Contempt of court

In Australia, a judge may impose a fine or jail for contempt of court.[9][10]

A Belgian correctional or civil judge may immediately try the person for insulting the court.[11]

In Canada, contempt of court is an exception to the general principle that all criminal offences are set out in the federal Criminal Code. Contempt of court and contempt of Parliament are the only remaining common law offences in Canada.[12]

Contempt of court includes the following behaviors:

• 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
• Interfering with the orderly administration of justice or impairing the authority or dignity of the court
• An officer of the court failing to perform his or her duties
• A sheriff or bailiff not executing a writ of the court forthwith or not making a return thereof

This section applies only to the Federal Court of Appeal and Federal Court.

Under 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.[13]

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.

Under Tax Court of Canada Rules of Tax Court of Canada Act, a person who is found to be in contempt may be imprisoned for a period of less than two years or fined. Similar procedures for serving an order first is also used at the Tax Court.

Different procedures exist for different provincial courts. For example, in British Columbia, a justice of the peace can only issue a summons to an offender for contempt, which will be dealt with by a judge, even if the offence was done in the face of the justice.[14]

Judges from the Court of Final Appeal, High Court, District Court along with members from the various tribunals and Coroner's Court all have the power to impose immediate punishments for contempt in the face of the court, derived from legislation or through common law:

• Insult a judge or justice, witness or officers of the court
• Interrupts the proceedings of the court
• Interfere with the course of justice
• Misbehaves in court (e.g., use of mobile phone or recording devices without permission)
• Juror who leaves without permission of the court during proceedings
• Disobeying a judgment or court order
• Breach of undertaking
• Breach of a duty imposed upon a solicitor by rules of court

The use of insulting or threatening language in the magistrates' courts or against a magistrate is in breach of section 99 of the Magistrates Ordinance (Cap 227) which states the magistrate can 'summarily sentence the offender to a fine at level 3 and to imprisonment for 6 months.'

In addition, certain appeal boards are given the statutory authority for contempt by them (e.g., Residential Care Home, Hotel and Guesthouse Accommodation, Air Pollution Control, etc.). For contempt in front of these boards, the chairperson will certify the act of contempt to the Court of First Instance who will then proceed with a hearing and determine the punishment.

In England and Wales (a common law jurisdiction), the law on contempt is partly set out in case law (common law), and partly codified by the Contempt of Court Act 1981. Contempt may be classified as criminal or civil. The maximum penalty for criminal contempt under the 1981 Act is committal to prison for 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.

There are limits to the powers of contempt created by rulings of European Court of Human Rights. Reporting on contempt of court, the Law Commission commented that "punishment of an advocate for what he or she says in court, whether a criticism of the judge or a prosecutor, amounts to an interference with his or her rights under article 10 of the ECHR" and that such limits must be "prescribed by law" and be "necessary in a democratic society",[15] citing Nikula v Finland.[16]

The Crown Court is a superior court according to the Senior Courts Act 1981, and Crown Courts have the power to punish contempt. The Divisional Court as part of the High Court has ruled that this power can apply in these three circumstances:

1. Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court);
2. Disobedience of a court order; and
3. Breaches of undertakings to the court.

Where it is necessary to act quickly, a judge may act to impose committal (to prison) 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 King's Bench Division of the High Court of Justice of England and Wales.

Magistrates' courts also have powers under the 1981 Act to order to detain any person who "insults the court" or otherwise disrupts its proceedings until the end of the sitting. Upon contempt being admitted or proved the (invariably) District Judge (sitting as a magistrate) may order committal to prison for a maximum of one month, impose a fine of up to £2,500, or both.

It will be contempt to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.[17]

It will not be contempt according to section 10 of the Act for a journalist 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".

Under the Contempt of Court Act it is criminal contempt 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.

Section 2 of the Act defines and limits the previous common law definition of contempt (which was previously based upon a presumption that any conduct could be treated as contempt, regardless of intent), to only instances where there can be proved an intent to cause a substantial risk of serious prejudice to the administration of justice (i.e./e.g., the conduct of a trial).

In civil proceedings there are two main ways in which contempt is committed:

1. Failure to attend at court despite a summons requiring attendance. In respect of the High Court, historically a writ of latitat would have been issued, but now a bench warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual, and imprisonment until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally "backed for bail"—i.e., bail will be granted once the arrest has been made and a location where the person can be found in future established.
2. 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.

In India, contempt of court is of two types:

In United States jurisprudence, acts of contempt are generally 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. In the United States, relevant statutes include 18 U.S.C. §§ 401–403 and Federal Rule of Criminal Procedure 42.[18]

1. Direct contempt is that which occurs in the presence of the presiding judge (in facie curiae) 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.
2. Indirect contempt 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.

Sanctions for contempt may be criminal or civil. 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 (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required. In federal and most state courts, the burden of proof for civil contempt is clear and convincing evidence, a lower standard than in criminal cases.[19]

In civil contempt cases there is no principle of proportionality. In Chadwick v. Janecka (3d Cir. 2002), a U.S. court of appeals held that H. Beatty Chadwick could be held indefinitely for his failure to produce $2.5 million as a 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.

Civil contempt is only appropriate when the imposed party has the power to comply with the underlying order.[20] Controversial contempt rulings have periodically arisen from cases involving asset protection trusts, where the court has ordered a settlor of an asset protection trust to repatriate assets so that the assets may be made available to a creditor.[21] A court cannot maintain an order of contempt where the imposed party does not have the ability to comply with the underlying order. This claim when made by the imposed party is known as the "impossibility defense".[22]

Contempt of court is considered a prerogative of the court, and "the requirement of a jury does not apply to 'contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.'" This stance is not universally agreed with by other areas of the legal world, and there have been many calls to have contempt cases to be tried by jury, rather than by judge, as a potential conflict of interest rising from a judge both accusing and sentencing the defendant. At least one Supreme Court justice has made calls for jury trials to replace judge trials on contempt cases.[23]

The United States Marshals Service is the agency component that first holds all federal prisoners. It uses the Prisoner Population Management System /Prisoner Tracking System. The only types of records that are disclosed as being in the system are those of "federal prisoners who are in custody pending criminal proceedings." The records of "alleged civil contempors" are not listed in the Federal Register as being in the system leading to a potential claim for damages under The Privacy Act, 5 U.S.C. § 552a(e)(4)(I).[24]

In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, unless the media outlet is a party to the case, 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.[25] Newspapers cannot be closed because of their content.[26]

There have been criticisms over the practice of trying contempt from the bench. In particular, Supreme Court Justice Hugo Black wrote in a dissent, "It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury."[23]