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LAHORE: While there is no second opinion that contempt of court, the act of being disobedient or discourteous towards a court of law, is condemnable in every country as such behaviour is tantamount to willfully disregarding the authority of the adjudicators, a debate is already on in countries like India regarding revisiting and amending the present law of contempt of court.
A July 28, 2014 report appearing in the “Times of India” states: “The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of Judge Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.”
Sir John Eardley Wilmot (1709-1792) was an English judge, who had served as Chief Justice of the Common Pleas from 1766 to 1771.
The prestigious Indian media house further states: “But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience. In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.”
The “Times of India” had gone on to write: “In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants. Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.”
The media house had added: “This view is accepted now even in England.”
The “Times of India” had quoted Lord Salmon as observing in a 1981 case: “The description of contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice.”
It quoted another arbiter Lord Denning as observing in 1968: “Let me say at once that we will never use this jurisdiction to uphold our own dignity.
That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature
of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.”
The “Times of India” had asserted: “Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.”
It further wrote that once a British newspaper ran a banner headline, calling the majority judges of the House of Lords “You Fools.” The contemptuous headline had followed after judges had given a decision in the Spycatcher Case of 1987, where the British Attorney General had filed a petition against the Guardian Newspaper.
In this case, a retired British secret service employee had sought to publish his memoirs from Australia and the government sought to restrain the publication of his autobiography.
The judges, in a majority ruling going in favour of the Attorney General, had held: “When trade secrets are betrayed by a confidant it is usually the third party who exploits the information and it is the activity of the third party that must be stopped.”
When Fali Sam Nariman, a globally-renowned Indian jurist who remained President of the Bar Association of India, who was present in England at that time, asked a judge Lord Templeman, as to why the Judges did not take contempt action, the arbiter smiled and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.
Lord Templeman was one of the judges who had inked the majority judgment that state secrets should not be published.
In the Balogh vs Crown Court Case of 1975, Balogh, son of a distinguished economist, had planned ‘to liven’ the case up.
He had learned about nitrous oxide, a substance called ‘laughing gas’ at Oxford, and planned to put a cylinder of the gas at the inlet to the ventilating system and release the gas into the court.
But he was caught. Balogh meant it as a practical joke and apologized – but the judges were not amused. In the court of first instance, Balogh grossly insulted the judge after a six months sentence was imposed.
Following his conviction, the infuriated defendant had told the Judge: “You are a humourless automaton. Why don’t you self-destruct?”
The judge smiled, but took no action.
In Regina vs Police Commissioner Case of 1968, Lord Denning had viewed: “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
Research conducted by the “Jang Group and Geo Television Network” shows that in every country, there are two categories of contempt: being rude or disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order.
Contempt includes showing disrespect for the judge or judges hearing the case, disruption of the proceedings through poor and uncalled for behaviour and publication or airing of certain material or even non-disclosure of material, all of which may jeopardize a fair trial.
Judges all over the world have been imposing fines and jailing people committing contempt of court for many decades, though it is relatively rare that a person is charged for contempt without first receiving at least one warning from the judge.
Let us now examine the contempt laws in some countries:
In India contempt of court is of two types:
Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Defenses allowed in court contempt proceedings:
Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by 2006 amendment, allows the accused to raise the defense of justification by truth of such contempt, if the court is satisfied that it is in public interest and the request for invoking the said defense is bona fide.
However, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.
England and Wales:
In English law on contempt (the Contempt of Court Act 1981), the maximum sentence for this crime is two years.
Disorderly, contemptuous, or insolent behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt.
The term "direct" means that the court itself cites the person in contempt by describing the behaviour observed on the record.
Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.
Criminal contempt of court:
The British Crown Court has power to punish for contempt of its own motion when it notices disobedience of a court order or breaches of undertakings to the court.
Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.
Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen’s Bench Division of the High Court of Justice of England and Wales.
The Magistrates’ Courts are not superior courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved, the judge may imprison the offender for a maximum of one month, fine them up to £2,500, or do both.
It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.
It is not contempt of court (under section 10 of the Act) for a journalist in Britain to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime.”
Strict liability contempt in England:
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired.
It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial or linked trials are over and the juries have given their verdicts.
Civil contempt in England:
In civil proceedings, there are two main ways in which contempt is committed:
Failure to attend at court despite issuance of summons requiring attendance or failure to comply with a court order.
A copy of the order, with a "penal notice"—i.e., notice informing the recipient that if they do not comply they are subject to imprisonment—is served on the person concerned.
If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate.
The United States:
Under the American jurisprudence, acts of contempt are divided into direct or indirect and civil or criminal. Direct contempt occurs in the presence of a judge; civil contempt is "coercive and remedial" as opposed to punitive.
It occurs in the presence of the presiding judge and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately.
This occurs outside the immediate presence of the court and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and, since there is no written procedure, may or may not be allowed to present evidence in rebuttal.
Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order.
However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.
If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (fine/imprisonment) is imposed unconditionally.
An eyebrow-raising case of contempt in United States:
In Chadwick v. Janecka Case of 2002, an American court of appeals had held that a man Batty Chadwick could be held indefinitely under federal law, for his failure to produce US$2.5 million as state court ordered in a civil trial.
Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.
Contempt laws and the news media in the United States:
In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a case or forbid it from reporting facts discovered publicly.
Newspapers cannot be closed because of their content.
However, in July 2005, a “New York Times” reporter, Judith Miller, was jailed for not testifying before a grand jury about one of her confidential sources.
Miller had invoked “reporter’s privilege” and had refused to reveal her sources in the American CIA.
She had to spend 85 days in jail protecting her source.
She was forced to resign from her job at The New York Times in November 2005.
What classifies as being in contempt of court in the United States and what are the consequences.
In United States, contempt of court may include obtaining or publishing details of jury deliberations, filming or recording within court buildings, making payments to witnesses, publishing information obtained from confidential court documents, reporting on the defendant’s previous convictions, mounting an organized campaign to influence proceedings, reporting on court proceedings in breach of a court order or reporting restriction, breaching an injunction obtained against another party, anticipating the course of a trial or predicting the outcome or revealing the identity of child defendants, witnesses, victims or victims of sexual offences.
Depending on the severity of the journalist’s actions, the punishment will vary. What’s more; the editor, publisher and owner of the media agency may also be held responsible.
What defences exist for being in contempt of court in the United States?
A number of mechanisms are available when defending a charge of being in contempt of court. Media agencies and their lawyers can argue that they were not in direct knowledge that the court case had begun when the report was published.
However this argument only holds up in if they can prove they approached the police and the courts to find out the details of the case.
In Australia, a judge may impose a fine or jail for contempt of court, including for refusing to stand up for a judge.
In December 2016, an Australian Journalist Krystal Johnson and her employer, news website Yahoo7, were found guilty of contempt of court after publishing an online article that forced a Melbourne murder trial to be aborted.
AdvertisementIn February 2017, News organisation Yahoo7 was fined $300,000 and Sydney journalist Krystal Johnson was convicted of sub judice contempt of court.
In Canada, contempt of court is an exception to the general principle that all criminal offences are set out in the federal Criminal Code.
The Canadian contempt of court includes the following behaviours:
Failing to maintain a respectful attitude, failing to remain silent or failing to refrain from showing approval or disapproval of the proceeding, refusing or neglecting to obey a subpoena, willfully disobeying a process or order of the court and interfering with the orderly administration of justice or impairing the authority or dignity of the court.
Under the Canadian Federal Court Rules (Rules 466 and Rule 467), a person who is accused of Contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when proof beyond a reasonable doubt is achieved.
If it is a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately. Punishment can range from the person being imprisoned for a period of less than five years or until the person complies with the order or fine.
In March 2017, a Canadian journalist Justin Brake was charged with mischief and disobeying a court injunction, as well as a civil contempt charge for covering a protest story against the court orders.