Contempt of Court

• Introduction
• Contempt proceedings contemplated by the court or AGO
• Conduct which may be a criminal offence and/or a contempt of court
• Juror misconduct and irregularities
• Conduct which may be a contempt of court: publications

Introduction

“Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms”: Attorney General v Punch Ltd [2002] UKHL 50 at [2].

The legal framework for contempt is distinct from the criminal law. However, at times allegations of contempt overlap with criminal proceedings, and may also amount to criminal offences.

This guidance addresses the following situations which a prosecutor may encounter:

• the prosecutor’s role when the court and/or Attorney General is, or is contemplating, taking proceedings for contempt
• conduct which may be a criminal offence and/or a contempt of court
• the specific example of juror misconduct and irregularities which may be a contempt of court: publications, and what a prosecutor should do

Contempt proceedings contemplated by the court or AGO

The prosecutor should be ready to assist the court or AGO to consider a contempt allegation. Part 48 of the Criminal Procedure Rules governs the responsibilities of the parties where a contempt of court is alleged. Prosecutors must ensure that Part 48 is drawn to the court’s attention if the court is considering using its summary powers to deal with contempt. These powers are generally exercised where it is necessary and appropriate to deal with a contempt which is clear and where it is urgent and imperative to act immediately (see Balogh v St. Albans Crown Court [1975] 1 QB 73). The rule sets out the different provisions which apply to the magistrates’ court and the Crown Court. The forms of contempt range from making unauthorised recordings of proceedings to disobeying summonses, refusing to give evidence or insulting or interrupting the court, or civil contempt where there has been non-compliance with an order. There is a criminal offence of taking photographs in the court precincts, but not one for making unauthorised recordings which is dealt with by section 9 Contempt of Court Act 1981.

The CPS does not have an investigative role (nor does the DPP) and, where it is said an allegation of contempt should be investigated, should remind the court that the prosecutor can only assist the court in ensuring the police are aware of a request to investigate a criminal allegation and its circumstances. It is a matter for the police whether and how to investigate any potential criminal offence or not.

Conduct which may be a criminal offence and/or a contempt of court

There are a series of offences which potentially capture conduct which constitutes an interference with the administration of justice. The usual course is for the conduct to be investigated by the police and prosecuted with an appropriate charge, for instance public order charges, witness intimidation or perverting the course of justice.

Contempt proceedings do not involve the investigation or prosecution of a criminal offence. There is no “offence” of contempt and the CPS does not advise on contempt as an “offence” nor prosecute it as it would an “offence”. However, this guidance addresses the situation below where the CPS may be expected to assist the court and/or the AGO when they are contemplating contempt proceedings for conduct which is also reflected in a criminal allegation.

In addition to offences such as perverting the course of justice and witness intimidation, the following illustrates the overlap of contempt of court and criminal offences:

• threatening, abuse or insulting words or behaviour in the courtroom or the vicinity of the courthouse may amount to offences under the Public Order Act 1986 or other appropriate offences
• publications in breach of reporting restrictions may amount to offences e.g. section 5 Sexual Offences (Amendment) Act 1992, section 49 Children and Young Persons Act 1933, section 49 Youth Justice and Criminal Evidence Act 1999. This must be within the summary time limit for these offences. The Attorney General’s consent must be obtained in cases where it is required to prosecute
• photographs etc. taken in the court precincts may amount to an offence contrary to section 41 Criminal Justice Act 1925 (note that this offence is committed in the building or in the precincts of the building in which the court is held)

In some cases, care is needed to identify the publisher and therefore the correct defendant. Investigators will need to consider who the company responsible is, including through checks of public records, and prosecutors should thereafter separately confirm the correct defendant has been identified.

It is imperative that there is communication between the police, CPS and the court and Attorney General’s Office when they are in fact considering the same conduct (the police are investigating conduct which may be a criminal allegation to be prosecuted as a criminal offence; the court/AGO is dealing with a possible contempt). Prosecutors should consider whether conduct is best addressed by prosecution or by contempt proceedings. This channel of communication should resolve the questions which arise in each individual case. It may range from simply informing the AGO of the position to consulting about the proposed course of action. As a general observation, it may normally be appropriate for the criminal investigation and any prosecution to proceed, where there is a viable criminal offence to be investigated or prosecuted. The exceptions are likely to be:

• in the case of the court taking contempt proceedings instead – the court in Balogh v St. Albans Crown Court [1975] 1 QB 73 held that the Crown Court judge could punish summarily for contempt of court, but only where it was urgent and imperative to do so and the contempt was clear
• in the case of proceedings by the AGO:
  • where the police have declined to investigate (depending on the reasons)
  • where there has been no prosecution for another reason (depending on that reason)
  • where the penalty for contempt of up to 2 years’ committal to custody is plainly more appropriate for the conduct than the penalty available upon criminal conviction
  • in particular conduct which constitutes a deliberate interference with the administration of justice and is only incidentally covered by criminal offences

On the last points, it is in particular those criminal offences for which the penalty is financial only where consideration should be given to whether contempt proceedings might be more appropriate. This will likely be in the most serious cases, for example egregious and deliberate breaches of reporting restrictions or the prohibition on photographing.

Juror misconduct and irregularities

A juror may commit a contempt of court. This is a specific example of conduct which may be a criminal offence and/or a contempt of court. The most common forms of juror misconduct are covered by criminal offences created by the Juries Act 1974:

• conducting research: section 20A
• sharing research: section 20B
• prohibited conduct: section 20C
• disclosing jury deliberations (subject to exceptions): section 20D

The provisions themselves set out the parameters of these offences. Prohibited conduct means conduct from which it may reasonably be concluded that the suspect intends to try the issue otherwise than on the basis of the evidence presented in the proceedings.

The offences are triable only on indictment, carry a maximum sentence of two years’ custody and/or a fine and require the Attorney General’s consent to prosecute.

In addition, section 20 also provides for a range of summary offences that may be committed by persons summoned for jury service, including failing to attend and making false representations for the purposes of evading jury service. Other juror misconduct may be treated as a contempt of court.

The police/prosecution should draw any apparent jury irregularity to the attention of the judge at once, whether during or after trial. Prosecutors must follow the relevant Criminal Practice Direction at 26M if a potential jury irregularity comes to light, whether during trial or after the jury is discharged.

During trial

If an allegation comes to light during the trial, which the judge considers appropriate to refer to the AGO, the AGO will refer the matter to the CPS (the DLS team) to contact the relevant police force and invite it to consider instigating an investigation. Whether or not to carry out an investigation is a matter for the relevant police force. If an investigation is carried out, the investigator must not be the officer in the case for the trial in which the misconduct is alleged, although it may be an officer from the same force. If the case proceeds to be charged, the DLS team must be notified before authorisation is given to charge. These offences require Attorney General’s consent to prosecute.

After trial

If an irregularity is identified after the jury is discharged, the judge has no jurisdiction. The route for addressing this is that the judge will contact the Registrar of Criminal Appeals. The Registrar will liaise with the AGO. The AGO will decide whether to contact the DLS team who will consider the matter before the police decide if an investigation is appropriate. This is a route which ensures the police are notified at a sufficiently senior level of a criminal allegation (the AGO and DLS team having first considered the irregularity) and have the opportunity to consider whether or not to investigate.

If a prosecutor is informed by the police of an alleged irregularity after the jury has been discharged the prosecutor should first obtain confirmation in writing from the police that the Chief Constable has been notified. If the Chief Constable has not been notified the prosecutor should notify the Chief Constable of the relevant force and invite them to consider the investigation of any potential offences.

The officer investigating the alleged juror misconduct should not be the officer in the case responsible for the main investigation. This will ensure consistency with the CPD, which addresses an irregularity during trial. The prosecutor should also obtain confirmation in writing from the police whether or not the relevant Crown Court has been notified. If not, the prosecutor should notify the relevant Crown Court.

The reviewing lawyer for the case that was being tried when the alleged juror misconduct occurred should ensure that they are provided with any material which engages the duty of post-conviction disclosure set out at paragraph 140 of the Attorney General’s Guidelines on Disclosure (2022): “where, at any stage after the conclusion of the proceedings, material comes to light which might reasonably be considered capable of casting doubt upon the safety of the conviction, the prosecutor should disclose such material”. Prosecutors should consider whether the material is sensitive and should consult with the police about whether the timing of any disclosure could prejudice the ongoing investigation (or any other investigation).

The Criminal Practice Direction confirms that where police wish to obtain a juror’s details for the purpose of an investigation, provision of those details is a matter for the Crown Court.

Section 15A Juries Act 1974 provides for a limited power to seize electronic devices (but not access or analyse them) for a specified period. The specified period is while the members of the jury are in the building at which the trial is being heard; other accommodation provided at the judge’s request; visiting a place in accordance with arrangements made by the court; or travelling to or from either of the latter two. It should be established where possible if there is to be a criminal investigation during the specified period and whether that investigation will seize the devices.

The seriousness of juror misconduct offences means that usually a prosecution will be required in the public interest. However, the public interest guidance in the Code must be applied in each case. In some cases the culpability and harm in the offending may be so low that a prosecution is not required. This can include cases where the jury deliberations are disclosed but for very limited purposes which, while unauthorised, are a bona fide attempt to raise concerns about the deliberation process, for the purposes of an appeal or to report misconduct. If a juror has undertaken any research, this is likely to have been in direct contravention of a judicial direction and thereby is highly likely to merit prosecution.

Conduct which may be a contempt of court: publications

The police are able to deal with criminal behaviour directed at criminal proceedings which might also amount to a contempt of court, e.g. disruptive or abusive conduct. However, prosecutors must sometimes deal with conduct which interferes with the administration of justice but is not addressed by a criminal offence. The main example a prosecutor may encounter is publications or reporting which create a substantial risk of serious prejudice to the criminal proceedings (but where publication or reporting is not a criminal offence such as those protecting children and victims of sexual offences). This guidance addresses two examples of this. First, fair and accurate contemporaneous reporting which nonetheless creates a substantial risk of prejudice to ongoing proceedings. Second, publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

Fair and accurate contemporaneous reporting: section 4 Contempt of Court Act 1981

Notwithstanding the reporting is fair and accurate, some reporting may create a substantial risk of prejudice to ongoing proceedings. For example, this may occur when a jury hearing other related proceedings are not permitted to hear of a guilty plea if it has been, or may be, determined inadmissible. A second example is reporting the detail of a trial where that would cause a substantial risk of prejudice in respect of a later trial. Again, the jury hearing the later trial needs to make their decision on the evidence they hear in that trial, and not be influenced by reports of evidence in a previous trial. A remedy is to seek an order pursuant to section 4(2) Contempt of Court Act 1981. The effect of the order is to postpone the reporting of proceedings until a point where fair and accurate reporting does not create a substantial risk of prejudice. Prosecutors should be alive to this power in particular when conducting proceedings where there are likely to be separate and subsequent proceedings, and proceedings where media interest and reporting can be anticipated.

The judiciary has issued guidance on reporting restrictions in criminal courts: Reporting Restrictions in the Criminal Courts – fifth edition update - Courts and Tribunals Judiciary. Part 6 of the Criminal Procedure Rules addresses reporting restrictions and must be applied by any party seeking the imposition of a reporting restriction.

The strict liability rule: sections 1 and 2 Contempt of Court Act 1981

Sections 1 and 2 of the Contempt of Court Act 1981 contain the rule that a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced may be treated as a contempt of court (“the strict liability rule”). Unlike section 4, this is not limited to reports of proceedings. It may include publications which concern material the jury will not consider in the trial but which may influence them, including misleading reporting which mis-represent the evidence or the case, reporting which vilifies a person in the proceedings or presumes their guilt or innocence, or reporting which relates to extraneous prejudicial evidence.

To note, the parameters of the strict liability rule include:

• the wide and non-exhaustive definition of publication, which includes any communication in whatever form addressed to the public at large or any section of the public: section 2(1)
• it applies regardless of the intent of the publication: section 1 (criminal offences, or common law contempt, may catch conduct intended to interfere)
• proceedings must be “active”; section 2(3) and Schedule 1
• proceedings shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it: section 7, and therefore it is to them to whom a prosecutor should turn if there have been, or may be, a publication in contempt of court

What a prosecutor should do

The most pressing step a prosecutor should take in respect of such a publication is to consider whether it does indeed interfere with the administration of justice, and if they reach the conclusion that it does, to act promptly to mitigate this. Sometimes concerns are raised about a publication which, on reflection, are not substantiated. See below for some considerations relevant to this (“the prosecutor’s assessment”). If however the prosecutor considers the publication may amount to a contempt of court they should escalate this to their DCCP who will liaise with the Press Office with a view to the Press Office taking steps to contact the publisher, explain the CPS concerns and ask that the content is removed or otherwise altered to address the potential interference with the administration of justice. It is not the role of the CPS to give legal advice to the publication. The publication will often have its own legal advisers and should seek its own advice. What the CPS should do is ensure the publication is aware of all of the relevant circumstances giving rise to the concern about contempt of court.

In addition, the prosecutor may seek the assistance of the AGO via their DCCP. In general, the media are expected to behave responsibly, take legal advice and ensure they are aware of restrictions on reporting. The AGO may however issue a Media Advisory Notice in rare circumstances. These include where reporting has taken place (or is anticipated) in ignorance of specific reporting restrictions or otherwise in contravention of the strict liability rule.

When proceedings are live, a prosecutor may also raise with the court or AGO a potential contempt with a view to proceedings being taken in respect of the publication. The general rule is that if proceedings are before the court, the prosecutor should raise the question with the judge first. The judge can therefore take any steps to address the consequences of the contempt, for instance by giving the jury appropriate directions. For an example of a High Court judge sitting in the Crown Court addressing contempt, see R v Harwood [2012] EW Misc 27 (CC). The judge may also take steps to punish the contempt, or refer the matter to the AGO to consider taking contempt proceedings.

The AGO can be contacted at [email protected]. The AGO will require sufficient detail to understand the facts of the case, the proceedings to date and the trial date and the assessment of the CPS and the judge.

The legal definition of contempt provided for by the 1981 Act is that there is a substantial risk that the course of justice will be seriously impeded or prejudiced. A prosecutor must ensure, consulting their DCCP/CCP, they apply this definition and consider whether or not it has been met. The prosecution must equally stringently consider any defence allegation concerning alleged contempt: if the definition appears to be met, the prosecution may join the defence in raising the matter with the judge/AGO. If it has not been met the prosecution should be clear about why that is so, and what counter-measures (if any) may nonetheless be appropriate.

The prosecutor’s assessment of whether it appears to them that a contempt may have been, or may be is their own assessment of whether the high threshold set out above has been met in order to raise the contempt with the court or AGO and will be made on the facts and circumstances of each individual case. However, some factors which may be relevant include:

• an allegation of contempt must be proved to the criminal standard
• the timing of the publication when set against the stage of proceedings at which it took place
• the risk must be assessed at the date of publication and it is irrelevant whether it does in fact arise: AG v MGN & NGN [2011] EWHC 2074
• “substantial risk” means a risk which is more than remote or not merely minimal
• “serious prejudice” is one which would have created a seriously arguable ground of appeal in the case: AG v Birmingham Post and Mail Ltd [1999] 1 WLR 361
• one example is, notwithstanding no application was made to discharge the jury, a publication which prejudged the guilt of the defendants: AG v Conde Nast [2015] EWHC 3322 (Admin)
• another example of an “impediment” to the course of justice is where the nature of the reporting is such as to dissuade potential defence witnesses from coming forwards: AG v MGN & NGN [2011] EWHC 2074