Contempt of Court, the Internet and Court Reporting

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Chapter 7

Contempt of Court, the Internet and Court Reporting

7.1 CRIMINAL CONTEMPT OF COURT

Criminal contempt of court¹is a common law offence that can be committed in a variety of ways. In his speech in the House of Lords’ case Attorney General v Leveller Magazine Ltd [1979] AC 400, Lord Diplock stated that:

[…] although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.²

Contempts of court fall into two categories, those that are committed ‘in the face of the court’ (e.g. disrupting proceedings in court) or those committed ‘constructively’ outside court (e.g. publishing information about ongoing proceedings which tends to pervert the course of justice). All courts exercising a judicial function of state are protected by the law of contempt of court, although the power to deal with contempts of court is limited to specific courts.

Contempts of court are either dealt with summarily³by a court of its own motion where that court has the jurisdiction to do so, or by way of reference by the Attorney General to the Divisional Court.⁴The alternative practice of trying

¹Note: criminal contempt of court is distinct from civil contempt of court, which is essentially disobedience to the order of a court.

²Attorney General v Leveller Magazine Ltd [1979] AC 440, per Lord Diplock at 449.

³Note: ‘summarily’ here means other than by trial on indictment, rather than triable only in the magistrates’ court.

⁴See the Rules of the Supreme Court 1965, Order 52, and the Civil Procedure Rules 1998 (SI 1998/

3132) (CPR).

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contempt of court on indictment is now defunct.⁵Any court of record has jurisdiction to deal with contempts in the face of the court, but only superior courts of record have jurisdiction to deal summarily with both contempts in the face of the court and constructive contempts of court. By virtue of section 45(4) of the Senior Courts Act 1981 (SCA 1981) the Crown Court is designated as a superior court of record. However, the Crown Court’s jurisdiction is restricted to dealing with contempt in the face of the court, disobedience of a court order, or breach of an undertaking to the court by rules 81.12 and 81.13 of the CPR. Where other types of contempt of court are alleged, the contempts should be committed to the Administrative Division of the High Court. The magistrates’ court has no common law powers to deal with contempts of court but may exercise jurisdiction over contempts of court where specifically conferred upon it by statute – for example section 12 of the Contempt of Court Act 1981 (CCA 1981). The procedure to be followed when dealing with contempt of court is to be found in Part 62 of the Criminal Procedure Rules 2013 (SI 2013/1554) (CrimPR).⁶A criminal contempt of court must be proved to the usual criminal standard – i.e. beyond reasonable doubt – and the case is either brought by the court of its own motion, or by a reference by the Attorney General to the Administrative Division.

7.1.1 Elements of the offence

As stated in Attorney General v Leveller Magazine Ltd [1979] AC 400 (see para 7.1), the actus reus of contempt of court is extremely broad and can encompass such acts as the disruption of court proceedings, failure to pay court fines, publishing material likely to pervert the course of justice and insulting the tribunal. Whatever the act, it satisfies the actus reus of the offence if it involves interference with the due administration of justice.

Where the alleged contempt of court is contempt by publication, the statutory provisions of the CCA 1981 apply. Section 1 creates a strict liability rule with regard to contempts by publication, with subsequent sections 2–4 limiting the scope of the strict liability rule and providing the defence of fair and accurate contemporaneous reporting of proceedings.

There was previously some ambiguity about whether the strict liability rule under the statutory contempt of court extended to other, non-statutory forms of contempt of court. The elements of the offence of contempt of court at common law were defined categorically by the Administrative Division in Attorney General v Davey, Attorney General v Beard [2013] EWHC 2317 (Admin), a case regarding

⁵See Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 Cr App R 32.

⁶See www.justice.gov.uk/courts/procedure-rules/criminal/docs/crim-proc-rules-2013-part-62.pdf.

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alleged contempt of court by jurors. Prior to their judgment in the case, the court gave the following précis of the law in this area:

The law in relation to proof of contempt at common law is well settled. First the Attorney General must prove to the criminal standard of proof that the respondent had committed an act or omission calculated to interfere with or prejudice the due administration of justice; conduct is calculated to interfere with or prejudice the due administration of justice if there is a real risk, as opposed to a remote possibility, that interference or prejudice would result: see Attorney General v Times Newspapers Ltd. [1992] 1 AC 191; Attorney General v Times Newspapers Ltd. [1974] AC 273.

Second an intent to interfere with or prejudice the administration of justice must also be proved. In AG v Newspaper Publishing Ltd. [1988] Ch 333 Lord Donaldson MR at page 374 said of the requisite intent: ‘[…] the power of the court to commit for contempt where the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire […]’ In the same case Lloyd LJ made clear that there was no room for a state of mind which fell short of intention. He continued at page 383 by saying: ‘[…] that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred.’

More recently in Attorney General v Dallas [2012] 1 WLR 991, a case where a juror had conducted her own research on the internet, Lord Judge CJ set out at paragraph 38 four elements which would ordinarily establish the two elements of contempt in cases where there had been deliberate disobedience to a judge’s direction or order. i) The juror knew that the judge had directed that the jury should not do a certain act.
ii) The juror appreciated that that was an order. iii) The juror deliberately disobeyed the order. iv) By doing so the juror risked prejudicing the due administration of justice.⁷

7.1.2 Sentencing of contempts of court

Given the wide array of potential acts which fall under common law and statutory contempts of court, there is no unified sentencing guideline which is applicable across the board. However, section 14 of the CCA 1981 provides the following:

(1) In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of

⁷Attorney General v Davey, Attorney General v Beard [2013] EWHC 2317 (Admin), per Thomas

LJ at [2]–[4].

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committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by an inferior court.

(2) In any case where an inferior court has power to fine a person for contempt of court and (apart from this provision) no limit applies to the amount to the fine, the fine shall not on any occasion exceed £2,500.

7.1.3 Open justice and reporting of proceedings over the internet

The principle of ‘open justice’ is one of the cornerstones of the criminal law of England and Wales, underpinning as it does the maxim that justice must not only be done, but must be seen to be done. In Attorney General v Leveller Magazine Ltd [1979] AC 440, the principle of open justice and its application was defined as follows:

As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it required that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection parliament has made some statutory...