LEGISLATION
| Published date | 01 May 1982 |
| Date | 01 May 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02482.x |
| Author | S. H. Bailey |
LEGISLATION
THE
CONTCMPT
OF
COURT
ACT
1981
1.
Introduction
THIS
Act reforms certain aspects
of
the law concerning contempt
of
court. Pleas for reform have been made regularly for many years.
The
JUSTICE
report on Contempt of Court was published in 1959.
Some
of
its recommendations were implemented.’ Some of the rest
are echoed in this Act. An official departmental committee on the
subject, chaired first by Lord Justice Phillimore and then by Lord
Cameron, reported in December 1974.* The committee concluded
that the law of contempt was required as
a
means of maintaining
the rights of the citizen to a fair and unimpeded system of justice
and protecting the orderly administration of the law, but that the
law as it stood contained uncertainties which impeded and restricted
reasonable freedom
of
speech. It made many detailed recommen-
dations. Official interest in reform seemed slight. A Green Paper
was published in 1978,a which expressed reservations about some of
the Phillimore recommendations. Where there is a conflict
of
view, the present Act tends to follow the Green Paper rather than
the Phillimore report. The real impetus to reform seems to have
been the decision of the European Court of Human Rights in the
Sunday Times
case4 that the restriction placed upon freedom
of
speech by the injunction against the newspaper upheld by the
House of Lords in
All.-Gen.
v.
Times
Newspapers
Ltd.6
was con-
trary to Article 10 of the European Convention on Human Rights.
The Bill was introduced in the House
of
Lords by Lord Hailsham
of St. Marylebone L.C.6 He pointed out that he could speak from
experience in these matters having been
“
at the receiving end
”
of
proceedings for contempt
of
court.’ He said that his “poor little
ewe lamb
”
of a Bill was intended to be a liberalising measure. The
1
The creation of the defences
of
innocent publication and distribution (Adminis-
tration of Justice Act 1960,
s.
11);
the clarification of the law relating
to
the pub-
lication of information concerning proceedings in private
(ibid.
s.
12); and the
creation
of
rights of appeal
(ibid.
s.
13).
Report
of
the Committee on Contempt
of
Court
(Cmnd. 5794).
Contempt
of
Court:
A
Discussion Paper
(Cmnd. 7145).
Eur.C.H.R., the
Sunday Times
case, Judgment of April 26. 1979, Series A,
No. 30
(2
E.H.R.R. 245). See D. J. Harris (1979)
50
B.Y.I.L.
257-260;
F.
A. Mann
(1979) 95 L.Q.R. 348;
P.
J. Duffy (1980)
Vol.
V
No.
1,
The Human Rights Review
17. [19741 A.C. 273. See C. J. Miller (1974) 37 M.L.R. 96; M. O’Boyle. [I9741
N.I.L.Q. 57; D.
G.
T.
Williams [1973] C.L.J. 177.
See
R.
v.
Metropolitan Police Commissioner, ex p. Blackburn
(No.
2) [1968] 2
Q.B.
150.
Lord Hailsham had earlier claimed that he had been “acquitted
triumphantly” by the Master of the Rolls (which
is
perhaps putting it a bit high)
and
“
had to pay a very considerable sum
to
my solicitors by way of
costs
’’:
H.L.Deb.. May7, 1980. col. 1751.
301
6
H.L.Deb.,
Vol.
415, cols. 657-665 (December 9, 1980).
302
THE
MODERN
LAW
REVIEW [Vol.
45
three main purposes of the first group of sections, dealing with the
so-called rule of strict liability in criminal contempt, were
(1)
im-
plementation of the main recommendations of the Phillimore
report, with
“
minor deviations
”;
(2)
harmonisation
of
the law of
England and Wales with the European Court’s judgment in the
Sunday Times
case; and
(3)
harmonisation of the laws of England,
Scotland and Northern Ireland into a coherent set of rules. The
other sections either sought to implement other recommendations
of the Phillimore Committee or to deal with problems that had
arisen since the committee reported. The Act, except for the pro-
visions concerning legal aid, came in force on August
27,
1981.
In
Att.-Gen.
v.
Times Newspapers Ltd.8
the Attorney-General
argued that the proposed publication in the
Sunday Times
of an
article, which discussed critically and in detail the conduct of Dis-
tillers in relation to the distribution of thalidomide, would constitute
contempt as it imposed improper
pressure
upon Distillers and
pre-
judged
the issues in the litigation between Distillers and the thalido-
mide victims. The House held unanimously that an injunction
should be granted prohibiting the publication
of
“
any article or
matter which prejudges the issues of negligence, breach of contract
or breach of duty, or deals with the evidence relating to any of the
said issues
”
arising in any actions pending or imminent against
Distillers. Their Lordships’ main objection was to the prejudgment
of the issues, and the perceived danger was in the nature of a threat
to the administration of justice in general rather than to the
particular proceedings.
Article
10,
0
1
of
the European Convention on Human Rights
provides that “Everyone has the right to freedom
of
expres-
sion. .
. .”
Article
10,
0
2 states that limitations on this freedom may
be imposed where they
“
are prescribed by law and are necessary in
a democratic society,
[inter
alia]
. . .
for the protection of the rights
of others.
.
. or for maintaining the authority and impartiality of
the judiciary.”
In
the
Sunday Times
case the European Court of
Human Rights held
(1)
that the interference with freedom of ex-
pression caused by the injunction was
“
prescribed by law
’’
lo;
(2)
that it had aims that were
“
legitimate,” the protection of the rights
of litigants being included in the phrase
“
maintaining the authority
and impartiality
of
the judiciary
”
ll;
but (3)
(by
11
votes to nine)
that the interference was not
“
necessary
”
for maintaining the
authority of the judiciary.12 While the adjective
“
necessary
”
was
not synonymous with
“
indispensable
”
it did imply the existence of
a
“
pressing social need,” and did not have the flexibility
of
such
expressions as
“
admissible,”
“
ordinary,”
“
useful,”
“
reasonable,”
8
[I9741
A.C.
273.
9
Supra,
note
4.
10
Ibid.
paras. 49-53.
11
Ibid.
paras. 54-57.
12
Ibid.
paras. 58-68.
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