BoR and online media drive review of contempt law

(CNS): The growth of electronic media and the introduction of the Bill of Rights have triggered a review of Cayman’s contempt laws that deal with everything from scandalizing the court to how the press covers legal proceedings. Government’s legal drafters are asking the public to contribute to the review, which aims to modernise the legislation that covers a wide range of subjects, from the rules governing jurors and witnesses to public comment about trials and judges. The Law Reform Commission has published a consultation paper and points to the need to balance freedom of expression with a fair trialand the impact of an instantaneous social media, such as Facebook, as well as the on-line press.

With frequent calls for greater clarity on how contempt laws affect publication by the media on the courts as well as the need to modernise some elements of the law, drafters are hoping to revise the existing legislation to suit the contemporary context without undermining anyone’s rights to justice or free speech, which is seen as a delicate balance.

In the consultation paper legal drafters imply that the Bill of Rights heralds the need for an adjustment of the balance “in favour of freedom of expression” and the “growth of electronic means of communication which are instantaneous and unconstrained by geographical considerations” also need to now be considered.

“We would suggest that both the existing law and any proposals for reform should be judged against this touchstone: is the risk of interfering with the proper interests of the stakeholders in the due administration of justice such as to justify any, and, if so, what, restrictions on freedom of expression?” the government lawyers stated in the consultation paper.

Of the many issues which appear to be at odds with modern laws, rights and freedoms is the fact that, depending on the nature of a contempt allegations, courts can impose a coercive sentence of imprisonment that is unlimited, with the defendant only released when he has “purged” his contempt by doing, or agreeing to do, what he was ordered to do. A reporter who refuses to give the name of a source, for example, when ordered to do so by a judge could be jailed indefinitely under the current laws until they do. In addition, the Penal Code (2013 Revision) contains what the drafters described as a rag-bag of contempt-like offences punishable by imprisonment for four years.

“These anomalies tend to foster the impression that, in dealing with contempt cases, the courts are acting as prosecutor, judge and jury," the drafters have noted in the consultation paper. “As part of the balancing exercise … one concern which needs to be addressed is the extent to which the perpetuation of these anomalies can be justified by reference to differences between contempt of court and other criminal offences.”

With any number of issues at risk of being defined as interfering with the administration of justice, from disrupting court proceedings to a boss sacking an employee who gives evidence against him, the drafters also noted the need to clearly define what acts fall foul of the law.

Throwing missiles at the judge, stripping naked, witnesses refusing to be sworn, clenched fist salutes and even a refusal to stand when the judge enters the court have all been held to constitute contempt in the face of the court.

A the moment, the drafters said, “it is easier to give examples of conduct which constitute such contempt than determine conduct that will not,” adding that the criticisms made over this area of the contempt laws is about the lack of certainty which criminal offences should have, as set out in the Bill of Rights. In other words, the public needs to reasonably know when they might have committed an offence of any kind.

“Under the existing law, it is possible for a person to be subjected to the indefinite penalties of the law of contempt in respect of conduct which, at its worst, could only be described as negligent,” the drafters warned.

While reported instances of contempt committed by the local media in Cayman are few in number, the drafters questioned whether or not this is due in part to the fears expressed by some over the uncertain application of the law to any given situation.

“It may be that the fear of prosecution has deterred them from publishing material that, if published, would or ought not to be regarded as constituting contempt, the so-called chilling effect,” the drafters noted.

Speaking about scandalising the court, the government lawyers also noted that this, like any other aspect of the contempt laws, is not about protecting the sensitivities of judges but to maintain public confidence in the administration of justice and made it clear that judges can be criticised.

“Criticism of a judge or court is not contempt and nor does it become so for being expressed in strong language,” the consultation paper notes. “It seems to be accepted that the offending material must be such as to create a real risk that public confidence in the administration of justice will be undermined."

Nevertheless, the drafters still warned that some criticism was not acceptable, after all. Recent online comments from anonymous members of the public concerning what the writers thought to be too lenient sentences for sexual offences “have come very close to the red line if they have not actually crossed it,” they add.

The consultation paper is available at www.lawreformcommission.gov.ky or www.lrc.gov.ky and posted below.

Members of the public are invited to submit their comments on the consultation paper. Submissions should be made no later than 10th April, 2014 and should be posted to the Director, Law Reform Commission, P.O. Box 1999 KY1-1104, delivered by hand to the offices of the Commission at 1st floor dms House, Genesis Close or sent by e-mail to Cheryl.Neblett@gov.ky