Closes 8 Nov 2024
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We provisionally propose that to establish the conduct element of general contempt, there should be a requirement to prove that the actual or risked consequence of the defendant’s conduct was an interference with the administration of justice.
Do consultees agree?
We provisionally propose that to establish the conduct element of general contempt it should be sufficient to prove that the defendant’s conduct actually interfered with the administration of justice in a non-trivial way.
We provisionally propose that to establish the conduct element of general contempt it should be sufficient to prove that the conduct created a risk of interfering with the administration of justice in a non-trivial way.
We provisionally propose that to establish the conduct element of general contempt on the basis that the defendant’s conduct created a risk of interfering with the administration of justice in a non-trivial way, it should be a requirement to prove that the conduct created a substantial risk of such an interference.
By “substantial risk” we mean a risk that is not remote (which is the meaning the courts have given to the term in section 2(2) of the Contempt of Court Act 1981).
We provisionally propose that the law of contempt should continue to apply before proceedings have commenced, including when proceedings are imminent and also before proceedings are imminent.
Our provisional view is that where potentially contemptuous conduct occurs following the conclusion of particular proceedings, then any application of the law of contempt will inevitably be concerned with the risk of interference with future proceedings.
We provisionally propose that the fault element of general contempt should be satisfied by intention, which will be established where it is proved that the defendant intended to interfere with the administration of justice in a non-trivial way.
We provisionally propose that, in the event that taking photographs in court were not to constitute contempt unless intention (or recklessness, if recklessness is to be sufficient for establishing fault) could be proved, the government should consider reviewing section 41 of the Criminal Justice Act 1925.
We provisionally propose that where general contempt is committed by publication, the fault element for general contempt should be satisfied only by intention.
Where general contempt is committed by conduct other than publication, should the fault element for general contempt be satisfied:
(1) only by intention, or
(2) either by intention or recklessness?
If recklessness is to be an alternative fault element where contempt is committed by conduct other than publication, we provisionally propose that recklessness should be established by proving that:
(1) the defendant was aware that their conduct carried a substantial risk of interfering in a non-trivial way with the administration of justice; and
(2) in the circumstances as the defendant knew them, it was unreasonable to take the risk.
We provisionally propose that “publication” continue to be defined as it is in section 2(1) of the Contempt of Court Act 1981, but with illustrative examples to include online or electronic communications.
We provisionally propose that, where inferior courts have specific powers to deal with contempt that involves the physical assault of a court officer then those same powers should apply to non-physical assaults and threats.
We provisionally propose that any statutory provision setting out what constitutes general contempt should be accompanied by a non-exhaustive list of examples of conduct that is capable of constituting general contempt.
We provisionally propose that the following should be included in a non-exhaustive list of examples of conduct that is capable of constituting general contempt to accompany a statutory statement of what constitutes general contempt:
(1) disrupting court proceedings;
(2) obstructing court officers or staff in the execution of their duties;
(3) threatening or assaulting court officers or staff, parties to proceedings, witnesses or jurors;
(4) taking photographs in court;
(5) making non-permitted audio or video recordings of proceedings;
(6) misconduct by jurors;
(7) disobeying a court order made for the purpose of protecting the administration of justice;
(8) subverting an order of the court by destroying the subject matter of an action;
(9) encouraging or assisting another to disobey a court order;
(10) providing false statements or disclosures to a court;
(11) accessing court documents without authorisation; or
(12) misconduct by legal representatives.
Are there other examples that should be included?
