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January 31, 2017

Committal Proceedings and Contempt of Court

9/12 Contempt in the Face of the Court

This e-bulletin is part of a series covering contempt of court in all its forms and the series is designed to be relevant to all practice areas. Richard Shepherd has been commissioned by Lexis Nexis to draft their Professional Practice Notes on the subject. Albion Chambers is delighted that we have been granted permission by Lexis Nexis to share these guides with our instructing solicitors and professional clients before they have been published online. The next e-bulletins in the series will be published every Tuesday morning.


This e-bulletin covers the circumstances in which committal proceedings can be brought in compliance with CPR 81.16 where contempt is committed in the face of the court. This means, the contempt must be directly in the court’s presence.

This type of contempt is one of the few where the court itself may deal with the contempt without further application or permission being sought. Therefore, although a review of the e-bulletin “Nuts and Bolts” would be of benefit, the procedural requirements outlined in it will be of lesser relevance.

Relevant Factors

The reader should familiarise themselves with CPR PD 81 paras 4.1 to 4.3. Contempt in the face of the court can apply to very diverse circumstances. Denning MR in Morris v Crown Office [1970] 2 QB 114 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, CPR PD 81 sets out a number of factors that the court should consider when assessing such matters when wielding such “great power”, these are as follows:

  • tell the respondent of the possible penalty that the respondent faces;

  • inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application;

  • if the judge considers that an apology would remove the need for the committal application, tell the respondent;

  • have regard to the need for the respondent to be –

    (a)        allowed a reasonable time for responding to the committal application, including, if necessary, preparing a defence;

    (b)        made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;

    (c)        given the opportunity, if unrepresented, to obtain legal advice;

    (d)        if unable to understand English, allowed to make arrangements, seeking the court’s assistance if necessary, for an interpreter to attend the hearing; and

    (e)        brought back before the court for the committal application to be heard within a reasonable time;

  • allow the respondent an opportunity to –

    (a)        apologise to the court;

    (b)        explain the respondent’s actions and behaviour; and

    (c)        if the contempt is proved, to address the court on the penalty to be imposed on the respondent; and

  • where appropriate, nominate a suitable person to give the respondent the information. (It is likely to be appropriate to nominate a person where the effective communication of information by the judge to the respondent was not possible when the incident occurred.)

The process envisaged by the CPR in fact reflects the court of appeal judgment in Moran (1983) Cr App R 51, temperance is urged.

When representing a person in such circumstances it may be worth making direct reference to Moran, 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 on the list above, when read together, would appear to steer a judge towards early resolution without the need for formalised contempt proceedings. Nevertheless, if formalised proceedings are required to ensure fairness to the alleged contemnor, such an approach should be adopted.

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 alleged contemnors 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.

Bias and a Substitute Judge

As with all judge-led proceedings, there is the risk of, or at the very least a perception of, bias, after all the contempt is being shown to the judge, who is the representative of the court.

As acknowledged by the Court of Appeal in Wilkinson when examining the need for delay, 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”.

In Wilkinson 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.”

Richard Shepherd

Next week’s bulletin will review the law relating to “Interference with the Administration of Justice”.