Contempt of court

Contempt of court, often referred to simply as "contempt", is the offence of being disobedient to or discourteous towards a court of law and its officers in the form of behavior that opposes or defies the authority, justice and dignity of the court.[1][2] It manifests itself in willful disregard of or disrespect for the authority of a court of law, which is often behavior that is illegal because it does not obey or respect the rules of a law court.[3][4]

There are broadly two categories of contempt: being rude or disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.[5] Contempt proceedings are especially used to enforce equitable remedies, such as injunctions.[6] In some jurisdictions, the refusal to respond to subpoena, to testify, to fulfill the obligations of a juror, or to provide certain information (with the exception of 5th amendment rights and legitimate concerns for personal safety following testimony in the United States) can constitute contempt of the court.

When a court decides that an action constitutes contempt of court, it can issue a court order that in the context of a court trial or hearing declares a person or organisation to have disobeyed or been disrespectful of the court's authority, called "found" or "held" in contempt. That is the judge's strongest power to impose sanctions for acts that disrupt the court's normal process.

A finding of being in 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 behaviour, or publication of material or non-disclosure of material, which in doing so is deemed likely to jeopardise 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. The client or person must be proven to be guilty before being punished.

In use today

Contempt of court is essentially seen as a form of disturbance that may impede the functioning of the court. The judge may impose fines and jail time upon any person committing contempt of court. The person is usually let out upon his or her agreement to fulfill the wishes of the court.[7] Civil contempt can involve acts of omission. The judge will make use of warnings in most situations that may lead to a person being charged with contempt. It is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge.[8] Constructive contempt, also called consequential contempt, is when a person fails to fulfill the will of the court as it applies to outside obligations of the person. In most cases, constructive contempt is considered to be in the realm of civil contempt because of its passive nature.

Indirect contempt is something that is associated with civil and constructive contempt and involves a failure to follow court orders. Criminal contempt includes anything that could be called a disturbance such as repeatedly talking out of turn, bringing forth previously banned evidence, or harassment of any other party in the courtroom.[7] Direct contempt is an unacceptable act in the presence of the judge (in facie curiae), and generally begins with a warning, and may be accompanied by an immediate imposition of punishment. Yawning in some cases can be considered contempt of court.[9]

Contempt of court has a significant impact on journalism in the form of restrictions on court reporting which are set out in statute in the UK.[10]

Australia

In Australia a judge may impose a fine or jail for contempt of court,[11] including for refusing to stand up for a judge.[12]

Canada

Common law offence

In Canada, contempt of court is an exception to the general principle that all criminal offences are set out in the federal Criminal Code. Contempt of court is the only remaining common law offence in Canada.[13]

Contempt of court includes the following behaviours:

Canadian Federal courts

This section applies only to Federal Court of Appeal and Federal Court.

Under Federal Court Rules, Rules 466, and Rule 467 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.[14]

If it is 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 being imprisoned for a period of less than five years or until the person complies with the order or fine.

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 British Columbia, 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.[15]

Hong Kong

Judges from the Court of Final Appeal, High Court, District Court 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 legislation or through common law:

The use of insulting or threatening language in the magistrates' courts or against a magistrate is in breach of section 99 of the Magistrates Ordinance (Cap 227) 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 for contempt by them (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.

India

In India contempt of court is of two types:

  1. Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
  2. Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
    1. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
    2. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
    3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

"High Court" means the high court for a state or a union territory and includes the court of the judicial commissioner in any union territory.

England and Wales

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 behaviour 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 behaviour observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual 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 superior court of record under the Senior Courts 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:

  1. 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);
  2. Disobedience of a court order; and
  3. 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 a Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales.

Magistrates' courts are not superior 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 judge or JP may imprison the offender for a maximum of one month, fine them up to £2,500, 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.[16]

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 or linked trials are over and the juries have given their verdicts.

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:

  1. Failure to attend at court despite a summons 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.
  2. 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 claimant 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 the United States jurisprudence, acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt occurs in the presence of a judge; civil contempt is "coercive and remedial" as opposed to punitive. In the United States, relevant statutes include 18 U.S.C. §§ 401–403 and Federal Rule of Criminal Procedure 42.[17]

  1. 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.
  2. 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, since there is no written procedure, may or may not be allowed 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 theoretically punitive sanctions (punishment) can only be imposed after due process but the due process is unpublished.

In civil contempt cases there is no principle of proportionality. In Chadwick v. Janecka (3d Cir. 2002), a U.S. court of appeals held that H. Beatty Chadwick could be held indefinitely under federal law, for his failure to produce US$2.5 million as state court ordered in a civil trial. Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.

Civil contempt is only appropriate when the imposed party has the power to comply with the underlying order.[18] Controversial contempt rulings have periodically arisen from cases involving asset protection trusts, where the court has ordered a settlor of an asset protection trust to repatriate assets so that the assets may be made available to a creditor.[19] A court cannot maintain an order of contempt where the imposed party does not have the ability to comply with the underlying order. This claim when made by the imposed party is known as the "impossibility defense."[20]

Contempt of court is considered a prerogative of the court, and "the requirement of a jury does not apply to 'contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.'" This stance is not universally agreed with by other areas of the legal world, and there have been many calls to have contempt cases to be tried by jury, rather than by judge, as a potential conflict of interest rising from a judge both accusing and sentencing the defendant. At least one Supreme Court Justice has made calls for jury trials to replace judge trials on contempt cases.[21]

The United States Marshals Service is the agency component that first holds all federal prisoners. It uses the Prisoner Population Management System /Prisoner Tracking System. The only types of records that are disclosed as being in the system are those of "federal prisoners who are in custody pending criminal proceedings." The records of "alleged civil contempors" are not listed in the Federal Register as being in the system leading to a potential claim for damages under The Privacy Act, 5 U.S.C. § 552a(e)(4)(I).[22]

News media in the United States

In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, unless the media outlet is a party to the case, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a case or forbid it from reporting facts discovered publicly.[23] Newspapers cannot be closed because of their content.[24]

Criticism

There have been criticisms over the practice of trying contempt from the bench. In particular, Supreme Court Justice Hugo Black wrote in a dissent, "It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury."[21]

See also

Notes and references

  1. ↑ "contempt: definition of contempt in Oxford dictionary (American English) (US)". Oxforddictionaries.com. 2014-08-05. Retrieved 2014-08-13.
  2. ↑ "West's Encyclopedia of American Law". TheFreeDictionary.com. Retrieved 15 September 2014.
  3. ↑ "Always Free Online". Collins English Dictionary. Retrieved 2014-08-13.
  4. ↑ "contempt noun (NOT OBEYING) - definition in the British English Dictionary & Thesaurus - Cambridge Dictionaries Online". Dictionary.cambridge.org. 2014-07-30. Retrieved 2014-08-13.
  5. ↑ "Legal Dictionary | Law.com". Dictionary.law.com. 2010-12-09. Retrieved 2014-08-13.
  6. ↑ Bray, Samuel (2014). "The Myth of the Mild Declaratory Judgment". Duke Law Journal. 63: 1091. SSRN 2330050 Freely accessible.
  7. 1 2 Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site:
  8. ↑ Hill, G. (2008). Contempt of Court. Retrieved April 12, 2008 from , Law.dictionary.com Web site:
  9. ↑ Liu, Caitlin (April 20, 2005), Sleepy Juror Gets Rude Awakening, Los Angeles Times
  10. ↑ Media Law Web, Winchester University,UK (2009)Web site Archived 2010-02-22 at the Wayback Machine.
  11. ↑ "Contempt & court reporting in Australia". Thenewsmanual.net. Retrieved 2014-08-13.
  12. ↑ Robinson, Natasha (9 December 2016). "Islamic State recruiter's wife Moutia Elzahed may be first charged under disrespectful behaviour laws". ABC News. Australian Broadcasting Corporation. Archived from the original on 9 December 2016.
  13. ↑ A Compendium of Law and Judges
  14. ↑ Federal Court Rules Chapter 12
  15. ↑ Provincial Court Act Jurisdiction of justice
  16. ↑ "Contempt of Court and Reporting Restrictions: Legal Guidance: The Crown Prosecution Service". www.cps.gov.uk. Retrieved 2017-03-29.
  17. ↑ [Doyle C. (2010). Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities Archived 2013-06-15 at the Wayback Machine.. Congressional Research Service.
  18. ↑ "See In re Marciano". Donlevy-Rosen & Rosen, P.A.: Westlaw.
  19. ↑ Howard Rosen; Patricia Donlevy-Rosen. "The Importance of Proper APT Design & Counsel". The Asset Protection News.
  20. ↑ Phillips, Sam. "In re Marciano - an analysis of the impossibility defense in contempt". Donlevy-Rosen & Rosen, P.A.
  21. 1 2 United States v. Barnett, 376 U.S. 681 (1964)
  22. ↑ Federal Register on November 8, 1999 in Vol. 64, No. 215 page 60836 a “Revised Notice regarding its Prisoner Tracking System”
  23. ↑ Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)
  24. ↑ Near v. Minnesota, 283 U.S. 697 (1931)

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