Closes 8 Nov 2024
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We provisionally propose that there should be a uniform, general procedure contempt proceedings in all courts, tribunals and other bodies, with that procedure allowing for variations that are needed to address potential contempts in different settings.
Do consultees agree?
We provisionally propose that the various procedure rule committees should consider collaborating to develop a uniform, general procedure (for example, by establishing a joint working group of rule committees or a new contempt procedure rule committee).
We provisionally propose that, where practicable, a court, tribunal or other body should be required first to conduct an initial enquiry into the allegation in all cases where:
(1) the court, tribunal or other body observes, or someone reports to it, a potential contempt; and
(2) the court, tribunal or other body is contemplating instituting contempt proceedings.
We provisionally propose that the procedure on initial enquiry should require the following:
We provisionally propose that, after conducting an initial enquiry into the contempt allegation, the court, tribunal or other body should have the option to:
(1) take no further action in respect of the allegation;
(2) institute proceedings for contempt in respect of the allegation, where the court, tribunal or other body has the power to do so (and the court, tribunal or other body should be able to discontinue those proceedings at any time);
(3) refer the matter to the High Court (or to the Upper Tribunal or Employment Appeal Tribunal), asking the High Court (or the Upper Tribunal or Employment Appeal Tribunal) to consider instituting contempt proceedings itself (where the court, tribunal or other body has the power to make such a referral); or
(4) refer the matter to the Attorney General (asking the Attorney General to consider whether to institute contempt proceedings) or the police (asking the police to investigate and consider referring it to the Crown Prosecution Service for a decision on whether to prosecute it as a criminal offence).
Should all protected inferior courts, tribunals and other bodies have a power to order the immediate temporary detention of a defendant in contempt proceedings?
We provisionally propose that all courts, tribunals and other bodies that are empowered to order the immediate temporary detention of a defendant in contempt proceedings should have available to them a specific procedure for doing so.
We provisionally propose that a defendant who is detained temporarily by a court, tribunal or other body should be entitled to have someone told of their detention.
We provisionally propose that where a court, tribunal or other body orders the immediate temporary detention of a defendant in contempt proceedings it should be required to review the case no later than the end of the same day.
We provisionally propose that the relevant procedure rule committee should consider whether the procedure rules should require the court, tribunal or other body to consider whether to institute proceedings itself or to refer the matter to:
(1) the Attorney General, asking the Attorney General to consider whether to institute contempt proceedings in the High Court;
(2) the police, asking the police to investigate and consider referring it to the Crown Prosecution Service for a decision on whether to prosecute the matter as a criminal offence; or
(3) the High Court (or to the Upper Tribunal or Employment Appeal Tribunal), asking the High Court (or the Upper Tribunal or Employment Appeal Tribunal) to consider instituting contempt proceedings itself (where the court, tribunal or other body has the power to make such a referral).
We provisionally propose that the relevant procedure rule committee should consider whether the procedure rules should set out the relevant factors for the court, tribunal or other body to take into account when considering whether to institute proceedings itself or to refer the matter to the Attorney General, police, High Court, Upper Tribunal or Employment Appeal Tribunal.
Relevant factors may include the complexity of the matter, the seriousness of the conduct, the availability and type of evidence, the expertise of the court, tribunal or other body, and the appropriateness of its sentencing powers for contempt.
Are there any other factors that may be relevant?
We provisionally propose that, where a court, tribunal or other body institutes contempt proceedings, in all cases the hearing should be set for a time and date that allows the defendant a reasonable opportunity to obtain legal advice and prepare their defence.
We provisionally propose that, where a court, tribunal or other body institutes contempt proceedings, it should not be required to hear the proceedings on the same day.
We provisionally propose that the following information should be provided to a defendant in a contempt application (where proceedings are initiated by application) or in a written statement issued by a court, tribunal or other body (where proceedings are initiated by a court, tribunal or other body):
This information should be served on the defendant with a notice of where and when the contempt proceedings will take place.
We invite consultees’ views on whether it should be necessary to include any other information in the contempt application or written statement.
Where a court or tribunal directs that a contempt application does not need to be supported by written evidence given by affidavit or affirmation, in what form does the court or tribunal tend to direct that the evidence must be provided (for example, a witness statement or oral evidence)?
When written statements of witnesses are used as evidence, should witness statements should be admissible (and the requirement for such evidence to be given on affidavit abandoned where it exists)?
We provisionally propose that contempt proceedings should be subject to the same rules of evidence that apply in criminal proceedings such that:
(1) hearsay evidence would be admissible only in the circumstances permitted by the Criminal Justice Act 2003; and
(2) the court may refuse to admit evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
We provisionally propose that (in addition to the existing permission requirements under the Civil Procedure Rules, Family Procedure Rules, and Court of Protection Rules 2017) permission to make a contempt application should be required in all courts, tribunals and other bodies where the application relates to breach of an order.
Should permission be required for applications relating to all other types of contempt?
Should the burden of bringing a contempt application for breach of an order lie always with the party seeking to enforce the order?
Should there be a new enforcement body that is empowered to make a contempt application for breach of an order?
With the exception of the inherent power of immediate temporary detention and any specific powers provided for in statute, we do not propose the creation of a general power to remand a defendant in custody prior to a finding of contempt.
We provisionally propose that in all contempt proceedings the procedure for hearing a contempt allegation should have the following features:
We provisionally propose that, where the allegation is contested by the defendant, the court, tribunal or other body that conducts the hearing should not comprise the same members who observed the conduct in question. In these circumstances, the matter should be heard by another member of the court, tribunal or other body in accordance with a prescribed procedure.
We provisionally propose that judgments should be published where a court, tribunal or other body makes an order of committal for contempt of court, whether immediate or suspended.
We provisionally propose that judgments in which a court, tribunal or other body makes an order of committal for contempt of court should be sent to the National Archives for publication on the Find Case Law service. Where that service does not accept judgments from the sentencing court, tribunal or other body then judgments should be published on the website of the judiciary of England and Wales.
We provisionally propose that the committee responsible for devising procedure rules that apply in the devolved tribunals in Wales should consider developing a uniform, general procedure for contempt proceedings.
We provisionally propose that, after conducting an initial enquiry into the contempt allegation, the First-tier Tribunal for Wales or Appeal Tribunal for Wales (if created) should have the option to:
What should be the role of the Attorney General and Counsel General in relation to contempt in the devolved tribunals in Wales?
