What can be said when criminal proceedings are active? Lawrence McNamara & Lauren Schaefer set out the Law Commission’s recommendations on contempt of court
- The Law Commission recommends keeping contempt by publication laws largely unchanged but delaying the point at which proceedings become ‘active’ from arrest to charge, giving authorities more flexibility to counter misinformation without risking contempt.
- Once proceedings are active, the existing ‘substantial risk of serious prejudice’ test should remain, with no fixed categories of information deemed always safe or unsafe to publish—context must determine whether publication risks contempt.
- The commission rejects a broad public-interest defence but proposes clarifying the existing ‘merely incidental’ defence, stressing that fair-trial rights must not be undermined.
The Law Commission recently published Part 1 of its report on contempt of court laws. The commission addresses a question that became especially contentious after the murders of Elsie Dot Stancombe, Alice da Silva Aguiar, and Bebe King in Southport in July 2024 and the public disorder that followed: what information can be published when criminal proceedings are active,
