Many of you may or may not be aware that the Law Commission in England and Wales has been carrying out a review of the laws of contempt of court, a project / theme for them that is currently ongoing. Of course I will be very interested to read their findings in the future, however for the time being I am more concerned with my own review of the law in this area, a review I have been carrying out for nearly six years. I am now in the home straight, completing the final drafts in the final chapters of my Phd thesis, and wanted to provide a Foreword to it here, a summary or an abstract if you like.
As a starting point there is the title of the offence itself: Contempt of court… what images does this conjure up in your mind? What does the offence make you think of? Common themes might be an unruly witness or member of the public being dragged from the courtroom after shouting abuse at some other individual in the court or the judge himself. They meet with the wrath of the judge, who being annoyed at their conduct holds them in his contempt. The problem here, is that this commonly dramatised scenario simply serves to perpetuate the myth, the misonception of what exactly contempt of court is.
This is not even a contemporary issue alone, the issues over the term ‘contempt of court’ itself, and the attached misconceptions were recognised exactly 90 years ago, in 1923 in the case of Johnson v Grant (1923 SLT 501) by Lord President James Avon Clyde when he stated;
“The currency of the phrase…” (the name itself)”… is particularly regrettable…. It is not the dignity of the court which is offended – a petty and misleading view of the issue involved – it is the fundamental supremacy of the law which is challenged”
Clyde in the same case then provided a working definition of the offence, and it is still this definition after looking at hundreds of texts and cases that I deem to be most appropriate. This definition reads:
“The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice.”
So as can be seen, the dignity of the court or judge himself is not relevant in the offence, it is the process of law, the process of justice being seriously impeded in some way that is the fundamental issue that forms the foundation of the offence. And yet…. and yet….
As mentioned, I have reviewed hundreds of texts and cases over a number of years in preparing my thesis and conclusions, and it is clear to see that in spite of the clear, concise and logical dicta from Lord President Clyde 90 years ago, that a great many legal professionals are still getting it wrong. I have discovered textbooks giving incorrect definitions and inappropriate examples, Judges incorrectly applying the law, and in general a lack of coherence and consistency across the board within the legal sphere whether in academia or in practice. This is something that must stop.
I have witnessed first hand the criminal justice system in Scotland when visiting multiple courts and observing many cases ranging from simple custody cases, to pre-trial hearings, all the way to High Court cases. It seems from these observations that on the whole contempt of court is being used as a threat rather than an offence in its own right. So even when individuals engage in a course of action that would match the necessary criteria to be classed as contempt of court, the offence is mooted, yet not actually followed through. In the age of budgetary constrictions and resource issues, when cases are constantly being deserted due to not reaching court in time and extensions to the time bar being exhausted and subsequent applications for extension refused, surely contempt of court should be treated more seriously to nip offences of this nature in the bud? We are talking about offences such as witness prevarication, witnesses not appearing when cited, disrupting the court etc.
On the other hand, what about those individuals who do find themselves in the situation where they may be held in contempt? Have they fully understood the potential consequences of their actions? Did they have any awareness that what they did (whatever it was) might have constituted an offence? One of the reasons that children below the age of 12 are not prosecuted in Scotland is that they cannot have mens rea – i.e. they cannot have a guilty mind, for various reasons, one of which is the lack of ability to foresee consequences. Another is the lack of capacity to understand the proceedings before them. But does this just apply to children? What about individuals with low general intelligence? Can they truly be said to be understanding the full intricacies of courtroom procedure and the justice process? Even with explanation from their legal counsel this could be problematic.
Going a step further, foreign nationals in court is an issue that has recently been discussed in the media with the two young ladies accused of being drug mules in Peru. Of course Peru’s justice system and court procedure is different to our own, will the girls know what is going on? Will this be taken into account? Many will bring out the old phrase ‘ignorantia juris neminem excusat’ – ignorance of the law is no excuse. But is this phrase even appropriate any more? In an age where there are literally thousands of statutes, combined with common law, not to mentione EU and other international obligations, how can any individual be truly certain that whatever they do in their daily life, whether civil or criminal might or might not constitute an offence? We already readily admit this within our courts, although coming from a different angle. Whereas our judges apply the law as they deem it appropriate, there are certain areas that our courts stray away from – foreign law when it is raised as an issue. Judicial knowledge held by the judge is deemed to include Scottish law, English law and EU law. Anything beyond that, it is deemed that our judges cannot apply as they cannot be expected to know every law from every jurisdiction. Taking this down a level, how can any ordinary individual be expected to know every law from our own land? It is an excellent ideal, but not a realistic one. So foreign nationals in our own courts, should there be any special dispensation? This is examined in detail.
And then there is general courtroom environment and behaviour. If the product of the court procedure is that an individual potentially finds themself in contempt, is this truly fair? To illustrate, Gerard O’Donovan summarised these issues in his article ‘Courtroom Appearance’ in 2005 where he stated:
“The courtroom environment is adversarial, and it is therefore highly charged…. It can be intimidating and potentially sabotaging.” O’Donovan goes on to say that “Courtroom behaviour… seeks to inflame emotions”.
So when the artificially created environment itself creates the atmosphere, and the professionals within it engage in behaviour that has the potential to lead to outbursts and the like, many of which could be regarded as contempt of court depending on the nature of the outburst, thus potentially making those legal professionals at least partly responsible and certainly morally culpable, is it tuly fair to then bring out the contempt ‘stick’ to beat the offender with?
I am not giving all of the answers here, merely posing the questions. The answers will be contained within my forthcoming thesis, along with many other linked isses not raised in this short introduction to my topic. Hopefully for anyone reading, this has been of some interest, and perhaps made you think about the offence in a different light.