Criminal Justice and Courts Bill
Written evidence submitted by the BBC, Guardian News & Media Limited, Independent Print Limited, Express Newspapers, ITN, Channel 4 Television Corporation, Telegraph Media Group Limited, Associated Newspapers Limited and Times Newspapers Limited on Clauses 37 and 38 on the Criminal Justice and Courts Bill (CJC 42)
1.1 Clauses 37 and 38 of the Bill deal with the introduction of new powers which will allow the Attorney General and the courts to require owners of online news archives to remove material which it is argued might prejudice upcoming criminal proceedings, from their archives. If the website operators fail to comply, then the current proposals stipulate that criminal sanctions could follow in the form of either an unlimited fine or imprisonment.
1.2 We are concerned that the introduction of these new powers could introduce a chilling effect on the operation and accessibility of public news archives, and ask Parliament to reconsider the appropriateness of clauses 37 and 38 in light of the arguments raised below.
1.3 In the event that Parliament deems it appropriate to introduce the two clauses notwithstanding our submissions, we would ask that the precise manner in which these sections will operate in practice should be considered as a matter of urgency and that the Regulations referred to in the Bill should be drafted and consulted upon in parallel with the provisions of the Bill itself so that affected parties can understand the full implications of the proposed changes to the current statutory regime. We have highlighted a number of specific issues that we believe should be addressed in the Regulations in section 4 below.
2. Objections in principle to the introduction of new restrictions on freedom of speech
2.1 We recognise that the right to freedom of expression contained in Art 10.2 of the European Convention on Human Rights is not absolute and we take seriously the rights of individuals to a fair trial. However the press has a duty to report court proceedings in its capacity as public watchdog. Any restrictions on this freedom have to be proportionate and no more than are necessary.
2.2 Furthermore, the online news archives of the BBC, Guardian News & Media Limited, Independent Print Limited, Express Newspapers, ITN, Telegraph Media Group Limited, Associated Newspapers Limited, Times Newspapers Limited and many other media organisations, are a valuable source of information, not least for researchers and academics. The courts have therefore considered that, while the primary function of the press in a democracy is to act as a "public watchdog", it has a valuable secondary role in maintaining and making available to the public, archives containing news which has previously been reported.
2.3 As such the courts have long held that any restrictions on the press’ duty to report court proceedings have to be proportionate and no more than is necessary. By way of example we cite the following cases:
2.4 In Sunday Times v United Kingdon  ECHR 6538/74 the European Court of Human Rights said: "Whilst the mass media must not overstep the bounds imposed in the interest of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courst just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them."
2.5 Similarly, in McCartan, Turkington Breen (a firm) v Times Newspapers Ltd  2 AC 277, Lording Bingham said (at p290): "The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on the freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction."
3. Specific concerns regarding the detailed provisions of clauses 37 and 38
3.1 Under the current legislation once proceedings become active mainstream media organisations take great care not to put material on the current (front) pages of their websites where such material could create a substantial risk of serious impediment or prejudice to active proceedings [Contempt of Court Act 1981]. Generally, these website operators also have a policy of not linking to material in their archives that may be prejudicial, but which was unproblematic when it was first published. We consider that these two precautions are sufficient to protect the interests of justice.
3.2 We are therefore particularly concerned about the proposals in sections 37 and 38 which introduce a new statutory power for the Attorney General to formally require the removal of material from online archives (clause 37) and the statutory recognition of an injunctive power under the Senior Courts Act 1981 (clause 38) which will allow the courts to prevent the publication of material. As stated above, we believe that both of these powers are unnecessary and are likely to have an unnecessarily restrictive impact on the media’s coverage of court proceedings and the accessibility of news archives by the public.
3.3 The necessity of such measures is also reduced by the Bill’s new statutory provisions which seek to control the actions of jurors in relation to research and the use of communications devices (contained in clauses -48 of the Bill). In particular clause 40 creates a specific offence for jurors who research a case during a trial period. The new section 20A(3)(b) specifies that it will be an offence for a juror to "search an electronic database, including by means of the internet." If jurors are sufficiently directed in relation to the material which is accessible on the internet while they are deliberating on a case and if the new statutory provisions as proposed by clauses 40-48 are properly enforced, then material which has to be deliberately searched for within online news archives should present a very low risk of prejudice.
3.4 We believe that news archives are best viewed by analogy with a newspaper library. Contemporary publications on the internet can be distinguished from archives due to the necessity with the latter to apply search criteria which is a quite deliberate and directed act. We therefore believe that the existence of material in an archive should not be held to constitute publication to the public or to a section of the public, contrary to the decisions in the recent cases of HM Advocate v Beggs (No 2) 2001 Scot (D) 31/10; 2002 S.L.T 139 and in R v Harwood and contrary to the proposals contained within s.38 of the Bill.
3.5 We have had the benefit of seeing, and agree with the submissions made to Parliament on behalf of the Newspaper Society, in particular their suggestion that the Bill could seek to clarify the position by providing a statutory definition of "first publication" or an unqualified statutory defence to resolve the uncertainty which has arisen as a result of the cases mentioned above.
3.6 We fear that the introduction of statutory powers could lead to the use of notices becoming standard practice leading to the courts and media becoming inundated with requests to take down material. This has serious practical implications for the resourcing and maintenance of and public access to the archives of both national and regional media. This precedent which has the effect of giving power to influence the editorial content of national news organisations to a member of the government is also a significant step in principle and one that should be treated with great caution.
3.7 We are concerned that the explanatory notes accompanying the Bill and the briefing notes for the second reading both state that the new power given to the Attorney General is intended to be used in circumstances where "the Attorney General gives the person a notice informing the person that there are active proceedings in respect of which the publication may be contemptuous" (our emphasis)." This is clearly a much lower test than that contained in the 1981 Contempt of Court Act [footnote], in the absence of legislative safeguards, we fear that it may result in future Attorneys General using the system of notices in respect of any material where there might be a potential risk, rather than in respect of material which creates "as substantial risk of serious prejudice" as per the current test in the 1981 Act.
3.8 If it is indeed Parliament’s intention to reduce the benchmark under which media organizations might be compelled to remove material from public view then then we would submit that this is an unjustified interference with the Article 10 rights of the publishers and broadcasters who may be affected. To rectify this there would need to be confirmation that notices could only be issued in circumstances where the Attorney General is satisfied that the material in question meets the statutory threshold i.e. that it in fact creates a substantial risk of serious prejudice, and a means by which the media might challenge such decisions prior to the automatic loss of the statutory defences otherwise available under the 1981 Act.
4. Issues which require clarification via the Regulations
4.1 However, if notwithstanding these views, these new powers are to be introduced, we believe that it is imperative to simultaneously address the details of the regulations that will govern their operation in practice (as per clause 37(5)(4) of the draft Bill). In our view it is critical that the content of the regulations is discussed in tandem with the core provisions of the Bill, so that those affected can understand what the full implications of the new processes will be.
4.2 In those cases where the Attorney General believes a takedown notice under clause 37 may be necessary (i.e. where there is material which poses a substantial risk of serious prejudice, which cannot be cured by jury direction and which is not replicated in material posted outside this jurisdiction) a proper procedure needs to be in place, including by way of example the following:
· Provision of clear advanced notice to specific contacts at the relevant media organisations;
· Proper identification of the material (e.g. by reference to the media organisation and where possible specifying date of publication, URL and headline);
· Provision of a reasonable timeframe in which the media organisation is required to remove the material
· An explanation of the reasons for the Attorney General’s conclusion that the material in question poses a substantial risk of serious prejudice;
· Notification given in sufficient time before any trial commences / jury is empanelled so as to allow an adequate period of time for there to be proper consideration of the issues by the courts and to allow time for an appeal.
· Notification to be given of the conclusion of the proceedings so that the material can be restored to the archive.
4.3 In any event, whatever form the Regulations might take, we believe that it is essential that they are considered in tandem with the draft clauses and would ask that this issue should be highlighted to the Ministry of Justice and the Attorney General’s Office before the Bill progresses to the 3rd Reading stage in the House of Commons.