deals with issues surrounding illicit use of the internet and social media by jurors and introduces heavy fines and penalties in an effort to prevent jurors investigating or researching a trial for themselves.

The Bill introduces a number of defences in order to ensure that the laws on contempt are not used to censor free speech or to silence proper commentary. Innocent publication or good faith comments on public affairs will not be criminalised. The Bill also gives additional protection by providing de novo rights of appeal against any findings of contempt.

The Bill removes the old offences of maintenance and champerty as these forms of contempt relating to how court cases are funded have not been prosecuted in over a century. 

Comment 

These proposed laws are designed to bring the law into step with changes in technology, particularly the availability of material on websites, and to clarify publishers' legal position in relation to such material. The Bill is a welcome development and brings Ireland's laws on contempt in line with other common law countries including our neighbours in the UK where legislation was introduced in 1981. The Bill will now enter the Dáil's lottery system where it may be brought forward to its second stage in early 2018.