Index calls on MPs to drop clauses 39 and 40 of the new criminal and justice courts bill currently going through the Westminster Parliament. The bill gives the attorney-general the power to require publishers to take down material from their online archives. In order to prevent jurors from accessing content available on the internet, publishers would be issued with a notice ordering them to remove material that is deemed to prejudice criminal proceedings – or face being prosecuted for contempt of court. The bill will go to a third reading in the Commons on 17 June.
Despite the temporary aspect of the removal, we believe that granting the attorney-general – who is the government’s chief law officer – statutory power to order the removal of lawfully published material undermines free speech. It is not clear how such measure would effectively achieve its purpose – preventing jurors from seeking online material related to trials – and it risks airbrushing news stories from history.
In practice, the measure would only apply to media in England and Wales, meaning that if published on international websites, material deemed prejudicial to criminal proceedings will still be accessible to jurors who do not comply with the judge’s instructions. In addition, while the material need only be taken down during trials, appeals or linked trials may mean it is never restored, hence creating potential black holes in the historic record.
We believe that strong juror instructions and education are the way to enforce prohibitions of web research of cases under consideration.