Contempt of Court

CONTEMPT OF COURT, in English law, any disobedience or disrespect to the authority or privileges of a legislative body, or interference with the administration of a court of justice.

The High Court of Parliament.

Each of the two houses of parliament has by the law and custom of parliament power to protect its freedom, dignity and authority against insult, disregard or violence by resort to its own process and not to ordinary courts of law and without having its process interfered with by those courts. The nature and limits of this authority to punish for con tempt have been the subject of not infrequent conflict with the courts of law, from the time when Lord Chief Justice Holt threat ened to commit the speaker for attempting to stop the trial of Ashby v. White (1701 ), as a breach of privilege, to the cases of Burdett v. Abbott (181o), Stockdale v. Hansard and Howard v. Gosset (1842, 1843) , and Bradlaugh v. Gosset (1884) . It is now the accepted view that the power of either house to punish con tempt is exceptional and derived from ancient usage, and does not flow from their being courts of record. Orders for committal by the Commons are effectual only while the house sits; orders by the Lords may be for a time specified, in which event prorogation does not operate as a discharge of the offender. It was at one time considered that the privilege of committing for contempt was inherent in every deliberative body invested with authority by the constitution, and consequently that colonial legislative bodies had by the nature of their functions the power to commit for contempt. But in Kielley v. Carson ; 4 Moore, P.C. 63) it was held that the power belonged to parliament by ancient usage only and not on the theory above stated, and in each colony it is necessary to inquire how far the colonial legislature has acquired, by order in council or charter or from the imperial legis lature, power to punish breach of privilege by imprisonment or committal for contempt. This power has in some cases been given directly, in others by authority to make laws and regulations under sanctions like those enforced by the houses of the imperial parliament. In the case of Nova Scotia the provincial assembly has power to give itself by statute authority to commit for con tempt (Fielding v. Thomas, 1896; L.R.A.C. 600). In Barton v. Taylor (1886; 11 A.C. 197) the competence of the legislative as sembly of New South Wales to make standing orders punishing contempt was recognized to exist under the colonial constitution, but the particular standing orders under consideration are held not to cover the acts which had been punished. (See May, Parl. Pr., loth ed., 1896; Anson, Law and Custom of the Constitution, 3rd ed., 1897.) Courts of Justice.—The term contempt of court, when used with reference to the courts or persons to whom the exercise of the judicial functions of the Crown has been delegated, means insult offered to such court or person by deliberate defiance of its authority, disobedience to its orders, interruption of its pro ceedings or interference with the due course of justice, or any conduct calculated or tending to bring the authority or adminis tration of the law into disrespect or disregard, or to interfere with or prejudice parties or witnesses during the litigation. For prac tical purposes most, if not all, contempts fall within the classi fication which follows : (a) Disobedience to the judgment or order of a court com manding the doing or abstaining from a particular act, e.g., an order to execute a conveyance of property or an order on a person in a fiduciary capacity to pay into court trust moneys as to which he is an accounting party. This includes disobedience by the members of a local authority to a mandamus to do some act which they are by law bound to do.

(b) Disobedience by inferior judges or magistrates to the lawful order of a superior court. Such disobedience, if amounting to wilful misconduct, would usually give ground for amotion or re moval from office, or for prosecution or indictment or informa tion for misconduct.

(c) Disobedience or misconduct by executive officers of the law, e.g., sheriffs and their bailiffs or gaolers. The contempt con sists in not complying with the terms of writs or warrants sent for execution. A sheriff who fails to attend the assizes is liable to severe fine as being in contempt (Oswald, 51). The Sheriffs Act 1887 enumerates many instances in which misconduct is punish able under that act, but reserves to superior courts of record power to deal with such misconduct as a contempt (s. 29). See also Harvey's Case, 1884, 26 Ch. D. (d) Misconduct or neglect of duty by subordinate officials of courts of justice, including solicitors. In these cases it is more usual for the superior authorities to remove the offender from office, or for disciplinary proceedings to be instituted by the Law Society. But in the case of an unqualified person assuming to act as a solicitor or in the case of breach of an undertaking given by a solicitor to the court, proceedings for contempt are still taken.

(e) Misconduct by parties, jurors or witnesses. Jurors who fail to attend in obedience to a jury summons and witnesses who fail to attend on subpoena are liable to punishment for contempt, and parties, counsel or solicitors who practise a fraud on the court are similarly liable.

(f) Contempt in facie curiae. It is immaterial whether the offender is juror, party, witness, counsel, solicitor or a stranger to the case at hearing, and occasionally it is found necessary to punish for contempt persons under trial for felony or mis demeanour if by violent language or conduct they interrupt the proceedings at their trial.

(g) Attempts to prevent or interfere with the due course of justice, whether made by a person interested in a particular case or by an outsider. This branch of contempt takes many forms, such as frauds on the court by justices, solicitors or counsel, tampering with witnesses, threatening judge or jury or attempting to bribe them and the like ; and also "scandalizing the court it self" by abusing the parties concerned in a pending case, or by creating prejudice against such persons before their cause is heard.

Invectives Against Judges.

The locus classicus on the sub ject of contempt by attacks on judges is a judgment prepared by Sir Eardley-Wilmot in the case of an application for an attach ment against J. Almon in 1765, for publishing a pamphlet libelling the court of king's bench. The object of the discipline enforced by the court by proceedings for contempt of court is not now, if it ever was, to vindicate the personal dignity of the judges or to protect them from insult as individuals, but to vindicate the dignity and authority of the court itself and to prevent acts tending to obstruct the due course of justice. The question whether a personal invective against judges should be dealt with brevi mane by the court attacked, or by proceedings at the instance of the attorney-general by information or indictment for a libel on the administration of justice or on the judge attacked, or whether it should be dealt with by a civil action for damages, depends on the nature and occasion of the attack on the judge.

In Macleod v. St. Aubyn, 1899, A.C. 549 it was said that pro ceedings for scandalizing the court itself were obsolete in Eng land. But in 190o the king's bench division, following the Almon case, summarily punished a scurrilous personal attack on a judge of assize with reference to his remarks in a concluded case, pub lished immediately after the conclusion of the case (R. v. Gray, 1900, 2 Q.B. 36). A recent example of the application of the prin ciple laid down in this case will be found in R. v. Editor of the New Statesman (1928) 44 Times Law Reports 3o1. The same measure may be meted out to those who publish invectives against judges or juries with the object of creating suspicion or contempt as to the administration of justice. But the existence of this power does not militate against the right of the press to publish full reports of trials and judgments or to make with fairness, good faith, candour and decency, comments and criti cisms on what passed at the trial and on the correctness of the verdict or the judgment. To impute corruption is said to go be yond the limits of fair criticism which is, of course, allowable.

The exact limits of the power to punish for contempt of court in respect of statements or comments on the action of judges and juries, or with reference to pending proceedings, have been the subject of some controversy, owing to the difficulty of reconciling the claims of the press to liberty and of the public to free dis cussion of the proceedings of courts of justice with the claims of the judges to due respect and of the parties to litigation that their causes should not be prejudiced before trial by outside inter ference. As the law now stands it is permissible to publish con temporaneous reports of the proceedings in cases pending in any court (Law of Libel Amendment Act i888, s. 3), unless the roceedings have taken place in private (in camera), or the court has in the interests of justice prohibited certain references, such as to names, or even any report, until the case is concluded. But it is not permissible to make any comments on a pending case calcu lated to interfere with the due course of justice in the case, or to publish statements about the cause or the parties calculated to have that effect.

The difference between pending and decided cases has been frequently recognized by the courts. What would be a fair comment in a decided case may tend to influence the mind of the judge or the jury in a case waiting to be heard, and will accord ingly be punished as a contempt. When an action is at an end the courts will not interfere though the proceedings are misrepre sented to the injury of the applicant; but scandalizing the court, e.g., by attacks on the judge, may be punished even after the end of the action (Dunn v. Brown, 1922, I Ch. 276).

Punishment.

"In the superior courts the power of committing for contempt is inherent in their constitution, has been coeval with their original institution and has been always exercised" (Oswald, On Contempt, 3). The high court in which these courts are merged is the only court which has a general jurisdiction to deal summarily with all forms of contempt. Each division of that court deals with the particular contempts arising with reference to proceedings before the division; but the king's bench division, in the exercise of the supervisory authority inherited from the old court of king's bench as custos morum, also from time to time deals with acts constituting interference with justice in other inferior courts whether of record or not.

Inferior courts of record have, as a general rule, power to punish only 'those contempts which are committed in facie curiae or consist in disobedience to the lawful orders or judgments of the court. For instance, a county court may summarily punish persons who insult the judge or any officer of the court or any juror or witness, or wilfully interrupt the proceedings, or mis behave in the court-house (County Court Act 1888, s. 162), and may also attach persons who, having means, refuse to comply with an order to pay money, or refuse to comply with an order to deliver up a specific chattel or disobey an injunction. A court of quarter sessions has at common law a like power as to con tempts in facie curiae and is said to have power to punish its officials for contempt in non-attendance or neglect of duty.

Contempt of court is a misdemeanour and is punishable by fine and imprisonment or either at discretion. The offence may be tried summarily, or may be prosecuted on information or on indictment. The prerogative of pardon extends to all contempts of court which are dealt with by a sentence of clearly punitive character ; but it is doubtful whether it extends to committals for disobedience to orders made in aid of the execution of a civil judgment.

Except in cases of contempt in facie curiae evidence on oath as to the alleged contempt must be laid before the court, and application made for the "committal" or "attachment" of the offender. The differences between the two modes are technical rather than substantial.

The procedure for dealing with contempt of court varies some what according as the contempt consists in disobeying an order of the High Court made in a civil cause, or in interference with the course of justice by persons not present in court nor parties to the cause. In the first class of cases the court proceeds by order of committal or giving leave to issue writ of attachment. In proceedings on the Crown side of the king's bench division it is still usual to apply in the first place for a rule nisi for leave to attach the alleged offender who is given an opportunity of explaining, excusing or justifying the incriminated acts. The king's bench procedure is that generally used for interference with the due course of criminal justice or disobedience to prerogative writs such as mandamus.

An order of committal is an order in execution specifying the nature of the detention to be suffered, or the penalty to be paid. The process of attachment merely brings the accused into court; he is then required to answer on oath interrogatories administered to him, so that the court may be better informed of the circum stances of the contempt. If he can clear himself on oath he is discharged; if he confesses the court will punish him by fine or imprisonment, or both, at its discretion.

Scotland.—In Scotland the courts of session and justiciary have, at common law, and exercise the power of punishing con tempt committed during a judicial proceeding by censure, fine or imprisonment proprio motu without formal proceedings or a summary complaint. The nature of the offence is there in sub stance the same as in England (see Petrie, 1889 : 7 Rettie Justi ciary 3; Smith, 1892: 20 Rettie Justiciary 52).

Ireland.—In Ireland the law of contempt is on the same lines as in England, but conflicts have arisen between the bench and popular opinion, due to political and religious differences, which have led to proposals for making juries and not judges arbiters in cases of contempt.

British Dominions Beyond Seas. The courts of most British possessions have acquired and freely exercise the power of the court of king's bench to deal summarily with contempt of court ; and it is not infrequently the duty of the privy council to restrain too exuberant a vindication of the offended dignity of a colonial court. In British Guiana proceedings for contempt, not committed in facie curiae, must be tried before a jury.

In the United States, contempt also exists as applied to legis lative bodies. A person who has offended the dignity of the Senate or House of Representatives of Congress, may be brought before the offended body by its sergeant-at-arms and reprimanded by its presiding officer. In the event of an individual having defied the authority of either House of Congress, he may be indicted by the Federal Courts, when such defiance becomes a matter of fact. The state legislatures are similarly protected by state constitutions and statutes from contempt.

Contempt of court in the Federal and State courts exists : In direct cases, in the presence of the court ; in constructive cases, not in the presence of the court ; in criminal cases, such as bribery of court officials; and in civil cases, where an individual declines to observe a civil order of the court, but does not offend the dignity of the court. Contempt cases are punished by the court, without the intervention of a jury.