Contempt: administration of justice, and private lives

Interference with administration of justice


The law of contempt applies in all fields of court proceedings: civil and criminal. It requires the alleged contemnor to be responsible in some way with the administration of justice. In this article it comes as civil contempt (moved over very quickly: ie disobedience of court orders); criminal contempt: holding the system up to ‘obloquy’ (see below); and publication of information in relation to private proceedings.


On 3 November 2016 the Divisional Court (Lord Thomas LCJ, Sir Thomas Etherington MR and Sales LJ) handed down a judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (‘Miller’: the EU withdrawal case). Since then there has been some raucous reporting of comment from newspapers whose editorial line supported EU withdrawal. This included the Daily Mail whose headline, the day after the judgment, described the judges as ‘Enemies of the people’.


A dictionary definition of contempt includes references to feelings that a person is worthless or not worthy of respect. Within that it is likely that most people would say the Daily Mail headline was contemptuous of one or more of the judges in Miller. At law more is needed.


‘Fair and temperate criticism is legitimate’


The law of contempt is based on preventing interference with the administration of justice. It was considered fully in Attorney-General v Times Newspapers Ltd (No 1) [1974] AC 1974 where the House of Lords considered whether the proposed publication by the Sunday Times of their heavily disapproving views of the proposals put forward by Distillers (manufacturers of the drug thalidomide) for settlement of litigation on behalf of children effected by the drug.  Lord Reid defined the origins of the law of contempt as follows (at 294E):


The law on this subject is and must be founded entirely on public policy… and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.


He went on (at 296D) drawing attention to the need for balance between justice and freedom of speech: ‘There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations’.


Lord Simon spoke in a similar way of the balancing of rights in Attorney-General v Times (at 319H): that:


[It is not] sufficient to say that, under our constitution, freedom of discussion is itself a creature of the rule of law, and that the administration of justice must therefore be paramount in every situation of actual or potential conflict. Each is a genuine interest of society, and neither can be held to be universally paramount over the other;…


‘Fair and temperate criticism is legitimate’, said Lord Reid (at 297H). ‘Anything which goes beyond that may well involve contempt of court.’


Forms of contempt


So what does freedom of expression permit? Lord Morris (at 302A-C) summarised his view of contempt as against freedom of expression:


The phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits…. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest.


Lord Diplock (at 307H-308) explained the difference between ‘civil contempt’: the disobedience to a court order by one party to proceedings; and ‘criminal contempt’ (at 308C-D) is, he says:


… the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also and this more immediately — the particular interests of the parties to the case.


And (at 310G)it extends to:


….to conduct that is calculated to inhibit suitors generally from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his ease before they have been determined by the court or the action has been otherwise disposed of in due course of law.


Contempt: public dissuasion from litigation


In Attorney-General v Times Lord Diplock distinguished between private pressure to discourage litigation (permissible) public ‘obloquy’ to discourage legal action (not permissible: ie criminal contempt). Lord Diplock pointed out that in Merchant of Venice it would have been permissible privately to discourage Shylock from insisting on his bond; but to do so publicly where ‘he was seeking to enforce in a court of competent jurisdiction legal rights to which he was entitled under the law as it existed at that time … would have been a contempt’. Lord Diplock continued (at 313E):


In my opinion, a distinction is to be drawn between private persuasion of a party not to insist on relying in pending litigation on claims or defences to which he is entitled under the existing law, and public abuse of him for doing so. The former, so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court, the latter is at least a technical contempt, and this whether or not the abuse is likely to have any effect upon the conduct of that particular litigation by the party publicly abused.


This disparagement of a litigant is what happened in Attorney-General v Hislop [1991] 1 QB 514. Two articles had been published in Private Eye about Sonia Sutcliffe (SS; wife of the ‘Yorkshire Ripper’). When the hearing of SS’s action was imminent, two further articles defaming her were published. After she had been awarded damages in the first action the Attorney-General issued committal proceedings. The judge considered that the articles did not cross the contempt line: there was no risk of prejudice to the jury. The Attorney-General appealed.


The Court of Appeal said there had been a ‘serious contempt’, which went ‘beyond fair and temperate criticism’ (at 527D and 528D). Its content was plainly intended to put pressure on SS to give up her litigation. Nicholls LJ (at 532C-D) echoed the words of Attorney-General v Times:


Part of the mischief of this particular type of contempt is the impact which publication of articles of this nature can be expected to have on other litigants. As Lord Reid said in Attorney-General v Times … (at 295): “Of course parties must be protected from scurrilous abuse: otherwise many litigants would fear to bring their cases to court.” Likewise Lord Diplock said, at p. 310: “If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy … potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.”


Contempt: privacy of court proceedings


A third form of contempt was envisaged by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 as exceptions to the open justice principle (though in Scott the House very clearly rejected privacy – and therefore that contempt could arise for private proceedings – in that divorce case). Privacy may be directed by the court or required by court rules (eg Civil Procedure Rules 1998 r 39.2(3); Family Procedure Rules 2010 r 27.10). This includes proceedings in relation to children and individuals who lack capacity (Mental Capacity Act 2005; ‘protected parties’ as explained below). Viscount Haldane in Scott v Scott (at 437) said of these exceptions:


In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.


The exceptions to the open justice principle where privacy may be ordered are reflected in CPR 1998 r 39.2(3) setting out when the open justice principle (all proceedings to be in open court: and see r 39.2(1)) may be overridden and the hearing may be in private (an emphasis on the ‘may’: the court still has a discretion). A hearing may be in private if:


(3)(a) publicity would defeat the object of the hearing;…

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party; or…

(g) the court considers this to be necessary, in the interests of justice.


This article is concerned primarily with children and protected parties (ie ‘a party, or an intended party, who lacks capacity to conduct the proceedings’: CPR 1998 r 21.1; FPR 2010 r 2.3). Prominence is given to them under Administration of Justice Act 1960 s 12(1) which – in negative terms – is (as relevant here) as follows:


12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a)where the proceedings –

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b)where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;…

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).


It is not necessarily a contempt to publish information as to proceedings in private, save in the excepted cases (including civil proceedings) in s 12(1); and even then it may not be contempt if it was not a contempt before s 12 was in force (Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370 per Lord Brandon at 420F): for example, if there is a defence in law such as that the publisher did not know of the of the existence of the proceedings (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA).


A third form of contempt


Concern for children and contempt come together in Re F (orse A) (a Minor) (Publication of Information) (above) in the Court of Appeal (Lord Denning MR, Scarman and Geoffrey Lane LJJ) heard Waite LJ (as he became) leading Lord Wilson (as he then was not) for the Official Solicitor; Leon Brittan represented Slough Daily Mail; and Sir Peter Rawlinson QC for the Daily Telegraph. The application was by the OS to commit ‘Dear Bill’ Deedes and the editor of the Slough Mail in relation to a ward of the court.


Lord Denning introduced the facts of the case as follows:


This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a “hippy” gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.


F’s parents made her a ward. An outcome of those proceedings was that the girl was provided with a home by the local authority; but they (with support from the Official Solicitor) wanted to allow her still to see the man. The parents were extremely unhappy and contacted the Telegraph. The journalist was told by the parents that the wardship order was only temporary. He contacted the Official Solicitor and was told the same.  The Telegraph published a story which was also picked up by the parents’ local paper.


Tudor Evans J found that there had been contempt. The Court of Appeal disagreed. They said that Administration of Justice Act 1960 s 12(1) was a codification of existing law. It must be treated as a clarification of the pre-existing law (as Scarman LJ (at 99) and Geoffrey Lane LJ (at 105) read s 12(4)). A contempt was only committed if the newspapers knew that their reports contained information relating to children proceedings (per Scarman LJ at 100), which – said the court – they did not.


The court’s view of the law in Re F was considered by Lord Bandon in Pickering v Liverpool Echo (above). P was convicted of manslaughter with sex offences and had been detained in a mental hospital. To secure release he must apply to a tribunal. He suspected that newspapers might publish information about his application; and he applied for an injunction to stop them. The judge rejected his application. The Court of Appeal by a majority made a reporting restriction order but gave the newspapers leave to appeal.


Lord Bridge (at 421D-422G) explained Re F and its assessment of AJA 1960 s 12 – and approved what Scarman LJ had said – as follows:


[The court] rejected the view that the effect of the exceptions in section 12(1) was to constitute the publication of information relating to proceedings in the excepted categories an absolute offence of contempt. Scarman LJ said, at 99: ‘I cannot read the words ‘of itself’ in subsection (1) as implying that in the five excepted cases contempt is necessarily committed if the court sits in private. The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law.’ I agree with this.


He then went on to look at the question of ‘material protected from publication’ (at 422A). On this subject, Lord Bridge refers to two statements. First Scarman LJ:


As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt: …


In support of this proposition Scarman LJ, in Re F, cited Re Martindale [1894] 3 Ch 193 where Ford Madox Ford (then ‘one Hueffer a young poet and novelist’: he changed his name after the 1914-1918 war) had married a ward. He told a journalist friend of it; and ‘allowed, I am sorry so say, an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’. The contempt was not that the journalist’s paper had published the name or the fact of the bride being a ward, but that what was published would be understood as ‘what took place in my private room’ and what ‘the judge had decided’ (per North J).


Publication of ‘information in proceedings’


What may not be published? Lord Bridge quotes Geoffrey Lane LJ (at 105) in Re F, where he explained what was included as part of ‘information relating to proceedings’ in s 12(1):


‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot. Thus in the instant case the reports of the Official Solicitor and the social worker were clearly part of the proceedings and were protected by section 12.


Publication of such documents (passing them to a journalist (as in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142) invites an application based on this breach of privacy contempt. In Re B (above) Munby J gave a summary of his view of the operation of AJA 1960 s 12(1) (at §[82]).


Others will decide whether any of the journalists responsible for disparaging comment should be brought back to court. In the private proceedings context, the extent to which documents can be released from (say) children proceedings, depends on the view of the court and on what can be proved against a contemnor.


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