Report No. 200
(B) Defects in the language of Section 4(2) of the U.K. Act
In the Discussion Paper 43 (2000) on "Contempt by Publication" (Ch.10), (para 10.80) of the NSW Law Reform Commission, it was stated:
"The breadth of the U.K. provision has meant that the section has proved controversial, attracting criticism that it is applied inconsistently, routinely and unnecessarily".
(quoting CJ Millers, Contempt of Court (1989), pp 332-338 and A Arlidge & T. Smith, on 'Contempt' (1999) (pp 413-459)).
In the Final Report, Ch 10, the Commission observed in para 10.18 as follows (as to Section 4(2) ):
"10.18: One of the difficulties with the 'substantial risk of prejudice' formulation is that while the risk must be great, the prejudice need not be (N. Lowe and B. Sufrin, The Law of Contempt, 1996, p 286). Eady and Smith express the opinion that it seems strange that a Court could impose an order restraining publication where the prejudice in contemplation is less than severe (A. Arlidge and T. Smith on Contempt of Court (1999) (para 7.133).
Even the meaning of 'substantial risk' is more elusive than might at first appear. In one English case, for example, the Master of Rolls accepted counsel's interpretation of 'substantial' as not meaning 'weighty' but rather 'not substantial' or 'not minimal' (Attorny-General v. English 1983(1) A.C 116 (142) (HL) ). Another problem encountered in England, where the formula 'substantial risk of serious prejudice' is employed (i.e. in Section 2) to determine liability under sub-judice principle, is that determining the degree of risk may require a Judge to assess the susceptibility of a particular Jury to influence from the publication, (C. Walker et al (1992) 55 Modern Law Review 647 at 648), as opposed to making an objective assessment of the prejudice to justice likely to result from the publication.
Borrie & Lowe, the Law of Contempt, (1996) (3 rd Edn) (see p 287) referto the observation of Lindsay J in MSN Pension Trustees Ltd v. Bank of America National Trust and Savings Association: 1995(2) All ER 355. Considering both Section 2 (strict liability) which uses the words 'substantial risk' and the words 'seriously impeded or prejudiced' and Section 4(2) which, for the purpose of granting postponement order uses the words 'substantial risk of prejudice', Lindsay J stated that 'substantial' meant 'not insubstantial' and this would lower the threshold for the operation of Section 4(2) than the legislature intended. However, he assumed in favour of the Serious Fraud Office which was applying for the postponement order, that substantial meant 'not insubstantial' or 'not minimal'.
Therefore, it is for consideration whether we should use the words 'substantial risk of prejudice' in the proposed provision enabling postponement orders.