Law Commission launches consultation on Contempt of Court

Today, the Law Commission publishes a consultation paper reviewing the law on contempt of court.

A summary of the paper is here and the full consultation paper is here.

“Contempt of court” refers to a wide variety of conduct that may impede or interfere with the administration of justice. For example, taking photographs in a courtroom, making an audio recording of proceedings, assaulting court staff or witnesses, and refusing to answer a court’s questions if called as a witness. It may also be committed by conduct that occurs elsewhere – for instance, by journalists, bloggers or members of the public publishing material that risks prejudicing a trial or publishing in breach of reporting restrictions.

Contempt is not a criminal offence – but the sanctions that may follow include imprisonment for up to two years and unlimited fines. On average, each year at least 100 people receive an immediate or suspended prison sentence.

The Law Commission is seeking views on a wide range of issues with the aim of clarifying and improving the fairness, consistency, coherence, and effectiveness of contempt laws.

The Law Commission proposes to do away with centuries-old distinctions between “criminal contempt” and “civil contempt” in favour of a modern, streamlined set of contempt laws.

The Commission proposes that there should be three forms of contempt of court.

1. “General contempt”. Examples include abusing court staff or witnesses, disrupting a hearing, or making unauthorised recordings of proceedings. Proceedings may be commenced by the court itself or by the Attorney General, who has a constitutional role as guardian of the public interest in the administration of justice.
2. “Contempt by breach of court order or undertaking”. Examples include litigants in high value commercial disputes taking assets out of the country in contravention of a “freezing order” requiring them not to do so, or protesters entering on land when an injunction prohibits it, or people subject to Anti-Social Behaviour Injunctions (ASBIs) breaching the terms of those injunctions. Proceedings may be commenced by, for instance, the litigant in a commercial dispute who obtained the freezing order, the landowner that took out an injunction to prevent protesters causing disruption, or a local authority who obtained the ASBI. Proceedings can only be commenced with permission of the court.
3. “Contempt by publication when proceedings are active”. Examples include media reporting or social media posts that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. For instance, when a publication reveals information that may not be admissible in evidence then it may carry a risk of influencing a jury in a criminal trial. Proceedings can only be commenced with the permission of the Attorney General or, more commonly, the Attorney General takes action by commencing proceedings.

Among the specific proposals for reform are several relating to:

• Community sentences: Currently, courts are very limited in the sanctions they can impose; mostly, prison or a fine are the only options. These are not always suitable. Where vulnerable people have breached the conditions of an ASBI then prison may not be appropriate, and they may have no money to pay a fine. The Law Commission proposes expanding sentencing options to include community orders, which may include unpaid work, drug or alcohol treatment, and restrictions on places that a person may go or where they must live.
• Imprisonment: The maximum sentence for contempt is two years imprisonment. The Law Commission proposes to retain that. However, as there is a strong public interest in knowing about proceedings that are before the courts, the Commission is seeking views on whether the option of imprisonment should be removed when freedom of expression is engaged and a defendant’s culpability is lower, for example because the defendant did not intend to interfere with the administration of justice.
• Tribunals: extending contempt protection and powers to tribunals. Currently, the law of contempt does not apply in many tribunals and that is a significant constraint on their ability to address conduct that disrupts proceedings or breaches orders made to protect the parties. Contempt powers will help tribunals to ensure proceedings are fair, effective and efficient.
• Criminal records: ensuring that a contempt finding is not entered on the Police National Computer and does not appear on a criminal records check, as contempt is not a criminal offence. There is evidence that contempt sometimes does appear on criminal records.

Professor Penney Lewis, Commissioner for Criminal Law said,

“It is important that the laws governing contempt are both fair and clear to provide justice for all those involved in court proceedings. This includes not only the parties involved but those observing or reporting on proceedings.”

For some matters, the Law Commission has not made any proposals but is seeking views on:

• Whether criminal proceedings should continue to be considered “active” from the point at which a person has been arrested, or whether they should not be considered “active” until a person has been charged. A change would expand what the media may report during criminal investigations.
• Where a politician has potentially committed a contempt by publishing material that may prejudice active proceedings, whether the Attorney General should retain the power to grant or withhold consent to commencing contempt proceedings. A change would remove that power from the Attorney General and place it with the courts.
• Whether the courts should be able to review decisions by the Attorney General to grant or refuse consent to commence proceedings for contempt by publication while proceedings are active. Currently these decisions cannot be reviewed by the courts.

The consultation is open until 29 November 2024.