Major changes to the “disorganised and, at times, incoherent” law of contempt are proposed in a 500-page consultation paper today by the government’s independent law reform advisers for England and Wales.
The Law Commission is proposing to do away with the centuries-old distinction between criminal contempt and civil contempt, which it regards as unnecessary and unhelpful. Instead, contempt of court would be categorised according to the behaviour it involved.
Under the current judge-made law, civil contempt refers to breach of a court order by a party. Criminal contempt is concerned with conduct that seriously interferes with the administration of justice. So a person may commit criminal contempt by disrupting proceedings in a civil court.
Although people who are found to be in contempt — “contemnors” — may be sent to prison, contempt is not a criminal offence. Findings of contempt should not appear on a criminal record check, law commissioners say.
The maximum punishment for contempt would remain two years’ imprisonment. But a range of penalties should be available, the Law Commission believes, including community punishments.
A four-month consultation period opens today. If the commission’s provisional proposals are accepted by ministers, parliament would create three forms of contempt:
General contempt would include any conduct that interfered with the administration of justice to a non-trivial degree or created a substantial risk of that. This conduct could be “in the face of the court” — such as threatening a lawyer or the judge during legal proceedings — or it could be remote from the courtroom, for example publishing confidential trial material online. General contempt by publication, as it would be called, could be treated differently from general contempt committed in other ways. So, for example, an intention to interfere with the course of justice would be required to establish general contempt by publication while mere recklessness might be sufficient for other forms of general contempt.
Contempt by breach of court order or binding undertaking. A person could commit this form of contempt without knowing the precise terms of the order. But the breach would have to be deliberate; those accused would have to know that they were bound by the order; and alleged contemnors would need to know the facts that made their conduct unlawful.
Contempt by publication when proceedings are active. This reflects the current law under the Contempt of Court Act 1981. Unlike the general form of contempt, there would be no need to prove an intention to interfere with the administration of justice: recklessness would be sufficient. This form of contempt would cover a publication that created a substantial risk that the course of justice in active proceedings would be seriously impeded or prejudiced.
Contempt laws should interfere with freedom of expression only to the extent that is necessary to protect the right to a fair trial, the commission says. Article 10 of the human rights convention must be balanced against article 6. It is for this reason that it is seeking views on whether the option of imprisonment should be removed when freedom of expression is engaged and a defendant’s culpability is lower, for example because the defendant did not intend to interfere with the administration of justice.
On the other hand, the commission notes that people who take photographs of judges or defendants in court to publish on social media would no longer be in contempt if there was no intention or perhaps even awareness of the risk of interference with the administration of justice. It invites comments on whether the government should consider reviewing the criminal law that limits courtroom photography. This was passed almost a century ago and the maximum penalty is now a fine of £1000.
As the law now stands, tribunals have no power to lock contemnors up. The most they can do is to refer cases to a higher court. Tribunal judges told the commission that “the power to take immediate action on the basis of contempt of court, or (more pragmatically) to threaten to do so, would be a valuable tool for tribunals faced with a challenging situation during a hearing.”
So tribunals would be granted limited powers under the commission’s provisional proposals. Another innovation would be interim coercive measures that could be ordered on the balance of probabilities. Defendants might be ordered to pay money into court or surrender their passports.
The commission is also seeking views on:
Whether criminal proceedings should not be regarded as “active” until the defendant has been charged. Reporting would cease to be restricted under contempt laws while a suspect was being questioned by the police.
Whether the attorney general should retain the power to grant or withhold consent to starting contempt proceedings when a politician has potentially committed a contempt by publishing material that may prejudice active proceedings. Changing the law would remove that power from a member of the government and give it to the courts.
Whether the courts should be allowed to review decisions by the attorney general granting or refusing consent for contempt proceedings by publication while proceedings are active.
In a summary of its provisional proposals, the Law Commission says:
Many courts and tribunals lack meaningful powers to deal with contempt when it arises. Even when courts do have such powers, the sanctions available to them — as tools either of coercion or punishment — are blunt. The procedures for contempt differ between different courts and the law governing appeals can be unclear and complex.
There are also growing concerns about the impact of social media and other technological advances on the administration of justice.
All of these problems mean that it is difficult for laypeople and legal practitioners to identify and understand the relevant law; and for the courts to recognise and respond appropriately to interferences with the administration of justice.
A clearer and more coherent set of laws and rules governing contempt — addressing liability for contempt, the powers of courts, procedure, and the imposition of sanctions — would help to ensure that this very significant area of law operates in a principled, comprehensible, and effective way.
Responses to the consultation paper should be submitted by 8 November.
I am no longer a non-executive member of the Law Commission board.
I am 'charged' with contempt of court in defamation injunction proceedings, which I strenuously deny.
However, little did I know, that the actions I took 'back then' would be the only avenue available to me, to ensure that the truth about what happened to me in both former employment and in tribunal proceedings, would be known.
I did not expect my equality and employment rights to be denied in the manners that they have, and 'contempt of court' is my only avenue to justice in Northern Ireland. Shameful.
I think the Law Commission’s suggestions for ‘tidying up’ the law of contempt are to welcomed – especially their suggestion that contempt of court should be categorised ‘according to the behaviour it involved.’ They go on to say that contempt of court could be remote from the courtroom: for example, it could involve ‘publishing confidential trial material online.’ This is where I feel we need to be wary: a judge could use a contempt of court order to protect themselves from complaints about their handling of a trial or tribunal hearing.
For example, a judge asked by someone appealing a decision of the ICO what the focus of a future tribunal hearing, will be, says it will focus solely on whether an ‘error in law’ has been committed by the ICO and not the origin of a dispute with a third party. Then at the hearing, the judge’s 1st question is about the origin of the dispute and he ignores the issue of an error in law for most of the remainder of the hearing. If the appellant were to then obtain a recording of the hearing, the judge would be able to threaten him with ‘contempt of court’ order, if he were to publish any part of what is ‘confidential trial/hearing online,’
I think the contempt rule should be ‘categorised according to the behaviour involved’ but what we also need to bear in mind is the danger that judges will use contempt of court to unfairly protect themselves and avoid reputational damage.