Contempt

I

Introduction

Contempt, law essentially concerned with the administration of justice. It provides for restrictions on public trials, free reporting, and commentary on the judicial system where this serves the interests of justice. It follows that the law of contempt is potentially restrictive of freedom of information and expression and that the media are likely to be particularly affected and limited by provisions protective of the judicial system.

In English law, contempt may be a civil or a criminal offence. A civil contempt relates to the breach of any court order or undertaking. Criminal contempt is relevant in cases of “contempt in the face of court”, “scandalizing the court”, and pre-trial comment that is seen to prejudice fair proceedings.

II

Contempt in the Face of Court

A contempt may be committed by anyone who, in court, abuses the process of court, interferes with the proceedings, or insults or interferes with a party to the proceedings, a witness, a juror, or a judge. A court may act on its own motion to deal with such a contempt, and there is a right of appeal to the Court of Appeal.

III

Scandalizing the Court

This type of contempt is defined as any act performed or writing published that is calculated to bring a court or a judge into contempt or to lower the judge's authority. Examples of such behaviour have been held to include the use of offensive language to a judge; the refusal by a witness to answer questions; creating a disturbance in court; and the reporting in a newspaper during the course of a criminal trial of details of the accused’s previous convictions.

The boundaries of this offence are unclear. In Australia and New Zealand, cases where allegations of bias and miscarriage of justice have been made have been held not to be contempt. In England, cases where improper motives have been imputed to the judiciary have been upheld as contempt, although this is less likely where criticism is reasoned. The extent of the offence depends in part on the stability and robustness of the judiciary in a legal system and may vary from country to country.

IV

Prejudice to Judicial Proceedings

The main concern of the law of contempt is often stated as the protection of judicial proceedings from interference or the protection from prejudice of the fairness of a trial.

Prior to the passing of the Contempt of Court Act in 1981 English law defined contempt as any prejudgment of a case. In the House of Lords decision of Attorney-General v Times Newspapers Ltd (1974) the Sunday Times newspaper was held in contempt for press coverage of a dispute between thalidomide victims and a company called Distillers, which had manufactured the thalidomide drug. The House of Lords decided that discussion in the press amounted to a prejudgment of the legal issues in the dispute which would undermine the authority of the court and lead to trial by the media. This was so even though legal proceedings in the thalidomide litigation had become dormant. The House of Lords ruling on contempt was challenged in the European Court of Human Rights as a breach of Article 10, which protects Freedom of Expression. The European Court held by a narrow majority that the restriction imposed by the English ruling was not “necessary” and was a violation of Article 10 because it would restrict public discussion of even a balanced and moderate kind.

The Contempt of Court Act 1981 was passed to bring English law into line with the European Court ruling and was intended as a liberalizing measure in this context. Under the Act, a publication will not be a contempt unless it creates a substantial risk that proceedings will be seriously prejudiced. (The risk is regarded as negligible where the matter is being tried by a judge alone.) A defence is provided where discussion is in the public interest and the risk of prejudice to the proceedings is merely incidental to the debate. Further, contempt can only be found where proceedings are active and initial steps have been taken in civil or criminal proceedings.

It is a contempt of court to identify the complainant in a rape case, or to identify the defendants or witnesses in cases where the defendant is a minor.

The maximum penalty for contempt is two years’ imprisonment.

Although the 1981 legislation has limited the contempt rule, outside the Act, contempts can be committed at common law even when proceedings are not active. At common law a specific intent to commit a contempt must be proved. Nevertheless, cases have been brought at common law to avoid the safeguards under the 1981 legislation.

It would appear that the European Convention on Human Rights has liberalized the law to some degree in favour of press freedom through its influence in the passing of the 1981 Act. Areas of common law continue to develop, however, and do pose a threat to the legislative reforms in this area.