Nature of Contempt
Contempt of court is an act or omission which is calculated to interfere with the due administration of justice. Contempt of court covers a wide range of matters that interfere with the inherent power of courts in dealing with disputes and matters before them. Contempt arises where there is a real risk of prejudice to the administration of justice.
The administration of justice requires that citizens have access to civil and criminal courts for the determination of their disputes. They are entitled to a fair hearing of the matter before an independent judge free from bias in accordance with evidence put before the court. Once the dispute has been submitted to the court, citizens are entitled to rely on there being no usurpation of any of the court’s functions.
Contempt of court may include contempt in the face of court or words written or spoken or acts calculated to prejudice the administration of justice or the obedience of court orders, done outside of court.
Contempt in the Face of the Court
Courts have an inherent power to imprison or fine persons for contempt committed in the face of the court. This is contempt committed in court. The court may deal summarily with contempt there and then.
Contempt in the face of court is an act done or words spoken in or in the precinct of a court which obstructs or interferes with the administration of justice or is calculated it to do so.
The following may, for example, constitute contempt of court
- interruption of court proceedings; this may include interruption or disturbance by word or conduct;
- assaults or violence committed in court; this may include assaulting or threatening a judicial officer in the course of carrying out his functions; it may include assaulting or threatening of witness, juror, litigant judge, et cetera in court during court proceedings.
- insult to the court; this covers disturbing or obstructing court while in session; it may arise by conduct or demeanour. The court is entitled to decide what constitutes contempt.
- photographing or recording in court.
- refusing without lawful excuse to be sworn or answer questions as a party or witness
- remaining in court after witnesses have been ordered to leave
- misbehaviour by jury members or parties
Contempt in the face of the court is subject to immediate sanction. It does not require a trial or investigative process.
It is an offence and contempt of court to deny a person access to the court. Interference with persons having duties to discharge in the judicial process may be contempt.
Perjury is an offence at common law. It is committed where a person on lawful oath or affirmation, swears falsely on a matter material to the issues in questions. Perjury may apply in legal proceedings or in other contexts, such as where an affidavit or oath is sworn out or court.
Subornation of perjury is committed by instructing or procuring another to take a false oath which amounts to perjury.
Perjury may be prosecuted by showing the falsity of statements made by two witnesses or by one witness who is substantially corroborated by proof of the relevant material facts. The mere fact that the witnesses contradict each other, does not necessarily constitute perjury.
There is a distinction between an untrue statement and perjury. In order to constitute the crime of perjury, wilfully and deliberately false evidence must be given.
Proceedings may be recorded with the consent of the court.
There is a wide range of actions which may potentially constitute contempt outside court. They include the following publishing material which is likely to prejudice of fair trial It is contempt to write or publish in relation to a hearing, comments on the parties, calculated to affect the free course of justice. This may include commenting on the character or previous convictions of an accused, publishing an alleged confession, publishing an independent investigation of the crime and publishing an interview with the accused or witness.
It is not necessary to show that the publication actually prejudiced a fair trial. If there is a likelihood that it may do so, this is sufficient. It is permissible to report the occurrence of crime and the fact of arrest and charge of the accused.
Publication must generally be to a relatively large group. Publication to a relatively small group may not amount to contempt. There must be a serious threat to the fairness of the proceedings.It is permissible to report the occurrence of crime and the fact of arrest and charge of the accused.
Contempt is more easily committed in the case of matters tried with a jury, than without a jury. Generally, a judge is less likely to be swayed by publications.
It is contempt of court to publish material calculated to impair the court’s ability to determine the facts. This may include
- deterring witnesses
- attacking their credibility or veracity.
- publishing a photograph where identity; this may prejudice the identification of the accused.
Publication of materials which scandalise the court or endanger public confidence and it constitutes contempt. The act must be of a nature to be calculated to endanger public confidence and to thereby obstruct and interfere with the administration of justice.
Publication of material which is defamatory of a judge or court so as to interfere with the due administration of justice by lowering the authority of the court is likely to constitute contempt. Publishing insulting comments on judges’ conduct or the imputation of improper motives or bias or misrepresentation, especially serious misrepresentation of the proceedings of a court may also constitute contempt.
The DPP may make applications in relation to contempt in connection with criminal trials. Generally, the proceedings should be pending or imminent.
Civil v Criminal Contempt
There is a distinction between civil and criminal contempt. Criminal contempt includes contempt in the face of the court, scandalising the court, breaches of the sub judice rules and other interferences with the administration of justice.
Civil contempt consistent defiance of a court order, by positive conduct or neglect or refusal, to obey an injunction.
The law of criminal contempt extends to a range of conduct which interferes with the administration of justice. Actions such as paying or influencing witnesses may constitute contempt. Reprisals against witnesses or parties to proceedings and victimisation are likely to fall within the scope of contempt
The sanction for civil content is imprisonment. The principal rationale for civil contempt is coercive or punitive. Imprisonment for contempt can be potentially open-ended in time. Fines may be added in addition to imprisonment to ensure compliance.
The treatment of contempt potentially conflicts with principles of freedom of expression under the Constitution and European Convention on Human Rights.
Contempt is part of the inherent competence and jurisdiction of the courts. Its purpose is to protect the judicial process. Contempt may be prosecuted summarily in the District Court or on indictment before a jury at the election of the Director of Public Prosecution. When the courts itself does not exercise its own powers, the DPP may proceed.
The offence of contempt in the face of court is somewhat vague and ill-defined. Unlike other offences, there is limited opportunity to conduct an enquiry into the defendant’s state of mind. It might appear that the judge is biased, being the object of the behaviour. However, it has always been believed necessary that a court must have an inherent power to punish contempt in order to function.
Contempt constitutes an exception to the normal rules of constitutional justice. It is said to be necessary that the judge should remain in full control of hearings and should be entitled to immediately punish misbehaviour and interruption in the courtroom. Otherwise, there could be lengthy interruptions, which may paralyse the court. It would undermine the judge’s control of the proceedings if the contempt were heard by another court.
Generally, there was an unconditional obligation to answer a question properly put in proceedings. See the sections on privilege in the context of the law of evidence. A witness may be entitled to withhold evidence and refuse to answer questions on the basis of privilege. However, privilege applies in a relatively narrow number of circumstances.
There is no specific prohibition on photographs, television, video recordings and tape recordings of court. However, it is commonly assumed that it runs the risk of falling foul of contempt of court.
Scandalising the Court
Scandalising the court constitutes a common law offence. Imputing corrupt conduct to a judge or court falls within the scope of the offence. Publishing a false and misleading account of legal proceedings also constitutes the offence. Abuse of the judiciary by itself does not constitute the offence.
The setting of the standards for the due administration of justice rests with the court. The matter does not lie with the jury. The rationale is the judges are qualified to maintain the necessary standards.
Scandalising the court may consist of a false or misleading account of legal proceeding. It may comprise imputing corrupt motives of conduct to the judge.
The principle of the independence of the judiciary includes a recognition that the free and independent power to act summarily to protect their own proceedings is necessary to protect the administration of justice.
The apparently open-ended nature of the power to attach for scandalising the court is subject to Constitutional provisions and to the European Convention on Human Rights. The discretion should only be exercised where there is a substantial risk that the administration of justice will be brought into serious dispute.
The truth of the communication should in principle render it lawful. However, it should be a matter for the defence to prove the imputation of corrupt judicial conduct.
The sub judice rule applies to publications that create a substantial risk that the course of justice in on-going proceedings or pending proceedings will be seriously impeded or prejudiced. This may, for example, include statements to the effect that the
- accused is innocent or guilty or the jury should acquit or convict
- that the accused has committed prior criminal offences
- that the accused has been charged or is about to be charged with other offences or is suspected of them
- that he is of good or bad character, either generally or in a particular respect
- that he is or is not a credible witness.
- that the prosecution is taken for an improper motive.
Generally, the principle applies to imminent and ongoing proceedings. In a civil context, this would imply that the date of the proceeding is fixed and upcoming.
The Law Reform Commission recommended that scandalising the court should consist of
- imputing corrupt conduct to the judge or court
- publishing of false account of legal proceedings
It was of the view that a person should be found guilty of the offence where there is a substantial risk that the administration of justice or a particular judge would be brought into serious disrepute. A person should be guilty only if he knew there was a substantial risk or was recklessly indifferent in that regard.
The Law Reform Commission recommended that the truth of a communication should render it lawful. It recommended that in relation to the liability of publishers editors of newspapers and journalists, for scandalous publications, the same principle should apply as for a sub judice contempt. It was of the view that abuse of the judiciary even if scurrilous should not constitute an offence.
The Law Reform Commission recommended retention of the principle of contempt in the face of the court. The minority view recommended that it should embrace disruptive or other conduct which threatens the orderly efficient and dignified court conduct of the court’s proceedings. As it stands, a person may be committed directly for contempt in the face of the court. The LRC recommended that a court should have the power to remove or detain in custody a person for not more one month.
The Commission recommended that where a witness, party or representative fails to attend court without reasonable excuse and with the intention of interfering with administration, or being reckless as to the same, that person should be guilty of an offence punishable by the maximum available for summary punishment.
The Law Reform Commission took a view that it would be unacceptable for a court to be deprived of evidence which may be necessary to do justice between the parties in a particular case. Generally, the paramount interest of the public in the administration of justice must take precedence over the public interest in privacy and freedom of information.