English Law Commission Consultation on Contempt of Court

The Law Commission of England has published a consultation paper on the law of contempt of court.

As explained in the summary document:

"The law of contempt is disorganised and, at times, incoherent. It has developed over centuries, but has done so piecemeal, and now comprises an unsystematic amalgam of statute and common law. Historic distinctions persist, such as the distinction between civil and criminal contempt, though with little utility. Indeed, whether classified as criminal or civil, contempt is not a criminal offence at all but is instead a wholly separate regime for safeguarding the administration of justice. The penalties for contempt are generally imprisonment or a fine. Alongside contempt of court are many overlapping criminal offences relating to the administration of justice (such as the offence of perverting the course of justice)."

"Nevertheless, the more fundamental problems with contempt are practical. Many courts and tribunals lack meaningful powers to deal with contempt when it arises. Even when courts do have such powers, the sanctions available to them – as tools either of coercion or punishment – are blunt. The procedures for contempt differ between different courts, and the law governing appeals can be unclear and complex (...)"

"All of these problems mean that it is difficult for laypeople and legal practitioners to identify and understand the relevant law, and for the courts to recognise and respond appropriately to interferences with the administration of justice."

"A clearer and more coherent set of laws and rules governing contempt – addressing liability for contempt, the powers of courts, procedure, and the imposition of sanctions – would help to ensure that this very significant area of law operates in a principled, comprehensible, and effective way."

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:

• “General contempt”. Examples include abusing court staff or witnesses, disrupting a hearing, or making unauthorised recordings of proceedings.
• “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.
• “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.

The Law Commission is an independent body established by statute to make recommendations to Government on improving the law.

The consultation the Commission is running will end November 8, 2024.