REPORTS OF COMMITTEES
| Published date | 01 May 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01417.x |
| Date | 01 May 1975 |
REPORTS
OF
COMMITTEES
THE
REPORT
OF
THE
COMMITTEE
ON
CONTEMPT
OF
COURT
THE
Phillimore/Cameron Committee has gone
a
long way towards
meeting the major criticisms of the law of contempt of court. The
approach adopted has been comprehensive, coherent and well-
balanced.
No
specific legislative proposals are drafted however-this
being left
as
a
possible task for the Law Commission. It is to
be
hoped
that further discussion leading
to
draft legislation will preserve the
overall coherence of the recommendations whilst clarifying those that
are loosely worded
or
lacking in definition.
No
evidence was presented to the Committee that a
law
of contempt
was
unnecessary. Indeed, their recommendations start from the prem-
ise that such
a
law is fundamental in our legal system whilst recognis-
ing a need for its clarification and for revision of its procedure. The
report seems to have been guided by the following principles. Con-
tempt is
a
residual jurisdiction
to
prevent
or
punish conduct which
tends
to
obstruct, prejudice,
or
abuse the administration of justice.
The summary procedure unique
to
the law of contempt
is
an integral
part of the remedy, providing immediate and ef€ective reaction from
the courts to such conduct. The width of the law, therefore, should
be co-extensive
with
the
need for
its
speedy procedure. Contempt
should presuppose particular proceedings in imminent danger of
obstruction
or
prejudice. Conduct worthy of punishment which would
not have this effect should be dealt with by alternative criminal
offences preserving the normal safeguards
of
jury trial.
Thus, it recommends that intentional contempt should. where
possible, be dealt with under the common law offence of obstructing
or
perverting the course of justice unless
the
threat
to
particular
proceedings requires immediate judicial response.
The
need to protect
confidence in
the
administration of justice is taken to justify the
creation of two specific offences dealing with victimisation of witnesses
and jurors and allegations of bias and corruption in judges. The latter
offence
is
recommended to become part of
the
law of criminal libel. It
is submitted that this approach of
''
hiving
off
"
these areas from the
law of contempt is correct. However, the report leaves
the
scope
of
the
new offences imprecisely defined and there seems little merit
in
placing renewed emphasis on relatively unused existing offences which
have their own problems of definition and extent. On the other hand
it may
be
argued that the justification behind these recommendations
suggests even further statutory provision. Witnesses may be deterred
by conduct falling short of victimisation which may lead to an equal
loss
of confidence in
the
administration of justice.' Furthermore, the
reasons given by
the
Committee for not extending
the
law of contempt
to protect litigants from outside pressures short of unlawful threats
1
This
was one
of
the
reasons
for
the decision
in
the Paul
Foot
Case-R.
v.
Socialist
Worker
I19751
1
All
E.R.
142.
31
1
312
THE
MODERN
LAW
REVIEW
[Vol.
38
need not have prevented their consideration of the need for an alterna-
tive offence similar to that proposed to protect judges. Two of the
Law
Lords in
the
Sunday Times
case considered that scurrilous abuse
of a litigant might deter future litigants from seeking redress in the
courts. The majority of the House of Lords felt that prejudgment
of
the issues in a case might also have this effect. It seems illogical to
protect witnesses, jurors, and judges on the grounds that public
confidence
in
the administration of justice must
be
maintained but
to allow other types of conduct equally likely to have that effect on
future witnesses and litigants to continue without sanction. Witnesses
and litigants should receive equal protection under the same law
since most litigants will also be witnesses at their own trial.
Contempf
procedure
A
narrower law of contempt justifies and is justified by the summary
nature of
its
procedure. Nonetheless the report
is
prepared to meet
many
of
the criticisms
of
that procedure. Suggestions that contempt
procedure offends Article
6
(3)
(6)
of
the European Convention on
Human Rights have led the Committee to recommend that
all
contemnors be given adequate opportunity to present and cross-
examine witnesses with the help
of
legal representation. Amendment
of
the anomalous position of contemnors in relation to legal aid is
proposed although it is not clear whether these recommendations are
confined to contempt in the face of the court. Remission
of
cases
of
contempt in the face
of
the court to another judge
(if
only for sentence)
was, however, rejected as impracticable. Reliance was placed on the
good
sense of the judiciary to use its powers wisely and on the
availability of appeal. Nevertheless a
"
cooling
off
"
period between
determination
of
the contempt and sentence is recommended partly
to enable the preparation of background reports on
the
accused. In
relation to sentencing
it
is recommended that the court retain an
unlimited power to fine but that custodial sentence be limited to
two
years maximum. Alternative sentencing powers other than
in
relation
to
those raising a defence of insanity were considered impracticable
in
application to all courts.
The lest
for
contempt
The committee claims to have adopted with modifications the test
for unintentional contempt propounded by the Divisional Court in
Att.-Gen
v.
Times Newspapers.
Instead of defining contempt as
conduct which
may
create a
serious risk
of interference with the
course of justice, it preferred as a test whether it creates a risk that the
course
of
justice
will
be
seriously impeded
or
prejudiced.
This changes
the emphasis away from the degree of risk to the degree of harm and
is aimed at eliminating
"
technical
"
contempt^.^
However,
it
does
2
A/t.-Gen.
V.
Tlmes
Newspapers
[I9731
3
All
E.R.
54.
3
Curiously the committee felt !hat contempt remained an area where discretion in
prosecution
is
peculiarly necessary.
This
suggests that not all contempts
will
be
worthy of punishment and
will
therefore
be
"
technical."
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