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

CONTEMPT OF COURT IN SPECIALIZED COURTS Contempt of court is a common law doctrine which empowers courts to impose summary punishments on 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 other 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 1

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, orderly and effective manner.”: see (1970) 23 Current Legal Problems 23. However, where a court is May 2012 Page 2

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). Strou d’s Judicial Dictionary (5 th 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 establish ed by William the First … An Inf erior 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 3

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 one 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: Balo gh 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 4