CONTEMPT OF COURT IN SPECIALIZED COURTS Contempt of court is a - - PDF document

May 2012 Page 1

CONTEMPT OF COURT IN SPECIALIZED COURTS

Contempt of court is a common law doctrine which empowers courts to impose summary punishments

• n those who interfere with the administration of justice.

There are three main species of contempt of court: (1) Interference with proceedings: (a) Contempt in the face of the court during proceedings e.g. disrupting the court (b) Interfering with participants in the proceedings e.g. bribing a court official (c) Interfering with evidence in the proceedings e.g. destroying a document in the proceedings. (2) Contempt by publication. Such publication is prohibited because it may influence the jury in a criminal trial. A newspaper expressing the view that a person is guilty during a trial may be in contempt of court. (3) Disobedience of an order of the court or breach of an undertaking given to the court. Procedure Criminal contempt is an offence triable summarily without a jury. The contempt procedure differs from

• ther summary proceedings because cases of alleged contempt are dealt with by a judge sitting without

a jury. All superior courts of record have an inherent jurisdiction to punish criminal contempt by this summary process of committal. In cases of “contempt in the face of the court” what the presiding judge saw or heard is the primary source of evidence, and often the same judge punishes the contempt. Criminal contempt is punishable by imprisonment, by a fine, or by order to give security for good behaviour. Civil contempt is punishable by way of committal to prison or by way of sequestration. Civil contempt may also be punished by a fine. An injunction may be granted against the person in contempt, in lieu of

May 2012 Page 2 committal or sequestration, to restrain the commission or repetition of a civil contempt. It has been held that the power to grant such an injunction does not lie at the instance of the litigant, but at the discretion of the court: Elliot v Klinger [1967] 1 WLR 1165. The actual procedure on committal is spelled out in the CPR for civil contempt. In respect of contempt in the face of the court the offender may be committed at once and no notice or formal proceedings is

• necessary. The sequestration procedure is set out in the practice books such as Atkin’s Court Forms.

Criticism of contempt The law of contempt permits a judge to act as complainant, prosecutor, witness and judge. This is contrary to certain fundamental principles: (1) The rule against bias (2) The presumption of innocence (3) The right to confront a witness (4) The principle that criminal offences should be defined with precision The law of contempt raises the following further problems: (1) In some branches of contempt, there is no obligation on the prosecution to prove that the person charged acted with guilty intent (2) The sentencing powers of superior courts of record are unlimited (3) In the case of civil contempt an open-ended jail sentence can be imposed, which would end only when the order is obeyed. Nevertheless, paradoxically the law of contempt exists to protect the right to a fair trial in that it protects the smooth running of the trial and prevents the publication of information that would be inadmissible at the trial e.g. the accused’s bad character. I indicated that only superior courts of record have an inherent jurisdiction to punish criminal contempt in a summary way. What then is a superior court of record? Superior courts of record Courts of record have the power as part of their inherent jurisdiction to punish contempts. That inherent power emanates from what Master Jacob described as “the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular,

• rderly and effective manner.”: see (1970) 23 Current Legal Problems 23. However, where a court is

May 2012 Page 3 described as a superior court of record, but has limited jurisdiction, a general grant of the jurisdiction to administer equitable remedies such as an injunction would not be implied: see R v Forbes ex p. Bevan (1972) 127 CLR 1. Once a superior court of record has inherent power to punish contempt, the courts are reluctant to hold that the power has been abrogated or restricted without clear words: see Taylor v Taylor (1979) 53 ALJR 629. In Balogh v Crown Court at St. Alban’s [1975] QB 73, 89 Stephenson LJ said: “I do not accept the argument that the limits of the power of a superior court to imprison a contemnor are defined or restricted by the Rules of the Supreme Court … The question is not what the rules of procedure … say or imply, but what it (… the power) really is.” So the power is not limited by rules of court. Nor is it limited by the absence of rules of procedure: Con- Mech Ltd. v Allen [1973] ICR 620, 626 (where the Court issued writs of sequestration of its own motion although there were no rules of procedure therefor). Stroud’s Judicial Dictionary (5th edn.) defines “a superior court of record” as connoting “a court having an inherent jurisdiction, in England, to administer justice according to law, and as being a part of … the power of Aula Regia established by William the First … An Inferior Court is one, limited as to its area and also limited as to its jurisdiction and powers, to those matters and things which are expressly deputed to it by its document of foundation or by legal custom (London v Cox L.R. 2 HL 239)” In Trinidad and Tobago superior courts of record include the Court of Appeal, the High Court, the Tax Appeal Board (section 3(3) of the Tax Appeal Board Act Chap 4:50), The Equal Opportunity Tribunal (section 41(1) of the Equal Opportunity Act Chap. 22:03; the Industrial Court (section 4(1) of the IRA

• Chap. 88:01); the Environmental Commission (section 81(3) and (4) of the Environmental Management

Act Chap. 35:05) and several others. The inherent jurisdiction to commit for contempt is confined to courts of record. In Badry v DPP of Mauritius [1983] 2AC 297, the Privy Council held that the law of contempt did not apply to remarks made against a judge acting in the capacity as a commissioner of inquiry and not in his judicial capacity.

May 2012 Page 4 I. Criminal Contempt

• 1. Interference with the administration of justice

1.1 This branch of the law of contempt (contempt in the face of the court) relates to any word spoken, act done or conduct occurring in or near the courtroom, which has the effect of disrupting or impeding the hearing of a court case or impairing confidence and respect in the court and its judgments or otherwise adversely affecting the proceedings. The judge may deal with such a situation in

• ne of the following ways:

(1) Expelling disruptive persons from the court; (2) Spelling out what kinds of conduct taking place within the courtroom, or in the vicinity of the court, constitute contempt in the face of the court on the broad ground that it interferes or tends to interfere with the course of justice; (3) Deciding whether or not a person who may be guilty of contempt should be charged with contempt. The judge may do so of his own motion: Balogh v St. Alban’s (supra); (4) In the event of proceedings, making findings of fact and deciding whether the person charged should be found guilty; and (5) In the event of a guilty verdict, determining a penalty (for which, in the case of superior courts, no ceiling is specified by law). 1.2 Conduct designed to influence participants in the proceedings to act in a particular way in the proceedings may be contempt. Any interference with a judge by private communication or otherwise for the purpose of influencing his decision is a serious contempt: Re Dyce Sombre (1849) 1 Mac. & G 116; 41 ER 1207, 1209. Obstruction of participants in the court process from attending court or preventing court documents from reaching the persons for whom they were intended. 1.3 Taking reprisals against participants to punish them for what they said or did in the proceedings may be a contempt of court. Any improper interference with jurors while doing their duties or while travelling to and from court is a contempt: see R v Martin (1845) 5 Cox. C.C 356. 1.4 Any threat or intimidation of a juror even after the case is concluded is also contempt: R v Martin (supra) (brother of convicted prisoner challenged the foreman of the jury to duel immediately after the trial. He was committed for contempt). Any interference with a witness in a pending or imminent suit to deter him from giving evidence or to influence the nature of his evidence may be contempt: Re Johnson (1887) 20 QBD 68, 74.

May 2012 Page 5 1.5 Dereliction of duty by court officers. 1.6 Abuse of process. The court has power to punish as contempt any misuse of its process e.g. the forging or altering of court documents as well as other acts of deception. There is considerable overlap between contempt in the form of interference with proceedings and the criminal law. For example, offering bribes or other benefits to judges is amply covered by the Prevention of Corruption Act Chap. 11:11. Therefore it is easy to see that courts of appeal are unlikely to uphold attempts to use the summary procedure which smacks of a judge being a judge in his own cause and denies the alleged contemnor basic rights of a person charged under the criminal law.

• 2. Contempt by publication

I had earlier referred to contempt by publication as one of the types of contempt. Contempt by publication refers to the offence of publishing material that has a tendency to interfere with the administration of justice. Such publications may offend because: (1) They have a tendency to prejudice criminal proceedings tried before a jury (2) They reveal information that would not be admissible in evidence e.g. a prior conviction (3) They make a statement about the guilt or about the innocence of the accused. (4) They place pressure on parties to the proceedings or prejudge the outcome

• f proceedings tried by a judge alone.
• 3. Publications which prejudge or embarrass

A publication may be held in contempt in that it prejudges issues in a current case or creates embarrassment to the court trying the case. This rule is part of the subjudice

• doctrine. Although the doctrine originated from a desire to protect present or

forthcoming trials from the risk of influence, the rationale for the rule today is to maintain confidence in the operation or reputation of the system of administration of justice as a whole. This form of contempt, the notion of prejudgment of issues, arises out of the decision of the House of Lords in Attorney-General v Times Newspaper Ltd. *1974+ AC 273 (“the Sunday Times case”). The Sunday Times published two articles which discussed claims for damages brought by children allegedly suffering deformities as a result of their mothers’ use of thalidomide during pregnancy. The claims were made against Distillers

May 2012 Page 6 Ltd., the distributor of the drug. One of the articles contained evidence allegedly establishing that Distillers had been guilty of negligence in distributing the drug without proper warnings as to the side effects. It thus prejudged one of the main issues in the

• litigation. The House of Lords held that an injunction granted to restrain publication

should be upheld. What was critical to all the Law Lords was the element of prejudgment in the article. Lord Reid said at p. 294 that the prejudgment of issues rule was there “to prevent interference with the administration of justice and it should, in my judgment, be limited to what is necessary for that purpose.” Nevertheless, a very strong case is needed to justify a Sunday Times injunction, it being a severe restriction on freedom of speech and freedom of the press. In Schering Chemicals Ltd. v Falkman Ltd. [1982] QB1 in circumstances similar to those of the Sunday Times case, an injunction to restrain broadcasting of a film about the drug Primodos was refused even though the proposed film dealt with some of the issues raised in a pending action against Schering Chemicals Ltd. The embarrassment principle, like the prejudgment principle, normally arises in criminal

• trials. In the case of the embarrassment principle it normally relates to the period

between conviction and sentence. In A.G. v Times [1939] NZLR 533, 537 Myers CJ said this: “The Court must not only be free – but must also appear to be free – from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least ground for any suspicion of

• utside interference in the administration of justice. Any publication

therefore that states or implies that the sentences imposed by the Court are, or may be, affected by popular clamour, newspaper suggestion, or any other outside influence is, in my opinion, calculated to prejudice the due administration of justice … If the Court imposed *the sentence being recommended in a published article] it might well be assumed by the readers of the paper that the Court had been influenced by the newspaper’s demands. If, on the other hand, a lesser sentence were imposed, the article was calculated in anticipation to arouse resentment against the court.” On the other hand, there is a school of thought that professional judges are immune from prejudicial comment and therefore a judge would remain unaffected by public clamour for a particular type of sentence: see for example, Victoria v Australian Building Construction Employees and Builders Labourers’ Federation (1982) 152 CLR 25, 102 per Mason J.

May 2012 Page 7 Suffice it to say there is considerable doubt as to whether this heading of contempt will not be merged with the law of contempt which prohibits any attempt to influence the

• utcome of trials.
• 4. Interference with wards of court

Any interference with a ward of court may be a contempt of court. It is a strict liability

• ffence and ignorance is no defence. The jurisdiction exists not so much for the

protection of the administration of justice as for the protection of the ward of court.

• 5. Scandalizing the court

Scandalizing the court is the most controversial area of the law of contempt. The phrase “scandalizing the court” has its origins in a judgment of Lord Hardwicke in Roach v Garvan sub nom. St. James Evening Post (1742) 2 Atk. 469; 26 ER 683 where he said “one kind of contempt is scandalizing the court itself.” The mischief of the offence is undermining public confidence in the administration of justice: see Gallaher v Durack (1983) 152 CLR 238. However, as far back as the St. Vincent case of McLeod v St. Aubyn [1899] AC 549, 561 Lord Morris considered that scandalizing contempt was obsolete in England but that: “… in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity and respect for the Court.” Ironically, the next year in R v Gray [1900] 2 QB 36 the English courts recognized the

• ffence of scandalizing the court. The most recent conviction in England for scandalizing

the judiciary took place in 1931 in R v Colsey, The Times, May 9, 1931. Lord Diplock in Secretary of State for Defence v Guardian Newspapers [1985] AC 339, 347A referred to the offence of scandalizing the court as “virtually obsolescent”. However, it might be more accurate to say that in England “the offence of scandalizing the judiciary does survive as an unjustifiable impediment to freedom of speech about the judiciary.” (See Judges by David Pannick). In the Commonwealth the offence of scandalizing the court is very much alive. In Nationwide News v Wills (1992) 177 CLR 1, the High Court of Australia recognized the existence of the principles relating to scandalizing the judiciary. The Privy Council in Shamdasani v the King Emperor [1945] AC 264, 269 stated that it might be contempt for a litigant to suggest that the court’s officers were corrupt.

May 2012 Page 8 In R v Gray (supra) the judge was referred to as “the impudent little man in horsehair, a microcosm of conceit and empty-headedness”. Gray was convicted. In the New Zealand case of Environmental Protection Agency v Pannowitz [2006] NSWLEC 219 at [92] Land and Environment Court Justice Lloyd found that the suggestion that a corruption body was being called upon to investigate the court had “an inherent tendency to scandalize the Court.” The main difficulty of this offence is that the right to criticize the judiciary has been recognized in the famous dictum of Lord Atkin in the Trinidad and Tobago case of Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322, 335: “The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and are not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments

• f ordinary men.”

The case concerned an article in the Port of Spain Gazette dealing with the discrepancy between the sentences given in two apparently similar cases. The article suggested that the discrepancy was due to human differences between the judges with regard to sentencing. It is thought that except for scurrilous criticism without foundation it may be difficult to persuade a court in the light of the constitutional guarantees of freedom of speech and

• f expression that a publication scandalizes the courts.

II. Civil Contempt It is a civil contempt of court to refuse or neglect to do an act required by a judgment or

• rder of the court within the time specified in the judgment or order, or to disobey a

judgment or order requiring a person to abstain from doing a specified act. It is also a civil contempt of court to act in breach of an undertaking given to the court by a person on the faith of which the court sanctions a particular course of action or inaction: see 9(1) Halsbury’s Laws (4th ed.) at para. 458.

May 2012 Page 9 Unlike criminal contempt, civil contempt developed into a private remedy designed to enforce orders made for the benefit of a party. However, the distinction between civil and criminal contempt has been described by Salmon LJ as “unhelpful and meaningless” in modern times: see Jennison v Baker [1972] 2 QB 52, 61. Also the distinction between coercive civil contempt and punitive criminal contempt is disappearing because purely punitive sanctions or fixed penalties have been imposed in the form of fines. Formerly the latter used to be regarded as inappropriate to the nature of civil contempt. The court enforces a judgment or order against an individual in one of two ways: (i) By a writ of sequestration (ii) By an order of committal The power to order committal for civil contempt is a power to be exercised with very great

• care. In Gay v Hancock (1887) 56 LT 726 Kay J said: “This Court should exercise very great

care in putting into force its power of sending persons to prison.” Note also that the breach has to be proved beyond reasonable doubt: Re Bramblevale Ltd. [1970] Ch. 128. The process of enforcing a judgment or order by committal is fraught with technicalities e.g. personal service of a copy of the order and endorsement of the order with a penal notice. These I will not go into in this short outline. Orders and undertakings commonly covered by disobedience contempt orders (civil contempt) (1) Mandatory injunctions requiring an act to be done within a certain time. (2) Prohibitory injunctions restraining someone from doing a particular act. (3) Breaches of undertakings given to the court. (4) Disobedience to orders for the payment of money. Such an order can be enforced, subject to the Debtors Act Chap. 8:07, by an order of committal or by a writ of sequestration.

May 2012 Page 10 III. Conclusion Superior courts of record have the powers to punish contempts relating to the judges of those courts and the proceedings therein. The principal aim of the jurisdiction is to protect the dignity of the court and the due administration of justice. One of the disquieting features of the jurisdiction is its summary nature i.e. trial without a

• jury. However, in the early days there was an alternative procedure involving a formal
• indictment. Trial on indictment in contempt cases his now fallen into disuse.

Yet many cases of contempt are also covered by the criminal law. Intimidation of witnesses is a common law offence: R v Kellett [1975] 3 All ER 468. Assault on a judge in a courtroom would be covered by an offence at common law. Scandalizing the judiciary survived, but may not be able to withstand the challenge of the right to criticize in good faith: Ambard v Attorney-General (supra). As regards sentencing, the power of the court to fix any term it likes because there is no prescribed maximum term or in the case of civil contempt to commit without stating any fixed term is anomalous. One should add to this picture that a reviewing court would wish to strike a balance in favour of freedom of speech and expression, the right of fair trial by an impartial tribunal and transparency in the operations of the court system. In the premises one wonders how secure is the protection afforded superior courts by the law of contempt. Rolston F. Nelson Judicial Continuing Education Workshop: Recusal, Contempt of Court & Judicial Ethics Hyatt Regency May 4, 2012