Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward 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] A similar attitude toward a legislative body is termed contempt of Parliament or contempt of Congress. The verb for "to commit contempt" is contemn (as in "to contemn a court order") and a person guilty of this is a contemnor or contemner.[3]
There are broadly two categories of contempt: being disrespectful to legal authorities in the courtroom, or willfully failing to obey a court order.[4] Contempt proceedings are especially used to enforce equitable remedies, such as injunctions.[5] In some jurisdictions, the refusal to respond to subpoena, to testify, to fulfill the obligations of a juror, or to provide certain information can constitute contempt of the court.
When a court decides that an action constitutes contempt of court, it can issue an order in the context of a court trial or hearing that declares a person or organization 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 behavior, or publication of material or non-disclosure of material, which in doing so is deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine, jail or social service for someone found guilty of contempt of court, which makes contempt of court a process crime. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems.
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/or jail time upon any person committing contempt of court. The person is usually let out upon an agreement to fulfill the wishes of the court.[6] 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 if the warnings are ignored. It is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge.[7] 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 due to 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 considered a disturbance, such as repeatedly talking out of turn, bringing forth previously banned evidence, or harassment of any other party in the courtroom, including committing an assault against the defendant in a criminal case. There have been instances during murder trials that grieving family members of murder victims have attacked the defendants in courtrooms in plain view of judges, bailiffs, and jurors, leading to said family members to be charged with contempt.[6] Direct contempt is an unacceptable act in the presence of the judge (in facie curiae), and generally begins with a warning; it may be accompanied by the immediate imposition of a punishment.[8]
Australia
In Australia, a judge may impose a fine or jail for contempt of court.[9][10]
Belgium
A Belgian correctional or civil judge may immediately try the person for insulting the court.[11]
Canada
Common law offense
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.
Contempt of court includes the following behaviors:
Failing to maintain a respectful attitude, failing to remain silent or failing to refrain from showing approval or disapproval of the proceeding
Refusing or neglecting to obey a subpoena
Willfully disobeying a process or order of the court
Interfering with the orderly administration of justice or impairing the authority or dignity of the court
Failing to perform duties as an officer of the court
A sheriff or bailiff not executing a writ of the court forthwith or not making a return thereof
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.[12]
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, a justice of the peace can only issue a summons to an offender for contempt, which will be dealt with by a judge, even if the offence was done in the face of the justice.[13]
Misbehaves in court (e.g., use of mobile phone or recording devices without permission)
Juror who leaves without permission of the court during proceedings
Disobeying a judgment 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 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 (e.g., 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.
England and Wales
In England and Wales (a common law jurisdiction), the law on contempt is partly set out in case law (common law), and partly codified by the Contempt of Court Act 1981. Contempt may be classified as criminal or civil. The maximum penalty for criminal contempt under the 1981 Act is committal to prison for 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.
There are limits to the powers of contempt created by rulings of European Court of Human Rights. Reporting on contempt of court, the Law Commission commented that "punishment of an advocate for what he or she says in court, whether a criticism of the judge or a prosecutor, amounts to an interference with his or her rights under article 10 of the ECHR" and that such limits must be "prescribed by law" and be "necessary in a democratic society",[14] citing Nikula v Finland.[15]
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, a judge may act to impose committal (to prison) 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 King's Bench Division of the High Court of Justice of England and Wales. In January 2012, for example, a juror who had researched information on the internet was jailed for contempt of court. Theodora Dallas, initially searching for the meaning of the term "grievous bodily harm", added search criteria which localised her search and brought to light another charge against the defendant. Because she then shared this information with the other jurors, the judge stated that she had compromised the defendant's right to a fair trial and the prosecution was abandoned.[16]
Magistrates' courts also have powers under the 1981 Act to order to detain any person who "insults the court" or otherwise disrupts its proceedings until the end of the sitting. Upon contempt being admitted or proved the (invariably) District Judge (sitting as a magistrate) may order committal to prison for a maximum of one month, impose a fine of up to £2,500, or both.
It will be contempt to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.[17]
It will not be contempt according to 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 it is criminal contempt 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 defines and limits the previous common law definition of contempt (which was previously based upon a presumption that any conduct could be treated as contempt, regardless of intent), to only instances where there can be proved an intent to cause a substantial risk of serious prejudice to the administration of justice (i.e./e.g., the conduct of a trial).
Civil contempt
In civil proceedings there are two main ways in which contempt is committed:
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.[18]
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.
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.
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:
Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
In United States jurisprudence, acts of contempt are generally 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 18U.S.C.§§401–403 and Federal Rule of Criminal Procedure 42.[19]
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, 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 their own cell, thus conventional due process is not required. In federal and most state courts, the burden of proof for civil contempt is clear and convincing evidence, a lower standard than in criminal cases.[20]
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 for his failure to produce $2.5 million as a 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.[21] 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.[22] 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".[23]
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.[24]
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, 5U.S.C.§552a(e)(4)(I).[25]
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.[26] Newspapers cannot be closed because of their content.[27]
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."[24]
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial, in which a judge or panel of judges makes all decisions.
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.
A jury is a sworn body of people (jurors) convened to hear evidence, make findings of fact, and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.
Jury nullification, also known in the United Kingdom as jury equity, or a perverse verdict, is when the jury in a criminal trial gives a verdict of not guilty even though they think a defendant has broken the law. The jury's reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, that the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system. Some juries have also refused to convict due to their own prejudices in favor of the defendant. Such verdicts are possible because a jury has an absolute right to return any verdict it chooses. Nullification is not an official part of criminal procedure but is the logical consequence of two rules governing the systems in which it exists:
Jurors cannot be punished for passing an incorrect verdict.
In many jurisdictions, a defendant who is acquitted cannot be tried a second time for the same offense.
The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a magistratus was one of the highest ranking government officers, and possessed both judicial and executive powers. In other parts of the world, such as China, magistrate is a word applied to a person responsible for administration over a particular geographic area. Today, in some jurisdictions, a magistrate is a judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters. In other jurisdictions, magistrates are typically trained volunteers appointed to deal with criminal and civil matters in their local areas.
A hung jury, also called a deadlocked jury, is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. A hung jury may result in the case being tried again.
A bench trial is a trial by judge, as opposed to a trial by jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems use bench trials for most or all cases or for certain types of cases.
Judiciary of Malaysia is largely centralised despite Malaysia's federal constitution, heavily influenced by the English common law, as well as Islamic jurisprudence.
District courts are a category of courts which exists in several nations, some call them "small case court" usually as the lowest level of the hierarchy.
The Judiciary of the Hong Kong Special Administrative Region is the judicial branch of the Hong Kong Special Administrative Region. Under the Basic Law of Hong Kong, it exercises the judicial power of the Region and is independent of the executive and legislative branches of the Government. The courts in Hong Kong hear and adjudicate all prosecutions and civil disputes, including all public and private law matters.
In England and Wales, a magistrates' court is a lower court which hears matters relating to summary offences and some triable either-way matters. Some civil law issues are also decided here, notably family proceedings. In 2010, there were 320 magistrates' courts in England and Wales; by 2020, a decade later, 164 of those had closed. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.
Summary jurisdiction, in the widest sense of the phrase, in English law includes the power asserted by courts of record to deal brevi manu with contempts of court without the intervention of a jury. Probably the power was originally exercisable only when the fact was notorious, i.e. done in presence of the court. But it has long been exercised as to extra curial contempts.
The High Court of Singapore is the lower division of the Supreme Court of Singapore, the upper division being the Court of Appeal. The High Court consists of the chief justice and the judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload. There are two specialist commercial courts, the Admiralty Court and the Intellectual Property Court, and a number of judges are designated to hear arbitration-related matters. In 2015, the Singapore International Commercial Court was established as part of the Supreme Court of Singapore, and is a division of the High Court. The other divisions of the high court are the General Division, the Appellate Division, and the Family Division. The seat of the High Court is the Supreme Court Building.
In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries. Under present-day practice, juries are generally summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way. All common law civil cases were tried by jury until the introduction of juryless trials in the new county courts in 1846, and thereafter the use of juries in civil cases steadily declined. Liability to be called upon for jury service is covered by the Juries Act 1974.
In 1964 Tanganyika and Zanzibar formed the United Republic of Tanzania. After the Treaty of the Union, the two countries continued to remain with their own legal systems including court structures. In the 1977 Constitution of the United Republic of Tanzania, the High Court of Tanganyika whose jurisdiction was and still is territoriality limited to Tanzania Mainland was called the High Court of Tanzania and the High Court of Zanzibar retained its original name. It is essential to note that the High Court of Tanzania only has territorial jurisdiction over legal issues arising in Tanzania Mainland and the High Court of Zanzibar has territorial jurisdiction over legal issues arising in Zanzibar.
A citizen's right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.
The practice of trial by jury has a long history in Hong Kong. Like most jurisdictions with jury trial, this tradition was introduced into Hong Kong when it became a British colony. The Ordinance for the Regulation of Jurors and Juries was first enacted in 1845. Ever since then, the practice of trial by jury has been important part of Hong Kong’s judicial system. This is also recognised in the Basic Law, Article 86: "The principle of trial by jury previously practised in Hong Kong shall be maintained."
The Justices of the Peace Act 1361 is an act of the Parliament of England. The Act, although amended, remains enforceable in England and Wales as of 2022.
Juror misconduct is when the law of the court is violated by a member of the jury while a court case is in progression or after it has reached a verdict.
In India, the offence of contempt of court is committed when a person either disobeys a court order, or when a person says or does anything that scandalizes, prejudices, or interferes with judicial proceedings and the administration of justice. Contempt of court can be punished with imprisonment or a fine, or both.
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