Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority. Often referred to simply as "contempt", such as a person "held in contempt", it is the judge's strongest power to impose sanctions for acts which disrupt the court's normal process.
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. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems.
In civil cases involving disputes between private citizens, the behavior resulting in the ruling is often directed at one of the parties involved rather than at the court directly.
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:
- Existence of a lawful order
- The contemnor's knowledge of the order
- The contemnor's ability to comply
- The contemnor's failure to comply
Canada
Criminal offences are found within the Criminal Code of Canada or other federal/provincial laws, with the exception that contempt of court is the only remaining common law offence in Canada.[1]
Contempt of Court includes the following behaviours:
- Fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding
- Refuses or neglects to obey a subpoena
- Wilfully disobeys a process or order of the Court
- Interfere with the orderly administration of justice or to impair the authority or dignity of the Court
- Officer of the Court fails to perform his or her duties
- Sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof
Federal Courts
This section applies only to Federal Court of Appeal and Federal Court.
Under Federal Court Rules, section 472, a person who is accused of Contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when proof beyond a reasonable doubt is achieved. [2]
If it's a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately. Punishment can range from the person be imprisoned for a period of less than five years or until the person complies with the order, fine, or be ordered to do or refrain from doing any act as considered by the judge.
Tax Court of Canada
Under Tax Court of Canada Rules of Tax Court of Canada Act, a person who is found to be in contempt may be imprisoned for a period of less than two years or fined. Similar procedures for serving an order first is also used at the Tax Court.
Provincial Courts
Different procedures exist for different provincial courts. For example, in BC, Justice of Peace can only issue summon to the offender for Contempt, for which will be dealt with by a judge, even if the offence was done at the face of the Justice.[3]
Hong Kong
Judges from the Court of Final Appeal, High Court, District Courts along with members from the various tribunals and Coroner's Court all have the power to impose immediate punishments for contempt in the face of the court, derived from legislations or through Common Law:
- Insult a judge or justice, witness or officers of the court
- Interrupts the proceedings of the Court
- Interfere with the course of justice
- Misbehaves in court (i.e. use of mobile phone or recording devices without permission]
- Juror who leaves without permission of the court during proceedings
- Disobeying a judgement or court order
- Breach of undertaking
- Breach of a duty imposed upon a solicitor by rules of court
The use of insulting or threatening language in the Magistrates' courts or against a magistrate is in breach of HK Laws. Chap 227 Magistrates Ordinance Section 99 which states the magistrate can 'summarily sentence the offender to a fine at level 3 and to imprisonment for 6 months.'
In addition, certain appeal boards are given the statutory authority and protection of a court in its proceedings (i.e. Residential Care Home, Hotel and Guesthouse Accommodation, Air Pollution Control, etc). For contempt in front of these boards, the chairperson will certify the act of contempt to the Court of First Instance who will then proceed with a hearing and determine the punishment.
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 or magistrates 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 the 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:
- 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);
- Disobedience of a court order; and
- 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 GBP2500, 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:
- 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.
- 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. After giving the person the opportunity to respond, the judge 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.
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.
See also
Notes and references
Literature
- Scarce, Rik. "Contempt of Court: A Scholar's Battle for Free Speech from behind Bars" (2005) (ISBN 0759106436).
