Contempt of court
Principle
The CPS is 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 some 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. [Note: The AG only has an exclusive jurisdiction in respect of section 1 and section 8 contempts. There is no exclusive jurisdiction in respect of breaches of section 4(2) and section 11 orders: in practice, though, proceedings are likely to be initiated by the Attorney.] Proceedings brought under the Contempt of Court Act 1981 are in practice initiated by the Attorney General, and the CPS may be involved in preparing papers on his or her behalf. [Note: The AG only has an exclusive jurisdiction in respect of section 1 and section 8 contempts. There is no exclusive jurisdiction in respect of breaches of section 4(2) and section 11 orders: in practice, though, proceedings are likely to be initiated by the Attorney.]
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 (this may also be referred to as 'Strict Liability Contempt', although publication of such prejudicial matter may also be a contempt at common law).
Guidance
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 in accordance with CPR Schedule 1, RSC Order 52 (Archbold 28-105).
A Crown Court may deal with 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 Balogh, Lord Denning stated that, where there was not this urgency, the most appropriate course was to refer the matter to the Attorney General so that he or she could consider bringing proceedings in the Queen's Bench Division.
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.
The role of prosecutors - 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, including relevant authorities.
The role of prosecutors - 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.
The statutory powers are as follows:
- The 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.
- The 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 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 41, 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 CPR Schedule 1, RSC Order 52.
Strict liability contempt under the Contempt of Court Act 1981
Strict liability contempt, refer to the law above in this section, applies to publications (including broadcasts) addressed to the public at large or any section of the public, which create a substantial risk that the course of public justice will be seriously impeded or prejudiced. The strict liability rule only applies to legal proceedings that are "active" at the time of the publication, and may render the publication a contempt regardless of any intent to interfere with the course of justice in the proceedings. (Archbold 28-59 to 28-61).
The absence of the requirement to prove intention distinguishes it from the common law variant. Common law contempt may be committed where proceedings are pending or imminent (albeit not necessarily active for the purposes of the 1981 Act), and where there is actual intent to interfere with the administration of justice in those proceedings.
"Active", for the purposes of section 2(3) of the 1981 Act, 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). Proceedings cease to be active for the purposes of the Act where they conclude by, inter alia, acquittal/sentence, any other order bringing proceedings to an end, or by discontinuance/operation of law. Where a warrant has been issued, proceedings cease to be active once twelve months' have elapsed without the suspect's arrest, and - where there has been an arrest - when the suspect is released without chargem otherwise than on bail.
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 fade factor'), 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 fair. Accurate and contemporaneous reports of public court proceedings in order to avoid substantial risk of prejudice to the administration of justice in those proceedings or in other proceedings that are either pending or imminent. (Archbold 28-80).
Section 11 of the 1981 Act arises where the court has exercised either its inherent or statutory jurisdiction to withhold a name or other matter from the public in the proceedings, and gives the court the power to make a direction prohibiting the publication of a name or other matter in connection with the proceedings to such extent as appears necessary to the court for the purpose for which it was withheld. (Archbold 28-96).
Courts have to have regard for the fact that in considering imposing restrictions of this or any other nature the general rule is in favour of open justice, and the full and free reporting of public court proceedings.
Article 10 of the European Convention on Human Rights, the right to freedom of expression (the freedom both to impart and to receive information, regardless of frontiers), is also relevant in this context. Article 10 is a qualified right, and interference of it in the form of restrictions or penalties may be appropriate where this is necessary and proportionate in pursuit of a legitimate aim, for instance, the protection of the rights of others (to a fair trial, or to privacy, for instance). However, it is often stressed in this context that interference is only appropriate to the extent to which it is truly necessary, and there should be no interference (or a lesser degree of interference) where the result might be achieved by other means.
However, 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, or under equivalent provisions whereby discretionary reporting restrictions may be enclosed, including(for example) under section 39 of the Children & Young Persons Act 1933.
The Consolidated Criminal Practice Direction, Part 1, paragraph 1.3, makes it clear that any order made must be recorded in some permanent form, by committing it to writing, as soon as possible after it is made, and make clear:
- its precise scope;
- if applicable, the time at which it shall cease to have effect (should, for instance, it be an order under section 4(2) of the 1981 Act);
- the specific purpose of the making of the order.
Courts should obviously announce the making of an order in court, but it is also appropriate for arrangements to be made to bring the order to the attention of members of the press/media who are not in court at the time it is made: for instance, by making an appropriate note of the existence of the order next to the case in the court list. A copy of the order should also be available in the court office for inspection, and court staff should be prepared to answer questions relating to the order.
The prosecutor, while bearing in mind the importance should consider making an application where to do so is in the interests of justice. For example, to protect the identity of a witness, or 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.
Any application should therefore 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 Consolidated Criminal Practice Direction above are met.
Where the court announces that it is considering making a "blanket Order" under Section 4(2), the prosecutor is under a duty to remind the court that if the terms of an Order are too wide then it may be open to challenge and risk offering 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 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.
Prosecutors should also be aware of statutory restrictions which can apply to the reporting of proceedings, without the need for a specific order of the court. These would include (for example) the anonymity which is afforded to complaints in cases of a sexual nature, and restrictions on the reporting of committal proceedings under section 8 of the Magistrates' Court Act 1980. In appropriate cases, prosecutors should consider drawing attention to these provisions in open court, so that the court can consider advising the media accordingly.
Civil contempt
The distinction between civil contempt and criminal contempt is of largely technical interest only now, as it is clear that, in either case, the contempt must be proved to the criminal standard: beyond reasonable doubt. Criminal contempt includes behaviour which is, albeit not in breach of any specific direction given by the court, intended to interfere with the administration of justice in the proceedings. Civil contempt takes the form of non-compliance with a court order or an undertaking given to the court in lieu of an order. Contempt by breach of an undertaking to the court is 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 contempt of court and possibly to a criminal offence such as perjury (where the undertaking is given on oath) or perverting the course of justice. Where the conduct may amount to being a distinct criminal offence (particularly where it could amount to perjury, where the defendant has the right to jury trial and there is a statutory requirement for corroborative evidence) it would normally be appropriate to refer the matter to 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 an advocate 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 advocate at the hearing. The responsibility for providing the CPS with the relevant transcripts and post trial documents lies with the Ministry of Justice.
Quasi-contempt
This guidance has previously mentioned statutory restrictions on the reporting of proceedings which, albeit not giving rise to specific contempts, can lead to criminal proceedings in the event they are breached. 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.
Where the offence is a “quasi contempt”, it is normal for the police to investigate the matter, and for the CPS to prosecute.
Procedures
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 advocate to the court. Such a request will be directed to the Attorney General's Office 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.
Identification of newspapers and other publications as defendants
When a proposed defendant is a newspaper or other publication, a body corporate, it is essential that the defendant is identified correctly. This is as true in prosecutions of media organisations as it is in the case of any prosecution involving a company. If the wrong 'person' is prosecuted, this will provide an absolute defence and this will be especially important if proceedings are brought for a matter subject to a statutory time-limit (STL): if proceedings have been brought and the defendant is wrongly identified, it will not be possible to correct the error if the time-limit has been passed. This is because amending the details of the defendant so as to substitute the details of another person would amount to allowing the laying of information outside the STL.
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.
The investigating officer is primarily responsible for the correct identification of the defendant company, but the prosecutor should be ready to assist the officer with advice in this respect and. should separately confirm that the defendant company has been correctly identified.
When prosecuting newspapers for 'quasi contempt' 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, although in many cases it will also be appropriate to consider the public interest in prosecuting the editor as well.
Particular care is needed in the matter of a publishing company which may have separate legal companies dealing with different aspects of the publishing proces. It is essential to ensure that it is the publisher that is correctly identified and summonsed.
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.
Contempt/quasi contempt that requires the consent of the Attorney General
The following contempt/quasi-contempts are either brought by the Attorney General or require his/her consent:
- Section 1, Contempt of Court Act 1981 - The Strict Liability rule.
- Sections 4 and 11, Contempt of Court Act 1981 - orders postponing or prohibiting publicity. Breach of such orders may be a contempt of court at common law in the way that breach of any court order may: while it is in principle necessary to prove intention to interfere with the administration of justice, this may be inferred where there is evidence of knowledge of the order and where the terms of the order are clear. There does not appear to be any restriction on prosecution, but in practice these matters should be referred to the Attorney General to consider brining proceedings in the Divisional Court in accordance with CPR Schedule 1, RSC Order 52.
- 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)). Again, this is a statutory contempt, rather than a criminal offence (a 'quasi contempt'). Given this, the better view is that proceedings ought to be initiated in the Divisional Court, and therefore brought, if at all, by the Attorney General, as in AG v Scotcher [2005] UKHL 36.
- 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, and it is possible that such incidents may be treated as contempts in the face of the court, but if this course is not adopted, cases should be referred to the Attorney General, as with section 8 (above).
- 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 as set out in the section (for instance, proceedings under the Children Act 1989). There does not appear to be any restriction on bringing proceedings, but in practice, these cases should be referred to the Attorney General for decision as to whether he/she considers it appropriate to bring proceedings in the Divisional Court.
- 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).
However, it is generally good practice to make the Attorney General's Office aware of such cases before informations are laid (see below).
Notifying the Law Officers
The Attorney General has a public interest function, part of which is to ensure the fair and proper administration of justice. In exercising his or her functions in relation to contempt, the Attorney General is acting independently of Government, in a public interest capacity, to ensure that justice is protected and accordingly 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 possible strict liability contempt, that is, where there is a suggestion that a publication creates a substantial risk of serious prejudice or impediment to the course of justice in proceedings, 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 (for instance, date of arrest or issue of warrant);
- Date of committal for trial (if this has taken place);
- Proposed date of trial, or likely date of trial (this is crucial information, as it may help in assessing the likely 'fade factor');
- Opinion of truth or otherwise of publication;
- Catchments area and circulation figures of publication, if known: this information may be available by consulting the free ABC online resource (www.abc.org.uk), where a certificate of circulation may be downloaded.
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 prejudice (that is, in what way the publication may adversely affect the proceedings).
- 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.
If in any doubt regarding the procedure to be adopted contact the CPS Policy Helpdesk at hqpolicy@cps.gsi.gov.uk.
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 Director London), elsewhere in this guidance.
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
Section 97(4) of the Magistrates' Court Act 1980
Section 9, Contempt of Court Act 1981
Section 41, 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 28-80
Section 11 of the 1981 Act
Archbold 28-96
Cobra Golf Ltd v Rata [1998] Ch. 109
Archbold 28-39
Archbold 7-308-309
Archbold 7-310
Archbold 28 (37-134)
Contempt of Court Act 1981
The Practice Direction Contempt of Court Act 1981 (1983) 76 Cr App R 78
Section 39 Children and Young Persons Act 1933
Section 8 Magistrates' Courts Act 1980