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English court

Contempt of court

[kuhn-tempt]

Contempt of court is a court ruling which, in the context of a court trial or hearing, deems an individual as having been disrespectful of the court, its process, and its invested powers. Often stated simply as "in contempt", or a person "held in contempt", it is the highest remedy of a judge to impose sanctions on an individual for acts which excessively or in a wanton manner disrupt the normal process of a court hearing.

A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behavior, or publication of material deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. Typically judges in common law systems have more extensive power to declare someone in contempt than judges in civil law systems.

In civil cases involving relations between private citizens, the intended victim of the act of contempt is usually the party for whose benefit the ruling was implemented, rather than the court itself.

A person found in contempt of court is called a "contemnor." To prove contempt, the prosecutor or complainant must prove the four elements of contempt. These are

  • existence of a lawful order
  • the contemnor's knowledge of the order
  • the contemnor's ability to comply
  • the contemnor's failure to comply.

United Kingdom

In English law (a common law jurisdiction) the law on contempt is partly set out in case law, and partly specified in the Contempt of Court Act 1981. Contempt may be a criminal or civil offence. The maximum sentence for criminal contempt is two years.

Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behavior observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual affected by a court order may file papers alleging contempt against a person who has willfully violated a lawful court order.

Criminal contempt of court

The Crown Court is a court of record under Supreme Court Act 1981 and accordingly has power to punish for contempt of its own motion. The Divisional Court has stated that this power applies in three circumstances:

  1. Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court);
  2. Disobedience of a court order; and
  3. Breaches of undertakings to the court.

Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.

Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before the Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales (Criminal Division).

Magistrates' Courts are not courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved the court may imprison the offender for a maximum of one month, fine them up to GB£2500, or do both.

It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.

It is not contempt of court (under section 10 of the Act) for a journalist to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime."

Strict liability contempt

Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial is over and the jury has given its verdict.

Section 2 of the Act limits the common law presumption that conduct may be treated as contempt regardless of intention: now only cases where there is a substantial risk of serious prejudice to a trial are affected.

Civil contempt

In civil proceedings there are two main ways in which contempt is committed:

  1. Failure to attend at court despite a subpoena requiring attendance. In respect of the High Court, historically a writ of latitat would have been issued, but now a bench warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual, and imprisonment until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally 'backed for bail' i.e. bail will be granted once the arrest has been made and a location where the person can be found in future established.
  2. Failure to comply with a court order. A copy of the order, with a "penal notice" - i.e. notice informing the recipient that if they do not comply they are subject to imprisonment - is served on the person concerned. If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claiming of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.

United States

Under American jurisprudence, acts of contempt are divided into two types.

"Direct" contempt is that which occurs in the presence of the presiding judge (in facie curiae), and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice, and after giving the person the opportunity to respond, may impose the sanction immediately.

"Indirect" contempt occurs outside the immediate presence of the court, and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt, and to present evidence in rebuttal.

Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order. However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court itself.

Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required. The burden of proof for civil contempt, however, is a preponderance of the evidence, and punitive sanctions (punishment) can only be imposed after due process.

References

Books about Contempt of Court

  • Scarce, Rik. "Contempt of Court: A Scholar's Battle for Free Speech from behind Bars" (2005) (ISBN 0759106436).

See also

External links

UK Crown Prosecution Service (CPS) – Guidance on contempt of court

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