On 9th July 2024, the Law Commission launched a consultation in relation to proposed reforms to the law on contempt of court. The consultation will run for 4 months and will therefore end on 8th November 2024.
The consultation documents runs to 499 pages. This short article will aim to highlight the main proposals and comment upon them.
Are reforms needed?
Before examining the proposals suggested by the Law Commission, it is worth firstly considering why proposals for reform have been made. The Law Commission describes the development of the law in relation to contempt of court as ‘unsystematic’, resulting in ‘incoherent’ and ‘disorganised’ law.
In the author’s view, there is force in what the Law Commission says. The power to imprison for contempt of court derives from the common law. However, there have been a number of Acts of Parliament which have legislated both in terms of substance, procedure and sentencing for contempt of court. It is certainly true that reforms and modifications have been made on a piecemeal basis. Indeed, the Law Commission published a consultation in 2012 dealing with discrete areas such as court reporting. This is the first time a wholistic review has been undertaken.
Currently, there are two types of contempt of court, criminal contempt and civil contempt. Within each type there are a number of sub-categories. The distinction between criminal and civil contempt is, in the author’s view, unhelpful. Whether the contempt is criminal or civil does not depend upon which court it is committed in but by the type of behaviour. In any case, neither type of contempt is a criminal offence, although, of course, the conduct giving rise to the contempt may amount to a criminal offence, such as perjury or perverting the course of justice. Further, there is no distinction between criminal and civil contempt with regard to the sentences or sanctions available.
Presently, some types of contempt are largely dealt with by a statutory regime whereas others are mainly dealt with at common law. For example, publication contempt is largely governed by the Contempt of Court Act 1981, whereas contempt by breaching a court order or false statement contempt is dealt with by the common law. In the author’s view, this can cause practical difficulties, especially when 2 different types of contempt are alleged to have taken place.
Reforms
The principal reforms proposed by the Law Commissions are as follows:
- Removing the distinction between criminal and civil contempt and creating a new framework which has 3 categories of contempt, namely (1) general contempt (2) contempt by breach of an order or undertaking (3) contempt by publication when proceedings are active.
- Increasing the powers of inferior courts, so that all courts, tribunals and other such bodies exercising judicial power of the state will have the power to deal with general contempt (other than by publication) and contempt by breach of an order.
- Granting tribunals and other bodies the same power to imprison for up to one month as inferior courts currently have.
- Increasing the range of sentencing options for superior courts so that community sentences will be available, for the first time, as a sanction for contempt of court.
- Granting courts the power to remand a contemnor in custody following a finding of contempt but prior to sentencing.
- Granting superior courts the power to order a pre-sentence report.
- The introduction of sentencing guidelines, prepared by a judicial working group, similar to those prepared by the Sentencing Council for criminal cases.
- Introducing the concept of interim remedies (including payments into court, sequestration, confiscation of documents, etc.) which would be available when contempt was proven on the balance of probabilities. Currently, contempt of court sanctions are only available once contempt of court has been proven beyond reasonable doubt.
Effect of the reforms
In the author’s view, the reforms suggested are sensible. As already indicated, the distinction between criminal and civil contempt is unhelpful. The introduction of a new framework is likely to simplify the law in this area, and provide greater clarity, especially when numerous allegations of contempt are made.
The reforms which are likely to have the most impact, in the author’s view, are likely to be the introduction of community sentences and pre-sentence reports. Those practicing in the criminal courts will be very familiar with both. In many cases, a contemnor’s contempt will not pass the custody threshold. In those circumstances, the only real sanction available will be a fine. For contemnors of limited means, this can result in the court having very limited effective sentencing powers. The introduction of the possibility of a community order will allow the sentencing judge much greater flexibility. It is also likely to mean that the court will be better able to secure future compliance and punish contemnors. The availability of pre-sentence reports will also assist sentencing judges. They are ubiquitous in the criminal courts for a reason. The author is aware of cases in which the contemnor has put forward mitigation of doubtful credibility. A pre-sentence report will allow information pertaining to mitigation and, importantly, the impact any custodial sentence will have on others, to be presented in a more measured and objective manner.
The proposal to increase the powers of the inferior courts is welcome. It makes sense that the court which has made an order should have at least some powers to enforce it. The present requirement for an allegation of contempt by breach of an order to be sent to a superior court only increases delay and costs. In many cases, the delay defeats the purpose of enforcement. Similarly, the proposal to grant tribunals the power to imprison a contemnor for up to 1 month is sensible. One can imagine circumstances, such are seriously violent and disruptive behaviour during a tribunal hearing, where such powers are likely to be of great utility. The consultation alludes to the fact that the mere threat of such an order is likely to be very effective in maintaining order during a tribunal hearing.
The introduction of sentencing guidelines would be very helpful. Many of the authorities in this area state the importance of avoiding custody. Many other authorities, however, state the contemnors should expect to receive a custodial sentence. Whilst the author would not go as far as to say there is inconsistency, there is certainly ample opportunity for confusion. Not only would sentencing guidelines assist in individual cases, they would also ensure a consistent approach, which is important for the rule of law.
Further reforms
The Law Commission has not proposed altering the maximum sentence for contempt. Therefore, the proposal is to retain the power of superior courts (including the County Court) to imprison for up to 2 years and for inferior courts to imprison for up to 1 month. Presently, a contemnor is entitled to automatic release once 50% of a custodial sentence has been served. Again, there are no proposals to alter that. The reality, therefore, is that the maximum time any contemnor can serve in prison, when sentenced for any number of contempts on the same occasion, is 12 months. The Court of Appeal has already commented that such a sentence is comparatively short. That is surely right, especially when one considers what length of custodial sentence may be available upon conviction of criminal offences of like character, such as perjury, perverting the course of justice or fraud by false representation. It was, therefore, surprising that the Law Commission gave no consideration to this issue. In the author’s view, the maximum sentence available should probably be increased, with the longer sentences being reserved for the worst conduct, for example, fabricating a multi-million pound personal injury claim. Given contempt of court can cover a very broad range of conduct, it seems sensible for sentencing options to also reflect that wide range of seriousness and culpability. The newly proposed sentencing guidelines would, of course, assist sentencing judges with where to place conduct within a wider range of sentencing options.
Conclusion
Broadly, the author welcomes the suggested reforms on contempt of court. However, the maximum sentence is an area in which further reform should at least be considered, if not implemented. It will be interesting to see what the outcome of the consultation is, and whether the proposed reforms ever find themselves being implemented by the new Government.
If this article has been published at the time expected, then the consultation will still be open. Readers who deal with contempt of court matters are respectfully encouraged to respond to the consultation, particularly if they disagree with the Law Commission’s proposals.
Jamie Hill, barrister, 9 St John Street
