Commission: Court reporting rules 'unduly restrictive'

The uncertainty over what Cayman Islands media outlets are allowed to report from criminal court proceedings can have a “chilling effect” on free expression and may not be compliant with human rights, according to an evaluation by the Law Reform Commission of local court rules. 

The commission is in the midst of a public consultation regarding contempt of court issues that began in January, with particular emphasis on how to handle new media, including social media sites and weblogs.  

The commission’s discussion paper on the matter released Friday concludes that changes should be made to the current “sub judice” rules, which determine when criminal matters are considered to be before the court and, therefore, have severe restrictions on what can be reported. 

“We believe that the current law is unduly restrictive of the right of the media to report and comment on particular legal proceedings and may very well not be compliant with the bill of rights,” the Law Reform Commission’s position paper stated.  

The issue arises from the competing interests of freedom of expression and the right of an accused person to receive a fair trial.  

Any contempt of court law, the commission’s review stated, should be certain regarding the conduct that it seeks to regulate, including when and what the press is allowed to report from criminal proceedings. At the moment, there is no statutory certainty in those rules, the commission found.  

“The ‘timing question’ and, in particular, determining when the law of contempt kicks in [in] relation to criminal proceedings, is a vexed one,” the commission’s review said. “What is at issue is attempting to identify the times, before which and after which, a publication, however prejudicial its content, will not be amenable to the law of contempt.”

The Law Reform Commission noted that “it is generally accepted” that the contempt of court or “sub judice period” – during which a reporting blackout would exist – starts not later than the time an individual is arrested. However, there has been some discussion that the period actually starts later, at the time the individual is charged with a crime, or even earlier when it becomes “known to the media” that police are looking for someone in connection with the crime.  

“This is an area where we consider that reform is necessary, if only because there is uncertainty,” the commission’s report stated. “This uncertainty produces the so-called ‘chilling effect,’ that is, that editors are afraid to publish simply because they do not know whether or not what they are publishing will be viewed as contempt.  

“If there is to be any codification in this area, the ‘timing question’ will need to be covered in any event.”  

An additional issue arises with published material that is “electronically archived” – on news websites and blogs – that can be found regarding previous offenses of an individual on trial, information that could prejudice a jury deciding that person’s fate in the current matter before the court.  

U.K. officials have recommended that, in such cases, the person who published the older information should be exempted from liability with regard to contempt. 

Enforcement of contempt of court, when it does occur, is based on “strict liability” rules. In other words, ignorance of the law is no excuse for breaking it. The Law Reform Commission noted that it made no recommendations with regard to changing strict liability rules, only that the rules for what is publishable should be codified. 

Contempt of court rules do not apply to good faith attempts to report fairly and accurately the proceedings within a court that are heard by a criminal trial jury.  

There are certain circumstances where, in the absence of the jury from the trial room, judges might make orders regarding restriction of publication. However, these rules need clarification as well, the commission found.  

“The reporting of [criminal court] proceedings, and, in particular, the circumstances in which a court can direct postponement of publication, could be put on a statutory footing,” the commission’s review stated.  

Members of the public are invited to submit their comments on the Law Reform Commission’s discussion paper. Submissions should be made no later than April 21 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 the first floor of dms House, Genesis Close, George Town, or emailed to [email protected].