a proposal to make further rules about contempt · pdf filenew rules proposed for inclusion in...
TRANSCRIPT
CRIMINAL PROCEDURE RULE COMMITTEE
CRIMINAL PROCEDURE RULES: PART 62
A PROPOSAL TO MAKE FURTHER RULES ABOUT CONTEMPT
INVITATION TO COMMENT Contents Paragraph Page Introduction 1 1 Background 8 2 General comments
Categories of contempt 13 3
Criminal contempt 19 4
The powers of criminal courts to punish criminal contempt
Magistrates’ courts’ powers 22 5
Crown Court’s power 23 5
Court of Appeal’s power 25 6
Nature of criminal contempt 26 6
Imprisonment and criminal contempt 29 7
The power to discharge an order of committal 30 7
The power to suspend an order of committal 39 9
Significant differences between the contempt jurisdictions of each of the criminal courts: impact on rules 46 11
Remand in custody 48 11
Evidence 51 12
Suspension of an order of committal 56 13
Procedure – prosecuting criminal contempt
Common law 57 14
Refining the summary procedure into rules 65 16
The Civil Procedure Rules’ Practice Direction 66 17
The Consolidated Criminal Practice Direction: magistrates’ courts’ procedure 68 18
Bail 69 19 Proposed Criminal Procedure Rules relating to contempt 77 20
Codification of the common law procedure 79 21
Division of Part 62 into Sections 83 22
Individual rules 85 22
The proposed rules and the Consolidated Criminal Practice Direction 111 28 Questions for consideration 29 ANNEXES 1. Draft new Part 62 rules 30 2. Contempt legislation 38 3. List of those invited to comment 42
1
CRIMINAL PROCEDURE RULE COMMITTEE
A proposal to make further rules about contempt
Invitation to comment INTRODUCTION
1. The Criminal Procedure Rule Committee is considering a proposal to make further rules about contempt. The Committee would be grateful for the views of those to whom this invitation has been addressed, and for the views of any others whom those consulted may know to have an interest in the proposal.
2. At present Part 62 of the Criminal Procedure Rules contains rules about contempt by way of disobedience of a court order, etc. Those rules do not, however, deal with contempt ‘in the face of the court’, as it is known. The law on such contempt is found in other legislation and case law and, in respect of proceedings in magistrates’ courts, it is described in the Consolidated Criminal Practice Direction.
3. New rules proposed for inclusion in Part 62 would apply to such contempt of court in criminal cases as described and explained below. The rules would apply in magistrates’ courts, in the Crown Court, and in the Criminal Division of the Court of Appeal. They would not affect the procedure in the High Court, the jurisdiction of which overlaps with that of the criminal courts. The proposed procedure rules do not, and cannot, define the extent of the courts’ jurisdiction to punish for contempt. They can only govern the procedure by which that jurisdiction is to be exercised.
4. The Committee is the body appointed under section 70 of the Courts Act 2003 to make rules governing the practice and procedure to be followed in the criminal courts. The Committee made The Criminal Procedure Rules 2010, which came into force on 5th April, 2010, superseding the Criminal Procedure Rules 2005. Information about the Committee may be found on the website of the Ministry of Justice at http://www.justice.gov.uk/about/criminal-proc-rule-committee.htm. The full text of the Rules is at http://www.justice.gov.uk/criminal/procrules_fin/rulesmenu.htm.
5. Attached to this invitation are:
(a) at annex 1, the proposed new rules, which in Section 3 (rules 62.5 to 62.12) incorporate the current rules in Part 62 and in Section 4 (rules 62.13 to 62.17) contain new rules about the procedure on contempt in the face of the court;
(b) at annex 2, relevant provisions of the legislation that would be supplemented and complemented by the proposed new rules;
(c) at annex 3, a list of those to whom this invitation has been sent.
6. The Committee invites comments on this proposal generally, or on any aspect of it. A list of questions that those consulted may wish to consider in particular appears at page 29. Cross-references to those questions appear at the relevant points in the following paragraphs. Please reply to the Criminal Procedure Rule Committee secretariat at the Ministry of Justice by Friday 10th September, 2010. Responses by email may be sent to [email protected]. A
2
copy of this invitation, with the questions presented in the form of a questionnaire, may be found at http://www.justice.gov.uk/criminal/procrules_fin/index.htm.
7. Although the Committee does not intend to publish a list of those who comment, or the content of their comments, respondents are asked to bear in mind that responses will be treated as public documents in accordance with the Freedom of Information Act 2000 and may be made available to enquirers on request.
BACKGROUND
8. In 2009, the Committee considered a proposal to make new rules to provide for an application for the committal for contempt of court of a person alleged to have disobeyed a restraint order made under section 41 of the Proceeds of Crime Act 2002. That proposal derived from observations by the Court of Appeal in the case of R v M [2008] EWCA Crim 1901, a decision of the Court of Appeal delivered on 14th August, 2008.
9. In R v M the appellant questioned the jurisdiction of the Crown Court to punish him for alleged disobedience of a restraint order. No Criminal Procedure Rules governed the application for his committal for contempt of court. The Court of Appeal found that the Crown Court has jurisdiction to commit for breach of its order, but in the absence of relevant rules the procedure was unclear. The Court of Appeal concluded that the procedural provisions of the Civil Procedure Rules Schedule 1, RSC Order 52 rule 4, did not apply in the Crown Court; and that, if they did, requirements that were inappropriate to a criminal court might be waived by reason of paragraph 10 of the associated Practice Direction. In particular, for the requirement that evidence be given by way of affidavit, the court held that there could be substituted the introduction of written evidence prepared in accordance with section 9 of the Criminal Justice Act 1967.
10. The Criminal Procedure Rule Committee decided to adopt rules providing an application procedure based on that in the Civil Procedure Rules, but with adaptations and simplifications appropriate to proceedings in a criminal court. For example, there seemed no obvious advantage in requiring that an applicant obtain the court’s permission to apply for committal before making the application; nor in requiring that evidence be introduced by affidavit rather than by written statement complying with section 9 of the 1967 Act, as the Court of Appeal contemplated in R v M.
11. The Committee considered making this new provision in Part 59 (Proceeds of Crime Act 2002: rules for restraint proceedings). However, there was a need for comparable new rules in two other contexts, namely (i) Part 6 (Investigation orders), where disobedience of certain orders is punishable as contempt of court, and (ii) Part 23 (Disclosure), where unauthorised disclosure of prosecution material by a recipient may constitute a contempt. This raised the question whether it was desirable to repeat substantially the same rule in each of these several contexts, or whether it would be preferable to place the new rules in a discrete part of the Criminal Procedure Rules.
12. The Committee chose to provide a discrete part of the Rules into which, at a future date, rules could be placed to deal with the procedure on dealing with contempt in
3
the face of the court. A new Part 62, entitled ‘Contempt of Court’, containing rules governing the procedure for dealing with disobedience of a court order, was added to the Criminal Procedure Rules by Schedule 6 to The Criminal Procedure (Amendment) Rules 2009, which came into force on 5th October 2009. The proposal now is to amend that new Part, as the Committee then anticipated, to deal also with contempt in the face of the court.
GENERAL COMMENTS
Categories of contempt
13. The courts’ jurisdiction to deal with contempt is divided into two broad categories, criminal contempt and civil contempt. In essence:
a. criminal contempt, such as contempt in the face of the court, is an act which threatens the administration of justice. Courts are empowered to protect the administration of justice by, acting on their own initiative, punishing those guilty of such contempt with detention in custody or a fine.
b. civil contempt involves disobedience of a court order or undertaking by a party who is bound by it. The court’s sanction in civil contempt has been seen primarily as coercive or remedial. Civil contempt has largely arisen in respect of an order or undertaking made in civil litigation. However, as some civil orders now are made in criminal cases, for example the restraint order considered in R v M, a civil contempt may occur in the course of proceedings in a criminal court.
14. Contempt in either category may thus occur both in the civil courts and in the criminal courts. The division of contempt into these two categories has evoked criticism from the bench and elsewhere, as the protection of the administration of justice and maintenance of the court’s authority underlies the contempt jurisdiction generally. However, although the significance of the classification has gradually diminished, many practical distinctions, which remain today, have emerged between the two categories. Arlidge, Eady and Smith on Contempt1 observes:
Although the distinction between civil and criminal contempt continues to be made, and has to be considered carefully, the two categories have rather more in common than their traditional separation would imply.
15. Archbold: Criminal Pleading, Evidence and Practice 20102 (‘Archbold’) refers, at paragraph 28.37, to the distinction as historical, commenting that:
The modern approach is to treat the law relating to the two as substantively the same: see Guildford BC v Valler, the Times May 18, 1993 QBD (Sedley J). Insofar as there is a difference, civil contempt often involves breaching an undertaking or court order and is brought to the court’s attention by one of the litigants, whereas other forms of contempt are usually raised by the court itself, or are brought before the court by the Attorney General.
1 3rd Edition, November 2009, Sweet and Maxwell 2 58th Edition, November 2009, Sweet and Maxwell
4
16. Similarly, Blackstone’s Criminal Practice 20103 (‘Blackstone’s) comments, at B14.72, ‘Few real points of distinction remain; but in cases of civil contempt it is usually up to the opposing party to instigate proceedings ...’. It is this difference that underpins the approach taken in the proposed rules. The rules in Section 3 of the proposed new Part 62 (procedure on application) are intended to provide the procedure in cases where a breach of an undertaking or of a court order is brought to the attention of the court by one of the litigants. Those rules derive from the current Part 62. The rules in new Section 4 (procedure on enquiry) would govern proceedings initiated by the court itself, in any case in which it has the power to do so. Note, however, that cases arising out of criminal proceedings that are brought in the High Court by the Attorney General are governed by the Civil Procedure Rules. These new rules would not affect those cases.
17. This approach is intended to provide suitable procedures for contempt proceedings in the criminal courts without the rules needing to include, in terms, references to civil and criminal contempt, or to any underlying complexities in the jurisdiction of those courts.
18. Consideration has been given to whether the rules in Section 3 should extend to proceedings under section 63 of the Magistrates’ Courts Act 1980 (Orders other than for payment of money). The Committee has concluded that they should not do so. Despite the ostensibly wide terms of section 63, it appears in Part II of the 1980 Act, a Part headed, ‘Civil Jurisdiction and Procedure’: which suggests an intention to confine the powers within that context. Although a part-heading is not determinative of the meaning of a statutory provision, it is a significant aid to its construction; and the doubtful availability of that power in criminal cases in magistrates’ courts does not, in the view of the Committee, warrant the inclusion of a reference to it in the proposed new Part 62.
Criminal contempt
19. The following are examples of criminal contempt:
contempt in the face of the court;
publication of a matter scandalising the court;
acts calculated to prejudice the fair trial of a pending case;
reprisals against those who participate in legal proceedings for what they have done;
impeding service, or forging the process of the court …;4
It is notable that such contempt constitutes “criminal contempt” irrespective of the type of court in which the conduct takes place – be it a civil, or a criminal, court.
20. Addressing contempt in the face of the court Archbold refers, at paragraph 28-108, to R v Powell 98 Cr App R 224, in which the Court of Appeal stated that section 12 of the Contempt of Court Act 1981 “gives a good indication of what type of
3 October 2009, Oxford University Press 4 See Lord Saville of Newdigate v Toby Harnden [2003] NICA 6 at [12] and Arlidge, Eady & Smith on Contempt para 3.27.
5
behaviour amounts to contempt in the face of the court at common law.” Section 12 of the 1981 Act confers jurisdiction on magistrates’ courts to try summarily those who wilfully (a) insult justices, witnesses, officers of the court, solicitors or counsel having business in the court, or (b) interrupt the proceedings or otherwise misbehave in court.
21. It is further explained in Archbold that:
Where a lawyer fails to co-operate with the court, e.g. by not attending a hearing, his conduct, however discourteous, may not necessarily amount to contempt. (at 28-109)
A mere conversation between a potential witness and a spectator at a trial is not a contempt; such behaviour is only a contempt if it is an attempt to pervert the course of justice or otherwise interfere with the witness’ freedom to give evidence, or has taken place in defiance of an express direction of the judge. (at 28-111)
Contempts committed some distance from the court may also fall to be dealt with by the summary procedure … this includes the intimidation or bribery of witnesses … or jurors. (at 28-114)
The powers of criminal courts to punish criminal contempt
Magistrates’ courts’ powers
22. Magistrates’ courts’ powers to punish for contempt are more restrictive than the powers exercised by the Crown Court and Court of Appeal. The inherent jurisdiction of a superior court of record, conferred on the Crown Court by section 45 of the Senior Courts Act 1981 and on the Court of Appeal by section 15 of that Act, does not extend to magistrates’ courts. The full extent of jurisdiction in magistrates’ courts is that conferred by statute. It is provided by section 97(4) of the Magistrates’ Courts Act 1980 and by section 12 of the Contempt of Court Act 1981. These statutory provisions are set out in annex 2, where details of the court’s powers to commit the offender to custody, fine the offender, revoke an order of committal and, if the offender is in custody, order his discharge, can be seen. Neither statute contains provisions that appear to be purely procedural, but the jurisdictional provisions that they contain in effect require certain procedures to be followed. In particular, where a magistrates’ court orders the immediate detention of a contemnor, before it finally deals with the contempt, section 12(2) of the Contempt of Court Act 1981 provides that detention can only be until ‘the rising of the court’.
Crown Court’s power
23. The relevant powers of the Crown Court, by contrast, correspond with those conferred on the High Court by common law, by virtue of the historic status of the latter as a ‘superior court of record’. Section 45(4) of the Senior Courts Act 1981 provides:
6
Subject to section 8 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (substitution in criminal cases of procedure in that Act for procedure by way of subpoena) and to any provision contained in or having effect under this Act, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court.
24. Although those powers are subject to some statutory modifications (notably those effected by the Contempt of Court Act 1981), and although statute in some cases extends the scope of what constitutes contempt (for example, section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965: punishment for disobedience of a witness summons), the powers remain in essence those conferred by common law. Thus it is case law that establishes what powers the court possesses; and on what conditions, and subject to what restrictions, they are to be exercised.
Court of Appeal’s power
25. The relevant powers of the Court of Appeal also correspond with those of the High Court: by reason of the Court of Appeal’s own status as a superior court of record under section 15 of the Senior Courts Act 1981.
Nature of criminal contempt
26. Although the law of contempt in the face of the court serves to protect the administration of justice (a public interest) and so is classified as criminal, it is distinguishable from criminal offences generally by the summary nature of the procedure that has evolved for dealing with such contempt. Because criminal contempt is regarded by the courts in some respects as ‘sui generis’, it was held in R v Jones [1996] Crim LR 806, on appeal from the Crown Court, that there was no need always to follow procedures found in other areas of the criminal law.5 Arlidge, Eady and Smith on Contempt explains, at paragraph 3-60, that:
It is frequently unclear whether legislation of general application in the criminal law is to be taken as applying in the context of contempt.
27. The following are examples of statutory provisions in respect of which a committal for criminal contempt has not been regarded as a criminal conviction:
a. section 21 of the Powers of Criminal Courts Act 19736. In R v Newbury Justices, ex p Du Pont (1983) 78 Cr App Rep 255, the court held that
5 In that instance, the procedural requirement in Code of Practice C (dealing with the conduct of interviews), made pursuant to the Police and Criminal Evidence Act 1984, that a contemporaneous record of interview be kept. 6 Section 21(1) of the 1973 Act provided: “A magistrates' court on summary conviction or the Crown Court on committal for sentence or on conviction on indictment shall not pass a sentence of imprisonment, borstal training or detention in a detention centre on a person who is not legally represented in that court and has not been previously sentenced to that punishment by a court in any part of the United Kingdom, unless either—
(a ) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
7
committal by justices under section 12 of the Contempt of Court Act 1981 did not amount to a ‘summary conviction’;
b. section 2(1) of the 1973 Act.7 In R v Palmer (1992) 95 CrAppR 170, the court held that a person found guilty of criminal contempt in the Crown Court was not ‘convicted of an offence’ so could not be placed on probation.8
28. Referring to the fact that the above two statutory provisions do not apply to criminal contempt, Borie and Low on Contempt of Court opine:
Aside from … provisions which expressly apply to contempt it seems to remain the case that general statutory provisions are not usually held to be directly applicable to criminal contempts.
Imprisonment and criminal contempt
29. Since 1981, where a person is committed to custody for contempt it must be for a fixed term. Section 14 of the Contempt of Court Act 1981 provides that, in any case where apart from that provision no limitation applies to the period of commitment, the following limits apply: in the case of committal for contempt by a superior court, a maximum term of two years’ imprisonment; and in the case of committal by an inferior court, a maximum term of one month’s imprisonment.
The power to discharge an order of committal
30. Before the Contempt of Court Act 1981, an order committing a contemnor to prison for a fixed term could not be discharged, although a committal order for an indefinite period could be discharged.9 It was held in Attorney-General v James and others [1962] 2 QB 637, per Lord Parker, CJ that it was ‘settled law that in the case of criminal contempt the period of imprisonment should be for a fixed term as for punishment for a criminal offence. In those circumstances, the court, once that has been done, is functus officio, and apart from appeal the remedy would be an application to the Home Secretary.’
Effect of section 14 of the Contempt of Court Act 1981
31. The provision, in section 14 of the 1981 Act, that powers to commit for indeterminate periods thereafter would be confined to specified maximum fixed terms, is expressed to be ‘without prejudice to the power of the court to order [the contemnor’s] earlier discharge’. As a result, the court’s power to order discharge from an indeterminate period of committal was transferred to cases where instead a fixed term of committal had been made by the court.
(b ) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply’.
7 Section 2(1) of the 1973 Act provided “Where a court by or before which a person of or over seventeen years of age is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion that …” 8 By analogy, community sentence orders under section 151(1)(a) of the Criminal Justice Act 2003 Act would not be available where a person is committed for criminal contempt. 9 Attorney-General v James and others [1962] 2 QB 637, Divisional Court per Lord Parker CJ.
8
32. The Civil Procedure Rules Schedule 1, RSC Order 52 rule 8, provides: ‘The court may, on the application of any person committed to prison for any contempt of court, discharge him’.
The Crown Court and Court of Appeal: powers to discharge
33. Under section 45(4) of the Senior Courts Act 1981, the Crown Court has, in relation to any contempt of court, ‘the like powers … as the High Court’; and, as observed above, it is a superior court of record. That prompts the assumption that, given the Civil Procedure Rule cited in the preceding paragraph, in the Crown Court as in the High Court ‘on the application of any person committed to prison for any contempt of court’ the court may discharge that contemnor. That assumption is made in Arlidge, Eady and Smith on Contempt, at paragraph 14-29. Similarly, at paragraph 502 of Halsbury’s Laws of England Volume 9(1)10, under the heading, ‘Power of court to punish offender: Criminal Contempt’, the commentary provides, ‘The court may order the earlier discharge of a contemnor’, citing in the footnote RSC Order 52 rule 8 and section 14(1) of the Contempt of Court Act 1981.
34. However, there is some lack of clarity about this power to discharge where the order of committal is for a criminal contempt of court. In such a case, it was held, albeit before the enactment of section 14 of the Contempt of Court Act 1981, in Attorney-General v James and others [1962] 2 QB 637 (cited at paragraph 30 above), that once a fixed term of imprisonment had been imposed the court was functus officio. In a case decided since the enactment of section 14, R v Montgomery [1995] 2 All ER 28 (Court of Appeal, Criminal Division), Potter J said, at 34h-j, on an appeal against a sentence of 12 months’ imprisonment for criminal contempt, ‘Any analogy with committal of a litigant to prison for contempt (by disobedience to an order) in civil proceedings was inapt’. It was, he said, technically right that an application made after sentence in such a case could not be an application to purge a contempt.11 These cases are footnoted in Arlidge, Eady and Smith, where the authors comment that the remarks of Potter J ‘suggest that the Court of Appeal on that occasion at least was intending to convey that there was no right to apply for a variation in sentence (rather than criticising the applicant’s terminology of ‘purging’)’.
35. The Criminal Procedure Rules cannot resolve, but need not be confounded by, any such lack of clarity in the jurisdiction of the courts. The rules need to prescribe a suitable procedure for any case in which such a jurisdiction to discharge exists. It is enough that the Crown Court has power to discharge a contemnor from imprisonment in some circumstances, at least; and likewise the Court of Appeal.
Magistrates’ courts: power to discharge
36. As indicated above, in paragraph 22, the powers of magistrates’ courts to punish for contempt are provided by statute: section 97(4) of the Magistrates’ Courts Act 1980, and section 12 of the Contempt of Court Act 1981 (see annex 2). Section 12(4) of the 1981 Act provides explicitly, ‘A magistrates’ court may at any time
10 Fourth Edition Reissue, 1998, Butterworths 11 On the facts, a contemnor, punished for refusing to give evidence at a trial sought to ‘purge’ his contempt after those trial proceedings had been completed.
9
revoke an order of committal made under subsection (2) and if the offender is in custody, order his discharge’.
37. Although there is no explicit provision in section 97(4) of the 1980 Act authorising the discharge of an order for committal, such authority can be found by necessary implication. The power to commit to custody in section 97(4) is expressed to be ‘until the expiration of [the period specified by the court] … or until he sooner gives evidence or produces the document or thing’.
Conclusion about discharge of an order of committal
38. It is considered that the proposed rules should include provision for an application by a contemnor for the discharge of an order of committal in any case in which the court has power to discharge that order. A note to the rules should identify the relevant legislation and the inherent power to discharge. That, however, is all that procedure rules can or should do.
The power to suspend an order of committal
39. Although in the High Court statutory provisions giving criminal courts power to suspend a sentence of imprisonment do not apply to the summary process for contempt in the face of the court, there is an inherent or common law power to suspend an order for committal: see Morris v Crown Office [1970] 2 QB 114. Having explained that section 39 of the Criminal Justice Act 1967, the then current power to suspend a sentence of imprisonment, was never intended to apply to a committal for a criminal contempt, Lord Denning MR continued, at 125A-B:
I hold, therefore, that a judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence.12
12 The current procedure in civil courts is prescribed in CPR Sch. 1 RSC Ord 52.7.
10
The Crown Court and Court of Appeal: powers to suspend
40. As the Crown Court and Court of Appeal have conferred on them inherent powers corresponding with those of the High Court, it follows that these courts, too, have the power to suspend an order of committal.13
Magistrates’ courts: is there a power to suspend an order of committal?
41. The power conferred by section 189 of the Criminal Justice Act 2003 to suspend a sentence of imprisonment does not apply to an order of committal for contempt of court because the definition of ‘sentence of imprisonment’ given for the purposes of that section in section 305 of that Act excludes ‘a committal … for … contempt of court’. Despite the case law considered at paragraphs 26 and 27 above, and the absence of any cited authority to the contrary, when discussing magistrates’ courts and suspended sentences, Arlidge, Eady and Smith on Contempt states (at paragraph 14-44):
So far as magistrates are concerned, since section 12 of the Contempt of Court Act 1981 creates a criminal offence there is no reason to suppose that the general law regarding suspension of sentences should not apply.
42. However, it is not certain that section 12 of the 1981 Act (the full text of which is set out in annex 2) does create a ‘criminal offence’, despite its heading ‘Offences of contempt of magistrates’ court’. Subsection (2A) of section 12 provides:
A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction. (emphasis added)
43. In a similar vein, subsection (5) provides:
Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court); section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes). (emphasis added)
44. The question arises as to why such provisions would be necessary if section 12 created a ‘criminal offence’ in any event?14
13 The case of Harris v Harris [2001] EWCA Civ 1644 is to be noted. It was held that the choice between a warrant for immediate execution and a warrant to be suspended had to be exercised at the sentencing hearing and would not arise again. See Arlidge, Eady & Smith on Contempt (2005) (3rd edition) para 14.42. 14 It is however notable that Archbold opens its discussion of contempt of court (at para 28-30 of the 2010 edition) with the observation: “Contempt of court may arise in a myriad of ways and in a variety of forms. There is a substantial overlap between this offence and other offences against public justice…”. Similarly, Blackstone’s Criminal Practice 2010 opens its commentary on the Nature of Contempt, at B14.70, with ‘Criminal contempt of court is a broadly based offence, and can take a number of different forms’. Also, the commentary in Archbold (2010) at para 28-99 states that it: “[D]eals with offences of contempt of magistrates’ courts”. (All emphasis added.)
11
Conclusion about suspension of an order of committal in a magistrates’ court
45. In the absence of any clear authority for the proposition that a magistrates’ court can suspend an order of committal for contempt of court, it cannot be assumed that the court indeed has that power. Magistrates’ courts do not have the benefit of the inherent powers enjoyed by the Crown Court and the Court of Appeal. No explicit provision authorising suspension of a committal order is made by section 12 of the Contempt of Court Act 1981, or by any other relevant provision. For this reason, it appears that no rule should be included in the proposed new Part 62 applying to any such suspension.
Significant differences between the contempt jurisdictions of each of the criminal courts: impact on rules
46. The proposed rules are based on principles that have evolved in case law as refined in the Civil Procedure Rules, suitably adapted for the criminal courts. Where the jurisdiction of the criminal courts differs in some respects, depending upon which category of contempt is to be dealt with and in which criminal court proceedings are to take place, those differences need to be reflected in the procedure rules. This is because procedure rules can only govern the procedure by which jurisdiction is to be exercised; they cannot define the extent of any jurisdiction to punish for contempt. It is therefore necessary that all significant differences in the jurisdiction of the criminal courts are identified and, where necessary, that such differences are reflected in the procedure rules.
47. The following paragraphs draw attention to differences in the respective jurisdictions of the courts that may impact on procedure, to indicate where the proposed new rules must take such a difference into account.
Remand in custody
Differences between civil contempt and criminal contempt
48. There is a limited power to remand an alleged contemnor in custody pending a hearing when dealing with a criminal contempt, but no such power when dealing with an application to commit for a civil contempt of court: see Delaney v Delaney [1996] QB 387. It follows that the new rules must distinguish between the two in this respect.
Differences between (i) magistrates’ courts and (ii) the Crown Court and the Court of Appeal when dealing with a criminal contempt
49. The extent of the power of a superior court of record (in that case, the High Court) to remand an alleged contemnor in custody pending the hearing of proceedings for a criminal contempt was considered by the Court of Appeal in Alan Wilkinson v the Lord Chancellor’s Department [2003] EWCA Civ 95. The court held, at paragraph 23, that:
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
12
protected, it cannot be unlawful. It would be illogical to hold that a judge can impose up to two years’ imprisonment virtually on the spot but not wait a short time in order to achieve a fairer procedure. As a matter of good practice, however, if the case cannot be heard the next day, the judge should ensure that the alleged contemnor is brought back to court in any event, or if this is not possible, that inquiries are made and the case is mentioned in open court, so that the reasons for any further delay are both known and recorded and the question of bail can be considered.
50. The power of magistrates conferred by section 12(2) of the Contempt of Court Act 1981 to detain an offender only until the rising of the court is to be contrasted. In this respect, the jurisdiction of magistrates’ courts, on the one hand, differs from that of the Crown Court and the Court of Appeal on the other, both of which benefit from the same inherent power as that of the High Court (by virtue of sections 15 and 45 of the Senior Courts Act 1981 respectively). Here, too, therefore, the new rules must accommodate the difference.
Evidence
51. Another significant distinction between civil and criminal contempt relates to the introduction of evidence. Because disobedience of a court order is classified as a civil contempt, the civil law of evidence applies: even though any application for a criminal court to deal with an alleged breach of that court’s order necessarily will take place within the context of a ‘criminal cause or matter’. (For the distinction between the ‘cause or matter’ and the different ‘proceedings’ which may take place within it, see Amand v Home Secretary [1943] AC 147.) Consequently, in providing for such an application the relevant procedure rules need to satisfy the procedural requirements of the Civil Evidence Act 1995 and that Act’s requirements concerning any notice of hearsay evidence, any cross-examination of the maker of a hearsay statement, and any challenge to the credibility and consistency of the maker of such a statement. (Corresponding provisions already appear, too, in the rules in Part 50 of the Criminal Procedure Rules, which deal with civil behaviour orders after verdict or finding.) Conversely, no special procedural provisions about the introduction of evidence are required in the proposed rules relating to contempt in the face of the court. That being classified as criminal contempt, the law of criminal evidence applies and, hence, Part 27 of the Criminal Procedure Rules (witness statements) and, if relevant, Part 34 (hearsay).
52. This is another difference that the new rules must accommodate. The Committee’s proposal, as further explained beneath, is that separate sections within the proposed new Part 62, while not using the expressions ‘civil contempt’ or ‘criminal contempt’, would nonetheless, in effect, distinguish between those two categories. Rules which, in effect, apply in a case of alleged civil contempt, such as disobedience of a court order, are included in Section 3 (entitled ‘procedure on application’). Those relating to an alleged criminal contempt, such as contempt in the face of the court, are included in Section 4 (entitled ‘procedure on enquiry’).
53. However, as explained in paragraph 16 above, the actual distinction between the rules in Section 3 and those in Section 4 is a distinction between proceedings commenced by application (that being the typical way in which proceedings for
13
civil contempt are brought) and proceedings commenced by the court of its own initiative (the typical way in which proceedings for criminal contempt commence). It follows that the association of civil contempt with Section 3, and of criminal contempt with Section 4, is not inevitable. On occasion a court might wish, of its own initiative, to deal with apparent disobedience of a court order: which is a civil contempt. That occurred, for example, in Jennson v Baker [1972] 2 QB 52. A criminal court might want to deal on its own initiative with what appeared to be an unauthorised use of disclosed prosecution material: again, a civil contempt, in respect of which a party might have applied for the court to deal with the alleged contemnor. And, though perhaps unlikely, it is not impossible that a party might wish to apply for the court to deal with conduct classified as a criminal contempt.
54. Thus although framed, principally, with criminal contempt in mind, the rules in Section 4 would need to accommodate proceedings brought on the court’s own initiative irrespective of whether those proceedings were for a criminal or for a civil contempt.
55. As the rules in Section 3 relating to hearsay would apply where ‘a party’ wants to introduce evidence, etc. there is no difficulty about those rules being confined within that Section. However, so that civil hearsay can be accommodated where a court acts on its own initiative in relation to an alleged civil contempt, a rule will be required in Section 4 to supply the requisite procedure. It would be unduly repetitive to reproduce in Section 4 rules substantially identical to rules 62.6 to 62.11; and unduly confusing to remove those rules to Section 2, presenting them there as if they applied in all cases even though they do not in fact apply in the majority of cases under Section 4. As further explained beneath, a proposed rule 62.17 is intended to introduce into Section 4, in the limited cases in which that rule applies, the civil evidence regime set out at greater length in the rules in Section 3.
Suspension of an order of committal
56. The analysis at paragraphs 39 to 45 above concludes that, whereas an order of committal for contempt may be suspended by the Crown Court or by the Court of Appeal by reason of the inherent powers they possess, suspension appears not to be possible in magistrates’ courts because they have no corresponding power. To accommodate that difference, the new rules should avoid any misleading indication to the contrary.
Consultation question 1: Is it helpful to make rules about contempt in the courtroom etc in the Criminal Procedure Rules?
Consultation question 2: Are there any significant differences in the jurisdiction of the criminal courts to deal with contempt that have not been mentioned in this paper that should be taken into account by the proposed rules?
Consultation question 3: Are the differences in the jurisdiction of the criminal courts for dealing with contempt adequately met by the procedural requirements of the proposed rules?
14
PROCEDURE – PROSECUTING CRIMINAL CONTEMPT
Common law
57. At common law a summary procedure evolved for prosecuting criminal contempt. As the powers of the Crown Court and those of the Court of Appeal correspond with those of the High Court, so the principles that developed at common law for the exercise of those powers are common amongst these courts. A summary of the unique characteristics of the prosecution of criminal contempt was given by Mustill LJ in R v Griffin (1989) 88 Cr. App.R. 63 at page 67:
In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure, such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a right of cross-examination) decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judges should choose to adopt it only in cases of real need.
58. In Moran (1985) Cr App R 51, a prisoner serving a sentence for burglary was sentenced to a further six months for refusing to give evidence against a person implicated in the same offence. The Court of Appeal stated, at page 53a-e:
These situations are always difficult for judges to deal with. The trial judge is in a much better situation to assess what is required to be done than this court some months afterwards. The following principles should be borne in mind. First, a decision to imprison the man for contempt of court should never be taken too quickly. The judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extent to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the judge should consider whether the contemnor should have some advice … Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which is in many ways Draconian.
59. This approach was taken further in R v Hill [1986] Crim LR 457, where a woman who had made a disturbance in the public gallery was detained overnight and then committed to prison for seven days. The Court of Appeal held that this was a classic example of contempt and it was for the judge to take steps to safeguard the court's authority. These would in appropriate cases include:
(1) the immediate arrest and detention of the offender;
(2) telling the offender directly what the contempt is stated to have been;
15
(3) giving a chance to apologise;
(4) affording the opportunity of being advised and represented by counsel and making any necessary order for legal aid for that purpose;
(5) granting any adjournment that may be required;
(6) entertaining counsel's submission; and
(7) if satisfied that punishment is merited imposing it within the limits fixed by statute.
60. In Alan Wilkinson v the Lord Chancellor’s Department [2003] EWCA Civ 95, the court summarised the position as follows:
Once a judge has decided that it is proper to invoke the summary procedure, she has to secure that the process is as fair as possible for the alleged contemnor, consistent with its being a summary procedure. Arrangements must be made for him to be legally represented. A short period of reflection is valuable. The contemnor is given the opportunity to contain his anger, consider the situation, apologise to the court and assure it of his good behaviour in future. 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.
61. In R v AS [2008] EWCA Crim 138, the Court of Appeal considered whether a judge of the Crown Court had correctly exercised his jurisdiction to determine, after conclusion of the trial of a defendant, an allegation of contempt of court. That allegation was that, during the trial, the defendant had intimidated a witness outside the court building. Referring to the process by which a judge tries such a case as a ‘summary process’, Thomas LJ identified two circumstances that must be clearly distinguished:
a. Proceedings where the allegations are investigated and tried in a manner that is truly summary … [reference is made here to Griffin and the passage from the judgment of Mustill LJ extracted in paragraph 57, above]; and
b. Cases where the judge defers dealing with the matter until the conclusion of the trial … and a formal process is then followed. The process is properly classified as a summary process but it is very different from the procedure described in Griffin. It is, perhaps, more helpful to refer to this as a “formal procedure” …
62. The formal procedure was, Thomas LJ said, ‘these days, very little different from a hearing in a magistrates’ court, save that in the magistrates’ courts the charge will be set out in a formal document and normally the defendant will have been interviewed by the police.’ In each case of this kind the court must consider what, in its discretion, is the right course to pursue:
‘i) the truly summary procedure of the type followed in Griffin;
ii) the ‘formal procedure’ for hearing contempt used in this case;
iii) referring the matter to the prosecuting authorities for prosecution as a substantive offence.’
16
63. In conclusion, at paragraph 21, Thomas LJ said:
The dicta applicable to the truly ‘summary’ procedure must, in our view, be read in the light of the more formal procedure, though use of the contempt jurisdiction should only be invoked where circumstances make it necessary and proportionate to proceed in that way.
On the facts, it was held to be within the discretion of the judge to deal with the allegation of contempt after completion of the substantive proceedings.
64. In R v Grant [2010] EWCA Crim 215, the appellant’s conviction for contempt of court was quashed by the Court of Appeal. Noting that there were currently no procedural rules relating to summary contempt, the court held that the trial judge had failed to apply the procedural safeguards developed at common law and that the finding of guilt was not considered to be safe. Giving judgment, at paragraph 11, Openshaw J said:
We have no doubt that he [the judge] was right to deal with this incident summarily. However, we think that he was wrong not to have enquired from the appellant himself whether he admitted the conduct alleged against him and the fact that the conduct amounted to contempt of court. In effect he presumed his guilt and proceeded accordingly. It was also unfortunate that the judge did not mention the fact that he [the appellant] had apologised until during the course of his sentencing remarks.
Refining the summary procedure into rules
65. The summary procedure for dealing with contempt in the face of the court has been refined, for the purposes of civil courts, by rules of procedure now contained in Civil Procedure Rules Schedule 1, RSC Order 52 and the associated Practice Direction governing committal proceedings in the High Court and county court.15 There are, as yet, no Criminal Procedure Rules governing the procedure for dealing with criminal contempt in the criminal courts. As remarked above, the existing rules in Part 62 (Contempt of court) relate only to disobedience of a court order, etc. The Committee now proposes to supply the omission. As noted already, at paragraph 16 above, these rules would only govern procedure in the criminal courts. They would have no application to procedure in the High Court, which has a degree of overlapping jurisdiction with the criminal courts in some cases of contempt.
15 See Arlidge, Eady & Smith on Contempt (2005) (3rd edition) para 3.58.
17
The Civil Procedure Rules Practice Direction
66. The relevant section of the Practice Direction associated with Civil Procedure Rules Schedule 1, RSC Order 52, that deals with contempt in the face of the court, provides as follows:
‘Part II
12. Where the committal application relates to a contempt in the face of the court the following matters should be given particular attention. Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection. 13. Part 8 claim form and an application notice are not required for Part II, but other provisions of this practice direction should be applied, as necessary, or adapted to the circumstances. In addition the judge should:
(1) tell the respondent of the possible penalty he faces; (2) 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; (3) if he considers that an apology would remove the need for the committal application, tell the respondent; (4) 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 availability of assistance from the Community Legal Service and how to contact the Service; (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.
(5) allow the respondent an opportunity to –
(a) apologise to the court; (b) explain his actions and behaviour; and (c) if the contempt is proved, to address the court on the penalty to be imposed on him;
(6) if there is a risk of the appearance of bias, ask another judge to hear the committal application; and
18
(7) 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.)
14. Where the committal application is to be heard by another judge, a written statement by the judge before whom the actions and behaviour of the respondent which have given rise to the committal application took place may be submitted as evidence of those actions and behaviour.’
67. The proposed rules in Section 4 of the new Part 62 are intended to reflect the requirements of that Practice Direction as well as those established by the case law discussed in preceding paragraphs.
The Consolidated Criminal Practice Direction: magistrates’ courts procedure
68. Procedural directions that presently apply where magistrates’ courts are dealing with contempt are set out in the Consolidated Criminal Practice Direction at paragraph V.54 (‘Contempt in the face of the court’). The following extract (paragraphs V.54.9 to 11, and 18) deals with the exercise of magistrates’ courts’ powers to punish for contempt:
V.54.9 The offender should be brought back before the court before the justices conclude their daily business. The justices should ensure that the nature of the proceedings are understood by the offender, including his opportunity to apologise or give evidence and the alternative of them exercising their powers.
V.54.10 Having heard from the offender’s solicitor, the justices should decide whether to take further action.
Sentencing of an offender who admits being in contempt
V.54.11 If an offence of contempt is admitted the justices should consider whether they are able to proceed on the day or whether to adjourn to allow further reflection. The matter should be dealt with on the same day if at all possible.
…
V.54.18 If the alleged contempt did not take place in the courtroom or was directed towards a witness, officer of the court or other person and was not witnessed by any members of the bench, the Crown Prosecution Service or other appropriate prosecuting authority should be invited to present the case. Where it is necessary to identify witnesses and take statements, the court should make arrangements for the trial to take place at a later date, if necessary before a separate bench.
19
Bail
69. The question of whether criminal contempt constitutes a criminal offence or not, briefly addressed earlier in this paper, is also relevant to the question of whether or not the Bail Act 1976 applies in respect of such proceedings. The Bail Act 1976 provides for bail in connection with criminal proceedings but the definition in section 1(1) of the Act of ‘bail in criminal proceedings’ limits this to proceedings in respect of ‘an offence’. The general right to bail conferred by section 4 of the Act applies where a person accused of an offence makes an application for bail, or for a variation of bail conditions in connection with the proceedings. It also applies where the accused appears or is brought before a court in connection with proceedings for that offence. If the reasoning of R v Newbury Justices, ex p Du Pont (1983) and R v Palmer (1992) were applied (see paragraph 27 above), an order of committal for criminal contempt would not constitute a conviction for an offence. If contempt is not a criminal offence, then the Bail Act 1976 would not confer a right to bail in such cases. However, the (obiter) assumption in Alan Wilkinson v LCD [2003] EWCA Civ 95, at paragraph 23 per Lady Justice Hale, was that, ‘The principles of the Bail Act 1976 are of general application in all criminal cases.’
70. Were contempt proceedings to be regarded as outside of the scope of ‘bail in criminal proceedings’, an alleged contemnor would not have the benefit of Bail Act provisions applicable in criminal proceedings. The rights protected by the European Convention on Human Rights, article 5 (Right to liberty and security) would nevertheless need to be respected by some means, if necessary applying the common law of bail.
Magistrates’ courts
71. Given the limitation in magistrates’ courts that a person may only be detained until the end of the day, it is unlikely that such detention could violate article 5.
The Crown Court
72. Different considerations might apply, however, in the Crown Court where a judge adjourns overnight for a period of reflection or for a short time longer in order to allow time for arrangements that are necessary for a fair trial. In Alan Wilkinson v the Lord Chancellor’s Department [2003] EWCA Civ 95 at paragraph 20, referring to the argument of the Official Solicitor, Lady Justice Hale said:
Even if the contempt cannot be dealt with next day, the contemnor should still be brought back to court and the question of whether he should be granted bail considered. The principles of the Bail Act 1976 are of general application in all criminal cases
73. Giving the judgment of the court on the lawfulness of detention, Lady Justice Hale states, at paragraph 26:
As a matter of good practice, however, if the case cannot be heard the next day, the judge should ensure that the alleged contemnor is brought back to
20
court in any event, or if this is not possible, that inquiries are made and the case is mentioned in open court, so that the reasons for any further delay are both known and recorded and the question of bail can be considered. (Emphasis added.)
74. Pending the determination of contempt proceedings, the only powers to detain in the interim that the courts appear to possess are those discussed at paragraphs 48 to 50 above. They are limited in their duration and purpose: and it might seem illogical to grant bail for any part of the short period during which a respondent can be detained temporarily to restore order, or the court’s authority, because his or her release on bail then might defeat the purpose of such temporary detention.
75. However, as the case of Alan Wilkinson illustrates, detention in the Crown Court might continue for a reasonably short period beyond the end of the first day where that was considered necessary in order to make satisfactory arrangements for a fair trial. In such a case, the alleged contemnor might wish to apply for bail. In Cabellero v UK [2000] CrimLR 587 the European Court accepted the Government concession that the automatic refusal of bail to the applicant (charged with attempted rape) was a breach of article 5(3). Section 25 of the Criminal Justice and Public Order Act 1994 was amended to remove its “automatic refusal” requirement. A similar argument lies that the court cannot automatically refuse bail when detaining an alleged contemnor for more than a day or so pending further enquiry into the alleged contempt.
76. The question remains whether there is any need for the Criminal Procedure Rules to make provision for bail applications in the senior courts during contempt proceedings. There is no such specific provision in the Civil Procedure Rules. The provision for bail pending appeal that was included in RSC Order 59 rule 20 was not preserved in the Schedule to the Civil Procedure Rules. In view of the comprehensive provision made in Part 19 of the Criminal Procedure Rules (Bail in magistrates’ courts and the Crown Court), the Committee is of the view that no additional rules need be included in the proposed new Part 62.
Consultation question 4: Do consultees agree that there is no need for rules about bail to be included in the new Part 62 rules about contempt?
PROPOSED CRIMINAL PROCEDURE RULES RELATING TO CONTEMPT
77. By section 69 of the Courts Act 2003, Criminal Procedure Rules are to govern the practice and procedure of the criminal courts. It might therefore be expected that the Criminal Procedure Rules would comprise a substantially complete set of rules governing the court’s procedure. When considering the exercise of a power to make an order for committal for contempt in the court-room, a reader might be surprised to find instead only rules relating to contempt by way of disobedience of an order of the court. For the rules to be incomplete, leaving the relevant procedural requirements to be explained in various cases, may promote confusion, misunderstanding and, potentially, injustice.
78. The Committee now proposes to make rules to govern the procedure in criminal courts in cases of contempt in the face of the court as set out in annex 1:
21
a. so that the rules will extend to the exercise of the power to deal with contempt of court in the face of the court, providing a separate, simple, procedure;
b. with the objective of making rules that are –
i. concise but comprehensive,
ii. capable of being understood by non-lawyers as well as by lawyers,
iii. sufficiently clear nonetheless to avoid ambiguity,
iv. in terms that accurately incorporate procedural requirements established by relevant case law,
v. annotated to identify the relevant jurisdictional provisions (meaning, provisions that confer powers on the court); and
c. in accordance with the statutory duty imposed on it by section 69(4) of the Courts Act 2003, which requires that “any power to make or alter Criminal Procedure Rules is to be exercised with a view to securing (a) the Criminal Justice System is accessible, fair and efficient, and (b) the rules are both simple and simply expressed”.
Codification of the common law procedure
79. The proposed rules are intended to reproduce the procedural requirements of the common law, as explained in judgments and summarised in the Practice Directions, civil and criminal; and to do so consistently with the requirements of the statutes that apply and with the European Convention on Human Rights. Note that, being legislation, the rules would supersede the common law insofar as it now governs procedure in the criminal courts.
80. In Section 4 (procedure on enquiry) the rules create a presumption in favour of postponement, providing ‘the general rule is that the court will postpone its enquiry … but … may instead … enquire …there and then’. The reasons for this are that:
(a) it reflects the case law that cautions against precipitate haste, and the Civil Procedure Rules Practice Direction on Committal Applications that reads, ‘Where the committal application relates to a contempt in the face of the court … Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred.’
(b) it promotes compatibility with the overriding objective and with the respondent’s rights under ECHR Article 6.
(c) it does not impinge upon the court’s power to assert its authority and to restore order by exercising its power immediately to detain the respondent. The presumption applies only to the final determination of the enquiry.
81. Although these rules would supersede the current procedural requirements in the criminal courts, the rules do not purport to confer, confine or otherwise affect the courts’ jurisdiction to deal with contempt, or their ancillary non-procedural powers. Procedure rules have no power to do so. Nor do they purport to affect in any way existing contempt procedure in the civil courts, including the High Court.
22
82. The question of for how long the Crown Court or Court of Appeal can detain someone, where it orders the immediate detention of a contemnor to restrain the interruption of its proceedings; and the question of whether a court can detain, or whether it can release on bail, an alleged contemnor before it finally deals with the contempt at a later date are not procedural questions. The relevant procedures, however, must be framed so that they accommodate the jurisdictional requirements and any significant differences between the jurisdictions of the criminal courts.
Division of Part 62 into Sections
83. Until recently, none of the Parts of the Criminal Procedure Rules was subdivided into Sections as well as into rules. However, beginning with Parts 6 and 76, the Committee has introduced the subdivision of certain Parts into Sections. This approach to the drafting of the Rules is suited only to certain Parts. The proposed Part 62 is considered to be one such. Division into Sections provides a convenient means of separating the rules relating to each of the two distinct categories of contempt. It also allows rules that have a common purpose, irrespective of the type of contempt proceedings, to be collected together in a section (as in Section 2) thus drawing attention to that commonality and obviating the need for repetition.
84. Although it is undesirable to re-number rules once made, to achieve a coherent arrangement for the proposed revision it is suggested that it would be appropriate nonetheless to renumber current rule 62.3 as 62.5 so that Section 3 (procedure on application) will contain all of the rules particular to that procedure. The proposed new rules are assigned to a new Section 4 (procedure on an enquiry).
Individual Rules
Section 1: understanding and applying this Part
85. The proposed new Section 1 comprises a single rule 62.1, dealing with the application and interpretation of Part 62.
86. The scope of the senior courts’ inherent powers to deal with contempt is not always clear but, as is pointed out above, Criminal Procedure Rules are not competent to resolve such uncertainties. Existing procedure rules governing the exercise of such powers by the High Court helpfully indicate the existence and extent of such powers, including the very power to act on the court’s own initiative (RSC Order 52 rule 5, in Civil Procedure Rules Schedule 1); and statute prescribes the maximum penalty (section 14 of the Contempt of Court Act 1981). However, irrespective of what may be the precise extent of such powers, where that is unclear; whatever may be the appropriate description to attach to such powers; and whatever may be the appropriate classification, whether civil or criminal, of the proceedings for contempt brought in any given instance within the ‘criminal cause or matter’ in which those proceedings arise: what is certain is that it can only be either the court itself, or someone else, who starts the contempt proceedings. The procedures must be appropriate to whichever of those two it is. Consequently, rule 62.1 introduces that distinction only. The appropriate corresponding procedures are set out in the relevant subsequent Sections of Part 62.
23
Rule 62.1 When this Part applies
87. Proposed rule 62.1 describes which Sections of Part 62 apply to which type of case. The rules in Section 2 (general rules) apply to both categories of proceedings – namely procedure on application (Section 3) and procedure on enquiry (Section 4).
88. The rules in Section 3 (which contains current rules 62.3 and 62.6 to 62.12, renumbered 62.5 to 62.12) apply only to proceedings where one person wants the court to deal with another for contempt of court. Such proceedings are necessarily civil contempt proceedings and the rules in Section 3 are drafted accordingly.
89. The rules in Section 4 apply only to cases where the court of its own initiative enquires into what appears to be contempt of court and into conduct which a magistrates’ court can deal with under section 12 of the Contempt of Court Act 1981 or section 97(4) of the Magistrates’ Courts Act 1980. This includes all criminal contempt proceedings in the criminal courts and, again, the rules have been drafted accordingly. The Section 4 rules also are intended to accommodate civil contempt proceedings, as it is possible for these to be brought by the court of its own initiative.
90. It is not proposed that the Part 62 rules would apply where a defendant commits an offence under section 6(1) or (2) of the Bail Act 1976 (Offence of absconding by person released on bail). Under section 6(5) of the Act, such an offence 'shall be punishable either on summary conviction or as if it were a criminal contempt of court' (emphasis supplied). By contrast with the statutory provisions listed in the note to draft rule 62.1, the Bail Act does not provide that absconding while on bail is a contempt of court. Blackstone’s draws attention, at paragraph D7.83, to R v Lubega (1999) 163 JP 221, explaining:
[T]he Court of Appeal confirmed that section 6(5) did not have the effect of converting an offence under the Act to a contempt of court. It followed that the judge was not entitled to deal with the matter in the same way as an ordinary contempt of court.
91. Where a defendant is accused of absconding, the scope of the court's enquiry will be limited to the questions of failure to attend, and of reasonable excuse. The procedure to be provided in Part 62 is more elaborate than would be required in those circumstances. The Committee intends as soon as possible to revise the rules in Part 19 (Bail in magistrates' courts and the Crown Court), and any procedure rules needed to deal with breach of bail may be more appropriately located there.
Consultation question 5: Is it clear from rule 62.1 which rules apply to which contempt proceedings?
24
Section 2: general rules
92. This Section includes those rules which are common to all contempt proceedings, whether initiated by one party against another, or by the court itself. The general rules deal with: the exercise of the court’s power to deal with contempt of court (rule 62.2 – providing for the requirement for a hearing, and for the exercise of the court’s powers in a respondent’s absence); notice of suspension of imprisonment by Court of Appeal or Crown Court (rule 62.3); and application to discharge an order for imprisonment (rule 62.4).
Rule 62.2 Exercise of court’s power to deal with contempt of court 93. The current Part 62 rules, which relate only to committal for civil contempt
(disobedience of a court order), make no express provision about a hearing. They implicitly require a hearing by prohibiting (subject to exceptions) any committal for contempt otherwise than in the respondent’s presence. The Committee was concerned that a hearing in private was unlikely to be appropriate in a criminal court, even if it that was theoretically possible; and therefore no provision was made, in the current Part 62, to qualify the general requirement that a hearing should be in public.
94. In the Civil Procedure Rules, Schedule 1, RSC Order 52 rule 6 (committal) allows the hearing of an application for an order of committal to take place in private in certain classes of case, including ‘(d) where it appears to the court that in the interests of the administration of justice … the application should be heard in private’. However, in any such case, if the court decides at a hearing in private to make an order of committal, it must in public state the name of the contemnor, the nature of the contempt, and the length of the period for which the contemnor has been committed.
95. Similarly, the guidance given in the associated Practice Direction provides, at paragraph 9:
9. A committal application should normally be heard in public (see CPR rule 39.2), but if it is heard in private and the court finds the respondent guilty of contempt of court, the judge shall, when next sitting in public, state –
(1) the name of the respondent;
(2) in general terms the nature of the contempt or contempts found proved; and
(3) the penalty (if any) imposed.
Consultation question 6: Proposed rule 62.2 requires the courts’ determination in contempt proceedings to take place at a hearing but omits any requirement of the sort found in the civil procedure rules that, where, at a hearing in private, an offender is found guilty of contempt of court, when next sitting in public the court is required to name the respondent and state the terms of any contempt proved and the penalty imposed. Should proposed rule 62.2 include some, or all, of these additional requirements?
25
96. A note to rule 62.2 draws attention to the limitations on the court’s power to order
an alleged contemnor’s detention pending any adjourned hearing. This note has been included in order to help obviate any possible confusion arising from rule 62.2(2), which, in unqualified terms, permits the adjournment of a hearing at any stage. That power to adjourn, however, is not coterminous with the power to detain. The limits to the latter are explained above at paragraphs 48 to 50.
Rule 62.3 Notice of suspension of imprisonment by Court of Appeal or Crown Court
97. Rule 62.3 prescribes the procedure for notice of suspension of an order of imprisonment for contempt in the Court of Appeal or the Crown Court. Paragraphs 39 to 45, above, explain that the senior courts have power to suspend imprisonment for contempt of court, by virtue of inherent powers of the High Court extended to the Court of Appeal and the Crown Court by statute. Conversely, magistrates’ courts appear not to have any power to suspend imprisonment for contempt of court. A note to the rule cites the relevant powers.
Rule 62.4 Application to discharge an order of imprisonment
98. Rule 62.4 prescribes the procedure for applications for the discharge of an order of imprisonment for contempt. Paragraphs 30 to 38, above, explain that in both the senior courts (albeit with some apparent limitation), and in magistrates’ courts, there is power to order the discharge of an order of committal. A note to the rule cites the provisions that confer the relevant powers.
Consultation question 7: Are the general rules in Section 2 appropriate?
Section 3: procedure on application
99. Section 3 is made up of current rules 62.3 (revised) and 62.6 to 62.12, renumbered 62.5 to 62.12, inclusive. The revision to rule 62.3 changes the requirement in current rule 62.3 that an application to commit must ‘explain that it is an application for the respondent to be punished for contempt of court’. That description may not be apt. An applicant may or may not want the court to punish the respondent, but certainly will want the court to ‘deal with’ the alleged contempt: whether that by the imposition of punishment or by securing obedience to the order in question. What current rule 62.3 requires has been modified in proposed rule 62.5 to make that change.
100. Current rule 62.12 (court’s power to vary requirements) has been included in Section 3 so that its operation is confined to the rules that lay down time limits in that Section. It would not apply to the rules in new Section 4, so could not appear, misleadingly, to confer on the court a power to extend any period of temporary detention: a power that the court does not possess and that the rules are not competent to confer.
26
Section 4: procedure on enquiry
101. The rules in Section 4 derive from the procedural requirements established by case law and the Practice Direction that supplements Civil Procedure Rules Schedule 1 RSC Order 52. However, it should be noted that the presumption in these draft rules may appear inconsistent with the presumption in paragraph V.54 of the Consolidated Criminal Practice Direction (extracted at paragraph 68 above) which requires that, ‘The matter should be dealt with on the same day if at all possible.’ Nothing in the proposed rules prevents the court dealing finally with the contempt on the day of its commission, for example where the respondent admits the conduct. However, it is considered that a general apparent presumption in favour of haste is not appropriate for the rules.
102. The proposed rules impose an explicit procedural requirement for a review where the court has exercised its power temporarily to detain. The rules cannot, and do not purport to, define that power of detention. They can, however, promote compatibility with ECHR Article 5 (right to liberty) by (a) requiring that, as a matter of procedure, the court must reconvene within a period that legislation, in the case of a magistrates’ court, and case law, in the case of the senior courts, declares to be a lawful period of temporary detention; and (b) declaring that the court usually then will release the respondent (unless, of course, it exercises some other power to detain – by denying a respondent defendant bail in the main proceedings, for example). The use of the term ‘review’ is meant to connote an opportunity for the court to consider what steps next should be taken, if any, in the event that following temporary detention the respondent offers an adequate apology.
Rule 62.13 Enquiry on court’s initiative into contempt of court
103. This draft rule is intended to reflect the guidance in the Practice Direction that supplements Civil Procedure Rules Schedule 1, Order 52, paragraphs 12 – 14 (extracted at paragraph 66 above) and the decisions in Alan Wilkinson v the Lord Chancellor’s Department [2003] EWCA Civ 95, at paragraph 23 (see paragraphs 49 and 60 above); Moran (1985) Cr App R 51, at paragraph 53a-e (see paragraph 58 above); R v Hill [1986] Crim LR 457 (see paragraph 59 above); and R v AS [2008] EWCA Crim 138 (see paragraph 61 above).
104. The presumption in favour of postponement would apply in all cases where the court acts on its own initiative, whether dealing with disruptive, etc. behaviour or with the breach of a court order. On an application (under rule 62.5, in Section 3) to commit for contempt for breach of a court order, the respondent would receive at least 14 days’ notice (as is also required under paragraph 4.2 of the Civil Procedure Rules Practice Direction). On an enquiry under rule 62.13, however, an allegation by the court of breach is liable to arise without notice. For this reason, a presumption in favour of delay, though without compelling it, seems no less appropriate than in a case of disruptive, etc. behaviour.
Consultation question 8: Should the lists in proposed rule 62.13 include any additional procedural requirements that derive from the Civil Procedure Rules Practice Direction or from case law?
27
Consultation question 9: Paragraph 3 of proposed rule 62.13 aims to reflect the requirements of the Civil Procedure Rules Practice Direction at paragraphs 12 – 13, that “Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection …”
(i) Does it adequately do so?
(ii) Is the scope of Para (3) of rule 62.13 appropriate? As a general rule, it will apply to all contempt proceedings initiated by the court of its own volition, even where those proceedings might be for a civil contempt of court. (Paragraph 12 of the CPR PD from which it derives relates to committal applications for contempt in the face of the court.)
Rule 62.14 Review after temporary detention
Rule 62.15 Postponement of enquiry
105. The extract from Alan Wilkinson v the Lord Chancellor’s Department [2003] EWCA Civ 95, in paragraph 49 above is to be noted, in particular the passage:
however, if the case cannot be heard the next day, the judge should ensure that the alleged contemnor is brought back to court in any event, or if this is not possible, that inquiries are made and the case is mentioned in open court, so that the reasons for any further delay are both known and recorded and the question of bail can be considered.
106. Note also the commentary at paragraphs 80 to 82 above. Rules 62.14 and 62.15 are intended to accommodate the matters discussed there.
Rule 62.16 Procedure on enquiry
107. Draft new rule 62.16 is an abbreviated version of rules 37.2(2), 37.3 and 37.10: the rules about general procedure, trial and sentence in a magistrates’ court. On a postponed enquiry into an apparent contempt, the procedure corresponds with that of a magistrates’ court trial, as the court observed in R v AS [2008] EWCA Crim 138 (see paragraph 62 above). However, in the context of contempt the procedure needs to accommodate less, and the rules can be correspondingly shorter.
Rule 62.17 Introduction of written witness statement or other hearsay
108. As explained at paragraphs 51 to 58 above, it appears that in two instances the proceedings on an enquiry to which Section 4 applied would engage the civil law of evidence: in a case in which the court dealt on its own initiative with breach of a court order, and in a case in which the court dealt on its own initiative with unauthorised use of disclosed prosecution material. In those two instances, therefore, the civil hearsay regime applies, not the Part 34 regime, which governs only proceedings to which section 114 of the Criminal Justice Act 2003 applies – i.e. criminal proceedings.
28
109. To avoid the repetition in Section 4 of the civil hearsay rules that are included in Section 3 (rules 62.6 to 62.11), and to avoid the confusion of placing such rules in Section 2 (general rules), rule 62.17 introduces the relevant rules into Section 4 by cross-reference.
Consultation question 10: Are any of the proposed rules confusing when compared with case law and Civil Procedure Rules’ Practice Direction from which they derive?
Consultation question 11: Should the proposed rules include any provisions that have been omitted?
Consultation question 12: Do you think these draft rules accurately codify the procedure?
Application of rules in the Court of Appeal
110. There seems no reason why the proposed new rules should not extend to the Court of Appeal. Whereas the current Part 62 rules have no application in that court, these rules would apply.
The proposed rules and the Consolidated Criminal Practice Direction
111. The proposed rules would supersede some provisions of the current paragraph V.54 of the Practice Direction. Subject to the views of the Lord Chief Justice (by whom, in his capacity as such, the Practice Direction is made), if the rules were made, the Direction perhaps could be abbreviated accordingly. However, it is not suggested that there would remain no need for any such Direction. On the contrary, the guidance that it contains on the manner in which the court should exercise the procedural and jurisdictional discretions it possesses perhaps could be distilled and clarified; and, perhaps, removed to Part I of the Consolidated Criminal Practice Direction, in order that it should apply generally, not just in magistrates’ courts.
Criminal Procedure Rule Committee May 2010
29
Questions for consideration
The Criminal Procedure Rule Committee invites those consulted to comment on any aspect of this proposal, general or specific. It seems to raise the following questions in particular:
1) Is it helpful to make rules about contempt in the courtroom etc in the Criminal Procedure Rules? (Paragraph 56)
2) Are there any significant differences in the jurisdiction of the criminal courts to deal with contempt that have not been mentioned in this paper? (Paragraph 56)
3) Do the procedural requirements of the proposed rules take sufficient account of the differences in the contempt jurisdiction of the criminal courts? (Paragraph 56)
4) Do consultees agree that there is no need for rules about bail to be included in the new Part 62 rules about contempt? (Paragraph 76)
5) Is it clear from rule 62.1, which rules apply to which contempt proceedings? (Paragraph 91)
6) Proposed rule 62.2 requires the courts’ determination in contempt proceedings to take place at a hearing but omits any requirement of the sort found in the civil procedure rules that, where, at a hearing in private, an offender is found guilty of contempt of court, when next sitting in public the court is required to name the respondent and state the terms of any contempt proved and the penalty imposed. Should proposed rule 62.2 include some or all of these additional requirements? (Paragraph 95)
7) Are the general rules in Section 2 appropriate? (Paragraph 98)
8) Should the lists in proposed rule 62.13 include any additional procedural requirements that derive from the Civil Procedure Rules Practice Direction or from case law? (Paragraph 104)
9) Paragraph 3 of proposed rule 62.13 aims to reflect the requirements of the Civil Procedure Rules Practice Direction at paragraphs 12 – 13, that “Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection …”
(i) Does it adequately do so?
(ii) Is the scope of Para (3) of rule 62.13 appropriate? As a general rule, it will apply to all contempt proceedings initiated by the court of its own volition, even where those proceedings might be for a civil contempt of court. (Paragraph 12 of the CPR PD from which it derives relates to committal applications for contempt in the face of the court.) (Paragraph 104)
10) Are any of the proposed rules confusing when compared with case law and the Civil Procedure Rules’ Practice Direction from which they derive? (page 28)
11) Should the proposed rules include any provisions that have been omitted? (page 28)
12) Do you think these draft rules accurately codify the procedure? (page 28)
Annex 1: Draft new Part 62 rules 30
PART 62
CONTEMPT OF COURT
Contents of this Part Section 1: understanding and applying this Part When this Part applies rule 62.1 Section 2: general rules Exercise of court’s power to deal with contempt of court rule 62.2 Notice of suspension of imprisonment by Court of Appeal or Crown Court rule 62.3 Application to discharge an order for imprisonment rule 62.4 Section 3: procedure on application Application to deal with contempt of court rule 62.5 Introduction of written witness statement or other hearsay rule 62.6 Content of written witness statement rule 62.7 False statements rule 62.8 Content of notice of other hearsay rule 62.9 Cross-examination of maker of written witness statement or other hearsay rule 62.10 Credibility and consistency of maker of written witness statement or other hearsay rule 62.11 Court’s power to vary requirements under Section 2 rule 62.12 Section 4: procedure on enquiry Enquiry on court’s initiative into contempt of court rule 62.13 Review after temporary detention rule 62.14 Postponement of enquiry rule 62.15 Procedure on enquiry rule 62.16 Introduction of written witness statement or other hearsay rule 62.17
SECTION 1: UNDERSTANDING AND APPLYING THIS PART
When this Part applies
62.1.—(1) Sections 2 and 3 of this Part apply where a person wants the court to deal with another for contempt of court.
(2) Sections 2 and 4 of this Part apply where the court on its own initiative enquires into what appears to be—
(a) a contempt of court; or
(b) conduct with which a magistrates’ court can deal under—
(i) section 97(4) of the Magistrates’ Courts Act 1980 (witness refusing to give evidence), or
(ii) section 12 of the Contempt of Court Act 1981 (Offences of contempt of magistrates’ courts).
(3) In this Part, ‘respondent’ means anyone—
(a) accused of contempt of court under rule 62.5; or
Annex 1: Draft new Part 62 rules 31
(b) into whose conduct the court enquires under rule 62.13.
[Note. Under sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court, respectively, each has an inherent power to imprison, or fine, or both, a respondent for conduct in contempt of court, for example—
(a) disobeying a court order;
(b) disruptive, insulting or intimidating behaviour in the courtroom, or in its vicinity, or otherwise immediately affecting the proceedings;
(c) refusing to give evidence;
(d) disobeying a witness summons (see section 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965);
(e) obtaining, or trying to obtain, or disclosing, any details of a jury’s deliberations (see section 8 of the Contempt of Court Act 1981);
(f) without the court’s permission, using or taking into court any device for recording sound, or publishing or using a sound recording made in court (see section 9 of the Contempt of Court Act 1981);
(g) using disclosed prosecution material in contravention of section 17 of the Criminal Procedure and Investigations Act 1996 (see section 18 of that Act).
Under section 14(1) of the Contempt of Court Act 1981, the maximum period of imprisonment that the Court of Appeal or the Crown Court can impose for contempt of court is 2 years. There is no limit to the fine that those courts can impose for contempt of court.
Under section 97(4) of the Magistrates’ Courts Act 1980, a magistrates’ court can imprison (for a maximum of 1 month), or fine (to a maximum of £2,500), or both, a person who refuses to give evidence in that court.
Under section 12 of the Contempt of Court Act 1981, a magistrates’ court can imprison (for a maximum of 1 month), or fine (to a maximum of £2,500), or both, “any person who—
(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.”
Under section 18 of the Criminal Procedure and Investigations Act 1996, a magistrates’ court can imprison (for a maximum of 6 months), or fine (to a maximum of £5,000), or both, a person who uses disclosed prosecution material in contravention of section 17 of that Act.
See also—
(a) rule 6.13 and rule 6.22 (disobeying certain investigation orders);
(b) rule 22.8 (unauthorised disclosure of prosecution material);
(c) rule 59.6 (disobeying a restraint order).]
SECTION 2: GENERAL RULES
Exercise of court’s power to deal with contempt of court
62.2.—(1) The court must determine any application under rule 62.5 (Application to deal with contempt of court), and pursue any enquiry under rule 62.13 (Enquiry on court’s initiative into contempt of court)—
(a) at a hearing; and
(b) in the presence of any person making such an application.
(2) The court may adjourn a hearing at any stage.
(3) The court must not proceed in the respondent’s absence unless—
Annex 1: Draft new Part 62 rules 32
(a) the respondent has had at least 14 days’ notice of the hearing, or was present when it was arranged; or
(b) the respondent’s disorderly behaviour makes it impracticable to proceed otherwise.
[Note. The court’s power to order a respondent’s detention pending an adjourned hearing is limited. See the note to rule 62.13.]
Notice of suspension of imprisonment by Court of Appeal or Crown Court
62.3.—(1) This rule applies where—
(a) the Court of Appeal or the Crown Court suspends an order of imprisonment for contempt of court; and
(b) the respondent is absent when the court does so.
(2) The respondent must be served with notice of the terms of the court’s order—
(a) by any applicant under rule 62.5; or
(b) by the court officer, in any other case.
[Note. Under sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power to suspend imprisonment for contempt of court, on conditions, or for a period, or both.]
Application to discharge an order for imprisonment
62.4.—(1) This rule applies where the court can discharge an order for a respondent’s imprisonment for contempt of court.
(2) A respondent who wants the court to discharge such an order must—
(a) apply in writing, unless the court otherwise directs, and serve any written application on—
(i) the court officer, and
(ii) any applicant under rule 62.5 (Application to deal with contempt of court);
(b) explain why it is appropriate for the order for imprisonment to be discharged; and
(c) ask for a hearing, if the respondent wants one.
[Note. Under sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power to discharge an order for a respondent’s imprisonment for contempt of court in disobeying a court order.
Under section 97(4) of the Magistrates’ Courts Act 1980, a magistrates’ court can discharge an order for imprisonment if the respondent gives evidence.
Under section 12(4) of the Contempt of Court Act 1981, a magistrates’ court can discharge an order for imprisonment made under that section.]
SECTION 3: PROCEDURE ON APPLICATION
Application to deal with contempt of court
62.5.—(1) A person who wants the court to deal with a respondent for contempt of court must—
(a) apply in writing and serve the application on the court officer; and
(b) serve on the respondent—
(i) the application, and
(ii) notice of where and when the court will hear the application (not less than 14 days after service).
Annex 1: Draft new Part 62 rules 33
(2) The application must—
(a) identify the respondent;
(b) explain that it is an application for the respondent to be dealt with for contempt of court;
(c) contain such particulars of the conduct constituting contempt of court as to make clear what the applicant alleges against the respondent; and
(d) include a notice warning the respondent that the court—
(i) can impose imprisonment, or a fine, or both, for contempt of court, and
(ii) may deal with the application in the respondent’s absence, if the respondent does not attend the hearing of the application.
[Note. The Practice Direction sets out a form of application for use in connection with this rule.
The rules in Part 4 require that an application under this rule must be served by handing it to the person accused of contempt of court.]
Introduction of written witness statement or other hearsay
62.6.—(1) A party who wants to introduce in evidence the written statement of a witness, or other hearsay, must—
(a) serve a copy of the statement, or notice of other hearsay, on—
(i) the court officer, and
(ii) the other party; and
(b) serve the copy or notice—
(i) when serving the application under rule 62.5, in the case of the applicant, or
(ii) not more than 7 days after service of that application, in the case of the respondent.
(2) Such service is notice of that party’s intention to introduce in evidence that written witness statement, or other hearsay, unless that party otherwise indicates when serving it.
(3) A party entitled to receive such notice may waive that entitlement by so informing the court officer and the party who would have given it.
[Note. On an application under rule 62.5, hearsay evidence is admissible under the Civil Evidence Act 1995. Section 1(2) of the 1995 Act defines hearsay as meaning ‘a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated’. Section 13 of the Act defines a statement as meaning ‘any representation of fact or opinion, however made’.
Under section 2 of the 1995 Act, a party who wants to introduce hearsay in evidence must give reasonable and practicable notice, in accordance with procedure rules, unless the recipient waives that requirement.]
Content of written witness statement
62.7.—(1) This rule applies to a written witness statement served under rule 62.6.
(2) Such a written witness statement must contain a declaration by the person making it that it is true to the best of that person’s knowledge and belief.
False statements
62.8.—(1) In the Crown Court, the court can punish for contempt of court a person who makes, or causes to be made, a false statement in such a written witness statement without an honest belief in its truth.
(2) The Crown Court may exercise its power to punish that person for contempt of court—
(a) on an application by a party, with the court’s permission; or
Annex 1: Draft new Part 62 rules 34
(b) on its own initiative.
(3) A person who wants the court to exercise that power must comply with the rules in this Part.
Content of notice of other hearsay
62.9.—(1) This rule applies to a notice of hearsay, other than a written witness statement, served under rule 62.6.
(2) Such a notice must—
(a) set out the evidence, or attach the document that contains it; and
(b) identify the person who made the statement that is hearsay.
Cross-examination of maker of written witness statement or other hearsay
62.10.—(1) This rule applies where a party wants the court’s permission to cross-examine a person who made a statement which another party wants to introduce as hearsay.
(2) The party who wants to cross-examine that person must—
(a) apply in writing, with reasons; and
(b) serve the application on—
(i) the court officer, and
(ii) the party who served the hearsay.
(3) A respondent who wants to cross-examine such a person must apply to do so not more than 7 days after service of the hearsay by the applicant.
(4) An applicant who wants to cross-examine such a person must apply to do so not more than 3 days after service of the hearsay by the respondent.
(5) The court—
(a) may decide an application under this rule without a hearing; but
(b) must not dismiss such an application unless the person making it has had an opportunity to make representations at a hearing.
[Note. See also section 3 of the Civil Evidence Act 1995.]
Credibility and consistency of maker of written witness statement or other hearsay
62.11.—(1) This rule applies where a party wants to challenge the credibility or consistency of a person who made a statement which another party wants to introduce as hearsay.
(2) The party who wants to challenge the credibility or consistency of that person must—
(a) serve a written notice of intention to do so on—
(i) the court officer, and
(ii) the party who served the hearsay; and
(b) in it, identify any statement or other material on which that party relies.
(3) A respondent who wants to challenge such a person’s credibility or consistency must serve such a notice not more than 7 days after service of the hearsay by the applicant.
(4) An applicant who wants to challenge such a person’s credibility or consistency must serve such a notice not more than 3 days after service of the hearsay by the respondent.
(5) The party who served the hearsay—
(a) may call that person to give oral evidence instead; and
(b) if so, must serve a notice of intention to do so on—
(i) the court officer, and
(ii) the other party
Annex 1: Draft new Part 62 rules 35
as soon as practicable after service of the notice under paragraph (2).
[Note. Section 5(2) of the Civil Evidence Act 1995 describes the procedure for challenging the credibility of the maker of a statement of which hearsay evidence is introduced.
See also section 6 of that Act. The 1995 Act does not allow the introduction of evidence of a previous inconsistent statement otherwise than in accordance with sections 5, 6 and 7 of the Criminal Procedure Act 1865.]
Court’s power to vary requirements under Section 3
62.12.—(1) The court may shorten or extend (even after it has expired) a time limit under rule 62.6, 62.10 or 62.11.
(2) A person who wants an extension of time must—
(a) apply when serving the statement, notice or application for which it is needed; and
(b) explain the delay.
SECTION 4: PROCEDURE ON ENQUIRY
Enquiry on court’s initiative into contempt of court
62.13.—(1) Unless the respondent’s disorderly behaviour makes it impracticable to do so, the court must—
(a) explain, in terms the respondent can understand (with help, if necessary)—
(i) the conduct that is in question,
(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,
(iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required,
(iv) that the respondent may explain that conduct and, if he or she so wishes, apologise, and
(v) that the respondent may take legal advice; and
(b) give the respondent an opportunity to explain and apologise.
(2) Unless the court accepts any explanation or apology offered by the respondent—
(a) the general rule is that the court will postpone its enquiry into that conduct; but
(b) the court may instead exercise its power to enquire into that conduct there and then.
[Note. Under sections 15 and 45 of the Senior Courts Act 1981, the Court of Appeal and the Crown Court each has an inherent power temporarily to detain a respondent, for example to restore order, when dealing with disruptive, insulting or intimidating behaviour in the courtroom, or in its vicinity, or otherwise immediately affecting the proceedings.
Under section 12(2) of the Contempt of Court Act 1981, a magistrates’ court can detain a respondent until later the same day, where that section applies.]
Review after temporary detention
62.14.—(1) This rule applies in a case in which the court has ordered the respondent’s immediate temporary detention.
(2) The court must review the case—
(a) in a magistrates’ court, later the same day;
(b) in the Court of Appeal or the Crown Court, no later than the next business day.
(3) On the review, the court must—
Annex 1: Draft new Part 62 rules 36
(a) unless the respondent is absent, repeat the explanations required by rule 62.13(1)(a); and
(b) give the respondent an opportunity to explain and apologise.
(4) Unless the court accepts any explanation or apology offered by the respondent—
(a) the general rule is that the court will—
(i) further postpone its enquiry into the respondent’s conduct, and
(ii) order the respondent’s release from detention in the meantime; but
(b) the court may instead exercise its power to enquire into that conduct there and then.
Postponement of enquiry
62.15.—(1) This rule applies where the court postpones its enquiry—
(a) under rule 62.13, if the court does not order the respondent’s immediate detention; or
(b) under rule 62.14.
(2) The court must arrange for the preparation of a written statement—
(a) containing such particulars of the conduct that appears to constitute contempt of court as to make clear what the respondent appears to have done; and
(b) including a notice that—
(i) reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and
(ii) warns the respondent that the court may pursue the enquiry in the respondent’s absence, if the respondent does not attend.
(3) The court officer must serve on the respondent—
(a) that written statement; and
(b) notice of where and when the postponed enquiry will take place.
Procedure on enquiry
62.16.—(1) At an enquiry, the court must—
(a) explain again, in terms the respondent can understand (with help, if necessary) the conduct that is in question, if the enquiry has been postponed from a previous occasion;
(b) explain what the procedure at the enquiry will be; and
(c) ask whether the respondent admits the conduct.
(2) If the respondent admits the conduct, the court need not receive evidence.
(3) If the respondent does not admit the conduct, the court will receive—
(a) the statement prepared under rule 62.15;
(b) any other evidence of the conduct;
(c) any evidence introduced by the respondent; and
(d) any representations by the respondent about the conduct.
(4) If the respondent admits the conduct, or the court finds it proved, the court must—
(a) before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;
(b) give sufficient reasons to explain its decision, including its findings of fact; and
(c) in a magistrates’ court, arrange for the preparation of a written record of those findings.
(5) The court that conducts a postponed enquiry—
(a) need not include the same member or members as the court that postponed it; but
(b) may do so, unless that would be unfair to the respondent.
Annex 1: Draft new Part 62 rules 37
Introduction of written witness statement or other hearsay
62.17.—(1) This rule applies where—
(a) the court on its own initiative enquires into what appears to be—
(i) disobedience of a Crown Court order, or
(ii) use of disclosed prosecution material in contravention of section 17 of the Criminal Procedure and Investigations Act 1996; and
(b) a person wants to introduce in evidence the written statement of a witness, or other hearsay.
(2) Unless the court otherwise directs, such a person must, as soon as reasonably practicable, serve a copy of the statement, or notice of other hearsay, on—
(a) the court officer; and
(b) the respondent (if that person is not the respondent).
(3) Such service is notice of that person’s intention to introduce in evidence that written witness statement, or other hearsay, unless that person otherwise indicates when serving it.
(4) A respondent entitled to receive such notice may waive that entitlement by so informing the court officer and the person who would have given it.
(5) Rules 62.7 to 62.11 apply as if that statement, or other hearsay, had been served under rule 62.6, but with such time limits as the court directs instead of the time limits in those rules.
[Note. Where this rule applies, hearsay evidence is admissible under the Civil Evidence Act 1995. See the note to rule 62.6.]
Annex 2: Contempt legislation 38
CONTEMPT LEGISLATION
Legislation Section Page Criminal Procedure Attendance of Witnesses Act) 1965 Punishment for disobedience to witness order or witness summons 3 38 Magistrates’ Courts Act 1980 Summons to witness and warrant for arrest 97(4) 38 Contempt of Court Act 1981 Offences of contempt of magistrates’ court 12 39 Proceedings in England and Wales 14 39 Senior Courts Act 1981 General jurisdiction of Court of Appeal 15 40 General jurisdiction of High Court 19 40 General jurisdiction of Crown Court 45 40 Criminal Procedure and Investigations Act 1996 Confidentiality: contravention 18 40
Criminal Procedure (Attendance of Witnesses Act) 1965 3 Punishment for disobedience to witness order or witness summons (1) Any person who without just excuse disobeys a . . . witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court. (1A) Any person who without just excuse disobeys a requirement made by any court under section 2A16 above shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court. (2) No person shall by reason of any disobedience mentioned in subsection (1) or (1A) above] be liable to imprisonment for a period exceeding three months. (3) . . .
Magistrates’ Courts Act 1980
Procuring attendance of witness 97 Summons to witness and warrant for his arrest (4) If any person attending or brought before a magistrates' court refuses without just excuse to be sworn or give evidence, or to produce any document or thing, the court may commit him to custody until the expiration of such period not exceeding one month as may be specified in the warrant or until he sooner gives evidence or produces the document or thing or impose on him a fine not exceeding £2,500, or both.
16 2A Power to require advance production A witness summons which is issued under section 2 above and which requires a person to produce a document or thing as mentioned in section 2(2) above may also require him to produce the document or thing— (a) at a place stated in the summons, and (b) at a time which is so stated and precedes that stated under section 2(2) above, for inspection by the person applying for the summons.
Annex 2: Contempt legislation 39
Contempt of Court Act 1981 12 Offences of contempt of magistrates' courts (1) A magistrates' court has jurisdiction under this section to deal with any person who—
(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or (b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both. (2A) A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction. (3) . . . (4) A magistrates' court may at any time revoke an order of committal made under subsection (2) and, if the offender is in custody, order his discharge. (5) Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court); section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes). 14 Proceedings in England and Wales (1) In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court. (2) In any case where an inferior court has power to fine a person for contempt of court and (apart from this provision) no limit applies to the amount of the fine, the fine shall not on any occasion exceed £2,500. (2A) In the exercise of jurisdiction to commit for contempt of court or any kindred offence the court shall not deal with the offender by making an order under [section 60 of the Powers of Criminal Courts (Sentencing) Act 2000] (an attendance centre order) if it appears to the court, after considering any available evidence, that he is under 17 years of age.] (2A) A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction. (3) . . .(repealed) (4) Each of the superior courts shall have the like power to make a hospital order or guardianship order under section 37 of the Mental Health Act 1983 or an interim hospital order under section 38 of that Act in the case of a person suffering from mental disorder within the meaning of that Act who could otherwise be committed to prison for contempt of court as the Crown Court has under that section in the case of a person convicted of an offence. (4A) Each of the superior courts shall have the like power to make an order under section 35 of the said Act of 1983 (remand for report on accused's mental condition) where there is reason to suspect that a person who could be committed to prison for contempt of court is suffering from mental disorder within the meaning of that Act as the Crown Court has under that section in the case of an accused person within the meaning of that section.] (4A) For the purposes of the preceding provisions of this section a county court shall be treated as a superior court and not an inferior court. (5) The enactments specified in Part III of Schedule 2 shall have effect subject to the amendments set out in that Part, being amendments relating to the penalties and procedure in respect of certain offences of contempt in coroners' courts, county courts and magistrates' courts. (By what appears to have been a legislative oversight, there are now two subsections numbered (2A) and two numbered (4A).)
Annex 2: Contempt legislation 40
Senior Courts Act 1981 15 General jurisdiction of Court of Appeal (1) The Court of Appeal shall be a superior court of record. (2) Subject to the provisions of this Act, there shall be exercisable by the Court of Appeal-
(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.
(3) For all purposes of or incidental to- (a) the hearing and determination of any appeal to the civil division of the Court of Appeal; and (b) the amendment, execution and enforcement of any judgment or order made on such an appeal,
the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought. (4) It is hereby declared that any provision in this or any other Act which authorises or requires the taking of any steps for the execution or enforcement of a judgment or order of the High Court applies in relation to a judgment or order of the civil division of the Court of Appeal as it applies in relation to a judgment or order of the High Court. 19 General jurisdiction of High Court (1) The High Court shall be a superior court of record. (2) Subject to the provisions of this Act, there shall be exercisable by the High Court-
(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).
(3) Any jurisdiction of the High Court shall be exercised only by a single judge of that court, except in so far as it is--
(a) by or by virtue of rules of court or any other statutory provision required to be exercised by a divisional court; or (b) by rules of court made exercisable by a master, registrar or other officer of the court, or by any other person.
(4) The specific mention elsewhere in this Act of any jurisdiction covered by subsection (2) shall not derogate from the generality of that subsection. 45 General jurisdiction of Crown Court (1) The Crown Court shall be a superior court of record. (2) Subject to the provisions of this Act, there shall be exercisable by the Crown Court—
(a) all such appellate and other jurisdiction as is conferred on it by or under this or any other Act; and (b) all such other jurisdiction as was exercisable by it immediately before the commencement of this Act.
(3) Without prejudice to subsection (2), the jurisdiction of the Crown Court shall include all such powers and duties as were exercisable or fell to be performed by it immediately before the commencement of this Act. (4) Subject to section 8 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (substitution in criminal cases of procedure in that Act for procedure by way of subpoena) and to any provision contained in or having effect under this Act, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court. (5) The specific mention elsewhere in this Act of any jurisdiction covered by subsections (2) and (3) shall not derogate from the generality of those subsections.
Criminal Procedure and Investigations Act 1996 18 Confidentiality: contravention (1) It is a contempt of court for a person knowingly to use or disclose an object or information recorded in it if the use or disclosure is in contravention of section 17. (2) The following courts have jurisdiction to deal with a person who is guilty of a contempt under
Annex 2: Contempt legislation 41
this section— (a) a magistrates' court, where this Part applies by virtue of section 1(1); (b) the Crown Court, where this Part applies by virtue of section 1(2).
(3) A person who is guilty of a contempt under this section may be dealt with as follows— (a) a magistrates' court may commit him to custody for a specified period not exceeding six months or impose on him a fine not exceeding £5,000 or both; (b) the Crown Court may commit him to custody for a specified period not exceeding two years or impose a fine on him or both.
(4) If— (a) a person is guilty of a contempt under this section, and (b) the object concerned is in his possession,
the court finding him guilty may order that the object shall be forfeited and dealt with in such manner as the court may order. (5) The power of the court under subsection (4) includes power to order the object to be destroyed or to be given to the prosecutor or to be placed in his custody for such period as the court may specify. (6) If—
(a) the court proposes to make an order under subsection (4), and (b) the person found guilty, or any other person claiming to have an interest in the object, applies to be heard by the court,
the court must not make the order unless the applicant has been given an opportunity to be heard. (7) If—
(a) a person is guilty of a contempt under this section, and (b) a copy of the object concerned is in his possession,
the court finding him guilty may order that the copy shall be forfeited and dealt with in such manner as the court may order. (8) Subsections (5) and (6) apply for the purposes of subsection (7) as they apply for the purposes of subsection (4), but as if references to the object were references to the copy. (9) An object or information shall be inadmissible as evidence in civil proceedings if to adduce it would in the opinion of the court be likely to constitute a contempt under this section; and “the court” here means the court before which the civil proceedings are being taken. (10) The powers of a magistrates' court under this section may be exercised either of the court's own motion or by order on complaint.
42 Annex 3 List of those invited to comment
List of those invited to comment Judiciary and judicial bodies The Vice President of the Court of Appeal, Criminal Division The Senior Presiding Judge The Presiding Judges Resident Judges The Council of Circuit Judges The Senior District Judge (Chief Magistrate) The Council of District Judges The Registrar of Criminal Appeals The Magistrates’ Association The National Bench Chairmen’s Forum The Judicial Studies Board The Judges’ Council Criminal justice departments The Attorney General’s Office The Ministry of Justice HM Courts Service Prosecuting authorities The Crown Prosecution Service The Serious Fraud Office The Whitehall Prosecutors Group The Local Government Association Other bodies and authorities The Justices’ Clerks’ Society The Association of Chief Police Officers Victim Support National Association for the Care and Resettlement of Offenders The Probation Chiefs’ Association The Law Commission The Criminal Cases Review Commission The Legal Services Commission The Sentencing Council Justice The Health and Safety Executive The Environment Agency HM Revenue and Customs Legal professions The Bar Council The Law Society The Institute of Legal Executives The Criminal Bar Association The Criminal Law Solicitors Association
43 Annex 3 List of those invited to comment
The London Criminal Courts Solicitors’ Association The Solicitors Association of Higher Court Advocates Solicitors in Local Government Editors and publishers The Editor, Archbold Criminal Pleading, Evidence and Practice The Editor-in-Chief, Blackstone’s Criminal Practice The Editors, Stone’s Justices’ Manual The Editor, Magistrates’ Courts Criminal Practice The Editor, Archbold Magistrates’ Courts Criminal Practice The Editor, Criminal Law Week The Editor, Criminal Law and Justice Weekly The Editor, Criminal Law Review The Editor, ‘Magistrate’ The Editor, ‘Counsel’ The Editor, Criminal Bar Quarterly The Editor, The Law Society’s Gazette The Editor, New Law Journal The Editor, Solicitors Journal The Editor, CrimeLine The Editor, Local Government Lawyer Legal professional education institutions, academics and others who have expressed an interest in commenting on the Committee’s proposals This list is not meant to be exhaustive or exclusive and observations are welcomed from anyone with an interest in, or views on, the proposal that is the subject of this invitation to comment.