1911 Encyclopædia Britannica/Contempt of Court
CONTEMPT OF COURT, in English law, any disobedience or disrespect to the authority or privileges of a legislative body, or interference with the administration of a court of justice.
1. The High Court of Parliament. Each of the two houses of Parliament has by the law and custom of parliament power to protect its freedom, dignity and authority against insult, disregard or violence by resort to its own process and not to ordinary courts of law and without having its process interfered with by those courts. The nature and limits of this authority to punish for contempt have been the subject of not infrequent conflict with the courts of law, from the time when Lord Chief Justice Holt threatened to commit the speaker for attempting to stop the trial of Ashby v. White (1701), as a breach of privilege, to the cases of Burdett v. Abbott (1810), Stockdale v. Hansard and Howard v. Gosset (1842, 1843), and Bradlaugh v. Gosset (1834). It is now the accepted view that the power of either House to punish contempt is exceptional and derived from ancient usage, and does not flow from their being courts of record. Orders for committal by the Commons are effectual only while the House sits; orders by the Lords may be for a time specified, in which event prorogation does not operate as a discharge of the offender. It was at one time considered that the privilege of committing for contempt was inherent in every deliberative body invested with authority by the constitution, and consequently that colonial legislative bodies had by the nature of their functions the power to commit for contempt. But in Kielley v. Carson (1843; 4 Moore, P.C. 63) it was held that the power belonged to parliament by ancient usage only and not on the theory above stated, and in each colony it is necessary to inquire how far the colonial legislature has acquired, by order in council or charter or from the imperial legislature, power to punish breach of privilege by imprisonment or committal for contempt. This power has in some cases been given directly, in others by authority to make laws and regulations under sanctions like those enforced by the Houses of the imperial parliament. In the case of Nova Scotia the provincial assembly has power to give itself by statute authority to commit for contempt (Fielding v. Thomas, 1896; L.R.A.C. 600). In Barton v. Taylor (1886; 11 A.C. 197) the competence of the legislative assembly of New South Wales to make standing orders punishing contempt was recognized to exist under the colonial constitution, but the particular standing orders under consideration are held not to cover the acts which had been punished. (See May, Parl. Pr., 10th ed., 1896; Anson, Law and Custom of the Constitution, 3rd ed., 1897.)
2. Courts of Justice. The term contempt of court, when used with reference to the courts or persons to whom the exercise of the judicial functions of the crown has been delegated, means insult offered to such court or person by deliberate defiance of its authority, disobedience to its orders, interruption of its proceedings or interference with the due course of justice, or any conduct calculated or tending to bring the authority or administration of the law into disrespect or disregard, or to interfere with or prejudice parties or witnesses during the litigation. The ingenuity of the judges and of those who are concerned to defeat or defy justice have rendered contempt almost Protean in its character. But for practical purposes most, if not all, contempts fall within the classification which follows:—
(a) Disobedience to the judgment or order of a court commanding the doing or abstaining from a particular act, e.g. an order to execute a conveyance of property or an order on a person in a fiduciary capacity to pay into court trust moneys as to which he is an accounting party. This includes disobedience by the members of a local authority to a mandamus to do some act which they are by law bound to do; and proceedings for contempt have been taken in the case of guardians of the poor who have refused to enforce the Vaccination Acts, e.g. at Keighley and Leicester, and of town councillors who have refused to comply with an order to take specified measures to drain their borough (e.g. Worcester). This process for compelling obedience is in substance a process of civil execution for the benefit of the injured party rather than a criminal process for punishing the disobedience; and for purposes of appeal orders dealing with these forms of contempt have hitherto been treated as civil proceedings.
(b) Disobedience by inferior judges or magistrates to the lawful order of a superior court. Such disobedience, if amounting to wilful misconduct, would usually give ground for amotion or removal from office, or for prosecution or indictment or information for misconduct (Archbold, Criminal Pleading, 147, 23rd ed.).
(c) Disobedience or misconduct by executive officers of the law, e.g. sheriffs and their bailiffs or gaolers. The contempt consists in not complying with the terms of writs or warrants sent for execution. For instance, a judge of assize having ordered the court to be cleared on account of some disturbance, the high sheriff issued a placard protesting against “this unlawful proceeding,” and “prohibiting his officer from aiding and abetting any attempt to bar out the public from free access to the court.” The lord chief justice of England, sitting in the other court, summoned the sheriff before him and fined him £500 for the contempt, and £500 more for persisting in addressing the grand jury in court, after he had been ordered to desist. A sheriff who fails to attend the assizes is liable to severe fine as being in contempt (Oswald, 51). And in Harvey’s case (1884, 26 Ch. D. 644) steps were taken to attach a sheriff who had failed to execute a writ of attachment for contempt of court in the mistaken belief that he was not entitled to break open doors to take the person in contempt. The Sheriffs Act 1887 enumerates many instances in which misconduct is punishable under that act, but reserves to superior courts of record power to deal with such misconduct as a contempt (s. 29).
(d) Misconduct or neglect of duty by subordinate officials of courts of justice, including solicitors. In these cases it is more usual for the superior authorities to remove the offender from office, or for disciplinary proceedings to be instituted by the Law Society. But in the case of an unqualified person assuming to act as a solicitor or in the case of breach of an undertaking given by a solicitor to the court, proceedings for contempt are still taken.
(e) Misconduct by parties, jurors or witnesses. Jurors who fail to attend in obedience to a jury summons and witnesses who fail to attend on subpoena are liable to punishment for contempt, and parties, counsel or solicitors who practise a fraud on the court are similarly liable.
(f) Contempt in facie curiae. “Some contempts,” says Blackstone, “may arise in the face of the court, as by rude and contumelious behaviour, by obstinacy, perverseness or prevarication, by breach of the peace, or any wilful disturbance whatever”; in other words, direct insult to or interference with a sitting court is treated as contempt of the court. It is immaterial whether the offender is juror, party, witness, counsel, solicitor or a stranger to the case at hearing, and occasionally it is found necessary to punish for contempt persons under trial for felony or misdemeanour if by violent language or conduct they interrupt the proceedings at their trial. Judges have even treated as contempt the continuance outside the court-house after warning of a noise sufficient to disturb the proceedings of the court; and in Victoria Chief Justice Higginbotham committed for contempt a builder who persisted after warning in building operations close to the central criminal court in Melbourne, which interfered with the due conduct of the business of the sittings.
(g) Attempts to prevent or interfere with the due course of justice, whether made by a person interested in a particular case or by an outsider. This branch of contempt takes many forms, such as frauds on the court by justices, solicitors or counsel (e.g. by fraudulently circularizing shareholders of a company against which a winding-up petition had been filed), tampering with witnesses by inducing them through threats or persuasion not to attend or to withhold evidence or to commit perjury, threatening judge or jury or attempting to bribe them and the like; and also by “scandalizing the court itself” by abusing the parties concerned in a pending case, or by creating prejudice against such persons before their cause is heard.
The locus classicus on the subject of contempt by attacks on judges is a judgment prepared by Sir Eardley-Wilmot in the case of an application for an attachment against J. Almon in 1765, for publishing a pamphlet libelling the court of king’s bench. The judgment was not Invectives against judges. actually delivered as the case was settled, but has long been accepted as correctly stating the law. Sir Eardley-Wilmot said that the offence of libelling judges in their judicial capacity is the most proper case for an attachment, for the “arraignment of the justice of the judges is arraigning the king’s justice; it is an impeachment of his wisdom and goodness in the choice of his judges; and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.” Again, “the constitution has provided very apt and proper remedies for correcting and rectifying the involuntary mistakes of judges, and for punishing and removing them for any perversion of justice. But if their authority is to be trampled on by pamphleteers and news-writers, and the people are to be told that the power given to the judges for their protection is prostituted to their destruction, the court may retain its power some little time, but I am sure it will eventually lose all its authority.”
The object of the discipline enforced by the court by proceedings for contempt of court is not now, if it ever was, to vindicate the personal dignity of the judges or to protect them from insult as individuals, but to vindicate the dignity and authority of the court itself and to prevent acts tending to obstruct the due course of justice. The question whether a personal invective against judges should be dealt with brevi manu by the court attacked, or by proceedings at the instance of the attorney-general by information or indictment for a libel on the administration of justice or on the judge attacked, or should be dealt with by a civil action for damages, depends on the nature and occasion of the attack on the judge.
There has at times been a disposition by judges in colonial courts to use the process of the court to punish criticisms on their acts by counsel or parties or even outsiders, which the privy council has been prone to discourage. For instance in a Nova Scotia case a barrister was suspended from practice for writing to the chief justice of the province a letter relating to a case in which the barrister was suitor. The privy council while considering the letter technically a contempt, held the punishment inappropriate. In Macleod v. St Aubyn (1899, A.C. 549) it was said that proceedings for scandalizing the court itself were obsolete in England. But in 1900 the king’s bench division, following the Almon case, summarily punished a scurrilous personal attack on a judge of assize with reference to his remarks in a concluded ease, published immediately after the conclusion of the case (R. v. Gray, 1900, 2 Q.B. 36). The same measure may be meted out to those who publish invectives against judges or juries with the object of creating suspicion or contempt as to the administration of justice. But the existence of this power does not militate against the right of the press to publish full reports of trials and judgments or to make with fairness, good faith, candour and decency, comments and criticisms on what passed at the trial and on the correctness of the verdict or the judgment. To impute corruption is said to go beyond the limits of fair criticism. Shortt (Law relating to Works of Literature) states the law to be that the temperate and respectful discussion of judicial determination is not prohibited, but mere invective and abuse, and still more the imputation of false, corrupt and dishonest motives is punishable. In an information granted in 1788 against the corporation of Yarmouth for having entered upon their books an order “stating that the assembly were sensible that Mr W. (against whom an action had been brought for malicious prosecution, and a verdict for £3000 returned, which the court refused to disturb) was actuated by motives of public justice, of preserving the rights of the corporation to their admiralty jurisdiction, and of supporting the honour and credit of the chief magistrate,” Mr Justice Butler said, “The judge and jury who tried the case, confirmed by the court of common pleas, have said that instead of his having been actuated by motives of public justice, or by any motives which should influence the actions of an honest man, he had been actuated by malice. These opinions are not reconcilable; if the one be right the other must be wrong. It is therefore a direct insinuation that the court had judged wrong in all they have done in this case, and is therefore clearly a libel on the administration of justice.”
The exact limits of the power to punish for contempt of court in respect of statements or comments on the action of judges and juries, or with reference to pending proceedings, have been the subject of some controversy, owing to the difficulty of reconciling the claims of the press to liberty and of the public to free discussion of the proceedings of courts of justice with the claims of the judges to due respect and of the parties to litigation that their causes should not be prejudiced before trial by outside interference. As the law now stands it is permissible to publish contemporaneous reports of the proceedings in cases pending in any court (Law of Libel Amendment Act 1888, s. 3), unless the proceedings have taken place in private (in camera), or the court has in the interests of justice prohibited any report until the case is concluded, a course now rarely, if ever, adopted. But it is not permissible to make any comments on a pending case calculated to interfere with the due course of justice in the case, nor to publish statements about the cause or the parties calculated to have that effect. This rule applies even when the case has been tried and the jury has disagreed if a second trial is in prospect. Applications are frequently made to commit proprietors and editors who comment too freely or who undertake the task of trying in their newspapers a pending case. The courts are now slow to move unless satisfied that the statements or comments may seriously affect the course of justice, e.g. by reaching the jurors who have to try the case.
The difference between pending and decided cases has been frequently recognized by the courts. What would be a fair comment in a decided case may tend to influence the mind of the judge or the jury in a case waiting to be heard, and will accordingly be punished as a contempt. In Tichborne v. Mostyn the publisher of a newspaper was held to have committed a contempt by printing in his paper extracts from affidavits in a pending suit, with comments upon them. In the case of R. v. Castro it was held that after a true bill has been found, and the indictment removed into the court of queen’s bench, and a day fixed for trial, the case was pending; and it was a contempt of court to address public meetings, alleging that the defendant was not guilty, that there was a conspiracy against the defendant, and that he could not have a fair trial; and the court ordered the parties to answer for their contempt. In the case of the Moat Farm murder (1903) the high court punished as contempt a series of articles published in a newspaper while the preliminary inquiry was proceeding and before the case went to a jury (R. v. Parker, 1903, 2 K.B. 432). The like course was followed in 1905 in the case of statements made in a Welsh newspaper about a woman awaiting trial for attempted murder (R. v. Davies, 1906, 1 K.B. 32); and in the case of the Weekly Dispatch in 1902 (R. v. Tibbits and Windust, 1 K.B. 77), two journalists were tried on indictment, and held to have been rightly convicted, for conspiring to prevent the course of justice by publishing matter calculated to interfere with the fair trial of persons who were under accusation.
“In the superior courts the power of committing for contempt is inherent in their constitution, has been coeval with their original institution and has been always exercised” (Oswald, On Contempt, 3). The high court in which these courts are merged is the only court which has Courts having jurisdiction. a general jurisdiction to deal summarily with all forms of contempt. Each division of that court deals with the particular contempts arising with reference to proceedings before the division; but the king’s bench division, in the exercise of the supervisory authority inherited from the old court of king’s bench as custos morum, also from time to time deals with acts constituting interference with justice in other inferior courts whether of record or not. The nature and limits of this jurisdiction after much discussion have been defined by decisions in 1903 and 1905 in attempts to try by newspapers cases under inquiry by justices or awaiting trial at assizes or quarter sessions. The exercise of this authority in the king’s bench division, being in a criminal cause or matter, is not the subject of appeal to any higher court.
Inferior courts of record have, as a general rule, power to punish only those contempts which are committed in facie curiae or consist in disobedience to the lawful orders or judgments of the court. For instance, a county court may summarily punish persons who insult the judge or any officer of the court or any juror or witness, or wilfully interrupt the proceedings, or misbehave in the court-house (County Court Act 1888, s. 162), and may also attack persons who having means refuse to comply with an order to pay money, or refuse to comply with an order to deliver up a specific chattel or disobey an injunction. A court of quarter sessions has at common law a like power as to contempts in facie curiae and is said to have power to punish its officials for contempt in non-attendance or neglect of duty.
Contempt of court is a misdemeanour and is punishable by fine and imprisonment or either at discretion. The offence may be tried summarily, or may be prosecuted on information or on indictment as was done in the case of the Weekly Dispatch already mentioned. The prerogative Punishment. of pardon extends to all contempts of court which are dealt with by a sentence of clearly punitive character; but it is doubtful whether it extends to committals for disobedience to orders made in aid of the execution of a civil judgment.
Contempt is usually dealt with summarily by the court contemned in the case of contempt in facie curiae. The offender may be instantly apprehended and without further proof or examination fined or sent to prison. In the case of other contempts the High Court not only can deal with contempts affecting itself, but can also intervene summarily to protect inferior courts from contempts. This jurisdiction was asserted and exercised in the Moat Farm case (1903) and the South Wales Post case (1905) already mentioned.
Except in cases of contempt in facie curiae evidence on oath as to the alleged contempt must be laid before the court, and application made for the “committal” or “attachment” of the offender. The differences between the two modes are technical rather than substantial.
The procedure for dealing with contempt of court varies somewhat according as the contempt consists in disobeying an order of the High Court made in a civil cause, or consists in interference with the course of justice by persons not present in court nor parties to the cause. In the first class of cases the court proceeds by order of committal or giving leave to issue writ of attachment. In either case the person said to be in contempt must have full notice of the proposed motion and of the grounds on which he is said to be in contempt; and the rules regulating such proceedings must be strictly complied with (R. v. Tuck, 1906, 2 Ch. 692). In proceedings on the crown side of the king’s bench division it is still usual to apply in the first place for a rule nisi for leave to attach the alleged offender who is given an opportunity of explaining, excusing or justifying the incriminated acts. It is essential that before punishment the alleged offender should have had full notice as to the specific offence charged and opportunity of answering to it. The king’s bench procedure is that generally used for interference with the due course of criminal justice or disobedience to prerogative writs such as mandamus.
An order of committal is an order in execution specifying the nature of the detention to be suffered, or the penalty to be paid. The process of attachment merely brings the accused into court; he is then required to answer on oath interrogatories administered to him, so that the court may be better informed of the circumstances of the contempt. If he can clear himself on oath he is discharged; if he confesses the court will punish him by fine or imprisonment, or both, at its discretion. But in very many cases on proper apology and submission, and undertaking not to repeat the contempt, and payment of costs, the court allows the proceedings to drop without proceeding to fine or imprison.
From time to time proposals have been made to deprive the superior courts of the power to deal summarily with contempts not committed in facie curiae, and to require proceedings on other charges for contempt to go before a jury. This distinction has already been made in some British colonies, e.g. British Guiana, by an ordinance of 1900 (No. 31). Recent decisions in England have so fully defined the limits of the offence and declared the practice of the courts that it would probably only result in undue licence of the press if the power now carefully and judicially exercised of dealing summarily with journalistic interference with the ordinary course of justice were taken away and the delay involved in submitting the case to a jury were made inevitable. The courts now only act in clear cases, and in cases of doubt can always send the question to a jury. The experience of other countries makes it undesirable to part with the summary remedy so long as it is in the hands of a trusted judicature.
Scotland.—In Scotland the courts of session and justiciary have, at common law, and exercise the power of punishing contempt committed during a judicial proceeding by censure, fine or imprisonment proprio motu without formal proceedings or a summary complaint. The nature of the offence is there in substance the same as in England (see Petrie, 1889: 7 Rettie Justiciary 3; Smith, 1892: 20 Rettie Justiciary 52).
Ireland.—In Ireland the law of contempt is on the same lines as in England, but conflicts have arisen between the bench and popular opinion, due to political and religious differences, which have led to proposals for making juries and not judges arbiters in cases of contempt.
British Dominions beyond Seas.—The courts of most British possessions have acquired and freely exercise the power of the court of king’s bench to deal summarily with contempt of court; and, as already stated, it is not infrequently the duty of the privy council to restrain too exuberant a vindication of the offended dignity of a colonial court. (W. F. C.)