CHAPTER – II
CONCEPT AND GENESIS OF CONTEMPT
LAW
1.1 MEANING OF CONTEMPT
Contempt is an act of deliberate disobedience or disregard for
the laws, regulations, or decorum of a public authority, such as a
court or legislative body. In legal terminology, contempt refers to any
willful disobedience to, or disregard of, a court order or any
misconduct in the presence of a court; action that interferes with a
judge's ability to administer justice or that insults the dignity of the
court.1
There are essentially two types of contempt: (a) disrespect to the
decorum of the court (being rude, disrespectful to the judge or other
attorneys or causing a disturbance in the courtroom, particularly after
being warned by the judge) and (b) willful failure to obey an order of
the court. Failure to make a court-ordered payment, such as alimony,
may result in a finding of contempt. The court's power to punish for
contempt includes fines and/or jail time. Since the judge has
discretion to control the courtroom, contempt citations are generally
not appealable unless the amount of fine or jail time is excessive.
Criminal contempt involves the obstruction of justice, such as
threatening a judge or witness or disobeying an order to produce
evidence. Criminal contempt occurs when the contemnor actually
interferes with the ability of the court to function properly - for
example, by yelling at the judge. This is also called direct contempt
because it occurs directly in front of the judge. A criminal contemnor
may be fined, jailed or both as punishment for his act.
1
Miller C.J., Contempt of Court, 2nd edition, Clarendon Press, Oxford, 1989, p. 34.
27
Civil contempt occurs when the contemnor willfully disobeys a
court order. This is also called indirect contempt because it occurs
outside of the judge's presence and evidence must be presented to
prove the contempt. The theory behind the punishment is to coerce
the contemnor into obeying the court, not to punish him, and the
contemnor will be released from jail just as soon as he complies with
the court order. In family law, civil contempt may be a method of
enforcing alimony, child support, custody and visitation orders which
have been violated.
Contempt of Court
Contempt of court is behavior that opposes or defies the
authority, justice, and dignity of the court. Contempt charges may be
brought against parties to proceedings; lawyers or other court officers
or personnel, jurors, witnesses, or people who insert themselves in a
case, such as protesters outside a courtroom.
The essence of contempt of court is that the misconduct impairs
the fair and efficient administration of justice. Contempt laws
generally require that the actions present a clear and present danger
that threatens the administration of justice.
The manner in which an act is committed or the tone in which
words are spoken can determine whether contempt has occurred.
Circumstances, such as the context in which the words were spoken,
the tone, the facial expression, the manner, and the emphasis, are
also evaluated by the court. Failure to complete an act that, if
completed, would tend to bring the court into disrespect does not
preclude the act from being contemptuous.2
1.2 DEFINITION OF CONTEMPT
Owing to the vast manifestations of the offence of contempt and
the very wide field that the law of contempt covers, it has been found
exceedingly difficult to discover complete and apposite definition of
contempt. The jurists and judges have contented themselves by
2
The Columbia Encyclopedia, 6th edition, Columbia University Press, New York, 2010, p. 345.
28
describing the ingredients of the offence and by citing illustration of
what a contempt of court can be.
According to the Britannica Encyclopedia3, ―In law, an act of
disobedience to a court order may be treated as either criminal or civil
contempt; sanctions for the latter end upon compliance with the
order. An act or language that consists solely of an affront to a court
or interferes with the conduct of its business constitutes criminal
contempt; such contempt carries sanctions designed to punish as well
as to coerce compliance.‖
According to the Columbia Encyclopedia,4 ―contempt, in law,
means interference with the functioning of a legislature or court. In its
narrow and more usual sense, contempt refers to the despising of the
authority, justice, or dignity of a court. A contempt of court can be
classified as civil or criminal, direct or constructive. Civil and criminal
contempts are distinguished by the function of the punishment-if it is
to vindicate judicial authority, the contempt is criminal; if it is to
enforce the rights and remedies of a party, and the contempt is civil. A
direct contempt is one committed in the presence of the court while it
is in session. A constructive contempt is one that is committed at a
distance from the court and that tends to obstruct or defeat the
administration of justice. A refusal to answer a question when
directed to answer by a judge is a direct criminal contempt.
Disobeying an injunction or a court order that a judgment be satisfied
is a civil contempt. A major distinction is whether the court needs to
hear evidence to determine if contempt was committed. Direct
criminal
contempts
may
be
punished
summarily
by
fine
or
imprisonment; civil and constructive criminal contempts can also be
punished by fine or imprisonment, but the accused must be granted a
hearing. In the United States, Congress can punish for contempt of
Congress behavior that occurs during legislative proceedings and that
threatens its legislative power. Congress must act before it adjourns,
3
4
William Benton, The Britannica Concise Encyclopedia, 15th edition, Encyclopedia Britannica
Inc., London, 1974, p. 134.
The Columbia Encyclopedia, 6th edition, Columbia University Press, New York, 2010, p. 346.
29
and any imprisonment can last no longer than that session. State
legislatures also have limited powers to punish for contempt.‖
Under West's Encyclopedia of American Law,5 ―contempt of
court is behavior that opposes or defies the authority, justice, and
dignity of the court. Contempt charges may be brought against parties
to proceedings; lawyers or other court officers or personnel, jurors,
witnesses, or people who insert themselves in a case, such as
protesters outside of a courtroom. Courts have great leeway in making
contempt charges, and thus confusion sometimes exists about the
distinctions between types of contempt. Generally, however, contempt
proceedings are categorized as civil or criminal, and direct or indirect.‖
Contempt under Devil's Dictionary6 is the feeling of a prudent
man for an enemy who is too formidable safely to be opposed.
Contempt under World University Encyclopedia7 is an intense
feeling or attitude of regarding someone or something as inferior, base,
or worthless—it is similar to scorn. It is also used when people are
being sarcastic. Contempt is also defined as the state of being
despised or dishonored; disgrace, and an open disrespect or willful
disobedience of the authority of a court of law or legislative body.
According to the Encyclopedia Americana International,8
contempt is the deliberate obstruction of a court's proceedings by
refusing to obey a court order or by interfering with court procedures.
Contempt of court can be punished by fine, imprisonment, or both.
According to the American Heritage Dictionary of the English
Language,9 ―the act of contemning or despising; the feeling with which
one regards that which is esteemed mean, vile, or worthless, disdain,
scorn.
5
6
7
8
9
Thomson Gale, West's Encyclopedia of American Law, Books Inc.: New York,
2010, p. 245
Ambrose Bierce, The Devil's Dictionary, Butterworths: London, 1911, p. 451.
World University Encyclopedia, Vol. 4, Books, Inc., New York, 1968, p. 1304.
Grolier, Encyclopedia Americana International, 7th Vol., Grolier International Incorporated:
America, 1984, p. 686.
Houghton Mifflin, The American Heritage Dictionary of the English Language, 4th edition,
Houghton Mifflin Company: America, 2009, p. 341.
30
1.3 HISTORICAL PERSPECTIVE
The law of contempt is a branch of law which originated and
developed in a manner quite different from other laws. Kings created
the contempt jurisdiction and claimed it was a natural adjunct to their
adjudicating work. A law which began as a convenient method to
enforce their orders was subsequently used to extract respect from the
challenges of the press. Phillimore Committee10 while discussed
historical aspect of law of contempt in the following words:
―The law relating to contempt of court has developed over the
centuries as a means whereby the court may act to prevent or punish
conduct
which
tends
to
obstruct,
prejudice
or
abuse
the
administration of justice either in relation to a particular case or
generally.‖
1.3.1 ORIGIN AND DEVELOPMENT OF THE LAW OF CONTEMPT
IN ENGLAND
The phrase contempt of court (Contemptus Curiae) has been in
use in English law for eight centuries. The law conferred the power to
enforce discipline within its precincts and punish those who fail to
comply with its orders.11
The idea of contempt of the king is referred to as an offence in
the laws set-forth in the first half of the twelfth century. Contempt of
the king‘s writ was mentioned in the laws of king Henry-1. In the
same laws there was mention of pecuniary penalty for contempt or
disregard of orders. Thus in England before the end of the twelfth
century contempt of court was a recognised expression and applied to
the defaults and wrongful acts of suitors.
After making a study of cases in the thirteen century John
Charles Fox concluded that there was no indication of trial of
contempt out of court otherwise than in the ordinary course of the law
and many cases of contempt in court were tried by indictment and not
by a summary process. If the contempt is confessed there was no need
10
11
Report of the Committee on Contempt of Court, 2 (1974).
Joseph H. Beale’s, Contempt of Court Criminal and Civil, 1908, 21 Harv. L. R., p. 161.
31
for trial by jury and such cases of contempt were disposed off by
sentence upon confession. The earlier form of procedure was
attachment by Bill, when trial by jury was followed, unless the
accused confessed. Later the Star Chamber practice of attachment
and examination without jury was substituted for the procedure by
Bill.12
From fourteenth century onwards the jurisdiction of the King‘s
Justices to punish contempts of a criminal nature summarily was
limited to offences not heinous, committed in court in the actual view
of the justices. The summary jurisdiction was held to extend to all
contempts whether committed in or out of court.13
(i)
KINDS OF CONTEMPT UNDER ENGLISH LAW
Many jurists and judges tried to classify contempt. The
definition of contempt of court given in the leading case Birch v.
Walsh,14 has been accepted by the Supreme Court of India in D. J.
Shield v. Ramesam.15 There the court gave three categories of
contempt:
(i)
Contempt in respect of the order of courts,
(ii)
Contempt by letters or pamphlets addressed to the judge
who is to decide the case with the intention either by threats
or flattery or bribery to influence his decisions; and
(iii)
Constructive contempt depending upon inference of an
intention to obstruct the course of justice.
With the passage of time, the law of contempt identified two
types of contempt, civil and criminal:
(a) Civil Contempt
Civil contempt appears to have originated in the seventeenth
century from the practice of the Court of Chancery.16 Civil contempt of
court provides for punishment of a person who refused to comply with
12
13
14
15
16
John Charles Fox, The Nature of Contempt of Court, 1921, 37 L.Q.R., p. 191.
John Charles Fox, The Summary Process to Punish Contempt, 1909, 25 L.Q.R. 238.
10 Irish Eq. R. p. 93 (1886).
A.I.R. 1955 Andhra 156.
Report of the Committee on Contempt of Court, 10 (1974).
32
the orders of a court. Consequential sanction will be committal to
prison or fine. Disobedience to orders or judgment directing a person
to do any act (other than the payment of money) or to abstain from
doing anything can be enforced by attachment or committal.17 In
Harvey v. Harvey, 18 the Court of Chancery held that attachment and
committal are alternate remedies whether the order to be enforced is
mandatory or prohibitory. In Spokes v. Ban Bury Board of Health, 19
it was held that the power to order attachment has to be exercised
with greatest care. If a party wilfully disobeyed an order of injunction,
committal is appropriate.
The orders of court if wilfully disobeyed do constitute contempt.
This commonly consists in a party‘s doing otherwise than he is
enjoined to do, or not doing what he is commanded or required to do
by the process, order or decree of the court.20 In Minglan v.
Wheatley,21 a writ of attachment was granted against a county for
trying an action after a certiorari had been issued, but the contempt
not being willful, that attachment was ordered to lie in office for a
month so that the judge may have the opportunity of complying with a
second certiorari. Oswald says22 an order must be implicitly observed
but disobedience if it is to be punishable as contempt must be willful.
Before an attachment can be ordered the disobedience must be proved
to have been willful.23 In other words it is intended to exclude casual,
accidental or unintentional acts of disobedience.24 The Privy Council
in Barton v. Field,25 held that the failure of the judge of the ViceAdmiralty Court at Gibraltar to comply with their monition was
contempt, but the penal consequences of attachment did not follow for
the following reasons according to their Lordships:
17
18
19
20
21
22
23
24
25
Callow v. Young, (1887) 56 L.J. Ch. 690.
(1884) 26 Ch. D. 654.
(1865) L.R. 1 Eq 42.
Miller v. Knox, (1878) 4 Bing N. C. 574.
(1851) 6 Ex. 88.
Oswald James F., Contempt of Court: Committal, Attachment, and Arrest upon Civil Process,
3rd edition, Butterworths: London, 1910, p.102.
Dodington v. Hudson, (1824) 8 Moore 510.
Stan Court v. Trowbridge Urban District Council, (1910) 26 T. L. R. 407.
(1843) 4 P. C. 273.
33
―We are of opinion that it is not sufficient, for the purpose of
visiting him with the penal consequences which it has been
endeavored to attach upon him, that he may have committed an error
of judgment. We think it must be proved to our satisfaction not only
that there was error, but that in addition to there being an error, it
was willful error and proceeded from corrupt or improper motives.‖
In Davis v. Rhayoder Granite Quarries Ltd., 26 it was held that
the contempt by disobedience to an order of court must be willful. It is
no good if it is casual, accidental and unintentional. If it is repeated it
will be actionable. Intention is of no consequence in the matter of
contempt by disobedience to court‘s order.27 In Shoppe v. Nathan
and Co.,28 it was held that where the disobedience is not willful but
unintended it is not punishable by imprisonment. In such a case the
respondent may be ordered to pay the costs of the application29 on the
ground it is only technical contempt in theory. Orders even if
improperly obtained must be obeyed. The party disobeying it will be
liable in contempt. His proper remedy will be to apply to the court for
relief.30
In Scott v. Scott,31 Viscount Haldane, Lord Chancellor,
observed that appellants were not guilty of contempt because the
order disobeyed was illegal was not in fact canvassed in the
arguments in the case and the other Lords based their judgment on
other grounds. So the principle enunciated above32 is still good law
that a party has to obey also illegal orders unless he has them
corrected through the court.
In Phonographic Performance Ltd. v. Amusement Caterers
(Peck ham) Ltd.,
33
the Court held that in case of civil contempt of
court involving willful disobedience to an order of the court, there is
power in court to impose a fine instead of committal or sequestration.
26
27
28
29
30
31
32
33
(1911) 131 L.T.J. 79.
A. G. Walthamstow v. D. C., (1895) 11 T.L.R. 533.
(1892) 1 Q. B. 245.
Halsbury’s , Laws of England, 3rd edition, Vol. 8, p. 20 para 37.
Woodward v. Lincohn, (1674) 3 Swan 626.
(1913) A.C. 417.
Woodward v. Lincohn, (1674) 3 Swan 626.
(1963) 3 All. E. R. 493.
34
As is pointed out in Halsbury’s Laws of England,34 Cross, J,
states that where there has been willful disobedience to an order of
the court and a measure of contumacy on the part of the defendants,
then civil contempt, what is called contempt in procedure, bears a two
fold character, implying as between the parties to the proceedings
merely a right to exercise and liability to submit to a form of civil
execution, but as between the party in default and the state, a penal
or disciplinary jurisdiction to be exercised by the court in the public
interest.‖
In British Motor Trade Association v. Hewitt,35 the Court has
exercised the power to fine instead of committing the defendants to
prison. Cross J. was of the opinion that if there was contumacious
behaviour the court must have the power to impose also the penalty of
fine.
From the above discussion it is clear that civil contempt of court
involves willful disobedience to an order of the court. In civil contempt
the court has exercised the power to fine instead of committing the
defendants to prison.
(b) Criminal Contempt
Criminal
contempt
is
considered
as
misdemeanour
on
indictment. The penalty is fine or imprisonment or by order to give
security for good behaviour. It includes any kind of interruption or
interference in the administration of justice in or out of court. But
contempt committed out of court was punished in the sixteenth
century, by common law, only after trial in the ordinary courts and
not by any summary process.36 A distinction was made between
contempt in court and out of court in the case of strangers. Contempt
by strangers out of court was tried by information or by attachment
and examination in the common law courts. This practice continued
through the eighteenth century and the procedure by attachment and
examination was confirmed by the opinion of Chief Justice Wilmot in
34
35
36
3rd edition, Vol. 8, p. 20, para 38.
(1951) 1 C.L.C. 1726.
John Charles Fox, The Nature of Contempt of Court, 1921, 37 L.Q.R., p. 191.
35
King v. Almon,37 case and finally established as law by Justice
Holrayed in the King v. Clements.38
According to the Halsbury’s Laws of England,39 the following
are the main characteristics of the criminal contempt:
(i)
Privilege is not allowed thereunder;
(ii)
There is no appeal from the order of committal or
attachment;
(iii)
It is open to the Sheriff to break open an outer door (this can
be even on a Sunday);
(iv)
There can be an order of discharge from custody conditional
on payment of costs;
(v)
The prerogative of the Crown to remit sentence for criminal
contempt.
According to the Halsbury’s Laws of England,40 criminal contempt
may be classified:1.
Contempt in face of the court
It
includes
any
act
which
interferes
with
the
administration of justice such as:
(a)
Throwing missiles at judges
(b)
Insulting any person in court
(c)
Impeding the passage into or to court by those who
have business there and the like.
2.
37
38
39
40
Speeches or writing tending to defeat the ends of justice:
(a)
Contempt out of court by speech or writing
(b)
Attack upon Judges
(c)
Comment on pending proceedings
(d)
Newspaper articles, photographs
(e)
Interference with fair trial
(f)
Reflection on parties
(g)
Publication of pleadings, reports etc.
(1765) Wilmont 243.
(1876) 46 L.J. Ch. 375.
3rd edition, Lexis Nexis Butterworths, London, Vol. 8, p. 4.
Ibid. p. 7.
36
3.
Obstruction of persons officially connected with the court or
proceedings:
4.
(a)
Obstructing officers of court
(b)
Obstructing process-servers
(c)
Obstructing solicitors
(d)
Obstructing receivers, liquidators, sequestrators
(e)
Obstructing Sheriffs, Admiralty Marshal
(f)
Privilege from arrest
(g)
Obstructing witness
(h)
Personating or interfering with the jury
Obstructing parties: abusing the process of court:
(a)
Obstructing parties to proceedings
(b)
Interfering to the prejudice of an infant who is a ward
of court
5.
(c)
Interfering with a person of unsound mind
(d)
Abuse of process
Breach of duty by persons officially connected with court or
proceedings:
(a)
Contempt by solicitors
(b)
Contempt by receivers
(c)
Contempt by Sheriffs and bailiffs
(d)
Contempt by counsel
(e)
Contempt by jurors
(f)
Contempt by gaolers
(g)
6.
Contempt by judges of inferior courts
Inferior courts:
(a)
Contempt of inferiors courts
(b)
Indictment for disobedience to justice‘s orders
It is important to point out that the art of printing and
publishing brought into prominence another form of criminal
contempt known as indirect criminal contempt or constructive
contempt. The issue is again aggravated with the invention of
Television, Telephone, Computer, Internet and other electronic
37
gadgets. The origin of indirect contempt is traceable from the opinion
expressed by Lord Hardwicke Lord Chancellor in St. James Evening
Post Case.41 His Lordship expressed that there are three different
sorts of contempt. One kind of contempt is scandalising the court
itself. There may likewise be contempt of this court in abusing the
parties who are concerned in causes here. There may also be
contempt of court in prejudicing mankind against persons before the
cause is heard.
Scandalising the
court, abusing parties and
prejudicing mankind against persons before the cause is heard are
instances of indirect criminal contempt.
Further extension of the law of constructive contempt could be
seen in the opinion of Wilmot J. in King v. Almon’s42 case. The
opinion states as follows:
―The power, which the courts in West Minster Hall have of
vindicating their own authority is coeval with their first foundation
and institution, it is a necessary incident to every court of justice,
whether of record or not to fine and imprison for a contempt to the
court, acted in the face of it and the issuing of attachments by the
Supreme Courts of Justice in West Minster Hall, for contempts out of
court, stands upon the same immemorial usage as supports the whole
fabric of the common law. But when the nature of the offence of
libeling judges for what they do in their judicial capacities, either in
court or out of court, comes to be considered, it does, in my opinion
become more proper for an attachment than any other case
whatsoever.‖
(ii)
DISTINCTION BETWEEN CIVIL AND CRIMINAL CONTEMPT
UNDER ENGLISH LAW
The distinction between civil and criminal contempt was
scanned in ‘O’ Shea v. ‘O’ Shea and Parnell.43 In that case one
James Tushy had published in a newspaper an article commenting on
41
42
43
(1742) 2 Atk. 469.
(1765) Wilmont 243.
(1890) 15 P.C. 59.
38
the conduct of Captain O‘ Shea, the petitioner in a divorce suit against
his wife for dissolution of marriage on account of her alleged adultery
with parnell. James Tushy was fined £ 100 and he appealed to the
Court of Appeal. The question was whether the matter was a criminal
matter in respect of which there could be no appeal by reason of
Section 47 of the Supreme Court of Judicature Act, 1872. It was
argued that impugned order was made in a civil cause and was but
was also so headed.
Cotton L. J. held that no doubt the notice of motion is so
entitled in the divorce suit, but it is entitled in the matter of an
application against Tushy, and the essential part of the motion is the
application to commit Tushy for contempt. It is convenient that the
notice should be entitled in the cause to show to what matter, the
motion to commit refers; but what gives the court the power to act is
the fact that the appellant has done something to prevent the course
of justice by preventing the divorce suit from being properly tried. This
is clearly a contempt of court of a criminal nature……It is conceded
that it was a wrongful act; otherwise there could be no fine or
imprisonment. And when you conceded that it is a wrongful act, you
find that, although it is headed in the divorce action, it is not a
proceeding in the action – not a proceeding for the purpose of
obtaining anything in the action, but an application to punish an
attempt to induce the jury not to try the case properly, which is as
much a criminal act, as an attack upon the judge himself.
In Roach v. Garvan,44 Lord Harwick‘s divided contempt into
three types:
1.
Scandalizing the court itself.
2.
Abusing parties concerned in causes.
3.
Prejudicing mankind against persons before the cause is
heard.
The second variety has in modern times merged into the third in so far
as printed publications are concerned. Lord Russel, C. J., said in R. v.
44
(1742) 2 Atk. P. 471.
39
Payne,45 ―every libel on a person about to be tried is not necessarily a
contempt of court but the applicant must show that something has
been published which either is clearly intended or at least is
calculated to prejudice that trial which is pending‖. A writ is issued in
civil causes while in criminal causes arrest of the accused or
summons against the defendant starts the proceedings. Prejudicing
fair trials is indeed contempt.
(iii)
PREJUDICING CRIMINAL TRIALS
In R. v. Davies,46 a woman who had abandoned an infant child
was remanded and committed for trial on a charge of attempted
murder. In between the date of her arrest and trial, a newspaper
published a series of articles headlined ‗Traffic in Babies,‘ ‗Baby
Forming Sensations, etc.‘ Grave reflections were made on the
character of the woman and citations were made of her alleged prior
convictions under another name. Mr. Justice Will fined the editor
£100 and costs, following the ruling in R. v. Parke.47 Justice Will in
this case says:
―The reason why the publication of articles like those with which
we have to deal is treated as contempt of court is because their
tendency and sometimes their object is to deprive the court of the
power of doing that which is the end for which it exists, namely, to
administer justice duly and impartially and with reference solely to
the facts judicially brought before it. Their tendency is to reduce the
court which has to try the case to impotence, so far as the effectual
elimination of prejudice and prepossession is concerned. It is difficult
to conceive an apter description of such conduct than is conveyed by
the expression ‗contempt of court‘. ‖
The Kings Bench in R. v. Daily Mirror,48 held that sometimes
even a publication of a photograph of the accused after arrest may
affect the giving of evidence by possible witnesses, particularly when
45
46
47
48
(1896) 1 Q.B. p. 580.
(1906) 1 K.B. p. 32.
(1903) 2 K.B. p. 432.
(1927) 1 K.B. 845.
40
the identity of the accused is clearly in question. To that extent the
publication has impaired a fair trial. In R. v. Evening Standard,
Manchester Guardian and Daily Express,49 the Kings Bench held
that an accused‘s antecedents if published in a paper do affect the
mind of the jury and the public. To that extent public confidence in
the administration of justice may be affected. It is contempt for
newspapers to employ detectives and to print results of their enquiries
in an obviously pending matter before a court or even in an
imminently pending criminal charge.
But in R. v. Grey,50 it was held that the publication of a fair
and accurate report of the proceedings in a police court is not
contempt. Section 3 of the Law of Libel Amendment Act, 1888,
protects only libelous publications made in legal reporting bona fide
made. That Section does not protect ‗contempt of court‘. The report of
a public examination of a bankrupt was held to be ‗contempt‘51 and
was not protected by the above section. A fair and accurate report of a
recorder‘s charge to the grand jury was held privileged.52 Since then
grand juries have been abolished. It is contempt to publish comments
or facts on or of future cases.53
(iv)
PREJUDICING CIVIL CASES
Criminal trials evoke more public interest than civil cases and
hence undesirable publications more easily affect criminal trials. In
civil cases it is natural for the court to require stronger evidence
demonstrably showing that a prejudice is likely to be caused. May be
names of parties are omitted but the matter published can easily rivet
public attention on the intended victim. That may tend to prejudice a
fair trial for him and if the prejudiced citizen is to serve on the jury, it
will jeopardize the victim‘s cause. In Thorn Hill v. Steele Morris,54 a
landowner had issued a writ against a vicar to prevent a threatened
49
50
51
52
53
54
(1924) 40 T.L.R. 833. See also R. v. Tibbits and Windust, (1902) 1 K.B. 77.
(1865) 10 T.L.R. p. 184.
James v. Flower, (1894) 11 T.L.R. 122.
R. v. Editor and Publisher of Evening News, (1925) 2 K.B. p. 158.
R. v. Balfour, (1895) 11T.L.R. p. 492.
(1911) 56 Sol. Jour., p 34.
41
trespass. A local daily published the incident without names trying to
draw out a political moral. But all the citizens understood the
reference and the court felt it was contempt as the local gents who
were prejudiced, if called to serve on the jury or to give evidence as
witnesses, would be subject to bias to the detriment of a fair trial.
How newspapers can give publicity to their views and bias in a
covered way is illustrated by the case in O. Malley v. Clarke.55 The
impugned newspapers in cataloguing a list of forthcoming trials said
with reference to one case: ―The sum of £ 1800 with interest and
dividends is claimed by the plaintiff from the defendant, Clarke, on the
ground of alleged misrepresentation in connection with several named
companies. Hunt further claims £ 500 against both defendants for
alleged misrepresentation in connection with the business of the
defendant, Adams. Mourners over the Moldacot fiasco are likely to
hear a little inside history of the business.‖
Though the King‘s Bench Division held this is no contempt, the
Court of Appeal held it was contempt though somewhat technical.
Lord Justice Fry posited:
―It appears to me to suggest that the defendant is a person who
is ……… mixed up with companies of a somewhat doubtful character
and it appears to suggest that in the course of the trial hidden things
of darkness will be brought to light. It appears to my mind further to
suggest that in the course of trial disclosures will take place which will
be interesting to investors by way of warning…………and I think there
has been what is technically a contempt of court, because I think it
does (to use the language of Lord Hardwicke) prejudice mankind
against persons before the case and thereby prevent a fair trial of the
case………‖56
In re Williams Thomas Shipping Co. Ltd.,57 it was held that it
is most objectionable to abuse parties to a pending cause so as to
prejudice their cause and also prevent witnesses coming forward to
55
56
57
(1889) 61 L.T. 343.
O. Malley v. Clarke, (1889) 61 L.T. 343.
(1930) 2 Ch. P. 368.
42
depose in a party‘s favour. It is indeed clear contempt and will
prejudice the civil trial. While the press does often act too prematurely
or too zealously out of all needs of the occasion thus rendering itself
liable to an action in contempt, litigants are also often out to harass
honest journalists by ill-conceived and hasty actions. Thus in Plating
Co. v. Farquharson,58 a newspaper published advertisements by a
defeated litigant soliciting donations for preferring an appeal and also
offering a reward to anyone producing certain necessary documents.
Sir George Jessal, Master of the Rolls, held it was no contempt and
added:
―I must add that the practice of making these motions against
innocent people like editors and printers of newspapers ought to be
discouraged as far as possible.‖
Lord Russel expressed similar views in R. v. Payne,59 that to
publish pleadings or affidavits of parties in a pending civil action is
most objectionable as it will certainly tend to create prejudice in the
mind of the public. If this is published before trial it is worse. In R. v.
Astor,60 it was held that to publish particulars of fraud as given in a
writ is also contempt. Similarly in R. v. Wealdstone News,61 it was
observed that moneys paid into court without prejudice to satisfy a
plaintiff‘s claim, is followed often by a contest. If a newspaper
publishes the payment only without disclosing the real points of
controversy, it is liable in contempt.
If advertisements are intended and do really tend to prejudice
the other party contempt is committed. In Butler v. Butler,62 a
divorce case the husband‘s advertisement offering a reward for
evidence of a young married woman with a child ‗probably not
registered‘ was not bona fide. It tended to prejudice the wife in the
eyes of the public and so was held as contempt. In Broadribb v.
58
59
60
61
62
(1881) 17 C.D. p. 49.
(1896) 1 Q. B. 577.
(1913) 30 T.L.R. p. 10.
(1925) 41 T.L.R. p. 508.
(1888) 13 P.D. 73.
43
Wall,63 the advertisement by the husband offered a reward for
information regarding the originators of the charges against himself
which he had denied. It was held to be clear contempt. Of course the
editor and printer cannot be answerable for this if they had no
knowledge of the evil motive of the husband.
(v)
PROCEDURE IN CONTEMPT UNDER ENGLISH LAW
The King‘s Bench in R. v. Tibbits and Windust,64 observed that
contempt is punishable just like other crimes by the process of
indictment at the assizes. There can also be an injunction obtained
restraining the repetition of the offending publication.65 Then there is
the quick summary method which is at once punitive and preventive.
In Reo Connor Cheshur v. Straus,66 it was held that any party
to an action civil and criminal can move by a petition with an affidavit
detailing all the circumstances for a rule nisi for attachment. If the
court feels that a fair trial will be impeded otherwise, it can order the
attachment
unless
the
contemnor
‗shows
cause‘
against
the
attachment. Otherwise the attachment will be made absolute. This
applies to all categories of contemnors, party to a cause, witness, third
person, editor, printer and publisher of newspaper, etc. The latter
cannot plead ignorance or want of knowledge that the offending
matter was at all published in their paper.
On the day fixed in the rule nisi the contemnor can appear, file
affidavits and explain his conduct, justifying his acts or asking for
pardon by an adequate for his conduct. The court can then accept the
apology or refuse to accept it. It can make the rule absolute and
impose a fine or imprisonment or both or merely direct payment of
costs in cases of contempt of technical nature.
In R. v. Davies,67 Bench held that the motion for contempt has
to be made in the court where the contempt was committed. In respect
63
64
65
66
67
(1886) 11 P.D. p. 66.
(1902) 1 K.B. p. 77.
R. v. Wealdstone News, (1925) 41 T.L.R. p. 508.
(1896) 12 T.L.R. p. 291.
(1906) 1 K.B. p. 32.
44
of actions in Chancery and Probate Divorce and Admiralty Divisions,
application for a rule nisi is made to a single judge. But in the King‘s
Bench Division it is dealt by a Divisional Court usually of three
judges. The latter court also deals with all applications for attachment
for contempt with reference to criminal prosecutions. These include
proceedings before the justices in petty sessions or commitment for
trial to the assizes or quarter sessions, and all applications relating to
contempt of inferior courts, e.g., County Courts, Courts Martial and
Consistory Courts.
(vi)
NATURE OF CONTEMPT UNDER ENGLISH LAW
Lord Hardwicke in Read and Huggonson Reach v. Garyan,68
said: ―Nothing more is incumbent upon the Courts of Justice than to
preserve their proceedings from being misrepresented; nor is there
anything of more pernicious consequences than to prejudice the
minds of the public against persons concerned as parties in causes,
before the cause is finally heard. There cannot be anything of greater
consequence than to keep the streams of justice clear and pure, that
parties may proceed with safety both to themselves and their
characters.‖
Oswald69 says, ―All publication which offend against the dignity
of court or are calculated to prejudice the course of justice will
constitute contempt. Offences of this nature are of three kinds,
namely, those which:
(1) scandalise the court or
(2) abuse the parties to the causes concerned there or
(3) prejudice mankind against persons before the cause is
heard.
Under the first head fall libels on the integrity of the courts, its
judges, officers or proceedings; under the second and third head
anything which tends to excite prejudice against the parties or their
litigation, while it is pending. For example, attack on or abuse of a
68
69
(1742) 26 E.R. p. 683.
Oswald James F., Contempt of Court: Committal, Attachment, and Arrest upon Civil Process,
3rd edition, Butterworths, London, 1910, p.91.
45
party, his witnesses or solicitor constitute contempt, though a mere
libel on a party, not amounting to an interference with the course of
justice, does not, the party being left to his remedy by action.‖
It is clear from above that mere attacks or abuse of a party, his
witnesses or solicitors do not amount to contempt, if they do not
interfere with the course of justice. The parties in such case are left to
remedy by appropriate action. In R. v. Parke,70 Wills J., posited: ―the
reason why the publication of articles like those with which we have to
deal is treated as contempt of court is because their tendency and
sometimes their object is to deprive the court of the power of doing
that which is the end for which it exists—namely, to administer justice
duly, impartially and with reference solely to the facts judicially
brought before it. Their tendency is to reduce the court which has to
try the case to impotence, so far as the effectual elimination of
prejudice and prepossession is concerned. It is difficult to conceive of
an apter description of such conduct than is conveyed by the
expression ‗contempt of court‘. ‖
In Plating Co. v. Farquharson,71 an injunction was granted
restraining the defendants in that suit from infringing a patent for
nickel plating which they had notice of appeal. They inserted an
appeal by way of advertisement in a newspaper calling upon the trade
to subscribe towards expenses of appeal. An advertisement was made
offering a reward for procuring documentary evidence that nickel
plating was done before 1869. The plaintiff moved the court for
contempt action against the defendants. It was held merely calling for
aid to finance the appeal was not objectionable. The offer for procuring
documentary evidence though not ethical was inoffensive and could
not prejudice the fair hearing of the appeal.
The Libel Act, 1888 was passed and it permitted fair and
accurate reports of judicial proceedings. But in R. v. Parke,72 it was
held
that
70
(1903) 2 K.B. p. 432.
(1881) 17 Ch. D. p. 49.
(1900) All. E. R. 721.
71
72
contempt
proceedings
were
followed
against
erring
46
publishers. The County Courts Act, 1959 provided for punishment to
any person who wilfully insulted the judge of the County Courts,
jurors, witnesses or any officer of the court including courts other
than Court of Record. In 1974, a Committee on Contempt of Court
chaired by Justice Phillimore had laid down the basic test for deciding
contempt by publication.
The test of contempt is whether the publication complained of
creates a risk that the court of justice will be seriously impeded or
prejudiced. The Committee recommended that a defence on the line of
general public discussion should be created by Statute. At the same
time the Committee recommended that public benefit should not be
made as a defence. These recommendations of the Committee found a
place in the Contempt of Court Act, 1981.73 The Act is the result of the
report filled by Phillimore Committee and also the decision of the
European Court of Human Rights.
On a reading of the Act it is clear that it mainly deals with the
‗strict liability‘ rule and its application to publications which affect the
judicial proceedings. However uncertain its definition and scope may
be in some respects contempt of court is undoubtedly one of the great
contributions the common law has made to the civilized behaviour of a
large part of the world beyond the Continent of Europe where the
institution was unknown.74
1.3.2 ORIGIN AND DEVELOPMENT OF THE LAW OF CONTEMPT
IN CANADA
The Canadian Judicial Council75 recognizes that there has been,
from time to time, some public criticism of the existence and use of
judges‘ powers in relation to contempt of court even though many
judges have never found it necessary to use that to maintain order in
their courtrooms. Indeed, some judges believe that this power, and the
73
74
75
Report of the Committee on Contempt of Court, 2 (1974).
F. A. Mann, Contempt of Court in the House of Lords and European Court of Human Rights,
1979, 95 L. Q. R., p. 348.
The Canadian Judicial Council, Ottawa, Ontario, was established in 1971, to help promote
efficiency, uniformity, and accountability, and to improve the quality of judicial service in the
superior Courts of Canada.
47
potential for its use in proper circumstances, is one of the principal
reasons why Canadian judicial proceedings are generally conducted
with dignity and efficiency. In addition, the inherent jurisdiction of the
courts to deal with out of court contempts that interfere with the
proper administration of justice, and the powers of the courts to
enforce their orders, may have a general salutary influence upon the
maintenance of the Rule of Law. From time to time, however, courts
may have used their contempt powers unwisely.
The Canadian Judicial Council requested its Committee on the
Administration of Justice76 to undertake a study of the law of
contempt and to prepare proposals or guidelines for the management
of contempt powers in order to assist judges, promote uniformity, and
avoid abuse.
The first draft of these guidelines was distributed in
November 1986 to the judiciary in the form of a Working Paper.
(i)
PRINCIPLES FOR JUDICIOUS USE OF CONTEMPT POWERS
UNDER CANADIAN LAW
It is very important to check misuse of this extraordinary power.
For judicious use of this power the following important points cited in
R. v. Bunn, 77 are to be kept in mind:
(1)
Contempt of court is the mechanism which the law provides for
the protection of the authority of the court from improper
interference.
(2)
Contempt of court powers do not exist for the protection of the
personal dignity, honour or reputation of the judges, only for
courts and judges as judges.
(3)
Contempt of court is part of a court's inherent jurisdiction and,
as it is not precisely prescribed or enacted, should be exercised
with scrupulous care and only when the circumstances are clear
and beyond reasonable doubt.
(4)
Contempt of court can be:
(a)
76
77
in the face of the court, i.e. actually in court or in the
The Committee carries out the Council’s mandate to promote efficiency, uniformity, and
accountability, and to improve the quality of judicial service in the superior Courts of Canada.
(1994) 97 M.R. 20 (C.A.).
48
cognizance of the court; or
(b) out of court; and, either form of contempt can be;
(c)
civil contempt by a breach of the Rules of Court,
disobedience of a court order or other misconduct in a
private matter causing a private injury or wrong; or
(d) criminal contempt by any private or public conduct that
interferes with a court's process or seriously threatens the
proper administration of justice.
(5)
Civil contempt is governed in the context of an existing
proceeding according to the Rules of Court.
(6)
Criminal contempt is governed by summary process fixed by the
court to meet the exigencies of the situation. This process is not
governed by the Rules of Court.
(7)
In trying contempt summarily, the judge can act upon his or her
personal knowledge regarding any matter of which the court has
cognizance, but he or she must otherwise act upon evidence.
(8)
Judges should be quick to identify and deal with abuse or
misconduct in some way, but slow to commence contempt
proceedings. The court's jurisdiction should be exercised not on
personal grounds but only to preserve the court's process and
authority.
(9)
Insults and other indignities in court should be dealt with other
than by contempt proceedings, unless the conduct is such that
the ability of the court to administer justice properly is
significantly impaired. Insults against a judge out of court that
do not actually interfere with the administration of justice, or are
not intended to cause disrepute to a court, are not an offence.
This is particularly so with respect to proceedings that has been
completed.78
(10) Except in exceptional circumstances immediately affecting the
proper administration of justice, the preferred course is to leave
78
R. v. Bunn, (1994) 97 M.R. 20 (C.A.).
49
the initiation and conduct of proceedings for contempt out of
court to the parties in litigation or to the Attorney General.
(11) A judge should conduct contempt proceedings calmly and
judicially and it is usually preferable to refer any matter to
another judge if there is any reasonable perception of bias or
prejudgment. A judge should not sit in judgment on his or her
own conduct. However, a judge should never hesitate to deal
firmly and immediately with misconduct that arises in the
course of proceedings, particularly if other parties will be
prejudiced by delay or unpunished misconduct.
(12) Even where it is necessary to act immediately to preserve the
court's authority, contempt proceedings must be conducted
fairly and, in most cases, there will be no reason not to adjourn
the actual hearing to a later time when the alleged contemnor
may have proper legal representation.
(13) Criticism is not necessarily contempt even though it may be
defamatory. Criticism during the course of a trial not calculated
to interfere with the course of justice is not contempt. When the
case is over, all participants, judges, juries, witnesses, counsel
and the law are subject to robust criticism, but no one has the
right during the course of proceedings intentionally to interfere
with such proceedings or otherwise jeopardize a fair trial.
(ii)
DEFINITION OF CONTEMPT UNDER CANADIAN LAW
A succinct and frequently quoted definition of contempt is found
in R. v. Gray,79 where Lord Russell, C.J. offered the following:
―Any act done or writing published calculated to bring a Court
or a judge of the Court into contempt, or to lower his authority, is a
contempt of court. That is one class of contempt. Further, any act
done, or writing published calculated to obstruct or interfere with the
due course of justice or the lawful process of the Court is a contempt
of court.‖
79
(1900) 2 Q.B. 36, at 40.
50
However, in re Hawkins’ Habeas Corpus Application, 80 it was
held that contempt arises in many ways. It may be an angry outburst,
a contemptuous gesture, a professional indiscretion81, a refusal to be
sworn or answer a question82, a deliberate or accidental publication of
a statement sub judice83, an interference with proceedings or a
witness,84 a breach of a court order,85 an attempt to obstruct the
administration of justice,86 a deliberate attack upon the integrity of a
court or a judge that interferes with proceedings,87 or some other form
of conduct not now foreseeable. Each form of contempt presents
special problems that must be assessed carefully.
Generally speaking, contempt falls into four main legal categories:
(1)
interfering with judicial proceedings including publications sub
judice;
(2)
improper criticism of a court or judge that interferes with
proceedings etc.;
(3)
disobedience of orders or judgments; and
(4)
a residual category relating to obstruction of a court process or
officer. 88
Dickson, C.J., in British Columbia Government Employee
Union v. A.G. of British Columbia,89 speaking for the court on this
point said that in some instances the phrase "contempt of court" may
be thought to be unfortunate because, as in the present case, it does
not posit any particular aversion, abhorrence or disdain of the judicial
system. In a legal context the phrase is much broader than the
common meaning of "contempt" might suggest and embraces "where a
person, whether a party to a proceeding or not, does any act which
80
81
82
83
84
85
86
87
88
89
(1965) 53 W.W.R 406 (B.C.S.C.).
R. v. Hill, (1974) 5 W.W.R. 1 (B.C.S.C.).
R. v. Vaillan Court, (1981)1 S.C.R. 69.
R. v. Froese, (1980) 1 W.W.R. 667 (B.C.S.C.).
Morris v. Crown Office, (1970) 2 Q.B. 114.
Poje v. Attorney General for B.C. (1953) S.C.R. 516.
Re B.C.G.E.U., (1984) 1 W.W.R. 399 (B.C.S.C.).
Re Duncan, (1958) S.C.R. 41.
British Columbia Government Employee Union v. A.G. of British Columbia, (1988) 2 S.C.R.
214.
(1988) 2 S.C.R. 214.
51
may tend to hinder the course of justice or show disrespect to the
court's authority", "interfering with the business of the court on the
part of a person who has no right to do so", "obstructing or attempting
to obstruct the officer of the court on their way to their duties."
It was clearly established in Mckeown v. The Queen,
90
that
contempt is not a personal matter: "contempt of court" is well known
in the vocabulary of the law. It is also well known that it is not a
phrase to be taken literally in any sense of being concerned with
protection of the personal dignity of the Judge or the honour of the
court. It is rather a sanction to serve the administration of justice in
the public interest.
(iii)
JURISDICTION UNDER CANADIAN LAW
The law of contempt derived from the Common Law and has
developed case by case within the inherent jurisdiction of a superior
court. It has been said that the courts of justice exist for the benefit of
the people91 and that, for this reason, the authority of the court must
be protected from unauthorized interference.92
An exhaustive review of most of the cases up to 1967 in Great
Britain, Canada and the America on this issue is found in the
judgment of Tremblay, C.J. in Attorney General of Quebec v.
Hebert.93 The basic principle has been stated by Sir Jacobs in "The
Inherent Jurisdiction of the Court":
On what basis did the superior courts exercise their powers to
punish for contempt and to prevent abuse of process by summary
proceedings instead of by the ordinary course of trial and verdict? The
answer is, that the jurisdiction to exercise these powers was derived,
not from any statute or rule of law, but from the very nature of the
court as a
Superior Court of law, and for this reason such jurisdiction has been
called "inherent". This description has been criticised as being
90
91
92
93
(1971) 16 D.L.R. 390.
R. v. Davies, (1906) 1 K.B. 32.
Morris v. Crown Office, (1970) 2 Q.B. 114.
(1967) 2 C.C.C. 111.
52
"metaphysical", but I think nevertheless that it is apt to describe the
quality of this jurisdiction. For the essential character of a superior
court of law necessarily involves that it should be invested with a
power to maintain its authority and to prevent its process being
obstructed and abused. Such a power is intrinsic in a superior court;
it is its very life-blood, its very essence, its immanent attribute.
Without such a power, the court would have form but would lack
substance. The jurisdiction which is inherent in a superior court of
law is that which enables it to fulfil itself as a court of law. The
juridical basis of this jurisdiction is therefore the authority of the
judiciary to uphold, to protect and to fulfill the judicial function of
administering justice according to law in a regular, orderly and
effective manner.
This principle was recently restated by the Supreme Court of
Canada in R. v. Vermette,94 where the court ruled that the power to
deal with contempt as part of the inherent and essential jurisdiction of
the courts has existed; it is said, as long as the courts themselves.95
This power was necessary, and remains so, to enable the orderly
conduct of the court's business and to prevent interference with the
court's proceedings.
Applying this reasoning, the Supreme Court of Canada has
rejected the view that Section 486(5) of the Criminal Code restricts or
limits a superior court's inherent power to punish for contempt. In R.
v. Publications Photo-Police Incorpore,96 Kaufman J.A. of the
Quebec Court of Appeal held that Parliament, in enacting s. 486(5),
which had the effect of limiting the penalty for certain kinds of
contempt, had not left intact the Superior Court's inherent power to
punish for contempt. On appeal, the Supreme Court rejected this
view.
The common law jurisdiction in criminal matters is preserved by
Section 9 of the Criminal Code, which prevents any conviction for
94
95
96
(1970) 23 Current Legal Problems, p. 27.
John Charles Fox, The History of Contempt of Court, 1972, London, p. 1.
(1988) 42 C.C.C. 220.
53
offences at common law, but also states: nothing in this section
affects the power, jurisdiction or authority that a court, judge, justice
or magistrate had, immediately before the 1st day of April 1955, to
impose punishment for contempt of court.
The Common Law Jurisdiction of a superior court in contempt
is a part of the inherent jurisdiction of the court and cannot be
abridged or abolished except by a Constitutional Amendment.
(iv)
CLASSIFICATION OF CONTEMPT UNDER CANADIAN LAW
Contempt can be either in the face of the court (in facie), or not
in the face of the court (ex facie), and it can be criminal or civil.
(a)
Contempt in the Face of the Court
Contempt in the face of the court occurs in court or within the
cognizance of the court. This was described by Blackstone in his
Commentaries,97 that if the contempt be committed in the face of the
court, the offender may be instantly apprehended and imprisoned, at
the discretion of the judges. In Oswald,98 said that upon contempt in
the face of the court an order for committal was made instanter and
not on motion. But I find nothing to tell us what is meant by
committed in the face of the court. It has never been defined. Its
meaning is, I think, to be ascertained from the practice of the judges
over the centuries. It was never confined to conduct which a judge
saw with his own eyes. It covered all contempts for which a judge of
his own motion could punish a man on the spot. So contempt in the
face of the court is the same thing as contempt which the court can
punish of its own motion. It really means contempt in the cognisance
of the court.
Lord Denning in Balogh v. St. Albans Crown Court,99 reviewed
a number of cases and mentions, as instances of contempt in the face
of the court, throwing a missile at the judge, disrupting a trial,
refusing to answer a proper question, distributing leaflets in the
97
98
99
(1825), 16th edition, Vol. IV, p. 286.
Oswald James F., Contempt of Court: Committal, Attachment, and Arrest upon Civil Process,
Butterworths, London, 1910, p. 23.
(1975) 1 Q.B. 73(C.A.).
54
public gallery inciting people to picket the Old Bailey (even though the
distributor was not seen by the judge) threatening a witness away
from the court house after she had given her evidence, and an
employer threatening to dismiss an employee if he responded to a
summons to attend court for jury duty.
The examples given by Lord Denning must be viewed with
caution in light of Vermette. There, the accused, who had just pleaded
guilty, followed the complainant into an elevator in the courthouse
and threatened her with severe physical violence. This was found to be
contempt not in the face of the court. It may be that such conduct out
of the presence of a judge could still be contempt in the cognizance of
the court if witnessed by an officer of the court, but the safer course is
to treat any conduct not actually witnessed by the judge as contempt
out of the face of the court. In British Columbia Government
Employee Union v. A.G. of British Columbia,100 Balogh’s case was
cited by Dickson, C.J. and picketing outside the court house was
found to be contempt in the face of the court.
An unusual use of the power to cite for contempt in facie can be
seen in R. v. Peel Regional Police,101 in which the Court required the
defendants to showcause why they should not be found in contempt
for their failure to produce prisoners to courtrooms on a timely basis.
In a lengthy judgment, reviewing the law and procedure relating to
contempt in the face of the court, Justice Hill concluded that, in light
of increased resources being devoted to prisoner delivery and other
improvements introduced after the citation for contempt, the act of
contempt had been terminated.
(b)
Contempt not in the Face of the Court
Most conduct committed out of the face of the court which is
calculated to interfere with the proper administration of justice is
contempt. This could include an attack on the integrity or impartiality
of a judge if it interferes with or prejudices those proceedings, a
100
101
(1988) 2 S.C.R. 214.
(2000) O.J.No. 4446 (Ont. S.C.J.).
55
publication sub judice, a wilful breach of a court order, interference
with a witness, counsel or juror, counseling perjury, fabricating
evidence, etc.
A thorough discussion of the sub judice rule can be found in the
reasons of Berger J. in Alberta v. Interwest Publications Ltd.102 The
elements of the offence of contempt by publication sub judice that
must be proved against the defendant were summarized by Perras J.
in R. v. Bowes Publishers Ltd.103 as follows:
1.
the identity of the respondents as the ones responsible for the
publication;
2.
that it was the activity or conduct of the respondents that
brought about the publication; and
3.
that the respondents intentionally published the articles and at
the time of publication objectively ought to have foreseen that
the articles posed a real risk of prejudice to a fair trial for [the
accused].
The Apex Court in Attorny General v. Times Newspapers104
held that the risk of prejudice to a fair trial must be real, serious or
substantial. Similarly in R. v. Bowes Publishers Ltd.,105 Court held
that it must be more than trifling or trivial but less than a certainty.
Perras J. also held that the fact that the offensive material published
by the defendant (the accused's criminal record) was provided by the
Crown did not entitle the defendant to rely on a defence of officially
induced error or mistake of law.
It was held in Toronto Sun Publishing Corp. v. Attorney
General for Albert,
106
that contempt sub judice can also result from
publishing potentially prejudicial information while the jury is
deliberating. A Court can extend the scope and duration of the
publication ban in Section 648(1) of the Criminal Code, which applies
102
103
104
105
106
(1990) 73 D.L.R. (4th) 83 (Alta. Q.B.).
(1995) 30 Alta. L.R. (3d) 236 (Q.B.).
(1973) 3 All E.R. 54 (H.L.).
(1995) 30 Alta. L.R. (3d) 236 (Q.B.).
(1985) 6 W.W.R. 36 (Alta. C.A.).
56
to evidence led at a voir dire. Where the publication is based on
sources other than voir dire evidence, the question will be, as it is for
all forms of sub judice contempt, whether a fair trial has been put at
risk. The assessment of risk must take account of the fact that, during
its deliberations, the jury should be shielded from media coverage of
the case.
As Henderson J. in R. v. Pacific Press,107 stated: ―I conclude
that, in the usual case, where an adequately staffed sheriff‘s
department is available to enforce the isolation that sequestration
demands
and
where
there
are
no
exceptional
and
unusual
circumstances, publishing prejudicial material after sequestration but
before verdict does not present a real and substantial risk of trial
unfairness.‖
The test for determining sub judice contempt remains the same,
even in light of the decision of the Supreme Court of Canada in
Dagenais v. CBC.108 That case deals with the issuance of publication
bans and does not appear to alter the common law of sub judice
contempt.109
Several decisions have dealt with the question of whether the
fact that a court order was defective provides a defence against a
finding of contempt for violating the order. It would seem from the
decisions outlined below that the law in Canada is firm on this
question: a person can be held in contempt for failing to follow an
order, whether the order is good or bad, until the order is set aside.110
Further, the general rule is "that where a person disobeys an order of
the court, the court will not entertain any application by that person
until he or she obeys the order."111 However, dismissal of a
contemnor‘s civil action may in some circumstances be an excessive
sanction.112
107
108
109
110
111
112
(2001) B.C.S.C. 178, p. 9.
(1994) 3 S.C.R. 835.
R v. Edmonton Sun, (2000) A.B.Q.B. 283.
MacMillan Bloedel Ltd. v. Simpson (1994), 113 D.L.R. (4th) 368 (B.C.C.A.).
F.(E.) v. S.(J.S.) (1995), 30 Alta. L.R. 401 (C.A.)
Werner v. Warner Auto-Marine Inc. (1996) O.J. No. 3368 (Ont.C.A.).
57
The statements of Southin J.A. in Everywoman's Health
Centre Society v. Bridges,113 seem to suggest that it is of no use to
an alleged contemnor to raise in his or her defence that the court
order which was violated applied unconstitutional principles of
common law, or principles inconsistent with the Charter.
MacDonald J., in B.C. (A.G.) v. Mount Currie,114 held that the
validity of a court order could not be raised or questioned during
contempt proceedings for a breach of that order. Furthermore, the
question of whether the court had jurisdiction to make the order in
the first place could not be raised at the contempt proceedings, for
this would amount to a collateral attack on the order itself, contrary to
the doctrine of collateral attack.
McLachlin J., in Human Rights Commission, Canada v.
Taylor,115 expressed the view that the ultimate invalidity of an order
because of its unconstitutionality is no defence to an allegation that a
party acted in contempt of it. Even an invalid court order must be
followed until it is set aside by legal process. However, the wisdom or
validity of the initial decree is a relevant consideration in determining
the appropriate sanction. Furthermore, it would seem that past
contempt is not expunged by the subsequent expiry of an order.
However, in M.G.E.A. v. Health Services Commission,116 the
Manitoba Court of Appeal held that an alleged contemnor could not be
found in contempt when the judgment he was alleged to have failed to
follow was not one which could be entered as a court judgment and
enforced as such.117 Similarly, if the initial order was vague, the
alleged contemnor is entitled to the benefit of a doubt.118
It should also be noted that in United Nurses of Alberta v.
Alberta (Attorney General),119 McLachlin J., held that unions may be
113
114
115
116
117
118
119
(1991) 54 B.C.L.R. (2d) 273 (B.C.C.A.), p. 287.
(1991), 47 C.P.C. (2d) 214 (B.C.S.C.).
(1990) 3 S.C.R. 892, (1991), 75 D.L.R. (4th) 577.
(1991), 71 Man. R. (2d) 252 (Manitoba Court).
Human Rights Commission, Canada v. Canadian Liberty, (1998) 1 S.C.R. 626.
Melville v. Beauregard, (1996) O.J. No. 1085 (Gen. Div.)
(1992) 1 S.C.R. 901.
58
held liable for contempt. Unions have legal status for collective
bargaining purposes, and so "if they exercise their rights unlawfully,
they may be made to answer to the court by all the remedies available
to the court, including prosecution for the common law offence of
criminal contempt."
(c)
Civil Contempt under Canadian Law
Civil contempt usually constitutes a breach of the Rules of
Court or conduct out of the face of the court. A typical case is when a
party fails to deliver documents when ordered to do so, or when a
person bound by an order of a court requiring him or her to do
something or refrain from doing something in a private matter,
disobeys that order. This gives rise to a private injury or wrong at the
suit of another party to the litigation and a civil contempt of the court,
but causing such private injury is not likely to be a criminal contempt
unless it is deliberately repeated or otherwise indicates an intention to
defy the court's authority.
It is not necessary that the alleged contemnor be found in
breach of a specific term in a court order. It is sufficient if his or her
actions "are designed to obstruct the course of justice by thwarting or
attempting to thwart a court order."120 As such, contempt can arise
other than through direct disobedience of a court order - for example,
through interference with the administration of property protected by
a court-appointed receiver.121
Where a court has issued an injunction in the course of civil
proceedings, persons who are not parties to the suit are "if not
technically bound by the order, bound to obey the order."122 As such,
they may be cited for contempt for breach of the order. Accordingly,
"since persons other than named parties may be affected by the order,
and be held in contempt for violating it, it makes good sense to use
language which alerts those people to that risk."123
120
121
122
123
Litterst v. Horrey (1995), 32 Alta. L.R. 40 (C.A.).
Receiver of Merchants Consolidated Ltd. v. Canstar Sports Group Inc. (1994), 113 D.L.R.
(4th) 505 (Manitoba Court).
MacMillan Bloedel Ltd. v. Simpson, (1996) 2 S.C.R. 1048.
Ibid., at 1064.
59
Particular restraint in family law matters should be used in
resorting to powers of contempt. They should be employed only where
a party has intentionally breached a court order or has done so
without lawful excuse. As Veit J. stated in Salloum v. Salloum,
124
"restraint is appropriate given the twin objectives of protecting both
the best interests of the children and the administration of
justice....Children are better off if their parents are not in jail or
paying fines." Still, a jail sentence may be appropriate in family law
matters where it is in the best interests of the family and the public.125
Even civil contempt is, at least in some respects, criminal or
quasi-criminal. The contemnor may be sanctioned by a fine or term of
imprisonment. As such, the elements of civil contempt must be proved
beyond a reasonable doubt.126 In addition, the person cited for
contempt cannot be compelled to testify.127 In some cases, it may not
be necessary even to decide whether the conduct of the contemnor
amounts to civil or criminal contempt.128
Huddart J. of the British Columbia Supreme Court in
Manolescu
v.
Manolescu,129
held
that
a
husband
who
had
consistently refused or neglected to pay support and arrears, and who
had deliberately disobeyed court orders and misled the court, is guilty
of civil but not criminal contempt. The conduct of the husband
affected only his family and did not bring the administration of justice
into disrepute or interfere with the course of justice. However, because
his civil contempt was of the most serious sort, he was sentenced to
90 days in jail.
McEachern C.J. in Stupple v. Quinn,130 held that "proceedings
founded upon allegations of contempt amounting at most to civil
contempt must be pursued strictissimijuris." He held that in the
124
125
126
127
128
129
130
(1994), 154 A.R. 65 (Q.B.).
E.F.S. v. P.D.L. (1995), 171 A.R. 217 (Q.B.).
Pierre v. Roseau River Tribal Council, (1993) 3 F.C. 756 (T.D.).
Videotron Ltee v. Industries Microlec Produits Electroniques Inc., (1992) 2 S.C.R. 1065.
Pierre v. Roseau River Tribal Council, (1993) 3 F.C. 756 (T.D.).
(1991) 31 R.F.L. (3d) 421 (B.C.S.C.).
(1991) 30 R.F.L. (3d) 197 (B.C.C.A.).
60
absence of notice and a full examination of the issue, a finding of
contempt should not be made. In Quebec, Section 50 of the Code of
Civil Procedure codifies civil contempt, inter alia, by providing that
anyone is guilty of contempt of court who disobeys any process or
order of the court or of a judge thereof, or who acts in such a way as
to interfere with the orderly administration of justice, or to impair the
authority or dignity of the court.
Section 51 of the Code of Civil Procedure provides for a fine of
up to $5,000 or imprisonment not exceeding one year for violations of
Section 50 of the Code of Civil Procedure.
(d)
Criminal Contempt under Canadian Law
On the other hand, in Poje v. Attorney General for B.C., 131 it
was held that any person who publicly disobeys a court order or
assists others to do so, or anyone, bound by an order or not, who
publicly attempts to interfere in any way with the due course of
justice, is guilty of a criminal contempt.
This distinction between civil and criminal contempt, approved
by the Supreme Court of Canada in Poje‘s case, is stated in
Halsbury’s Law132 as follows:
Contempt of court is either (1) criminal contempt, consisting of
words or acts obstructing or intending to obstruct the administration
of justice, or (2) contempt in procedure, consisting of disobedience to
the judgments, orders or other process of the court, and involving
private injury.
In Poje‘s case, Kellock, J. furnished the following distinction
between civil and criminal contempt:
―There are many statements in the books that contempt
proceedings for breach of an injunction are civil process, but it is
obvious that conduct which is a violation of an injunction may, in
addition to its civil aspect, possess all the features of criminal
contempt of court. In case of a breach of a purely civil nature, the
131
132
Poje v. A.G. for B.C., (1953) S.C.R. 516.
2nd edition, Vol. VII, p. 2.
61
requirements of the situation from the standpoint of enforcement of
the rights of the opposite party constitute the criterion upon which the
court acts. But a punitive sentence is called for where the act of
violation has passed beyond the realm of the purely civil.‖133
Kellock, J. quoted a statement as follows: ―and, generally, the
distinction between contempts criminal and not criminal seems to be
that contempts which tend to bring the administration of justice into
scorn, or which tend to interfere with the due course of justice, are
criminal in their nature; but that contempt in disregarding orders or
judgments of a civil court, or in not doing something ordered to be
done in a cause, is not criminal in its nature. In other words, where
contempt involves a public injury or offence, it is criminal in its
nature, and the proper remedy is committal - but where the contempt
involves a private injury only it is not criminal in its nature.‖
In United Nurses of Alberta v. Attorney General, Alberta,134
McLachlin J. refers to the distinction between civil and criminal
contempt drawn in Poje‘s case, and offers the following elaboration
regarding the public nature of criminal contempt:
A person who simply breaches a court order, for example by
failing to abide by visiting hours stipulated in a child custody order, is
viewed as having committed civil contempt. However, when the
element of public defiance of the court's process in a way calculated to
lessen societal respect for the courts is added to the breach, it
becomes criminal.
She goes on to say that the gravamen of the offence of criminal
contempt is not actual or threatened injury to persons or property;
other offences deal with those evils. The gravamen of the offence is
rather the open, continuous and flagrant violation of a court order
without regard for the effect that may have on the respect accorded to
edicts of the court.135
133
134
135
2nd edition, Vol. VII, p. 517.
(1992) 1 S.C.R. 901.
United Nurses of Alberta v. Attorney General, Alberta, (1992) 1 S.C.R. 932.
62
While publicity is required for the offence, a civil contempt is not
converted to a criminal contempt merely because it attracts publicity
... rather because it constitutes a public act of defiance of the court in
circumstances where the accused knew, intended or was reckless as
to the fact that the act would publicly bring the court into contempt.
Thus, an outburst in court, being calculated to interfere with
the ordinary course of justice, or refusing to be sworn or to testify is a
criminal contempt. In Slocan Forest Products Ltd. v. Tichenor, 136 it
was held that a public disobedience of an injunction is a classic
criminal contempt. A failure to pay a judgment or to deliver a chattel
ordered to be delivered, however, is probably a private contempt which
is not criminal in the first instance, but may become criminal if there
is a continuing wilful refusal to obey a court order.
McEachern C.J. in Every woman’s Health Centre Society v.
Bridges,137 notes that the determination of whether a contempt
arising in a civil proceeding is criminal or civil contempt is a
determination made by the court in the course of the proceeding. The
nature of the proceeding (criminal or civil) by which the alleged
contemnor is brought before the court is not relevant.
This distinction is very important because it is only criminal
contempt which may be dealt with summarily and, possibly, without
further evidence if it occurs in the face of the court. Where the
contempt occurs not in the face of the court, proceedings will
commence on notice. Civil contempt should be dealt with in
accordance with the usual Rules of Court. These Rules do not apply to
criminal contempt.138
In any case, the usual fairness safeguards must be assured to
any alleged contemnor at the hearing where guilt or innocence is
determined. These safeguards will be more fully discussed later. Even
when someone is taken summarily into custody, he or she should be
136
137
138
(1998) B.C.J. No. 218 (B.C.S.C.).
(1991), 54 B.C.L.R. (2d) 273 (B.C.C.A.).
Poje v. A.G. for B.C., (1953) S.C.R. 527.
63
considered for interim judicial release, and he or she must always be
treated fairly.
(e)
Criminal
Contempt
in
Civil
Proceedings
under
Canadian Law
In many cases arising out of disobedience of an injunction, the
application for contempt will be brought in the civil proceedings, but
the court may nevertheless make a finding of criminal contempt. This
is what happened in Poje‘s case and in many other cases.139
As it is the nature of the impugned conduct that determines
whether a contempt is civil or criminal - a finding that can only be
made after the trial or hearing - it is not necessary that any judicial
declaration be made converting the proceedings from civil to criminal,
or for separate proceedings to be commenced. But the alleged
contemnors
must
be
given
notice
that
they
face
criminal
consequences before the hearing begins. The standard form of notice
initiating contempt proceedings is usually a Writ of Attachment which
gives clear notice of the nature of the proceedings.140
It is usual, whenever the public interest in the administration of
justice is involved, for the Attorney General to appoint counsel to
conduct the contempt proceedings, particularly if the aggrieved party
is unwilling or unable to do so.
(v)
THE DISTINCTION BETWEEN CONTEMPT IN FACIE AND
CONTEMPT EX FACIE UNDER CANADIAN LAW
Every Court of Record has jurisdiction to deal summarily and
immediately with any contempt committed in the face of the court
without other evidence than the facts known personally by the
presiding judge. This includes the power to punish by fine,
imprisonment or expulsion from court.
Lord Denning, M.R. in Morris v. Crown Office,141 put it this
way:-The phrase "contempt in the face of the court" has a quaint old-
139
140
141
Everywoman's Health Centre Society v. Bridges, (1991), 54 B.C.L.R. (2d) 273 (B.C.C.A.).
R. v. Froese, (1980)1 W.W.R. 667 (B.C.S.C.).
(1970) 1 All E.R. 1079, at 1081.
64
fashioned ring about it: but the importance of it, is this: of all places
where law and order must be maintained, it is here, in these courts.
The course of Justice must not be deflected or interfered with. Those
who strike at it, strike at the very foundations of our society. To
maintain law and order, the judges have, and must have, power at
once to deal with those who offend against it. It is a great power - a
power instantly to imprison a person without a trial -but it is a
necessary power. So necessary indeed that until recently the judges
exercised it without any appeal.
When a contempt occurs in the face of the court and the facts
are all known personally by the judge, or they are within the
cognizance of the court, and the alleged contemnor is in court, a
judge, without hearing further evidence but after giving the alleged
contemnor an opportunity to make an explanation, call evidence or
make a submission, may, in a proper case, proceed instantly and
summarily to make a finding of guilt and sentence the contemnor
appropriately. This is a proper course to follow if immediate action is
necessary to preserve order or the authority of the court.
If it is possible, however, the better procedure may be to have
the alleged contemnor taken into custody if it is necessary and then
decide later that day, and certainly no later than the next day, how
and where to proceed. In the meantime, the alleged contemnor should
be given an opportunity to retain and instruct counsel. In either case,
of course, the proceedings must be conducted fairly.
Whether the court proceeds immediately or at a later time or
date depends upon all the circumstances. In R. v. K. B.,
142
it was
held that generally speaking, an alleged contemnor should be granted
an adjournment if he or she requests it and the proper administration
of justice will not be harmed. On the other hand, if a person disturbs
proceedings either by calling a judge an unpleasant name in court or
by some other means, and witnesses are standing by waiting to give
142
(1995) 4 S.C.R. 186.
65
their evidence, etc., it may be necessary to deal with the contempt "on
the spot". This, however, would be the exceptional case.
If the contempt occurs in court but the alleged contemnor has
left, a judge may in a serious case direct that he or she be brought
before the court, in custody if necessary, and if all the facts are not
known to the judge personally, he or she should conduct a hearing in
the presence of the alleged contemnor by taking evidence on issues of
fact not known to the court and reach a conclusion in that way even
though it may be necessary to adjourn the case at bar so to do. This
would only be advisable if it is necessary to deal immediately with
contempt in order to ensure the court's business may properly be
carried on. The preferable course, if possible,143 is to conduct hearings
related to allege contempts after the completion of the case at bar,
although it is sometimes necessary for the proceedings to be initiated
immediately in order to make repetition unlikely.
Contempt not in the face of the court, on the other hand, may
not be determined "on the spot" without evidence. Instead, the alleged
contemnor must be brought before the court or be given notice to
attend at a specified time and place, and he or she must be tried in
accordance with the principles of fairness as hereafter discussed.
The Queen‘s Bench in re Johnson, 144 held that a superior court
may also enjoin contumacious conduct by the more lenient remedy of
an injunction. At common law, there was no appeal against a finding
of criminal contempt. This was amended by Section 10 of the Criminal
Code, 1953. This section provided an appeal against sentence imposed
summarily for contempt in the face of the court and against conviction
and sentence for contempt not in the face of the court. By a further
amendment in 1972, a right of appeal was furnished against
conviction for contempt in the face of the court.
The distinction between contempt in the face of the court and
out of the face of the court is also important in considering the
143
144
R. v. Janvier, unreported, Doc. Edm. 9603-0817-A5, (April 11, 1996) (Alta C.A.).
(1887) 57 L.J.Q.B.1.
66
management of contempt alleged in respect of courts or tribunals of
inferior jurisdiction. That question is more fully discussed in section
(h)
"Statutory
Courts,
and
Courts
and
Tribunals
of
Inferior
Jurisdiction", but it may briefly be stated now that only superior
courts, or those given specific legislative authority, have jurisdiction to
deal with contempt out of the face of the court.
(vi) SENTENCING FOR CONTEMPT UNDER CANADIAN LAW
In Canada punishment for contempt has been quite moderate,
reflecting the courts' usual view that a conviction for contempt and a
modest fine is usually sufficient to assert the courts' authority, to
protect their dignity or to ensure compliance. Often these sentences
are imposed after the contemnor has apologized and purged his or her
contempt which substantially mitigates any punishment that might
otherwise be imposed. The purpose of sentencing in contempt cases is
to ―repair the depreciation of the authority of the court‖.145
If the contempt has not been purged and the contempt is a
serious one, or if there has been a deliberate disobedience of a court
order accompanied by violence or other flagrant misconduct then
imprisonment or heavy fines become more likely, but care must
always be taken to ensure that the disposition of the proceedings does
not appear to be bullying or vengeful.146
The Court in International Forest Products Ltd. v. Kern147
held that it is also important that the individual circumstances of
each case be taken into account. As Green, C.J. in Health Care Corp.
of St. John’s v. Nfld. and Labrador Assn. of Public and Private
Employees,148 has stated that It can be said that no judge relishes
the idea of having to initiate proceedings for contempt with the
possibility
of
imposing
sometimes
severe
penalties,
including
deprivation of liberty and significant financial penalties, on citizens
who may often be completely law-abiding and respectful of the law in
145
146
147
148
International Forest Products v. Kern, (2001) B.C.J. No. 135 (B.C.C.A.).
R. v. United Fishermen and Allied Workers Union, (1968), 1 C.C.C. 199.
(2000) B.C.J. No. 2086 (B.C.C.A.).
(2000) N.J. No. 344 (Nfld. S.C.T.D.).
67
other respects. No court wants to do that, but it will and must do it if
confronted with actions that amount to violations of its lawful orders.
Imprisonment should be imposed only in cases of serious
deliberate disobedience, violence or wilful interference with the course
of justice. Repeated breaches of a restraining order would justify
imprisonment, as would a single breach of an order if the breach were
a serious one.149
1.3.3 ORIGIN AND DEVELOPMENT OF THE LAW OF CONTEMPT
IN AMERICA
In America contempt in general had been considered as
disregard of, or disobedience to the rules or orders of a legislative body
or a judicial body, or an interruption of its proceedings by disorderly
behaviour or insolent language, in its presence or so near thereto as to
disturb the proceedings or to impair the respect due to such a body.
Contempt of court is clear disregard of the authority of court, a
despising of its authority, dignity or justice. A willful abuse of process
of court may be contempt. Thus an attempt by a mere colourable
dispute to obtain the opinion of court on a question of law to satisfy a
private party‘s purpose, whereas as of fact the so-called contesting
parties had in reality no real and substantial controversy, has been
held to be a punishable contempt.150 In Green v. United State,151
contempt was defined as any conduct that tends to bring the
authority and administration of law into disrespect or disregard.
It was held in Young v. Knight,152 that contempt consisting of
an act which disregards or interferes with a judicial proceeding, as by
disobeying the court‘s order or conduct which scorns and defies the
authority any dignity of a court or which tends to bring the
administration of law into disrespect, is to be distinguished from such
misconduct as obstructing justice for which the contemnor may be
subject to indictment.
149
150
151
152
E.F.S. v. P.D.L. (1995), 171 A.R. 217 (Q.B.).
Lord v. Veazie, 49 (U.S.) 251 (1850).
355 U.S. 165 (1957).
77 A.L.R. 994 (1959).
68
In Massachusetts as in England the power to commit for
contempt resided in the higher courts of the land and was part of the
common law of the land. This was in accordance with the Magna
Carta and the Declaration of Rights.153 The twelfth Article of the
Declaration of Rights prefixed to the Massachusetts Constitution
posited:
―No subject shall be arrested, imprisoned, despoiled, or deprived
of his property, immunities or privileges, put out of the protection of
the law, exiled or deprived of his life, liberty or estate, but by the
judgment of his peers or the law of the land.‖
In effect the above is a clear re-enactment of Chapter 29 in the
English Magna Carta:―No freeman shall be taken, or imprisoned, deprived of his
freehold or liberties or free customs, or be outlawed or exiled, or in
any other wise destroyed; nor will not pass upon him nor condemn
him but by lawful judgment of his peers or by the law of the land.‖154
A contempt of court entailing arrest and imprisonment flow
from the law of land. So a prosecution for contempt of court was Sui
generis i.e. of its own. The foundation of governmental proceedings to
punish contempts has always been Sui generis.
(i) KINDS OF CONTEMPT UNDER THE AMERICAN LAW
There are the following three kinds of contempts155:(a)
Those which scandalise the court itself.
(b)
Those will abuse the parties to the case before the
court.
(c)
Those which prejudice mankind against the court or
the parties before the case is heard.
The law of contempt identified following two types of contempt,
civil and criminal:
153
154
155
Whitcomb v. Massachusetts, 120 Mass 118 (1885).
Re Chiles, 89 US (22 Wall) 157 (1874).
James Evening Post, case, (1742) 2 Atk 469.
69
(a)
Criminal Contempt under the American Law
Persons accused of criminal contempt are said to be in danger
of being deprived of six constitutional guarantees:
1) Double jeopardy,
2) Due process of law,
3) Excessive punishments,
4) Freedom from self-incrimination,
5) Freedom of speech and press,
6) Trial by jury.
What is contempt can also be a penal offence and there is no
bar to action in both courts. Trial by jury is foreign to the concept of
contempt which is Sui generis. The object is not to exact the person in
the judges but to vindicate the court‘s authority or dignity. Criminal
contempt must be actuated by deliberate intent to show disrespect or
defiance of court.156 Criminal contempt is barred by the Statute of
Limitations in respect of other offences not capital.157 If the contempt
is civil then the civil procedure governs. If it is criminal, principles of
criminal law govern.158 Criminal contempts are sui generis and not
strictly criminal prosecutions.
Punishment can be by fine or imprisonment or by both, subject
to the 8th Constitutional Amendment of not being excessive.159
Criminal contempts can be reviewed by a Writ of Error.160 This is a
statutory remedy. A judgment in a case of criminal contempt is ‗a
judgment in a criminal case‘ for purpose of review.161
The Rule 42 of the Federal Rules of Criminal Procedure which
deals with criminal contempt is intended to make more explicit ‗the
prevailing usages at law‘ by which the statute has authorised
punishment of contempt.162 The Rule 42 which deals with criminal
contempt adverted in all the prior discussion is as hereunder:156
157
158
159
160
161
162
State v. Fletcher Trust Co., 114 Mass 230 (1886).
Gompers v. United States, 233 U.S. 604 (1914).
Pino v. United States, 278 Fed 479 (1921).
State v. Froelick, 316 II 77 (1925).
Grant v. United States, 227 U.S. 74 (1913).
Hurley v. Comm., 188 Mass 443 (1933).
Sacher v. U.S., 343 U.S. 1 (1952).
70
―42.
(a)
Summary Disposition—A
criminal contempt may
be punished summarily if the judge certifies that he saw or heard the
conduct constituting the contempt and that it was committed in
actual presence of court. The order of contempt shall recite the facts
and shall be signed by the judge and entered in record.
(b)
Disposition
upon
notice
and
hearing—A
criminal
contempt except as provided in sub-division (a) of the Rule shall be
prosecuted on notice. The notice shall state the time and place of
hearing allowing a reasonable time for the preparation of the defence
and shall state the essential facts constituting the criminal contempt
charged and describe it as such. The notice shall be given orally by
the judge in open court in the presence of the defendant or on the
application of the United States attorney or of an attorney appointed
by the court for that purpose by an order to show cause or an order of
arrest. The defendant is entitled to a trial by jury in any case in which
an Act of Congress so provides. He is entitled to admission to bail as
provided in these Rules.163 If the contempt charged involves disrespect
to or criticism of a judge, the judge is disqualified from presiding at
the trial or hearing except with the defendant‘s consent. Upon a
verdict or finding of guilt the court shall enter an order fixing the
punishment.‖
The Rule 17(G) of the Federal Rules of Criminal Practice and
Procedure postulates:
―Contempt—Failure by any person without adequate excuses to
obey a subpoena served upon him may be deemed contempt of the
court from which the subpoena issued or of the court for the district
in which it issued if it was issued by a Commissioner.‖
(b)
Civil Contempt under the American Law
Civil contempt is a sanction to enforce compliance with an order
of the court or to compensate for losses or damages sustained by
reason of noncompliance. The commitment of a civil contemnor is only
until he shall have purged himself of the contempt by complying with
163
Maccann v. New Yark Stock Exchange, 80 Fed (2d) 211 (1935).
71
the order. In criminal contempt it is a penalty for past disobedience.
One who has violated the general terms of a decree requiring
compliance with a statute cannot escape liability for civil contempt
because the acts done by him were not among those specifically
enjoined. Since civil contempt proceeding for violation of an injunction
is remedial, it is immaterial that the alleged disobedience was not
willful.164
Disobedience to specific orders of court is contempt. The
disobedience should, however, be willful. In Harriet Cotton Mills v.
Textile Worker’s Union,165 the contempt order was sufficiently
supported by findings of fact of violations of an injunction order of
court, wilfully, knowingly and intentionally. There was evidence of
contemner‘s acting in concert with others in a group or a mob in
furtherance of the common purpose of intimidating and threatening
persons working in a certain plant involved in a strike; assaulting,
damaging and abusing the property of persons working in the plant;
interfering with free egress from the plant; and in interfering with and
impeding motor vehicles leaving the plant.
1.3.4 ORIGIN AND DEVELOPMENT OF THE LAW OF CONTEMPT
IN INDIA
The origin of the law of contempt of court in India can be traced
from the English law. This law in India is nothing but the off spring of
the British administration of justice in India. Creation of different
Courts of Record in India necessarily meant the introduction of
English Law of Contempt in some measure.166
Establishment of the Court of Mayor and Corporation of Madras
under the East India Company‘s Charter of 1687167 was the earliest
Court of Record created in India. Admiralty Court established under
the Royal Charter of 1683 had the right to hear appeals and hence
164
165
166
167
Mccomb v. Jacksonville Paper Co., 336 U.S. 187 (1949).
79 A.L.R. 2d. 646 (1915).
VIII CAD 382: See also Report of the Committee on Contempt of Court, 4 (1963).
Charter granted by the Governor and Company of Merchants Trading into the East India, to
the Mayor Aldermen and Burgesses of Madras.
72
Admiralty Court was also considered a Court of Record. Later Mayor‘s
Court was created by the Charter of 1727168, which was reconstituted
by the Charter of 1753. These courts had power to punish for
contempt.
In pursuance of the Regulating Act 1773, the Mayor‘s Court at
Calcutta was succeeded by the Supreme Court established under a
Charter granted in 1774. The Mayor‘s Court at Bombay and Madras
were superseded by the Recorder‘s Court at Madras. It was abolished
by the Government of India Act, 1800 and the Supreme Court was
established in the place of Recorder‘s Court at Bombay by a Charter
granted under the Statute of 1823. The Recorder‘s Court and Supreme
Court had the same powers for punishing for contempt as the
superior courts of England .The Supreme Courts were in turn
succeeded by the High Courts under the High Courts Act of 1861. The
High Court of Calcutta was a court of record in all its jurisdictions and
therefore possessed power to commit for contempt.169 In 1886, the
High Court of Allahabad was established under the High Courts Act,
1861 and was constituted as a Court of Record.
The Division Bench of the Calcutta High Court considered this
jurisdiction of the High Court in 1879 in Martin v. Lawrence.170 Mr.
Justice White observed:
―The jurisdiction of the court, under which this process of
contempt issued is a jurisdiction that it has inherited from the old
Supreme Court and was conferred upon that court by the Charters of
the authority of the then court of King‘s Bench and the High Court of
Chancery in Great Britain, and this jurisdiction has not been removed
or affected by the Civil Procedure Code.‖
The inherent powers of the High Courts to punish for contempt
were later affirmed by Lahore171 and Patna172 High Court. Privy
168
169
170
171
172
II Vestiges of Old Madras 1640-1800, 241,242(Charter of 1727, 249).
Re Abdool and Mehtaf (1867) 8 W.R. (Cr.) 32.
I.L.R. 4 Cal. 444 (1879).
In the Matter of Muslim Outlook, AIR 1927 Lah. 610.
Emperor v. Murali Manohar Prasad, AIR 1929 Pat 72.
73
Council also accepted the same view in Ambard v. Attorney General,
Trinidad and Tabago.173 These decisions show that the power to
punish summarily for contempt is not created by statute but inherent
in every court of record.
Prior to the passing of the Contempt of Courts Act 1926 there
was a conflict of opinion among the different High Court as to their
power to commit for contempt of subordinate court. Madras174 and
Bombay175 High Court expressed the view that the High Courts could
have jurisdiction to deal with contempt of the Mofussil Courts. But the
Calcutta176 High Court expressed the view that the High Court in
India did not possess identical power in matters of contempt of their
subordinate courts as possessed by the Court of King‘s Bench in
England. In 1926, the Full Bench of the Allahabad High Court dealt
with contempt of subordinate court under its inherent powers as a
court of record.
For making the concept of contempt more specific and for
providing punishment for contempt of subordinate courts, the first
Indian statute on the law of contempt i.e., the Contempt of Courts Act
was passed in 1926. It was enacted to define and limit the powers of
certain courts in punishing contempt of courts. When the Contempt of
Courts Act, 1926 (XII of 1926) was in existence in British India,
various Indian States also had their corresponding enactment. These
States were Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan,
Travancore-Cochin and Saurashtra. Section 2 of the Act, 1926,
empowered the High Courts of judicature to exercise the jurisdiction,
power and authority to punish contempt of subordinate court. The Act
was amended in 1937 to make it clear that the limits of punishment
provided in the Act related not only to contempt of subordinate court
but also to all cases.
173
174
175
176
AIR 1936 P.C. 141.
In the Matter of K. Venkta Rao, 121, C. 239 (1921).
Re Mohandas Karamchand Gandhi, AIR 1920 Bom. 175.
Legal Remembrancer v. Motilal Ghose, 1913, ILR Cal. 173.
74
Articles 129177 and 215178 of the Constitution of India made the
Supreme Court and High Courts respectively as Court of Record.
Article 225, permits the High Courts to continue the jurisdiction and
powers which they possessed immediately before the commencement
of the Constitution. Though the High Court as a Court of Record had
the power to punish contempt of itself, doubt arose as to the power of
the Court of Record to punish contempt of subordinate courts.
The Contempt of Courts Act, 1926 did not contain any provision
with regard to contempt of courts subordinate to Chief Courts and
Judicial Commissioner‘s Court and also extra territorial jurisdiction of
High Courts in matters of contempt. So, the State enactments of the
Indian States and the Contempt of Courts Act, 1926 were replaced by
the Contempt of Courts Act, 1952 (32 of 1952). Section 3 of the
Contempt of Courts Act, 1952 conferred the power on the High Courts
including that of the Judicial Commissioner‘s Court to punish
contempt of subordinate court. Section 4 of the Act limited the
punishment to be awarded in case of contempt.
The Contempt of Courts Act 1952 though sound so far as it goes
touches only the fringes of the subject. While its existing provisions
should be continued there is need for widening considerably the scope
of the Act.179 The unsatisfactory nature of the Contempt of Courts Act,
1952 necessitated the government to constitute a Committee to study
the matter for the proper functioning of the law of contempt.
An attempt was made in April, 1960 to introduce in the Lok
Sabha a Bill to consolidate and amend the law relating to Contempt of
Courts. On an examination of the Bill, Government appears to have
felt that the law relating to contempt of courts in uncertain, undefined
and unsatisfactory and that in the light of the Constitutional changes
which have taken place in the country, it would be advisable to have
177
178
179
Article 129: The Supreme Court shall be a Court of record and shall have all the powers of
such a Court including the power to punish for contempt of itself.
Article 215: Every Hugh Court shall be a Court of record and shall have all the powers of such
a Court including the power to punish for contempt of itself.
Report of the Committee on Contempt of Court, 9 (1963).
75
the entire law on the subject scrutinized by a Special Committee set
up for the purpose In pursuance of that decision, a Committee was set
up on July 29, 1961 under the Chairmanship of the late H N Sanyal,
the then Additional Solicitor General. The Committee made a
comprehensive examination of the law and problems relating to
contempt of court in the light of the position obtaining in our own
Country and various foreign Countries. The recommendations, which
the Committee made, took note of the importance given to freedom of
speech in the Constitution and of the need for safeguarding the status
and dignity of courts and interests of administration of justice.
The Sanyal Committee submitted its report on February 28,
1963 to define and limit the powers of certain courts in punishing
contempt of courts and to regulate their procedure in relation thereto.
The recommendations of the Committee have been generally accepted
by the government after considering the view expressed on those
recommendations
by
the
State
Governments,
Union
Territory
Administrations, the Supreme Court, the High Courts and the Judicial
Commissioners. The Joint Select Committee of Parliament on
Contempt of Courts examined the issue in detail and the Committee
prepared a new Bill, the Contempt of courts Bill, 1968. The Bill seeks
to give effect to the accepted recommendations of the Sanyal
Committee.
The recommendations of the Committee have been generally
accepted by Government after considering the view expressed on those
recommendations
by
the
State
Governments,
Union
Territory
Administrations, the Supreme Court, the High Courts and the Judicial
Commissioners.
(i) THE CONTEMPT OF COURTS ACT, 1971
In a very practical move and in an effort to sanctify the ideal of
justice, The Contempt of Courts Act, 1971180, was enacted to identify
and punish those very persons who, in any way, put an obstacle in
180
It came into force w.e.f. December 24, 1971 (70 of 1971).
76
the path of the judiciary to deliver justice to the people. One of the
basic principles of a sound judiciary is that everyone is entitled to a
free and fair trial without any prejudice whatsoever. Therefore, any
action, either direct or indirect, which is detrimental to the judicial
ideal of justice is sought to be punished under the Contempt of Courts
Act, 1971.
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77