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Category: Criminal Defence

Published: 19 May 2017

Contempt of Court

Contempt of court is the offence of being disobedient to or discourteous towards a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court.
It manifests itself in willful disregard of or disrespect for the authority of a court of law, which is often behaviour that is illegal because it does not obey or respect the rules of a law court.
“Although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”
Lord Diplock in  AG v. Leveller Magazine Ltd. [1979] AC 440.
Contempt of Court During a Court Case
There are many situations in which a contempt occurs during the dependency of an action 
In such a situation a sheriff may consider it necessary to act immediately and summarily in order to vindicate the court’s authority.  Such incidents will include events observed by the sheriff, such as a failure by a witness to answer questions, a witness or party appearing in court in a state of intoxication, or a person in the courtroom directing abuse at the sheriff.

The individual should be told, but need not be given written notice of, the nature of the contempt is specifically addressed to conduct observed by the sheriff in court, or at least brought to his/her attention in the course of live proceedings.
The Naked Rambler

The ‘Naked Rambler’ claimed in his case he hadn’t properly been told why he had been held in contempt of court…presumably he was the only one oblivious to his lack of clothing on that occasion.
Applying for a contempt of Court Finding
Whilst contempt can be a criminal offence prosecuted on summary complaint or in Indictment.  
Civil applications are not done in the criminal courts and can lead to a finding of contempt rather than a conviction per se.
Where the contempt occurs out with the court, the finding is usually made following upon an application by an interested party either by;
·      Petition and Complaint in the Court of Session ,
·      In the Sheriff court by summary application
When Contempt is Disputed
If disputed, contempt, must be proved beyond reasonable doubt, there is, just as in a criminal cause, no need for proof if the facts are judicially admitted.  
Johnston v Johnston 1996 SLT 499 is authority only for the proposition that proof is required if a material dispute of fact appears. 
Contempt proceedings are sui generis – neither criminal or civil matters as such.
Contempt – Failing to Obey court orders
Muirhead v Douglas 1979 SLT (Notes) 17
Whether a failure to obey a court order amounts to a contempt of court depends upon all the relevant facts and circumstances.  The failure is not, of itself, automatically an established contempt.

Petition to the nobile officium by AB & CD [2015] CSIH
Facts – Social Workers decided to stop contact despite the Children’s Hearing stipulating it should take place. The Sheriff held them in contempt. Decision - Lord Malcolm said that a decision made by the social worker to suspend contact "out of a genuinely held concern" of risk to the children, could not be categorised as contempt of court.
SM v CM [2017] CSIH 1
Mother refused to allow contact as per court order and was sentenced to three months' imprisonment. This should see person placed on remand and not sentenced.

Prevaricating as a witness
Application to the Noble Officium by Ria Kenyon [2016] HCJAC 116
Miss Kenyon gave evidence about an assault giving varying different versions of events in:

  • Her police statement
  • Evidence in chief
  • Cross-examination
  • Re-examination
Failing to attend court as a witness 
Petition to the Nobile Officium by Cameron Lyons HCA/2016/14/XM
Petitioner failed to attend a trial diet though subsequently answered a warrant and gave evidence consistent with his police statement incriminating the accused. He said he didn’t previously attend as he didn’t wish to incriminate the accused.  He was found in contempt as “Contempt of court is constituted by conduct that denotes wilful defiance of or disrespect towards the court, or wilfully challenges or affronts the authority of the court.” He was not found to have purged his contempt despite ‘speaking up’ when he appeared.
The Juror & Social Media

Petition of Elizabeth Howden [2015] HCJAC 91
On the morning of the third day of trial  the sheriff was informed by her clerk that the petitioner had the previous evening checked Facebook because she thought she knew a witness’s sister who had been a work colleague.  The juror was found in contempt of court and fined £500.

Contempt of Court Act 1981
Sunday Times v. United Kingdom 26 April 1979, Series A No. 30, 14 EHRR 229
The court had granted an injunction to prevent a newspaper from commenting on the responsibility of a company for thalidomide-related birth deformities while there were ongoing settlement negotiations
The European Court applied the relevant three part test:
                        i) “prescribed by law” and
                        ii) had a “legitimate aim”
                        iii)“necessary in a democratic society.”
Court decided public interest outweighed the apparent challenge to the authority of justice. 
Contempt of Court Act 1981
S.1 Strict Liability rule for publications
Intention is therefore irrelevant.
S.2 – Limitations on strict liability
a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced
only if the proceedings in question are active within the meaning of this section at the time of the publication.
S.3 Defences
If the publisher does not know and has no reason to suspect that relevant proceedings are active. At the time of distribution (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so.
Attorney-General -v- News Group Newspapers Ltd [1986] 2 All ER 83; [1987] QB 1
The publication in question must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication
That risk must be substantial;
The substantial risk must be that the course of justice in the proceedings in question will not only be impeded or prejudiced but seriously so;
The Court will not make a finding of contempt unless it is sure that the publication has created this substantial risk of that serious effect on the course of justice
In the Scottish Daily Record & Sunday Mail v Procurator Fiscal, Edinburgh [2009] HCJAC 24 the High Court reviewed the law on this matter in detail.  The newspapers in question had been fined for contempt of court for publishing the picture, during the trial, of a well-known footballer charged with assault. The newspapers appealed against the finding of contempt, but were unsuccessful.
Lord Nimmo-Smith delivered the court’s opinion, including a reference to various cases and particularly to HM Advocate v Caledonian Newspapers Ltd 1995 SCCR 330 which is considered to be the leading case concerning publication of pictures of an accused, and contempt.

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