Contempt Issues

Overview

Contempt of court is the unlawful interference with the administration of justice by the courts. Courts have an inherent power to assert their authority and to protect the integrity of the judicial process. They may take summary (direct) steps by way of immediate sanctions against persons who frustrate, impede or interfere with the process of justice.

Criminal contempt consists of behaviour calculated to prejudice the due course of justice. Criminal contempt is punishable by both imprisonment and fine.  There is no limit to the fine which may be imposed.

There may be contempt in the face of the court.  Contempt in the face of court consists of conduct which is obstructive or prejudicial to the courts of justice occurring during the court proceedings.  This can occur in many ways ranging from direct insults and challenges to the judge to lesser obstructions.

There are various statutory provisions for contempt.  The Tribunal of Inquiry legislation provides statutory powers for the imposition of the sanctions equivalent to contempt.  Similar powers are conferred on a wide range of bodies engaged in quasi-judicial functions.

Criminal contempt is a crime at common law.  Civil contempt applies to failure to obey court orders.

Nature of Contempt

Breach or defiance of a court order may constitute contempt of court, which is subject to enforcement by civil and in some cases criminal contempt. Courts may impose fines and imprisonment.

Contempt of court has both a coercive and punitive effect.  Civil Contempt is broadly coercive (and not punitive) in nature.  Persons may be committed to prison until they  purge their contempt or agreeing to comply with the terms of the court order.

Criminal contempt is punitive but may also have a coercive element.  Unlike other criminal proceedings, the court may summarily impose punishment and take action in consequence of contempt of court.

The law on contempt has been criticised as being uncertain in scope and potentially arbitrary.Contempt  includes the refusal by a witness to answer questions lawfully put. and obedience of court order

Outside Court

Contempt committed outside court is sometimes referred to as indirect contempt. It arises where proceedings are pending or ongoing and something is done which may prejudice them.  This may occur  where the media publishes prejudicial information.

Scandalising the court is more a general mode of contempt. It refers to things done or said which undermine public confidence in the courts.  This would include an unwarranted attack on a judge’s impartiality or a misrepresentation of legal proceedings.

Contempt may be committed by any interference with the judicial process.  It may include be done be parties, their representatives,  members of the jury or any other party.

A perversion of the role of the jury or an improper influence would comprise contempt of court.

Witnesses

A witness must answer all questions lawfully put to him.  A number of cases of contempt of court have involved the refusal by journalists to disclose their source.  There is no general privilege to protect information given in confidence to journalists.

This traditional rule was considered in a recent case, with reference to the guarantee of freedom of expression provided for in the European Convention of Human Rights and the Constitution.  It was acknowledged that the availability of information is crucial to the operation of a free press and that this is in the interests of democratic society.

The courts may strike a balance between the necessity for courts to obtain disclose information necessary in order to do justice between the parties and the interests of a democratic society.  Accordingly, modern human rights protections for freedom of expression may allow the courts in some cases,  to protect journalistic sources.

Criticising Courts

Criticism of courts is permissible.  However, if it is  intemperate and is calculated to undermine confidence in the administration of justice, it may constitute criminal contempt. Accusations of bias, corruption and abuse of process against judges without basis,  may constitute the crime of scandalising the court.

The serious misrepresentation of court proceedings may amount to scandalising the court.  Imputation that trials have been conducted in corrupt and improper manners may be sufficiently grave to constitute this  species of a criminal contempt.

The courts are now likely to be more cognisant  of the protections for freedom of expression in relation to the extent to which statements  may be categorised as contempt by scandalising the court.  They are likely to  moderate their  approach in much the same way as with journalistic privilege.   However, it is necessary, ultimately to  uphold the integrity of courts and this factor will also be weighed.

Unfairly prejudicing a case by pre-trial publicity or otherwise prejudicing  fair trial is likely to constitute contempt of court.  Where a person knowing or having good reason to believe that proceedings are imminent, publishes materials or matters which are calculated to prejudice a fair trial, there is likely to be  contempt.

Criminal Contempt

There are a number of forms of criminal contempt.  Contempt in the face of the court consists of conduct which is directly obstructive or prejudicial to the course of justice, and which  takes place during court proceedings.  It may involve misconduct, violence or use of scandalous or threatening language in court.

Criminal contempt is subject to imprisonment for a period by way of punishment.  Civil contempt may involve indefinite imprisonment pending contempt / disobedience being purged.

In order to constitute criminal contempt, the statements or actions must be serious in character and be such as to  prejudice a fair trial.  There must be a real and substantial risk that a fair trial of the matter is impeded or prevented, Even where a fair trial can be assured by appropriate directions, there may nonetheless be contempt.

Some instances of  contempt may constitute both civil and criminal contempt.  This may occur where an injunction is given restraining publication of matter relevant to court proceedings. The same act may constitute both civil and criminal contempt.  The courts may abandon the distinction between criminal and civil proceedings in such circumstances.

Questions in Court

Contempt  includes the refusal by a witness to answer questions lawfully put and obedience of court orders. There are very limited grounds of privilege on which a person may lawfully refuse a question.  It may involve words spoken or calculated to prejudice the due administration of justice.

The obligation to answer a question lawfully put, which is relevant to the proceedings is a necessary armoury to maintain the authority of the court to determine the truth of matters in dispute.

The modern tendency has been to limit cases where contempt applies to those where the information required is strictly necessary to the proceedings and is critical to the matter in hand.

Scandalising the Court

Contempt may consist of words spoken or written publications made outside the court which prejudice to course of justice.  There are two broad categories.  The first involves  direct criticism or “scandalising” the court by accusations of corruption or partiality.  The second involves statements which prejudice a fair trial.  This latter type may involve interference with the ability of a jury to determine the facts fairly, by bringing out false or relevant material which may prejudice the results.

Scandalising entails more than mere criticism.  It will usually require that there be a baseless and serious allegation, such as one of corruption, which is such as to cause the judiciary or judge to be held up to the odium of the people

A broad range of criticism of courts, however, is permissible.  It is proper in a democratic society that there be fair and free criticism of court rulings.

A person may commit contempt of court erroneously and unintentionally.  In such cases, the courts may allow a retraction and correction, in place of punishment.

A person may be guilty of contempt of court without prejudicing proceedings.  A person may commit contempt unintentionally. The degree of intention and culpability is highly relevant to the punishment that may be imposed for contempt.

Prejudicing Fair Trial

Contempt may arise in the publication of statements which prejudice on-going or pending civil or criminal proceedings.  This is more likely to happen in a jury trial, where matters of fact are determined by the jurors.

Strictly proceedings are sub-judice from the moment that legal proceedings are issued until the determination of the matter.  In criminal cases, the proceedings commence with the charge.

Jury trials are now used, in very few categories of civil claims. Jury trials are the norm in criminal trials, where there is a constitutional right to jury trial in non-minor  criminal cases.

Where a statement reflects on an accused person in such a way as to jeopardise a fair trial, it may constitute contempt. In trials and proceedings heard by a judge alone, the publication of statements in the media are much less likely to impact upon the proceeding. The judge who finds the facts in such cases is presumed more capable of filtering out such comments and determining the case of the bass of the evidence presented.

References to and the publication of the details of a criminal case, previous convictions, and pictures where for identification is an issue, may constitute contempt  The publication of sensational pictures of an accused, impugning his  character may constitute contempt.  The effect of publications may be must be sufficiently serious in their potential impact so as to justified sanctions by the court.

Where there has been adverse publicity which may tend to prejudice the defendant, questions arises as to whether and to what extent, warnings and directions to the jury may mitigate this prejudice.  If, ultimately, this is not possible, a judge may decide that it is not possible for an accused to obtain a free trial on the basis of prejudice and stay all proceedings indefinitely.  This would usually involve  suspension of proceedings until the effect of the adverse publicity fades.

Anything which may influence a juror, interfere with witnesses may constitute contempt of court. In some case the effect to publication can be nullified by directions to the jury. In exceptional cases, publication may prejudice all possibility of a fair trial. The judges may make orders to restrain prior publication or restricting reporting where this is strictly necessary in the interests of a fair trial.

Offences Against State

The Offences against the State Act provides that the making of a  public statement, verbal or in writing that constitutes an interference with the course of justice or which is intended or is a such character is to be likely directly or indirectly to influence any court, is an offence.  This does not prejudice the law relating to contempt of court.

The statutes setting up tribunal and equivalent bodies in the public sector with quasi-judicial functions, typically confer powers on the tribunal or body, equivalent of those enjoyed a judge in respect of  contempt of law.  In particular, such powers have conferred on tribunals of  investigations.