2.49In its Issues Paper the Commission identified a number of problems with the current law, the key ones being:
(a) uncertainty around the scope of publication contempt;
(b) difficulties over applying the “real risk” test and conflating that test with the test that applies for a miscarriage of justice; and
(c) conceptual and practical issues in applying existing law and reasoning in the age of the internet and new media platforms.
(a) Uncertain scope of contempt
2.50The scope of contempt is uncertain. Contempt relies on the media and others who publish and comment on news and events correctly assessing whether their publication poses a real risk of interfering with the administration of justice. Those publishing material, which increasingly includes members of the public by way of social media, are essentially expected to predict where the Court may, if called upon, ultimately draw this line. If the law is uncertain, those reporting on public events may be too cautious, and this may have a chilling effect on public discussion. On the other hand, uncertainty over the scope of publication contempt may result in too robust an approach being taken which may pose a risk to fair trial rights.
2.51When those reporting on events get it wrong and compromise a person’s fair trial rights, courts cannot adequately remedy this after the fact by holding those responsible in contempt of court. When this occurs before or during a trial, the trial may have to be abandoned and the jury discharged at significant cost to the state and the parties involved. As already noted, abandoning a trial also impacts upon complainants and their families, the defendant and other witnesses who have to endure the stress of a trial all over again.204 When the breach of fair trial rights is not discovered until after the trial in which the defendant has been convicted, the conviction may be unsafe and may have to be set aside and a retrial ordered with further cost consequences.
(b) Real risk test
2.52There have been issues around how the Court applies the real risk test. Under this test, the Court must assess the tendency of a publication to prejudice the administration of justice. The test does not require the publication actually to compromise fair trial rights or, in the civil context, actually deter a litigant. The Commission suggested in the Issues Paper that there should be clearer separation between (1) assessing whether something poses a risk and (2) determining whether that risk can be or has been mitigated. The question whether a publication is in contempt and the question whether the risk can be mitigated so the trial is ultimately fair are separate questions. The Commission suggested these questions may have become confused at times. The second question is relevant only to determining whether a prosecution should be stayed or whether there has been a miscarriage of justice, not whether the publication was in contempt.205
(c) New media
2.53New means of sharing information in the internet age have changed the way we access information. As mentioned earlier, anybody may publish information and post images and video at any time.206 This has broadened the application of contempt laws significantly and strengthens the arguments for having clear and readily accessible law.
2.54In the Issues Paper the Commission proposed replacing the common law of contempt with statutory provisions. This would provide greater certainty to the law governing publication contempt. It would assist in addressing the other issues identified. A statutory offence would provide an opportunity to clarify and reshape the law and would have the important advantage of separating prosecutions for contempt out from the affected trial. The Commission favoured addressing issues around the scope of publication contempt by focusing more on statutory prevention, by temporarily suppressing publication of information, and less on contempt.207
2.55The Issues Paper therefore proposed replacing the common law of publication contempt with statutory provisions that:
(a) Prohibit the publication or reporting of a defendant’s previous convictions and any concurrent charges faced during a specific pre-trial period – unless a court makes an order permitting publication in a particular case.208 Breach of this provision would be an offence.209
(b) Provide a power for the courts to make orders prohibiting the publication of any other information during the specified pre-trial period if satisfied that suppression of that information is necessary to protect a fair trial. Breach of an order would be an offence.210
(c) Provide a power for the courts to make take down orders where information that would breach the prohibition in (a) or breach an order made under (b) was already publicly accessible through the internet. Breach of an order would be an offence.211
(d) Create a new offence, in substitution for common law publication contempt, covering any publication that created a real risk of interference with the administration of justice by prejudicing a fair trial.212 This is essentially the current common law test.
(e) Provide that breaches of the offence provisions would all be prosecuted by laying a charge under the Criminal Procedure Act 2011.
2.56We discuss this package of reforms below together with feedback we received from submitters.
Statutory provision temporarily prohibiting publication of previous convictions
2.57The Issues Paper proposed prohibiting the publication or reporting of a defendant’s previous convictions, and any concurrent charges faced, during a specified pre-trial period unless a court permitted publication in a particular case.213 It would be an offence for anyone to breach the prohibition.
2.58Publication of previous convictions and any concurrent charges is information that would normally give rise to a real risk of prejudice to a fair trial and would normally be contempt. Traditionally, the common law has excluded evidence of previous convictions (with some exceptions) as unduly prejudicial and therefore contrary to a fair trial.214 The Issues Paper argued that the potential harm arising from disclosing this information justified the proposed prohibition on publishing or reporting this information during the pre-trial period. The courts have also been clear that freedom of expression rights yield to fair trial rights. The Supreme Court in the second Siemer case said that temporary limitation by a suppression order in order to avoid risk to a fair trial “recognises the special importance of fair trial rights”.215
2.59The proposed prohibition would restrict the freedom of the media and others to publish material more than contempt currently does, but it would clarify the obligations of those publishing material pre-trial. The proposal would address the problem that arises from the absence of any bright lines in the common law of contempt. It would effectively deter publications that jeopardise a fair trial. As the majority of the Supreme Court in the second Siemer case said,216 the media may be “neither dispassionate nor fully informed”, and may sometimes make the wrong judgements on what to publish. This consequentially prejudices criminal trials. There would be less risk for publishers who would no longer be called on to exercise judgement over where the courts might draw the line in any particular case.
2.60Under the proposal the prohibition would apply unless the court made an order permitting publication. There would be scope to apply to the Court for permission to publish where that would not prejudice a fair trial. The prohibition would also be limited to the period prior to the commencement of the trial.
2.61Some submitters expressed significant opposition to this proposal, but there was also some support. The three media organisations that made submissions raised concerns over the blanket nature of the prohibition and also over how it would work. The Crown Law Office also said it was not convinced that a statutory prohibition was either necessary or workable.
2.62In summary the concerns submitters raised were:
The fact of concurrent charges or previous convictions will not always be so prejudicial that it should not be published – a blanket prohibition is too blunt an instrument.
The risk that the prohibition could be easily (and inadvertently) breached, for example, where media were not aware that charges had been laid or were about to be laid.
How would a prohibition deal with existing publications that already contained the information?
Uncertainty over when the defined period should start and end. For example, should it start from the time when charges were imminent or an arrest was made?
2.63These submitters also suggested that if the courts had the power to suppress any potentially prejudicial information and to make take down orders that would allow for a tailored approach for every case and would be better than a blanket prohibition.
2.64Other submitters, however, were supportive of the proposed prohibition. The Auckland District Law Society Incorporated submitted the prohibition should apply from the earlier of the date of arrest or the date charges were laid. It supported the proposal because of the significant inequality of arms between the state and news media, and a defendant. In its view, pre-trial publicity can increase this inequality and increase the risk of prejudice. The Community Justice Project supported the clarity the prohibition would bring to the law and the reduced risk that defendants would face unfairness. Two barristers in their joint submission went further and said that there is no public interest in naming a person prior to their first Court appearance and that it should be an offence to do so.
2.65The remaining submitters, including the New Zealand Law Society (NZLS) and the Police, did not express a view on the desirability of the prohibition but raised practical issues around its application. The NZLS said that some prior convictions and uncharged criminal conduct could be adduced in evidence as part of the prosecution case, so publication of some of the material caught by the prohibition would not be contempt. The Police raised definitional issues around the meaning of “publish” because it was concerned that disclosure through its vetting role might otherwise be caught. The District Court Judges in their comments also expressed concern that the proposed prohibition would increase work for trial judges who would have to consider applications to allow convictions to be published. They also noted, however, that the proposals around suppression orders (below) would increase court work, particularly if the media were able to make applications.
Statutory suppression and take down powers
2.66The Issues Paper proposed a new statutory provision giving the court power to make a temporary suppression order prohibiting the publication of any information during the period leading up to and during the trial if the court were satisfied that such an order was necessary to protect a person’s right to a fair trial. Breach of such an order would itself be an offence.
2.67The Issues Paper also proposed a new statutory provision enabling courts to make take down orders during the period leading up to and during the trial. Courts could make a take down order, for example, against an online content host requiring it to take down or disable public access to specified material if the court was satisfied such an order was necessary to protect a person’s right to a fair trial. Courts have, on occasion, exercised their inherent authority or implied powers to make take down orders requiring the media to take down historical articles that may impact on a trial.217 A take down order is a temporary measure and, under the proposal, it would be an offence for a person to fail to comply with any such order.
2.68Submitters showed a degree of support for these proposals. Some said the provisions should ensure that the level of suppression was kept to the minimum needed to support a fair trial. Some favoured the real risk test being the standard that would be applied by the courts. Submissions from media organisations raised the problem of not knowing about existing suppression orders and strongly supported a centralised electronic register of suppression orders to facilitate compliance. As discussed later at [2.86], the Commission has previously supported the establishment of such a register.
Offence of real risk of prejudice to a fair trial
2.69The Issues Paper proposed the common law be replaced by a new offence covering publications that posed a real risk of prejudicing a fair trial. The new offence would essentially be a statutory form of contempt and would be prosecuted as an ordinary offence under the Criminal Procedure Act.
2.70The Commission suggested the new offence should only cover interference with fair trial rights rather than publications that could interfere with the administration of justice in other ways. This was because the Commission considered there was uncertainty over whether these other systemic types of interference were still relevant and whether they should be retained.
2.71Submitters were mainly in support of retaining the real risk test, but in a statutory offence provision. Some submitters were, however, concerned that the way the Commission had paraphrased the test in the Issues Paper suggested the Commission was proposing to lower the threshold and that any such lowering would potentially have a chilling effect on the media and free speech. The majority of submissions, including those from media organisations, all considered that the real risk test should remain.
2.72Some submitters disagreed with the proposal that the new criminal offence be confined to fair trial rights. They suggested that, like the common law, the offence should also capture other risks to the administration of justice. Their concern was that the Commission would leave a gap if the common law were abolished and the new replacement offence only covered interference with a fair trial. Crown Law, for example, noted that common law publication contempt was not focused so much on a fair trial as it was on the wider justice process. Crown Law suggested using the formulation in section 1 of the Contempt of Court Act 1981 (UK), which refers to interfering with “the course of justice in particular legal proceedings”.
205Law Commission Contempt in Modern New Zealand (NZLC IP36, 2014) at [4.45]. The test for miscarriage of justice is “whether there has been actual prejudice, its extent, and whether there has been a miscarriage of justice, or a real risk one has occurred”: Solicitor-General v TV3 Network Services Ltd, above n 130, at 410.The test for contempt of court has a lower threshold than the test that applies for a miscarriage of justice but uses similar language.
206See chapter 1 at [1.51] and chapter 2 at [2.16] and [2.24].
207It is well-established law that where publication of certain information would give rise to a real risk of prejudice to a fair trial right, freedom of expression may be temporarily limited by a suppression order in order to avoid that risk: Siemer v Solicitor-General , above n 119, at .
208Publication of matters relating to bail and matters dealt with at any bail hearings are already covered by a similar type of prohibition on reporting contained in s 19 of the Bail Act 2000, and that regime would continue to apply to matters covered there.
213This new provision would be similar to the automatic identity suppression provisions in ss 201, 203 and 204 of the Criminal Procedure Act 2011. Note that matters relating to bail are already covered under the Bail Act 2000.
214Gisborne Herald Co Ltd v Solicitor-General,above n 122, at 568.
215Siemer v Solicitor-General , above n 119, at .
216Siemer v Solicitor-General , above n 119, at .
217See for example L v R, above n 152,at ,  and . In this case the Court of Appeal considered whether the High Court had correctly revoked take down orders it had earlier made requiring media entities to take down historical articles about a defendant facing a retrial. The articles had been lawfully published at the time of publication but the High Court ordered the media to remove them because of the risk of prejudice at the retrial. The Court later revoked the orders once it was satisfied that a juror would have to actively search to find the articles. The Court of Appeal held the orders had been correctly revoked and dismissed the appeal.