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May 4, 2021

8/15 Civil Contempt Proceedings: Contempt in the Face of the Court

This week’s bulletin considers when contempt proceedings under CPR 81 (also referred to as ‘committal proceedings’) can be brought where contempt is committed in the face of the court. This means, the contempt must be directly in the court’s presence.

What constitutes contempt in the face of the court?
Contempt in the face of the court can apply to very diverse circumstances. Denning MR in Morris v Crown Office [1970] 1 All ER 1079 described this type of contempt in the following way:

‘The phrase “contempt in the face of the court” has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with… To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without a trial – but it is a necessary power.’

Morris remains good law but the courts must make allowances for the passage of time and in that vein the requirements of CPR 81.4(2) should be complied with, even if the committal proceedings are instigated by the court (CPR 81.6(3)). The factors set out in CPR 81.4(2) stipulate what a committal application must contain, and were discussed in our earlier bulletin – Making and Serving the Application.

Practical tip: when representing a defendant in committal proceedings for contempt in the face of the court, or where such proceedings are threatened, a practitioner should quote R v Moran [1985] Lexis Citation 681, where the court stated ‘Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure’.

This process, in essence, conforms with the approaches in other types of contempt matters. The items set out in CPR 81.4(2), when read together, would appear to steer a judge towards early and comprehensive notice to the defendant and following CPR 81.4(2)(q), resolution without the need for formalised contempt proceedings.

Nevertheless, if formalised proceedings are required to ensure fairness to the defendant, such an approach should be adopted.

The court’s power to remand
In R v Secretary of State for the Home Department, ex parte Stevens and Holnes, (unreported 21 May 1997), the court remanded the defendants in prison for the duration of the trial (or until the Attorney General decided whether to proceed against them for contempt) because the allegation was that they had threatened a witness to retract their evidence. The court decided that the judge did not have the power to do this.

In Wilkinson v Official Solicitor [2003] EWCA Civ 95, the Court of Appeal addressed the matter as follows:

‘In many cases, it need take no longer than the remainder of the court day (as it appears was originally envisaged in this case) or overnight. But where the delay is no longer than necessary in order to make arrangements for a summary trial in which the rights of the alleged contemnor can be properly protected, it cannot be unlawful.’

The understandable risk of bias
As with all judge-led contempt proceedings, there is the risk of or at the very least a perception of bias, after all the contempt is being displayed to the judge, who is the representative of the court. As acknowledged by the Court of Appeal in Wilkinson v Official Solicitor, when examining the need or desirability for there to be a pause or delay between the act of contempt and sentencing, it stated:

‘The judge is also given the opportunity to recover from a disruptive or even, as in this case, frightening experience and consider what, if anything, needs to be done about it.’

The court went on to say:

‘…the power to impose summary punishment for actions which one has oneself witnessed and is oneself the victim does appear to place the judge in the position of being witness, prosecutor and judge…In many cases where there has perforce to be a delay between the alleged contempt and the summary trial, it will be wise for the judge to refer the matter to one of her colleagues if for no other reason than to avoid the risk that this argument will be run.’

The court’s power to deal with contempt in the face of the court
CPR 81.6(1) provides that if the court considers that a contempt of court (including a contempt in the face of court) may have been committed, the court of its own initiative ‘shall’ consider whether to proceed against the defendant in contempt proceedings. This appears to put an obligation on the judge to seize the initiative and effectively keep the matter ‘in house’.

However, the obligation isn’t, in fact, overly onerous. Under CPR 81.6, the court is obliged to ‘consider’ whether to proceed against the defendant, rather than having an obligation to proceed. The parties’ role is to remind the court of the provision where appropriate – Isbilen v Turk [2021] EWHC 854 (Ch).

Although dealing with the difference scenario of the alleged breach of a court order, Isbilen reminds us that the court will only act of its own initiative under CPR 81.6 in exceptional circumstances; where the contempt is clear, where there is urgency and where it is imperative to act immediately.

Should the court choose to proceed it can require reasonable assistance from any other party in the proceedings (CPR 81.6(2)).

If the court chooses to proceed of its own initiative, it will issue a summons (N601) (including the matters set out in CPR 81.4(2)(a)–(s)), requiring the defendant to attend court for directions to be given.

However, should the judge, having considered matters, choose not to proceed, there is nothing preventing the court from inviting an appropriate application from the opposing party in the proceedings. This approach, or a standalone application by the opposing party, would be in line with recent authority. Where the court decides not to deal with the contempt at the time, Her Majesty’s Solicitor General v Holmes [2019] EWHC 1483 (Admin) confirms that the Divisional Court has jurisdiction to deal with the matter on application. The court came to this conclusion on interpreting the interplay between the pre-1 October 2020 CPR 81 (CPR 81.12 and CPR 81.16). However, bearing in mind that the version of CPR 81 in force post-1 October 2020 explicitly ‘does not alter the scope and extent of the jurisdiction of the courts… whether inherent, statutory or at common law’ (CPR 81.1(2)), it would appear that this remains ‘good’ law.

Richard Shepherd
Alex West