I move:
That leave be granted to introduce a Bill entitled an Act to codify the law on contempt of court and to provide for related matters.
Today I wish to introduce to the House my Contempt of Court Bill 2017. Contempt of court is the means by which our justice system ensures the smooth running and operating of the courts. Contempt of court underpins the functions of our justice system. It helps to ensure our courts operate fairly, effectively and efficiently. It is designed to prevent injustices from being done, to protect the administration of justice and to guarantee the right of every citizen to receive a fair and impartial hearing of his or her case. These powers are used by courts the world over in both civil and criminal cases and have been used by our courts since before the foundation of the State. The law of contempt developed at common law to allow the administration of justice to operate without undue obstruction or interference. It also helps maintain public confidence in the justice system.
I am bringing forward this Bill both because contempt of court should be put on a statutory footing and because the courts need new powers to deal with new problems. As long ago as 1994, the Law Reform Commission first sought contempt of court to be put on a statutory legislative basis. Although contempt of court exists at common law, it has never been put on a statutory footing until now. The Supreme Court first called for changes in this law in the early 1990s. Legislation was introduced in our neighbouring jurisdiction in the UK in 1981 and has since been introduced in a great many other countries throughout the world. It is time, therefore, that the law of contempt in this jurisdiction was modernised and clarified.
The most important part of the Bill is the section that deals with criminal contempt. Criminal contempt is contempt which is calculated to prejudice the course of justice. This includes disruptive behaviour in courts, failing to answer subpoenas or scandalising the court. This Bill will give courts the power to deal with criminal contempt on a summary basis, subject to certain restrictions. This means that, in practice, if someone is disruptive in court, the court can deal with them there and then in the here and now. These powers have been used by the courts for some time to tackle these problems. However, they need to be clarified and put on a statutory basis. Where a person publishes prejudicial material about a pending court case, this is known as sub judice contempt and with new online communication platforms being available to all, the risk of contempt is much greater.
Criminal contempt, however, is not the only type of contempt. Civil contempt is a failure to abide by court orders. There would be no point in having a court system if people were able to get away with not obeying the decisions of the courts. This only applies to conduct which has already taken place, not to future conduct. The Supreme Court has referenced the fact that the lines between criminal contempt and civil contempt are blurred. If there is confusion as to whether a contempt is civil or criminal, this Bill clarifies that it is for the judge, himself or herself, to decide. Putting both types of contempt on a statutory basis leaves less room for challenge and stops questions to the effect that our contempt of court laws may run contrary to the Constitution or to the European Convention on Human Rights.
The most innovative part of the Bill is the powers it gives courts to deal with contempts of court that occur on social media. We live in the era of fake news. The reality is that contemptuous material can be posted from anywhere on the globe and be seen by thousands in a matter of seconds. The former Chief Justice, Susan Denham, stated last June that our laws were inadequate in this regard. Other judges and the Attorney General of the UK, Jeremy Wright, have made similar comments. Why is it that inaccurate comments or posts on social media that are viewed and shared thousands of times are not treated in the same way as publications on other media? The potential impact on juries is incalculable. We do not know what material they or the judges see. The courts system needs the powers to deal with social media and online publications. This Bill will give the courts the power to direct that posts be removed or not posted by way of suppression or take-down orders. If necessary, court orders may be made to social media providers and the consequential repercussions made of not abiding by these orders. This Bill is about respecting the integrity of our justice system in a new era. The law reform commission of New Zealand has called for similar powers in its recent recommendations. This is about the justice system adapting to changes in technology while still ensuring the right to a fair trial. This Bill protects the delicate balance between the right to free speech and the right to a fair trial. It is important to note that the Bill introduces a number of defences that will ensure that the laws on contempt are not used to censor free speech or to silence proper commentary. Innocent publications or good faith comments on public affairs will not be criminalised. The Bill also gives additional protection by giving the ability to appeal findings of contempt.
On the topic of jurors, the jury is one of the cornerstones, as we know, of our justice system. My Bill introduces powers to deal with contempt of court by members of juries. If jurors act in an inappropriate manner or fail to disclose any connection they may have to a case, then this would be dealt with. This is to ensure that juries remain independent and impartial and thereby ensure that justice is done.
This Bill also removes the old offences of maintenance and champerty. These are an old form of contempt relating to how court cases are funded but neither offence has been prosecuted here for more than a century. They have been abolished completely in most other countries and they remain as torts or civil wrongs.
In short, this Bill modernises the law of contempt in Ireland and introduces new powers that would allow our courts deal with ever-changing technology. It includes important measures to ensure that the rights of those affected are upheld, particularly the right to freedom of speech. It ensures that Irish courts are some of the most modem in the world and are well equipped to deal with any problems the future may throw at them. It also for the first time puts the onus on social media platforms and other online sites to take some vicarious responsibility and accountability for comments made online that may have an intended or unintended prejudice towards the outcome of a criminal trial.
Irish legislation must keep up to date. Above all, we must ensure the protection of our justice system and, in light of new communications, that everyone receives a fair trial. I commend my Bill to the House.
