Good afternoon and welcome to this public evidence session of the Procedure Committee. This afternoon’s session is the next in our inquiry into the sub judice resolution, and we have two panels helping us with our inquiry. On our first panel, we are delighted to be joined by the right hon. Baroness Scotland of Asthal, who has held a number of high-profile public offices during her career, including secretary-general of the Commonwealth of Nations. Today, we are particularly interested in hearing her reflections on the sub judice rule from her time as Attorney General for England and Wales between 2007 and 2010. Good afternoon, Baroness Scotland—thank you so much for joining us. Before we begin, can you introduce yourself for the record?

My name is Patricia Scotland, Baroness Scotland of Asthal, and I am very pleased to be able to assist the Committee in any way I properly can, although I am aware that you have had a plethora of evidence. I am hoping that I can add something, but having seen the quality of the evidence and information that you have had, I am delighted to see whether that is going to be possible.

We’ll see what we can do, shall we? As is traditional, as Chair of the Committee, the first question comes from me. Had you come across the sub judice resolution in the context of your legal career before you entered Parliament?

Yes, I had. As you may know, I finished my degree as a lawyer when I was 20, and then I went to be a juror, so I had to understand what the sub judice rule meant there. I then practised as a barrister from 1977, and I took silk in 1991. I have been a recorder and a deputy High Court judge, and I have held four ministerial posts. In all those roles, I suppose—although you all know I am only 21—for the last 50 years the sub judice rule has played some part in my career, both political and legal.

Given your experiences as a Commonwealth secretary-general, is the sub judice resolution—or the principle behind it of Parliament’s non-interference in legal proceedings—an important aspect of the Commonwealth systems?

Yes, I think it is pivotal. You know that the Latimer House principles really encapsulate what good governance is about—the separation of powers, the rule of law, and human rights. Right at the core of that, in many of our Commonwealth countries, is the proper separation and respect for an independent judiciary and a working, vibrant Parliament. Keeping those two separate but respectful of each other is fundamental to delivering good governance. You will know that the Commonwealth has 56 countries in five different regions, and you have countries of all different sizes, shapes and cultures, but they are all bound by the same rule of law. We are all bound by the principles of parliamentary democracy. The United Kingdom is still seen as the mother of all Parliaments. During the time when we have meetings of the law Ministers and meetings of the CPA, when the judges and prosecutors meet together, these issues are very broadly and intensely spoken about, and maintaining the Latimer House principles has been pivotal to the quality of good governance in all member states. One of things that I was actually very proud of was seeing the respect that is paid to this Parliament and our judiciary. The fact that this country has been good at maintaining that balance has been incredibly important to all our members. We learn from other member states, but they learn from us. The principles that we hold dear are, therefore, enhanced by all the different parties playing together and respecting each other. This is an incredibly important part of who we are and how our systems work. Keeping that balance and respect is difficult in many jurisdictions. If we blink, other people can potentially suffer, because people say, “Well, if the United Kingdom thinks this is okay and good, it may be okay for us.” We know that all our countries are in different situations. Holding fast is not just important for us but for those of us who love the rule of law and want to see good governance everywhere.

Thank you. That is really helpful.

Can you tell us a little about your experience of the sub judice resolution in the House of Lords?

To be frank, if you look at the time when I was Attorney General, that was not an issue as far as I can remember. What was clear was that the two Houses being governed by same approach, which is what has happened as a result of the change, was really important, so that there is respect between the Houses. One House does not think, “Well, they can do this, and they can have this information, but we can’t.” I have seen the way in which the new rules have worked—the rules that we currently have—and they are sound and good. We have not seen the number of cases where waivers have been issued that we have had in the Commons. The Speaker plays a very important and powerful role to keep the balance between the public interest in Parliament having full and frank discussions and debates, and the need to preserve the sanctity of the judicial process, particularly when an individual’s liberty may be affected. It is not just about an individual’s liberty: think about how a victim and their family thirst for justice. If that is interfered with, and the trial does not go ahead and it is not possible to convict someone, that is hugely important, not just for the person subject to the trial but to the witnesses and victims affected. I was thinking over the weekend about whether there were any specific cases in the Lords, and none came to mind. I do know that we looked with a very careful eye at everything that was happening in the Commons. What happens in the Commons is quite often talked about or reflected in what happens in the Lords. The two are conjoined. I am fortunate that I do not have specific cases, but I think the Committee has heard about cases that have gone wrong, and the consequences of that. I have seen it in the evidence of the Bellfield case and others.

You mentioned the role the Speaker plays in the Commons, in terms of Members receiving a waiver. What is the process in the House of Lords for securing a sub judice waiver?

I do not think we have a formal procedure in the same way. The Speaker in our House plays a slightly different role from the Speaker’s role in the Commons. We are very much a self-regulating House. This is something where guidance will be given, and people will try to remain within that guidance. It is interesting to look at the way in which Speakers in the Commons have exercised their discretion. Increasingly, it is clear that they are exercising their discretion on a number of principles, which are emerging, so that there is more consistency and an explanation given by the Speaker as to why the discretion is going to be exercised in that way.

You might have already hinted at your answer to this question. Do you believe that the two Houses should remain aligned in terms of their application, or should the elected House have more scope in some way to discuss urgent and emerging issues?

I think they should remain aligned, but that does not mean that the elected House lacks an ability to respond to urgent issues. We have seen that happen in the way the Speaker has responded, on a number of occasions, to relax the rule or give a waiver to enable the House to continue to do that. If you remember, when this Committee last looked at the procedures, one of the things said very clearly was that it was hoped that the Speaker would be able to exercise their discretion in a way that would make sure the House could still debate those issues which are proper for Parliament to consider without impinging unfairly or improperly on the sub judice rules. You are always going to have to try to get a balance. I think this Committee has heard before that what this is all about, really, is how we manage fairness. We need to be fair to the people who are going to be before the court. We need to be fair to ensure that we do not improperly impinge on the court’s jurisdiction, and one of the real reasons for that is the complexity of a case. The details of the case are never normally known by any party other than those engaged in the case. You may think that something you say has no consequence at all, and the prosecutor is going, “Oh my gosh, this has just given the other side the opportunity to say ‘You have prejudiced my case in such a terrible way,’” that either the trial has to be halted—and we have seen that happen before—or the conviction has to be quashed, which is not actually fair. This balance is what we are constantly trying to ensure, and quite often it is important that the specificity of the nature of the case is understood so that you can then make that judgment: “I can exercise my discretion and give a waiver in relation to this bit and I will allow that, but I cannot do it for that bit because it will go too far.” So it is that ability to make sure you can be fair to both. It is not easy. People will not always get it absolutely right, but the rules are there to try to enable us to have a framework in which we have the best chance of getting it right by being fair.

Good afternoon, Baroness. In your view, is the sub judice rule, as currently drafted to be identical in both Houses, a proportionate restriction on the freedom of speech of parliamentarians?

I think it is, particularly if the Speaker is able to make sure they have enough information to take that balance. I know it was not called upon when I was Attorney General, but one of the great things about the Attorney General’s role is the number of hats they are supposed to exercise separately. I was the adviser to Her Majesty the Queen, to Government and to Parliament, but the superintendent and supervisor of all the prosecutorial authorities, and the guardian of the rule of law. Where the rubber hits the road and things get really tight, it is always possible for Parliament to say, “We would like the advice of the Attorney General in relation to certain matters,” and certainly that has been something that we have called on before. It was really interesting for me, when I had an opportunity to read the evidence you have had and to think again as to where we are now, because so much has changed since the last time this issue was looked at. It is really great, if I may say so, that your Committee is looking at it again with a fresh eye just to check: are we in the right place or not? We are subject to so many more challenges now with social media. Before you blink, or almost even before you stand up, all of this information is out. But then we have to remember that, in Parliament, we still have a powerful voice that people listen to. Where people may disregard things that are said on social media—you will know that lots of people now go behind walls, so you do not even know who they are, and they could have been caught by the contempt but they are not—the privilege that we have as parliamentarians is that we have immunity, so if we say something, there is no consequence to us personally, but there can be huge consequences to others. I was therefore looking to see whether the balance perhaps was not quite right, and whether maybe we should move it a bit, but we already have this difference between the ability that parliamentarians have to comment before someone is charged, and the contempt law, which is from the moment someone is arrested. Things that we may say about something when someone has been arrested could actually now be much more prejudicial, because in the past you could not do a Google search on the person’s name, but now everything you have ever said since Noah was a boy is there to be used. So if you think about the possible prejudice of what we say and how we say it, that gets greater. Other people can rely on the fact that, quite properly, Members in Parliament made comments about whatever happened at the arrest stage, and they will argue, “Well, I am entitled to report parliamentary debate.” For contempt purposes, they will seek to obfuscate responsibility by saying, “I am not disclosing this for the first time; this was disclosed in Parliament.” I therefore think that, in many ways, it has got more complex and more difficult, but then it brings us back to: “So what do we do? How do we preserve that balance?” I was looking at what the Committee said about deciding how to go further, and I actually think it was said quite well. I will just find it, because I thought it was well expressed—no, I will find it in a little while. It was in the Committee’s last report, and it was talking about the balance between the individual court case and the right for parliamentary scrutiny, and I do think that it got it about right.

Thank you. Gavin, do you have quick question?

It is only about a technical detail, and it probably shows the lack of understanding that we have of the Attorney General’s role sometimes. You said something very interesting about how, as Attorney General, you served a number of masters: you serve the law; you serve the Government; you serve the Head of State; but you also serve Parliament. It was just interesting, because, on another Committee, we took advice from the current Attorney General, who was quite clear that he was not there to ever offer advice to Parliament. I would not wish to try to create a dividing line between the two of you, but would your interpretation be that an Attorney General would offer advice, if it was sought?

If it was sought?

Yes.

As an example, there was an occasion in the House of Lords when we were discussing the issues in relation to parliamentary privilege and how Members should be treated in terms of the expenses issue, if you remember. There was a debate, and the House of Lords asked for the Attorney General to address the House to give their view, and I did address the House. The Attorney General’s view does not bind, but it is there to inform, and they can take it or leave it—in that case, they left it—but it is important that it was available. When I became the Attorney General in 2007, I was asked to review the role of the Attorney General. The Committee may want to look at that report, because it went back to the origins of the Attorney General’s role, which I think was in about 1315. Bacon once described it as “one of the painfulest places” in the realm; when I became Attorney General, I thought, “Nothing’s changed.”

I was going to ask you how you interacted with the sub judice rule when you were appointed Attorney General, but you have kind of answered that. Did your understanding of the resolution change once you were appointed to the role?

No, it did not, but I think it was probably better informed. One of the things that I came to realise was the breadth and depth of the Attorney General’s role. With all humility, I thought I understood it before I became the Attorney General. I had been a silk, I had represented Government and Departments, I had been a recorder and a deputy High Court judge, and I had by then served in three other Departments—the Foreign Office, the Lord Chancellor’s Department and the Home Office—and worked very closely with the Attorney General’s. But what I realised when I took the role is that it is very different from what you think it is, because you also sit at the apex of all the Government Legal Service lawyers. For example, there might be a disagreement as to what the law is between various Departments. You have the ambit of reasonable disagreement. One Department might say, “My interpretation of this law is A,” which is perfectly proper, but another can say, “Mine is B,” and another C or another D. Those four or five views could all conflict, but you are one Government, so you end up having to have someone who has the definitive view. I found that the Attorney General role is a really complex but quite wonderful, if burdensome, opportunity to understand that depth and complexity. I found as the supervisor and superintender of the prosecutorial authorities that the sub judice rule remained incredibly important, because of the potential impact it could have on cases and our ability to deliver justice that is fair to the person accused and equally fair to the person who may be the victim of that act. I was really anxious that we did everything to protect the integrity of the process and of the court proceedings, so that we would not be unjust to anybody, not least the people who are victims of offences and who want us to do well by them.

To your knowledge, how closely did your officials work with the officials of both Houses on sub judice matters?

I cannot remember. I would have to ask the Attorney General’s Office whether that happened in my time. I do not believe that issues in relation to sub judice came up during the time I was Attorney General. I think, frankly, that that was probably because the rules were working as they should, and people were doing that which they should do. The one thing I think is quite important, though, is for Members of both Houses to understand the rule. I am sure that those of you in this Committee who may not have been aware of it are now really aware of it, but the question is: how much did you know about it before you came on to the Committee? When I became a Member of the House of Lords in 1997, there was no formal introduction for Members of the House and there was no induction. There is now, and I think there is now an induction process when you become a Member of Parliament. I do not know whether this issue is included in that, but I think it absolutely should be. If you are a lawyer, you understand it. I will give you an example. When I was 20, I was a juror. I had just finished my degree, and in those days it was the only time when I could possibly be on a jury. It was magnificent. I did not become a barrister until was 21, so I had this whole year, and I was given an opportunity to be a juror. I understood that the person before us must have had previous convictions because of the way in which the questions were being asked. I understood that absolutely—this is 50 years ago—but none of the other jurors did. Since it has been 50 years, I think I can say this, and I am not telling you which case it was, so I do not think I will be done for contempt—I hope. We came to a majority decision; two jurors were not content beyond reasonable doubt. When it was discovered afterwards that the person had previous convictions, they all said, “You see! You should have found them guilty!” That demonstrates to me the power that previous convictions can have on the mind of someone who is being tried or a juror. There is this importance in our country that you should be judged for what you did on this occasion, not for what you have done in the past, unless you have a modus operandi, for which we would call similar fact evidence that shows it is more likely to be you than anyone else. That just underscored to me how important it was for us to preserve that as part of our judicial system.

I take it from your answer that you do not recall having any conversations with the Speaker of the House of Commons about sub judice matters.

No.

During your time as Attorney General, were there any occasions when the Crown Prosecution Service raised any concerns over the operation of the sub judice resolution?

Not that I can remember. There obviously would have been cases when they were absolutely determined to make sure that the evidence was kept in proper order, but I cannot remember any particular case. It was a long time ago, too.

Don’t worry; “I don’t know” is a perfectly acceptable answer to this Committee—that is not a problem.

You may have touched on some of this already, but given your experience as Attorney General and as a parliamentarian, in what circumstances do you think that comments in Parliament could prejudice a trial and lead to it being abandoned? I think you mentioned that you could use your discretion to talk about one bit of a case, but talking about another bit would go too far. Have you got any examples or ideas about what would constitute going too far?

The Committee has heard about the BBC case and the Bellfield case, which have demonstrated the consequence of matters getting into the public domain that prejudice a trial. I wish I could say to you that that will not be the case in the future, but those cases that you have already had referred to you are graphic examples of what can go wrong. That is why I think one of the things that this Committee might consider doing is just suggesting that this should be part of the induction for all parliamentarians, because I think that those in the House of Lords and in the Commons would be benefit from understanding it. Some people listen to the stuff that is on social media and think, “Well, why can’t I say it? Everybody else is saying it—they’re all talking about it. Why should I be silent when I have my constituents, or I have this issue? I should jolly well be able to do what everybody else is doing.” They do not necessarily understand that those who are breaching the contempt rules and are hidden behind a wall of secrecy or anonymity are doing it with impunity—they hope, if they are not caught, because if they are caught they could get two years in jail—but anything that we parliamentarians say in Parliament is rightly protected. That is our freedom of speech and the integrity of the process, and none of us would like that taken away, because that would be a fundamental shift in the way in which we govern. The price of having that privilege is that we have to exercise it judiciously, understanding the power of what we say and that there is no redress. I think that would be really helpful, because it would help people to better understand how to safely frame a question. If I may just compliment the staff of both Houses, I think they are brilliant. They are really, really helpful. They steer you right and help you to make sure that you do not trespass. They really are part of the educative process, but it would be so much easier if we could be trained on that early on. The number of lawyers coming into both Houses has gone down considerably over the years. When I first came in, I found that other Members of the House—friends and so on—come to you and ask your advice. If there is a body of lawyers, then we will help out, but the number has gone down and there are fewer and fewer lawyers in the House, and yet people still need that help, advice and understanding as to why we should restrict ourselves or put a self-denying ordinance on our activity. I think that is really important. I hope that those on this Committee have learned things that you would not have known had you not been on the Committee, and that you now find easier things that seemed—I do not want to say barking mad, but difficult to explain or understand. Everybody should have this information. You cannot blame people for being frustrated because they do not have the information. Most people, once they do, would not dream of trespassing because they do not want things to go wrong. They want the system to work. They want people who should be prosecuted to be prosecuted, and people who should rightly be convicted on the evidence to be convicted, but fairly—and yet they jolly well want their say in Parliament too. The question is: how do we get both? How will we fare? How do we make sure that we keep parliamentary privilege? It is fundamentally important to us, and we do not want people saying, “Parliament’s gone crazy. They think they can do what they like and say what they like.” That would be terrible, but by the same token, we want to make sure that trials go forward. Obeying the rules is good for us and it ensures that parliamentarians have the respect that they properly should have. We just have to get it right, and it is quite hard.

It is a balance, but in terms of the potential to prejudice a case or a trial, do you think the risk is higher with a jury case?

It is, because you have ordinary men and women who do not necessarily have anything to do with the law coming in, but we cannot forget that it is also about witnesses. It is not just the jury. If you are a witness, even in a civil case, and you hear all of this stuff, it may cause you to have a different view or interpretation of what happened than you would otherwise have had, so it can affect you as well. All court processes are undertaken by humans—AI has not quite got in there yet. We can be affected.

The next question is from lawyer turned MP, Bambos.

Baroness Scotland, the Attorney General provided us with written evidence suggesting that the Speaker of the House should publish guidance on what he or she should take into account when granting a waiver. Would that have been helpful to you when you were Attorney General?

I think that would be a very proper thing to do if the Speaker thought that would help, because it would make it clearer to people the basis upon which decisions are made, so you would have the framework of what is in and what is out. Over the years since the current rules have been in, you can probably devise what the principles that have been applied are. The only thing that you need to be a bit careful about is that discretion should be exercised, dependent on the facts to which they pertain. No two cases are the same, so you have to make the principles broad enough to make sure the Speaker is able to do justice to the circumstances of every case. One of the suggestions is that we should take out some of the examples and just have principles, because the examples could restrict when you can waive. What is really fascinating is that events that you have never thought about come up, and you have not provided for them. Therefore, having broad discretion is really helpful, albeit you can have guidelines about the sort of things that should be taken into account. I would not disagree with that.

Do you think that all decisions that attract ministerial responsibility, such as those of arm’s length bodies or regulators, should be exempt from the sub judice resolution so that they can be discussed in Parliament without parliamentarians falling foul of the resolution?

As you know, this is a very broad area. My general view is that the rules should enable Parliament to discuss legislative and ministerial exercise of the discretion in a way that enables Parliament to do its job. Do the rules, as they currently stand, need changing? I think that is quite a complex discussion. At first blush, you think yes, and then when you look at the granularity of it, you start to think about the nature of the challenges. Think about all the delegated legislative provisions and Henry VIII provisions that we now have. To know simultaneously, as they are all going through, what exactly is happening and keeping up with that will be a huge challenge, if I may say so, for the staff of both Houses. We have to think about what is practical. The devil is always in the detail, so I would be slow to do that until I had done a needs-based analysis to see how much legislation is going through, an analysis of the risks and a gap analysis to find out what we are currently not doing. You need to see what the real nature of the problem is, because you need to identify whether there is something wrong before you fix it. I have sometimes discovered over the years that we think we are going to reform something to make it better, and all we do is create a plethora of new and different complex problems, which are sometimes greater than the ones we had before. I just think we need to be analytical, but I confess that I am an evidence-based person. I would say, “Give me the evidence and I will give you the answer.” I think this Committee really needs to get that evidence before you make a decision on change, just so we understand the consequences and whether we can do it.

You have slightly touched on the fact that we are in quite a privileged position, in that we can talk about a case post arrest but pre charge. Is your general feeling that, as long as that is exercised responsibly, that should be preserved within the House?

That is where I am agnostic, for this reason. I think we need to do a review as to how it has actually worked. Going forward, the difference between arrest and charge may become more complex because of what is happening with social media and the way people can, before a trial comes up, look it up on Google and find out about it. Things that wouldn’t have happened before are now happening. In the past, they would say, “Yesterday’s newspaper is today’s chip paper”—it has gone and nobody remembers. Everybody remembers everything now, because it is searchable and deliverable. That is the only thing that makes me a bit more timorous about it. It would be good to look at what the potential is. What we said before is that the gap between arrest and charge is likely to be of less importance than the gap between charge and trial. On charge and trial, we used to say that people will have forgotten and are unlikely to go back to the newspaper. I am not sure we can say that any more. The answer is that I am not sure. It has worked well to date. I hope the Committee can do a quick review—or maybe not so quick—of what impact it has actually had. If it has not had a really adverse impact, I would probably keep it, because it is worth it for parliamentarians to be able to do that, but if you find that it is creeping, making it more challenging to preserve, I would look at it. If everything is in alignment then everything is in alignment, but I realise that would be a little bit more restrictive, and I would not want to suggest that we should restrict more unless the information we have is that actually we should.

Thank you, colleagues, for all your questions. I thank our witness for her generous contributions to our inquiry. If there is anything you would like to add in writing, we would be very happy to receive that. Examination of Witness Witness: Professor Penney Lewis.

Good afternoon and welcome to the second part of today’s public evidence session on the sub judice resolution in the House of Commons. For our second panel we are joined by Professor Penney Lewis, commissioner for criminal law at the Law Commission. We are interested in hearing more about the Law Commission’s review of the Contempt of Court Act 1981, which often draws comparison with the sub judice resolution due to their similar aims of avoiding prejudice to active legal proceedings. Thank you for joining us, Professor Lewis. Would you please introduce yourself for the record?

I am Professor Penney Lewis, commissioner for criminal law at the Law Commission of England and Wales.

Could you give us an overview of the issues with the Contempt of Court Act that the Government identified when they asked the Law Commission to conduct its review?

In case there is anyone who is not aware of the Law Commission, we are an independent statutory body established by Parliament in 1965. We take on projects to review the operation of the law of England and Wales and to make recommendations for its reform, where needed. The review project is actually broader than the Contempt of Court Act 1981; it is a broad and holistic review of the whole law of contempt of court, some of which is in the statute but much of which is in common law. In 2022 we were asked to undertake the review by both the Ministry of Justice and the Attorney General’s office. There was concern about significant problems in the contempt of court field, and we certainly found that when we talked to people and organisations affected by contempt of court. Those problems are not limited to concerns about prejudicial publication. We also heard concerns about breaching court orders, disruption of court proceedings and other circumstances in all types of proceedings in courts, tribunals and so on. The concerns were about the lack of coherence, consistency and clarity in the law and contempt procedure in all those courts and bodies, the overlap with some criminal offences, and the impact of the dominance of online communications in the modern media, including social media, and how that has changed the publication and information landscape. The project looks across all that and aims to clarify this area of law and improve its consistency, coherence and effectiveness. We are looking at who is responsible for the investigation, prosecution and adjudication of contempt across courts, tribunals and other bodies, the procedures that are used, and the effectiveness of current law regarding contempt by publication—those are the publication contempts covered by the 1981 Act but also common law contempt by publication. That obviously involves consideration of freedom of expression rights under article 10 of the ECHR. We are also looking at penalties for contempt.

Would you tell us about the actions that you were asked to take, or subsequently took, in response to the Southport attacks last year?

As part of this holistic review, we published a consultation paper in July last year that contained provisional proposals for reform. As a consultative organisation, part of our methodology is to do a fair amount of research and to talk to stakeholders about a particular area of the law. We then formulate provisional proposals for reform and consult on them before we come to our final recommendations. The Southport attacks occurred about three weeks after we had published the consultation paper. As members of the Committee will know, it has been suggested that the disorder that followed the attacks was an indirect result of contempt of court laws. The argument was that, in constraining the information that public authorities could disclose in relation to the defendant, contempt laws somehow helped to create an information vacuum into which misinformation, disinformation and counter-narratives could spread unchecked. There was obviously a lot of discussion of that in the media and Parliament. After the defendant in the Southport case pled guilty in January of this year, that discussion again continued, and there was quite a lot of mentioning of our project in the parliamentary debates. We had already been looking at the matter, although obviously not with the knowledge of the kind of public disorder that followed the Southport attacks. What then happened was the Home Secretary, the Attorney General and the Lord Chancellor asked us whether we could speed up the work that covered prejudicial publications, what we call contempt by publication, when proceedings are active. Looking at the project, we thought that there was a way of dividing it in two, so that we would work on the liability framework, including, but not limited to, that type of contempt, as well as the role of the Attorney General in part 1, which we would publish this autumn, which we did; and in part 2, we would look at the remaining issues. We were formally asked by the Home Secretary, the Attorney General and the Lord Chancellor to look at the ability to comment on arrests, investigations and incidents in the context of the risk of misinformation and disinformation, and the importance of maintaining public confidence in the administration of justice. This included whether there are particular statements that can be made publicly without creating a substantial risk of seriously prejudicing proceedings, and whether there are circumstances where, even if there were such a risk, it would be justifiable to say more, such as the in the context of serious public disorder. We published a short additional consultation paper that simply reiterated two consultation questions that we had asked in the bigger paper. It set the scene by explaining the role of contempt of court law and what had been said about it in relation to the Southport disorder. We then produced part 1 of our report and published it on 18 November.

Professor Lewis, the Contempt of Court Act, and the recommendations contained in your report for reform thereof, revolve around concepts such as “non-trivial”, “substantial risk” and “serious impact”. Can you tell us a bit more about how those are defined?

The current threshold for what is known as strict liability publication contempt in the Contempt of Court Act is creating “a substantial risk of seriously impeding or prejudicing the proceedings”, and we have recommended that this threshold should remain. In the report, we have discussed the phrases “substantial risk” and “serious impediment or prejudice”. You also mentioned “non-trivial”; we use that in the context of another form of contempt, which we describe as general contempt. That is obviously a much lower threshold, but it is accompanied by a much higher—what one might call—mental element or fault element. To be guilty of general contempt, one would need to have intention to interfere with the administration of justice. That is obviously a much smaller category of potential defendants. If we come back to “a substantial risk of seriously impeding or prejudicing”, the way the courts have defined “substantial risk” is that it must be important or weighty, and not remote. It has been described using words like “practical”, “not insubstantial” and “not minimal”, so it is a weighty risk. We are really looking at a real and significant possibility of harm to the administration of justice. This assessment will be context-specific and facts-sensitive. I think it is worth noting that we are talking here, I think rightly, about a risk of impeding or prejudicing the proceedings. That is because if we were to require proof of an actual impediment or prejudice, we would not be sufficiently protecting the administration of justice and the defendant’s fair trial rights. Coming on, then, to serious impediment or prejudice, the risk has to relate to a serious interference with the course of justice. That includes the entire legal process, so we are not just talking about the outcome of the trial. Anything that undermines the defendant's right to a fair trial protected by article 6 of the European convention on human rights; external pressure that might affect how the defendant conducts their defence, for instance; or publicity that discourages witnesses from coming forward—all of those might well constitute a substantial risk of serious impediment or prejudice. The aim here is to intrude on freedom of expression as minimally as possible, but where that is necessary in order to protect the course of justice and the defendant's fair trial rights, we think this threshold sort of hits the right level. The seriousness requirement is sufficiently stringent to accommodate a fairly wide range of public interest publications without unduly restricting legitimate reporting or commentary. We think it reflects a proportionate approach that is both principled and practical, and we consider it essential to the continued effectiveness and credibility of the statutory framework.

We have received evidence that the sub judice resolution should apply from the same point as the Contempt of Court Act 1981, so the point of arrest rather than charge, but your report calls for the contempt of court rules to be changed to apply from the point of charge. Could you talk us through the issues your work on the starting point of arrest identified that led you to make that recommendation?

Yes, absolutely. What we are talking about is when proceedings become active, basically. As you said, at the moment proceedings become active when a person is arrested. Our concern was that as a result of changes in privacy law, specifically the 2022 decision of the Supreme Court in a case called Bloomberg v. ZXC, the police will no longer routinely provide information about who has been arrested. The result of that is that publishers really do not have any way of knowing whether proceedings are active in relation to a specific person. Contempt of court law is a restriction on expression, which means it has to be justifiable under the European convention on human rights. In order to be justifiable, it has to be prescribed by law—it has to have a clear legal basis, which it obviously does; it is in a statute passed by Parliament—it has to be accessible, which it is, but it also has to be foreseeable. That is the concern here: because one cannot find out when a person has been been arrested, publishers are not able to foresee when the expression is restricted. There are other requirements, too: it obviously has to pursue a legitimate aim, which it does, because its aim is to protect a defendant's fair trial rights in the course of justice; and it must be necessary in a democratic society. Our concern is that because police will not release information about an arrested person—again, for a good reason, which is to protect their right to respect for their private life—publishers and particularly media organisations find it very difficult to determine when proceedings are active and when a publication might risk contempt of court. We thought that the effect of this uncertainty is that the law may not be formulated in a way that makes its application sufficiently foreseeable, creating a risk that restrictions on expression are thereby incompatible with article 10, which protects freedom of expression. We therefore think that reform is needed to address this lack of foreseeability. We recommended that proceedings should be considered active from the point at which a suspect is charged, rather than arrested. That makes the law clear and certain. The identity of the person charged can ordinarily be stated publicly. That is particularly important in circumstances where there is a long period between arrest and charge. I will stop there.

You may not be able to answer this question, but how have these suggestions for change been received by the Government and other stakeholders? Are they supportive of the proposed change?

I think the Committee will be unsurprised to hear that the media are very supportive of this change. As we talk about in the report, they advocated for this change for, we think, legitimate reasons. There has been a very positive reaction from the media. It is a little too early to tell what the Government’s view of the change is. I think it is likely that Government will not provide a formal response until after we publish part 2, because we really are talking about a whole package of reforms.

Professor Lewis, your report mentioned the possibility of the public seeing guidance about what could and could not be published after arrest but before charge without falling foul of the rules on contempt. What role do you think that guidance such as that would have alongside the legal framework?

Under our recommendations, we would be talking about guidance that applies post-charge, because in the period between arrest and charge, proceedings would not be active. The only possible contempt liability would be for that general contempt that I mentioned earlier, where one of the requirements is having the intention to interfere in the administration of justice. One would think that media organisations will not generally be caught by that. We do talk about guidance in the report, and we think that guidance that identifies categories of information as generally safe to publish does serve an important operational function. It provides clarity and consistency for police forces and media organisations, and it enables them to make informed decisions quickly. The caveat to that is that guidance is always indicative rather than determinative, because there is a legal requirement to assess risk in context. In other words, if the standard is a substantial risk of seriously impeding or prejudicing, one cannot say in advance, “There is definitely never going to be a substantial risk of seriously impeding or prejudicing in relation to this type of information.” You always need a facts-sensitive assessment. Having said that, we think that there are some categories of information where it is unlikely that there would be such a risk. We have said that we do not want to give the false certainty that a substantial risk of serious impediment will never arise; none the less, we have identified some categories of information where we think there is unlikely to be such a substantial risk. That information is similar to the information identified in the recent interim guidance from the College of Policing and the National Police Chiefs’ Council—for instance, name, age, nationality and ethnicity. That guidance also discusses immigration status, and there is a useful example here. One would imagine that very rarely will releasing someone’s immigration status create a substantial risk of seriously impeding or prejudicing the proceedings, but if those proceedings are for immigration offences, it is conceivable that the release of that information could create that risk. Usually, it will be fine, but it is important to do that facts-sensitive assessment in every case.

The changes that the report proposes to the law suggest that the active period ceases at the point of the verdict or guilty plea. Why were those thresholds taken, rather than continuing until sentence has been handed down?

We were persuaded by the arguments we heard in consultation in favour of limiting the active period to verdict or guilty plea. Our view was that concerns about influence on proceedings during the period between verdict or guilty plea and sentencing were really about perceived risks rather than actual risks. We also identified what we described as adequate alternative measures available to mitigate that perception of interference with sentencing, so judges can say in their sentencing remarks that they have not been influenced by anything other than the factors relevant to sentencing, or that they have not been influenced by media reporting. We also thought that public understanding of sentencing could be improved by increasing transparency, such as through the continued broadcasting of sentencing remarks, which many of you may have seen. Our view was that the risk of seriously prejudicing proceedings in the period between the verdict or guilty plea and sentencing was qualitatively different from the risk in the period before that. The argument that consultees often made in this context was, “Well, there is no jury, so what are you worried about in terms of prejudice? Judges are much more robust and are not going to be susceptible to influence.” We agree that that reduces the likelihood of interference, but we do not think that the crucial difference here is the fact that there is no longer a jury; the contempt of court law applies to all sorts of proceedings without juries. The crucial difference is really that, once there is a verdict or a guilty plea, the defendant has been tried, or has decided not to be tried, and thus their fair-trial rights under article 6 of the European convention become less acutely engaged. Therefore, the case for restricting publication at that point—and interfering with freedom of expression, because, of course, all of this is an interference with freedom of expression—is less compelling. You may have noticed that although the current period extends to sentencing, there is none the less an awful lot of reporting after a verdict or guilty plea. I think that helps to illustrate that there really is not as great a concern about prejudicing or impeding proceedings during that period, because the media are confident that they can report on the verdict without creating that substantial risk. If there was such a substantial risk, the judge would have the power under section 4(2) of the Contempt of Court Act to postpone reporting on the proceedings before the court, or on any other pending or imminent proceedings, where that restriction is “necessary for avoiding a substantial risk of prejudice to the administration of justice”. That would cover circumstances in which the court is concerned about material that may create a substantial risk of seriously impeding or prejudicing those proceedings, but also—and probably more commonly—subsequent proceedings. For instance, a co-defendant could possibly be tried in a separate trial, or there could be a retrial because the jury was unable to reach a verdict on certain counts.

I think that the appeals process is due to be covered in part 2 of the Law Commission’s report. Do you think that the threshold for contempt should be lower on appeals, given that the risk to them is lower, as they are often based on a point of law rather than on the facts, and they are heard before more senior members of the judiciary rather than a jury?

That is a really good question. We are looking at appeals from contempt proceedings in part 2, but the question of when proceedings become active, or are active, in relation to appeals is dealt with in part 1. Our project was not made aware of any real concerns about when the active period starts and ends in relation to appeals, so it was not something that stakeholders felt was not working. At the moment, the period is active from the point at which an application for leave to appeal is made or a notice of appeal is given. It is worth thinking back to the answer I just gave you on sentencing. It will be harder to create a substantial risk of serious impediment of prejudice in circumstances where what you are reporting on is, as you say, a question of law before senior judges, although it depends where the appeal is going. An appeal to the Court of Appeal involves senior judges, but it is also possible to have an appeal from the magistrates court to the Crown Court, for instance. You might be also talking about non-criminal proceedings. Ultimately, the conduct threshold—substantial risk of serious impediment or prejudice—provides some protection. There is a lot you will be able to say about an appeal without creating that substantial risk. Again, that reflects the principle that freedom of expression should not be unnecessarily curtailed. There is one other aspect of this that is worth noting. If the appeal court remits the case to the court below or orders a new trial, a new active period begins. That will start in relation to, let’s say, the retrial from the conclusion of the appellate proceedings, because you have someone who you know is already charged and now they are going to face a retrial.

Professor Lewis, when you gave evidence to the Justice Committee, you talked about “fade factor”—the period between arrest and trial and how your memory fades over that period. Do you think that applies to parliamentary proceedings, or is there more waiting and longevity when it comes to Parliament?

I think it does. Generally, in everyone’s experience, we remember recent things more clearly than we do things that happened a long time ago. I will just go back a step and explain. The fade factor is jargon for the view that the prejudicial impact of a publication diminishes over time. Material that is published long before a trial is less likely to pose a substantial risk of seriously impeding or prejudicing the proceedings because jurors are less likely to recall it, to be influenced by it or even to have seen it if the trial is happening months—or, at the moment, years—later. Timing therefore matters. The closer to the trial date, the greater the potential risk; the further away, the more the effect fades. I am not sure there is a one-size-fits-all answer to the question of whether it makes a difference if it is said in Parliament. I suppose it depends how much media attention the statement in Parliament gets. I come back to what I said earlier: the assessment of risk will always be fact-specific. It may be that some things said by some people in some circumstances will stay with people in a way that other things will not. You have to do a fact-specific assessment in every case. The only other thing I would say is that when I mentioned the fade factor, I mentioned a couple of other ways in which the risk of prejudicial publicity can be mitigated. The second one is the effectiveness of judicial direction. The jury in a criminal trial will be directed to ignore anything other than the evidence before them. That will include publicity. As you probably know, they also get a quite direct written warning about not doing any research into the case and that it is a criminal offence to do that and to disclose any such research to other members of the jury. Judges also reiterate that at the beginning of the case. There are criminal offences covering jury misconduct. That is a deterrent to jurors seeking out material, which makes the fade factor more effective. If you are not doing research, you are not discovering things that have faded from everyone’s memory.

Professor Lewis, can you tell us a bit about the recommendations in your report relating to the role of the Attorney General in contempt proceedings?

The Attorney General has traditionally been viewed as the guardian of the public interest in the administration of justice and has a constitutional function in this regard. In relation to contempt, that includes bringing proceedings for contempt of court where it is in the public interest to do so, whatever the nature of the contempt. It could be the kind of contempt by publication when proceedings are active, but it could actually be for contempt in the face of the court—someone who has behaved very badly in court, for example. Under the Contempt of Court Act 1981, proceedings for what is now called strict liability publication contempt can only be brought by the Attorney General or with the consent of the Attorney General. We understand the latter does not happen, so it is really only by the Attorney General. The Attorney General’s consent is not required to bring other kinds of contempt proceedings. That reflects the importance of a kind of public interest scrutiny in relation to restrictions on freedom of expression. We have made three recommendations in relation to the Attorney General, or three main recommendations in this part of the report. First, we recommend that the Attorney General should retain that function. We looked at whether there might be another body or individual who could better fulfil that function. Our view was that there really is not, and that the Attorney General is well suited to determining whether it is in the public interest to bring proceedings. Secondly, we recommend retaining the requirement that the Attorney General either bring the proceedings themselves or consent to the proceedings. This, as I said, protects freedom of expression. It also limits the number of contempt applications that are pursued against the media, which obviously has a chilling effect if anyone could bring contempt proceedings against the media. Thirdly, we considered the inherently political character of the Attorney General’s role, given that the Attorney General is not only the principal legal adviser to the Government, but also a Government Minister. With respect to contempt, there is a long-standing concern, which was certainly raised with us by consultees, that when the Attorney General decides to bring proceedings or decides not to bring proceedings, there may be a perception that the Attorney General has some kind of political bias. For instance, if a politician has posted something on social media that might create a risk of prejudice to a trial, the concern is that there is a perception that the decision made by the Attorney General might depend on the political affiliation of the politician who has posted on social media. I stress that this is a perception rather than evidence of actual bias. Our recommendation is that the best way to address this perception and the risk of a conflict of interest on the part of the Attorney General is to make those decisions judicially reviewable. That means whether the Attorney General decides to proceed or decides not to proceed. The law of judicial review allows the courts to review decisions made by the Government or public bodies, although the grounds of the review are limited and the remedies are limited. None the less, the possibility of judicial review will ensure accountability in decision making. It appears that it is not currently possible to judicially review a contempt decision made by the Attorney General, but we have recommended that it should be possible.

If there are no further questions from colleagues, I will quickly ask Professor Lewis if there is anything in part 2 of your report, which is being published next year, that might be relevant to this inquiry and has not already been mentioned.

I think the vast bulk of what will be helpful to the Committee is in part 1, because that includes contempt by publication when proceedings are active, which is what the sub judice rule looks at. Part 2 looks at powers, procedure and sanctions. It looks, for instance, at what bodies are protected by contempt and what powers those bodies have to deal with contempt. Can they hear proceedings, or do they have to refer it up to a higher court? It is important to remember that a possible sanction for contempt is prison, so one does want to think carefully about who should have the power to send a contemnor or a defendant to prison. We are also looking at what the procedure is when there is a potential contempt. There are two possibilities. One is where the court acts on its own motion, which often happens when someone behaves badly in court, or when proceedings are commenced on application, which often happens where one party has violated a court order that another party has secured. We will look at legal aid and costs. We are looking at sanctions, as I mentioned. At the moment, those are prison, a fine or sequestration of assets. We are also going to look at whether there should be the possibility of a community penalty, for instance. Then, as I mentioned, we are going to look at appeals from contempt proceedings. I think the answer is probably no, there is no need to wait for part 2. But if there is anything in relation to any of those issues that the Committee is interested in, we would be happy to have further discussions on that.

Thank you so much, Professor. Thank you for your time this afternoon and your very useful answers, which have helped to inform our inquiry into this matter. If there is anything further that you want to add later, the Committee would be very happy to receive anything in writing. That concludes today’s evidence session.