contempt of court

Question 1

what is the contempt of court ?

Answer 1

contempt of court refers to the ability of the courts to punish any person whose actions interferes, or risks interfering with the proper functioning of the court

Question 2

what is civil contempt ?

Answer 2

Civil contempt occurs where a person disobeys a court order, for example, if a newspaper published information subject to an injunction.

Question 3

what is criminal contempt ?

Answer 3

1) Contempt in the face of the court.

2) Scandalising the court

Question 4

Contempt of court under the Contempt of Court Act 1981

Answer 4

often referred to as strict liability contempt on the basis that an intention to prejudice the course of justice is not required.

Question 5

Common law offence of contempt of court

Answer 5

• requires the prosecution to prove on a criminal standard of proof that the defendant intended to prejudice the course of justice.

Question 6

The underlying rationale for the law on contempt was outlined in the report of the Phillimore Committee:

Answer 6

The law relating to contempt of court has developed over the centuries as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally. (Report of the Committee on Contempt of Court (1974)

Question 7

what is the essence of contempt ?

Answer 7

is that a court’s decision should be based only on the evidence as presented in court and more broadly to maintain public confidence in the legal system. In summary, it might be said that the fundamental rationale of the law of contempt is to prevent ‘trial by the media’:

Question 8

what is the fundamental objection ?

Answer 8

The fundamental objection to the publication of prejudicial material is that a person has a right to be tried according to the evidence properly placed before a court, and on that evidence alone. That evidence can be tested in examination and cross-examination of the witnesses, and is seen by all members of the jury

Question 9

in addition…

Answer 9

In addition, the common law has certain exclusionary rules of evidence … that are designed to protect the integrity of the trial process. That integrity is compromised if extraneous material is introduced into the process, as it potentially is when prejudicial commentary is made available to the members of the public who will eventually constitute the jury. (A T H Smith, Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper (2011)

Question 10

give an example of an exclusionary rule of evidence which might be undermined by media ?

Answer 10

the Youth Justice and Criminal Justice Act 1999

Question 11

what is section 41 ?

Answer 11

section 41, which provides a general exclusion on adducing evidence of the complainant’s past sexual behaviour. Thus, for example, if a website was able to publish information about the complainant’s sexual past, the rationale of s.41 would be potentially undermined.

Question 12

in broad terms what is contempt ?

Answer 12

contempt (both statute and common law) occurs where a publication creates a serious risk that the course of justice will be prejudiced or impeded. The law of contempt therefore engages both article 6 (right to a fair trial) and article 10 (freedom of expression) of the ECHR.

Question 13

article 6(1) provides that

Answer 13

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Question 14

The Offence of Contempt of Contempt of Court

Answer 14

The law on contempt of court is comprised of a mix of common law and statute. The major piece of legislation in this area, namely the CCA 1981 is not a codifying statute, i.e. it does not simply give statutory effect to the common law rules which existed prior to its enactment.

Question 15

what is a court ?

Answer 15

Obviously, the standard civil and criminal courts will be covered, ranging from the County Court and Magistrates Court up to the Supreme Court. However, the English Legal System also includes a significant number of specialist tribunals dealing with matters such as, inter alia, employment, social security and certain land law issues. The law relating to the question of whether a particular forum is a court is contained in both the common law and the CCA 1981.

Question 16

attorney - general v BBC defines court as …

Answer 16

“any tribunal or body exercising the judicial power of the State, and “legal proceedings” shall be construed accordingly.”

Question 17

in pickering v liverpool daily post and echo

Answer 17

An employment tribunal is a court for the purposes of contempt: Peach Grey & Co. v Summers [1995] 2 All ER 513 but given the reference to judicial power of the state, a disciplinary tribunal of a professional body will not be: General Medical Council v BBC [1998]

Question 18

Prior to the enactment of the CCA 1981,

Answer 18

contempt of court was a common law offence. The impetus for the legislation was provided by a decision of the ECrtHR in Times Newspapers v United Kingdom

Question 19

section 1

Answer 19

The cornerstone of the Act is the strict liability rule (s.1) – conduct may be treated as contempt of court regardless of any intent to interfere with the course of justice.

Question 20

the acts reus element

Answer 20

The actus reus of contempt is to make available a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced

Question 21

terms ‘substantial risk’ and ‘seriously impeded or prejudiced’

Answer 21

The scope of the terms ‘substantial risk’ and ‘seriously impeded or prejudiced’ has been delineated in case law.

Question 22

The Act provides a number of defences including:

Answer 22

the defence of public interest (s.5); innocent publication (s.3(1); innocent distribution (s.3(2); and contemporary reports of proceedings (s.4(1).

Question 23

Penalties for the offence of contempt

Answer 23

• include a maximum sentence of two years imprisonment and/or an unlimited fine in a superior court or a maximum sentence of one month imprisonment and/or a maximum fine of £1000 in an inferior court.

Question 24

what is meant by the strict liability rule ?

Answer 24

“the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

Question 25

“the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

Answer 25

if this interpretation is correct then the CCA 1981 cannot be used in cases where there is an intent to interfere with the course of justice.

Question 26

limits to CCA 1981

Answer 26

The CCA 1981 further provides limitations on the scope of the strict liability rule. By virtue of s.2(1), the rule only applies to a ‘publication’ defined as: “…any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.”