Contempt of Court
Introduction
The CPS are under a duty to protect the integrity of the trial process and to ensure that victims and witnesses who should not be identified receive the protection that is provided to them.
Where a contempt issue arises, the reviewing lawyer should bring the matter to the attention of the Unit Head. The Press Office should also be kept informed.
The law
All courts and tribunals are protected by the law of contempt, but at common law only courts of record have an inherent power to punish for contempt and their powers of punishment vary dependant upon their status as 'superior' or 'inferior' courts.
Proceedings brought under the Contempt of Court Act 1981 are initiated by the Attorney General and The CPS may be involved in preparing papers and instructing counsel on his or her behalf.
There are two main forms of contempt:
- contempt 'in the face of the court'. This can arise before, during or after criminal proceedings being prosecuted at either the Crown Court or the magistrates' court; and
- 'constructive' or 'indirect' contempt, e.g. the publication of a newspaper article prejudicing a forthcoming trial (also referred to as 'Strict Liability Contempt').
Summary powers of courts to deal with contempt in the face of the court
Crown Court
By virtue of Section 45(4) of the Supreme Court Act 1981 (Archbold 2-29), the Crown Court is a superior court of record. In (DPP v Channel Four Television Co. Ltd. [1993] 2 All E.R 517 ), the Divisional Court stated that the inherent power of the Crown Court to make an order of committal of its own motion is restricted to the following circumstances:
- contempt "in the face of the court". "In the face of the court" has been interpreted broadly and is not confined to any contempt seen by the judge; or
- disobedience of a court order; or
- breach of an undertaking to the court.
A contempt involving a Crown Court that does not fall in any of the above categories is to be dealt with by the Administrative Court (Archbold 28-105).
A Crown Court may deal with a contempt "in the face of court" when the contempt is committed either:
- in the courtroom itself (for example, interrupting or interfering with the proceedings); or
- in the court building where it has been reported to the judge (for example, threatening a witness waiting to give evidence); or
- beyond the courtroom and the court's precincts, when it is reported to the judge and it relates to proceedings whether in progress or pending (for example, improper approaches to witnesses or jurors).
The judge should exercise the power only when it is urgent and it is important to act immediately (Balogh v St. Albans Crown Court [1975] 1 Q.B 73).
In (R v Callum Iain McLeod, 20.12.200 TLR), the Court of Appeal held there was no reason why a trial judge could not be considered to be an independent and impartial tribunal for proceedings for contempt of court.
Sometimes the contempt may be sufficiently serious to justify proceedings for a criminal offence (for example perverting the course of justice or witness interference); however the court may prefer to deal with the conduct as part of its inherent jurisdiction to administer justice in a speedy and orderly manner.
Role of prosecutor - Crown Court
When a Crown Court judge indicates that he/she wishes to deal with someone for contempt, prosecutors must ensure that prosecuting counsel is in a position to assist the court with as much information as possible.
Magistrates' Court
Magistrates' courts are not courts of record, and therefore, do not have any inherent power to punish contempt. However, statutory powers for magistrates to punish contempt in the face of court are contained in Contempt of Court Act 1981. These are:
- Power to detain, until the rising of the court, a person (whether a defendant or another person present in court) who wilfully insults the justice or justices, any witness before, or officer of, the court, or any solicitor or counsel having business in the court who wilfully interrupts the proceedings of the court or otherwise misbehaves in court. The court may, if it thinks it appropriate, commit the offender (if 18 or over) to custody for a specified period not exceeding one month, or impose a fine not exceeding 2,500, or both (Section 12 Contempt of Court Act 1981) refer to The Consolidated Criminal Direction.
- Power to commit to custody any person attending or brought before a magistrates' court who refuses without just cause to be sworn or to give evidence under (Section 97(4) of the Magistrates' Court Act 1980) (i.e. the witness has been witness summonsed), until the expiration of such period not exceeding one month as may be specified in the warrant, or until he/she sooner gives evidence or produces the document or thing, or impose on him/her a fine not exceeding level 4 on the standard scale, or both.
It is contempt to use in court or bring to court for use any tape recorder or other instrument for recording sound, except with leave of the court. Similarly it is a contempt to publish a recording or dispose of it with a view to publication (Section 9, Contempt of Court Act 1981).
It is a contempt to take any photograph, make or attempt to make any portrait or sketch of a justice or a witness in, or a party to, any proceedings before the court, either in the courtroom or its precincts (Section 25, Criminal Justice Act 1925).
When contempt is not admitted, the trial should take place at the earliest opportunity and should be before a bench of justices other than those justices before whom the alleged contempt took place.
In cases of 'constructive' or 'indirect' contempt the Attorney General may intervene in order to institute proceedings in the Administrative (Divisional) Court of the Queen Bench division in appropriate cases under Rules of the Supreme Court 1965, Order 52, R.1(2).
Role of prosecutor - Magistrates' Court
The court will usually wish to bring proceedings on its own initiative, but prosecutors should be prepared to bring to the notice of the court any behaviour that merits attention. In most cases of contempt the court will not require any assistance from the prosecution but you should be ready to assist the court with any information required.
Strict Liability Contempt under the Contempt of Court Act 1981
Strict liability contempt refer to The law, earlier in this chapter applies to publications, which create a substantial risk that the course of public justice will be seriously impeded or prejudiced, in particular legal proceedings that are "active" at the time of the publication, and regardless of any intent to do so. (Archbold 28-59 to 28-61).
"Active" is defined in Schedule 1 of the Act as including the issue of a summons or the arrest without warrant of a defendant (Archbold 28-62).
Whether the publication creates a substantial risk of serious prejudice is judged at the time of publication. The longer the gap between publication and the trial, the less the substantial risk of serious prejudice is likely to be. (Archbold 28-74 to 28-76).
Orders postponing reports of proceedings
(Section 4(2) of the 1981 Act) gives the court power to make orders postponing publication of reports of proceedings in order to avoid substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings that are pending or imminent. (Archbold 28-80).
(Section 11 of the 1981 Act) gives the court the power to prohibit the publication of a name or other matter in connection with the proceedings as appear necessary to the court for the purpose for which it was withheld. (Archbold 28-96).
The general rule is in favour of open justice, which is fully and freely reported. There are circumstances in which the court of its own motion or one of the parties will seek a restriction of the matter that may be published under Sections 4 and 11.
The Practice Direction Contempt of Court Act 1981 (1983) 76 Cr App R 78 Archbold 28-80 makes it clear that an order must state in writing:
- its precise scope;
- the time at which it shall cease to have effect;
- the specific purpose of the making of the order.
The prosecutor should consider making an application where to do so is in the interests of justice. For example, to protect the identity of a witness, e.g. a blackmail victim (Section 11), or in order to protect a forthcoming prosecution involving the same defendant or prosecution witness, where it is considered that publicity of the first trial is likely to prejudice the proceedings which are pending (Section 4).
Such applications should be the exception. The prosecution should not act in a way which may be construed as unduly interfering with the public's right to information. Any undue interference would be in breach of Article 10 of the European Convention on Human Rights which guarantees the right to receive and impart information.
Any application should seek only such restrictions and for such period as are necessary to meet the interests of justice. It is advisable that a draft order is provided to the court to ensure that the requirements of the Practice Direction above are met.
Where the court announces that it is considering making a "blanket order" under Section 4(2) the prosecution attitude will be one of neutrality. However, the prosecutor is under a duty to bring to bring the Practice Direction to the court's attention, and to remind the court that if the terms of an order are too wide then it will be invalid and offer no protection. Other issues with which a prosecutor may provide assistance to the court are:
- the legal effect of the making of the order;
- the legal effect of a refusal to make the order;
- drawing the court's attention to any relevant matters that it should consider when deciding whether to make such an order.
Appeals against orders
Section 159 Criminal Justice Act 1988 (Archbold 7-308-309) provides that a person aggrieved may appeal to the Court of Appeal, with the leave of that Court, against an order made under Section 4 or Section 11 (which gives courts power to order restrictions on the reporting of material, such as witnesses' names withheld from the public in its proceedings) of the 1981 Act. The person aggrieved will usually be the press or a broadcasting authority. The procedure for making such appeals is set out below. Section 159 applies only in relation to trials on indictment. In respect of decisions in the magistrates' court, the remedy is by way of application for judicial review to the Administrative Court.
In a case where the prosecution has taken a neutral stance at the lower court, the same position will be adopted at the Court of Appeal or Divisional Court.
Appeal against a finding or finding and sentence combined
Where an appeal is lodged against a finding in a contempt case or against a finding and sentence, the Court of Appeal may, in appropriate cases, request the assistance of an amicus curiae. Such a request will be directed to the LSLO since the appointment of an amicus is a matter for the Attorney General. If the Attorney General is satisfied that the attendance of an amicus is necessary, counsel will be instructed by the Treasury Solicitor on behalf of the Law Officers.
Appeal against sentence only
Where an appeal is lodged against sentence only, CPS will instruct a prosecution advocate to assist the court with the facts of the case. The practice of the Court of Appeal is to expedite the hearing in such cases and therefore a prosecution advocate will need to be instructed without delay.
Civil contempt
Civil contempt takes the form of non-compliance with a court order or an undertaking given to the court in lieu of an order. Contempts by breach of an undertaking to the court are not unusual in civil cases but are rare in criminal cases. One example would be where a sentence was mitigated on the basis of an undertaking made by someone to repay money stolen by the defendant. Giving such an undertaking, if it misleads the judge, may amount to a criminal contempt and possibly perjury or perverting the course of justice, which would normally be investigated by the police.
A breach of an undertaking would, of itself however, be a civil contempt even though the undertaking was made to a criminal court. Civil contempt is not a criminal offence, even if committed in connection with a criminal case: (Cobra Golf Ltd v Rata [1998] Ch. 109). See also (Archbold 28-39).
Once such a breach has come to light, it is the responsibility of the court to summon the alleged contemner. However, because it is undesirable that the court should then act as prosecutor and judge, it is appropriate for The CPS to assist by instructing counsel to place the circumstances of the matter before the court and question the alleged contemner in case of any dispute. Such cases will be very rare but in the event of such an occurrence, steps should be taken to instruct the original counsel at the hearing. The responsibility for providing The CPS with the relevant transcripts and post trial documents lies with the Lord Chancellor's Department.
"Quasi" Contempt
There are a number of statutes which contain restrictive or prohibitive provisions as to what can be published. Examples include:
- (Section 39 Children and Young Persons Act 1933) - publication of name, address or school calculated to identify a child;
- (Section 8 Magistrates' Courts Act 1980) - Restrictions on reports of committal proceedings.
Identification of newspapers and other publications as defendants
When a proposed defendant is a newspaper or other publication, it is essential that the defendant is identified correctly. This will be especially important if proceedings are brought for a matter that can be subject to a time-limit: if proceedings have been brought and the defendant is wrongly identified, it may not be possible to correct the error if the time-limit has been passed.
The investigating officer is responsible for the correct identification of the defendant company. However, the prosecutor should separately confirm that the defendant company has been correctly identified. For example to prosecute Fred Bloggs Limited when the actual offending company within the group is Fred Bloggs (London) Limited would result in a directed acquittal.
When prosecuting newspapers for offences contrary to section 39 of the Children and Young Persons Act 1933 and section 5 of the Sexual Offences Act (Amendment) 1992 for breaching anonymity, it is essential to remember that the appropriate defendant to prosecute is the publisher, not the printer.
Particular care is needed in the matter of a publishing company which may have separate legal companies dealing with different aspects of the publishing process. It is essential to ensure that it is the publisher who is correctly identified and summonsed.
To assist the prosecutor with this duty, Communications Division in Headquarters holds reference material about national and local media. The Press Office has agreedto act as a first point of contact for prosecutors to verify the proper identification of the correct defendant in proceedings involving newspapers.
Procedure - pre-trial
The following contempts/quasi-contempts are either brought by the Attorney General or require his consent:
- Section 1, Contempt of Court Act 1981 - The Strict Liability rule.
- Sections 4 and 11, Contempt of Court Act 1981 - orders prohibiting publicity. Breach of such orders are statutory contempts that do not require proof of intent. There does not appear to be any restriction on prosecution, but in practice, these should be referred to the Attorney General for decision.
- Section 8, Contempt of Court Act 1981 - Jury Disclosure. Proceedings may only be brought by the Attorney General, or with his/her consent, or by the court of its own motion (Section 8(3)).
- Section 9, Contempt of Court Act 1981 - Misuse of Tape Recorders in Court. Breach of such an order is a statutory contempt. There does not appear to be any restriction on prosecution, but in practice, these should be referred to the Attorney General for decision.
- Section 8, Magistrates' Court 1981 - Publicity of Committal Proceedings. Statutory summary penalty. Proceedings may only be brought by the Attorney General or with his/her consent.
- Section 4(5) Sexual Offences (Amendment) Acts 1976 & Section 5 Sexual Offences (Amendment) Act 1992 - Anonymity of complainants in sexual cases. Both are summary offences. Proceedings may only be brought by the Attorney General or with his consent.
- Section 12, Administration of Justice Act 1960 - Report of Proceedings of Court Sitting in Private. Such reports, by virtue of this section, are not automatically a contempt save in particular circumstances in section. Other reports fall to be considered under strict liability rule or common law contempt. There does not appear to be any restriction on prosecution, but in practice, these should be referred to the Attorney General for decision.
- Section 11, Criminal Justice Act 1987 - Reports of Preparatory Hearings. Statutory summary penalty. Proceedings may only be brought by the Attorney General or with his/her consent.
- Section 37 and 38 Criminal Procedure and Investigations Act 1996 - Publicity of Preparatory Hearings. Statutory summary penalty. Proceedings may only be brought by the Attorney General or with his/her consent.
The following quasi-contempts do not require the Attorney General's consent:
- Section 39, Children and Young Persons Act 1933 - Order prohibiting the identification of a young person. Summary penalty (Section 39(2)).
- Section 49, Children and Young Persons Act 1933 - Prohibition on publicity of Youth Court proceedings. Summary penalty (Section 49(9)).
- Section 41, Criminal Justice Act 1925 - Taking and Publishing of Photographs or Sketches made in Court. Summary penalty (Section 41).
Casework location
Any case where the judiciary directs that the papers are referred to The CPS for any reason, such as the investigation of possible perjury or interference with a juror, should be notified to the CCP/ Sector Directors (London). See Casework Levels and Location - Cases to be notified to CCP/Sector Directors (London), elsewhere in this guidance.
Appeals under Section 159 Criminal Justice Act 1988
Rule 16A Criminal Appeal Rules 1968 provides rules for appeals under Section 159 Criminal Justice Act 1988 against orders made in the crown Court restricting or preventing reports of proceedings. You should note that, after receiving notice from the applicant, the would be-respondent has only three days in which to notify the Registrar of Criminal Appeals in writing that it is intended to respond. (Archbold 7-310).
You should therefore apply to the Registrar under Rule 16A(3) of the 1968 Rules to be made a respondent, if leave to appeal is granted.
Notifying the Law Officers
The Attorney General has a public interest function to ensure the fair administration of justice. In exercising his functions in relation to contempt, the Attorney General is acting to ensure that justice takes it proper course.
It is imperative therefore that where an allegation of contempt of court arises it is referred immediately to the Attorney General. This will include alleged breaches of section 4 & section 11 Contempt of Court Act orders.
This is so even if it is felt that further investigation is required into the circumstances surrounding the allegation and particularly where an Order has been made for the matter to be referred to the Attorney General.
In a case of strict liability contempt, prosecutors should refer the following documents to the AG's Office:
- background note and summary of evidence (this could be done by supplying any police report);
- Date when proceedings became active;
- date of committal for trial (if this has taken place);
- proposed date of trial;
- opinion of truth or otherwise of publication;
- catchment area and circulation figures of publication, if known.
If an issue arises whereby the media is thought to have published or is about to publish material about an existing or pending case which gives rises to concerns about its potential prejudicial effect on the ongoing proceedings Areas should notify the Attorney General's Press Officer immediately. The Press Officer will ensure that the relevant AGO Legal Adviser is alerted.
The Attorney General will need the following information:
- Summary of the prosecution case, including any Orders made in relation to publicity.
- Details of the potential or actual Contempt.
- Copies of any existing press coverage and/or any draft article/TV programme which has been obtained from the newspaper/TV company concerned.
- Summary of what, if any action CPS has taken/plans to take.
- A chronology where appropriate.
The CPS Press Office at Ludgate Hill, Headquarters should also be notified; this will ensure that the Director is informed. The Press Office should also be provided with copies of the above items.
Permission to interview jurors
Where police wish to interview jurors permission should be sought from the Court of Appeal.
There is no legal requirement for officers to obtain the leave of the Court of Appeal to interview jurors per se. However, a practice has been agreed with the Court of Appeal that where it is the intention of an officer to interview jurors, where there is a suggestion of a tainted acquittal or jury intimidation, then an application for such interviews should be made to the Court of Appeal.
These applications should be made via the Crown Court and passed to the Court of Appeal for consideration. It may be that the Court of Appeal would draft questions in order to elicit the information required. This requirement still applies where the trial judge has purported to give permission for such enquiries or even directed they take place.
The purpose of the procedure is to protect the sanctity of jury deliberations and the basis for their decisions in any given case. It would also ensure that section 8 of the Contempt of Court Act 1981 is not breached.
Useful references
Archbold 2-29
DPP v Channel Four Television Co. Ltd. [1993] 2 All E.R 517
Archbold 28-105
Balogh v St. Albans Crown Court [1975] 1 Q.B 73
R v Callum Iain McLeod, 20.12.200 TLR
Section 12 Contempt of Court Act 1981
The Consolidated Criminal Direction
Section 97(4) of the Magistrates' Court Act 1980
Section 9, Contempt of Court Act 1981
Section 25, Criminal Justice Act 1925
Archbold 28-59 to 28-61
Archbold 28-62
Archbold 28-74 to 28-76
Section 4(2) of the 1981 Act
Archbold 28-78
Archbold 28-80
Section 11 of the 1981 Act
Archbold 28-96
Archbold 7-308-309
Cobra Golf Ltd v Rata [1998] Ch. 109
Archbold 28-39
Section 39 Children and Young Persons Act 1933
Section 8 Magistrates' Courts Act 1980
Consents to Prosecute, elsewhere in this guidance
Casework Levels and Location - Cases to be notified to CCP/Sector Directors (London), elsewhere in this guidance
Archbold 7-310