criminal contempt of court

The power vesting in English Courts to punish for contempt of court is a fundamental power for the administration of the justice system and maintaining the rule of law. Proceedings for contempt allow courts to regulate the conduct of those commenting on legal proceedings before courts and individuals appearing before courts, and coerce compliance of individuals who are ordered to do or not to do acts specified in court orders. The purpose of the law of contempt to is prevent and punish conduct which obstructs, prejudices or presents an abuse to the administration of justice generally or in respect to a particular case. The power to punish for contempt is central to maintaining the rule of law and maintain the authority of the judiciary.

Criminal and Civil Contempt

Actions for contempt in English Courts fall under either the criminal or civil jurisdiction of the Courts. Criminal contempt covers any conduct which seriously interferes with the administration of justice such that punishment is justified from the perspective of the public as a whole. Civil contempt on the other hand is limited to disobedience with a court order or undertakings to the court in civil litigation.

Public Policy

In Attorney-General v Punch Limited, Lord Nichols considered that the law of contempt was essential to main the rule of law. In Attorney-General v Times Newspapers Limited, Lord Morris commented that English Courts were a place for the peaceful settlement of disputes between parties, and the maintenance of law and order required that the Court have power to protect the authority of the Courts and unjustified interference with its processes. Inability of Courts to restrain such interference poses a risk to an ordered society.

The existence of these powers is not for the purpose of preserving or protecting the dignity of members of the judiciary. The focus is upon preserving the power of the Courts to effectively perform its role to protect the rights of the public and to administer justice in the absence of unjustified interference. Public policy is reflected in the nature of the sanction of the court. Naturally, criminal contempt is treated more seriously than those of a civil nature. Make no mistake though, both are treated very seriously.

Criminal Contempt

Such is the seriousness with which criminal contempt is treated, the contemnor is punished on the basis that society as a whole has an interest seeing compliance with Court Orders to maintain an ordered society. Criminal contempts are seen as a threat to society and thus the punitive nature of the punishments are to vindicate the authority of the Court and avoid repetition by the contemnor and by others.

Contempts which give rise to criminal liability:

1. Contempt for publications, whether under the Contempt of Court Act or at common law, which include:
   1. Publishing material (written or oral) which would dissuade witnesses from coming forward or to influence evidence which might be given;
   2. Publication of matter scandalising the court;
   3. Impeding service of court documents;
   4. Forging the process of the court, or court documents.
2. Other criminal contempt, such as:
   1. interfering with the administration of justice;
   2. perverting the course of justice, and conspiracy to do so;
   3. subordination of witnesses, that is inducing witnesses to commit perjury;
   4. embracery, that is any and every inference with jurors to influence its verdict, whether by offering money, promises, threats or other means of persuasion;
   5. acts calculated to prejudice a fair trial of a case yet to be heard, whether in the criminal or civil courts;
   6. reprisals against those participating in legal proceedings;
   7. contempts committed in the face of a Court.

Civil Contempt of Court

Individual litigants have a legitimate expectation that orders obtained are complied with. The dual purpose of the punishment imposed by the court is for the benefit of the individual litigant – to coerce the contemnor to comply with the orders of the Court.

Civil contempt attracts penalties designed to coerce compliance with court orders or undertakings made to the Court. In this way, penalties are designed remedial in nature by placing pressure on those in default to obey the order, such that the contemnor purges the contempt and complies with the orders of the court. The rights of those affected by the disobedience are vindicated and the authority of the court affirmed to the contemnor.

Where the time for compliance with orders or undertakings has passed, the court may decide that the proper punishment for disobedience requires the exercise of the court’s disciplinary or penal jurisdiction the courts disapproval for the contempt already committed.

In Johnson v Grant, Lord President Clyde stated:

… not only has no one the power to purge himself of a deliberate offence by saying he is sorry, but the mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all … The appeal is simply to the clemency of the Court; there is no palliative of the offence at all; and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, 'I realise my transgression and apologise for it', however sincerely such an apology may be made.

Civil contempt does not give rise to criminal offence, although incidents of punishments imposed by the court may be penal in nature. Civil contempt on the other hand concerns itself with failures to (1) comply with Court Orders; and (2) honour undertakings given to the Court. Civil contempts are by and large related to preventing the authority of courts being undermined by parties to litigation or third parties interfering with or obstructing observance of orders made by the court.