Contempt of court laws protect against interference with or disruption of the administration of justice. It has sanctions and/or remedies that are used to preserve the authority and credibility of the judiciary and to protect the right of citizens to a fair trial. Generally, contempt of court proceedings is distinguished between direct or indirect.
A direct contempt (or in facie curiae) is an act that occurs in the presence of the court and is intended to cause disrespect to the court. Examples of such behaviour are yelling in the courtroom or refusing to answer questions for a judge or attorney under oath.
An indirect contempt (ex facie curiae) occurs outside the presence of the court, with a behaviour that has an intention to belittle, mock, obstruct, interrupt or degrade the court and its proceedings. Examples of such behaviour is attempting to bribe a judge, withholding evidence, publishing material that may prejudice the right to a fair trial when legal proceedings are pending (colloquially known as “trial by media”), and criticizing judges or the courts which may undermine public confidence in the judicial system (known as “scandalizing the court”).
Table 1 – Examples of direct and indirect contempt
The right to a fair trial often conflicts with the right to freedom of expression and the freedom of the press to report legal proceedings. While different legal institutions and rules in the countries analysed in this article have different ways of balancing these competing rights, these countries possess relatively strict tests to establish whether a party has been in contempt of the court. Both of these competing rights are protected by international and regional human rights instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR)
This article focuses on how judicial systems in different countries deal with the clash of these competing interests. This clash is most observed in cases of indirect contempt, specifically through two actions: (a) commenting on pending judicial proceedings, and (b) criticizing judges and courts.
Commenting on Pending Judicial Proceedings
Contempt laws in such cases (known in common law jurisdictions as the sub judice rule) involve prohibiting publication of matters which risk prejudicing the right to a fair trial when legal proceedings are pending or ongoing. This is designed to insulate juries and judges from being influenced or pressured by sensational publicity by pre-trial media reporting (also known as pre-trial publicity). Examples of such behaviour are publications which pressures a party to a legal case that deters he or she from attending court, publishing matter which are not admissible as evidence in court, publishing about matters which may create bias in a jury such as the previous convictions of the defendant which are irrelevant to the case at hand, or a publication which prejudges the case (declaring that the accused is guilty before the court determines final judgement). This last example is a violation of the right to the presumption of innocence, which is protected by Article 17 of the ICCPR.
In the United Kingdom, the Contempt of Court Act (1981) sets a liability test in s.2(2), which states: “The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.” Thus, the essential elements to determine if the expression or comment is an offense is whether a substantial risk had been created which would have caused the legal proceedings to have been seriously impeded or prejudiced.
A clear example which shows this is when a demonstration occurs outside a courtroom. If the protestors are assembling peacefully, there is no substantial risk that could seriously impede legal proceedings. However, if the demonstrators bar the defendant from entering the courtroom to stand trial, then it is clear that contempt has been committed as legal proceedings were impeded.
Contempt laws in the UK are a strict liability offense, which means that the intention of the defendant does not have to be proven to establish guilt.
In addition to this test, section 5 of the Act states that a publication is not to be treated as contempt of court under the strict liability rule if (1) it discusses public affairs or matters of general interest “in good faith” “and (2) if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
These elements to the UK Contempt of Court Act is based on a ruling by the European Court of Human Rights in the landmark case of the Sunday Times v. United Kingdom [1979]. In the ECHR, paragraph 2 of Article 10 states that media freedom can be legally restricted if three conditions are met. These conditions are that any restriction: (a) must be “proscribed by law”, (b) must “pursue a legitimate aim”, and (c) must be “necessary in a democratic society.” With regard to (b), “legitimate aims” include “the protection of the reputation or rights of others”, and “maintaining the authority and impartiality of the judiciary” (among a list of other aims).
Thus, ECHR provisions allow for contempt of court laws to exist, but their invocation is only legal if they meet the three conditions listed above and if they do not violate domestic law. For contempt of court cases, the ECHR requires member states to conduct a “proportionality exercise” to investigate if the social need of protecting the authority of the judiciary outweighs the right to freedom of expression.
A case which clearly shows the use of the ECHR’s legal test and the “proportionality exercise” is the previously mentioned case of the Sunday Times v. United Kingdom. In this case, the UK court imposed an injunction (a court order) restraining the newspaper the Sunday Times from publishing article(s) related to a settlement being negotiated out of court. The newspaper had previously criticised the settlement proposals for cases of children suffering from severe birth defects due to their mothers’ use of thalidomide (in sedatives manufactured by a British drug company) during pregnancy. The newspaper was planning to publish an article investigating whether proper tests had been carried out by the drug company in question. While the UK court judged that contempt had been committed, the ECHR rejected the UK court’s judgement and overturned the injunction.
Although the ECHR viewed the UK court’s injunction as “prescribed by law” and “pursuing a legitimate aim” to protect the impartiality of the judiciary (thus fulfilling two conditions), the European court judged that this injunction was not “necessary in a democratic society” (thus, failing to fulfil the third condition). The proportionality exercise here is whether the interest of safeguarding the judiciary outweighs the right of the public to be properly informed and the freedom of the press to inform the public. In this case, the European court upheld the latter rights. Since the ECHR acknowledged that the article was moderate and balanced and that it covered a topic that had already been widely discussed in society, the risk of undermining the impartiality of the judiciary was minimal, and did not outweigh the public interest in freedom of the press.
Although the ECHR viewed the UK court’s injunction as “prescribed by law” and “pursuing a legitimate aim” to protect the impartiality of the judiciary (thus fulfilling two conditions), the European court judged that this injunction was not “necessary in a democratic society” (thus, failing to fulfil the third condition). The proportionality exercise here is whether the interest of safeguarding the judiciary outweighs the right of the public to be properly informed and the freedom of the press to inform the public. In this case, the European court upheld the latter rights. Since the ECHR acknowledged that the article was moderate and balanced and that it covered a topic that had already been widely discussed in society, the risk of undermining the impartiality of the judiciary was minimal, and did not outweigh the public interest in freedom of the press.
Thus, the ECHR’s judgement in the ruling of this case and its application of the three condition-legal test and the proportionality exercise paved the way for the stricter determination of contempt in the UK’s Contempt of Court Act: that a substantial risk has been created which would have caused the legal proceedings to have been seriously impeded or prejudiced. The influence of the ECHR judgement on this UK law is clear as the law clearly exhibits a similar proportionality exercise.
The legal test in the US to determine contempt is even stricter, and thus the courts have very limited power to punish for contempt. The rule is that a publication cannot be punished for contempt unless there is a “clear and present danger” to the administration of justice. The legal test, formulated from the judgement in the case of Schenk v. United States [1919] and applied in Bridges v. California [1941], has a requirement that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Given the strict requirements needed to establish contempt, the media in the US faces few restrictions in reporting on pending judicial proceedings.
An important case that show how strict US legal tests are in establishing contempt for cases of pre-trial coverage by journalists is the case of Bridges v. California [1941]. In this case, a telegram that was sent by a union official, Harry Bridges, to the US Secretary of Labour was published in local newspapers in California. The telegram, which was sent when a motion for a another trial was pending, contained a message from Bridges threatening to organize a union strike if the judged enforced an adverse decision. While the lower courts convicted the defendant of contempt, the US Supreme Court established that no contempt of court had been committed as no clear and present danger had been shown. The Supreme Court held that a contempt conviction would actually undermine the judiciary as the enforced silence would engender resentment. In addition, the Supreme Court judged that they would be imputing that the judiciary lacked firmness if it was held that the published statements would influence judges.
Legal Ground that each entities used to determine contempt of court offense
Criticizing Judges and Courts
This type of contempt of court is aimed to maintain public confidence in the judiciary, and thus its authority and integrity. It is typically used when a judge or court has been unfairly abused, when a judge or court is accused of bias or partiality, or when a judge or court is accused of being influenced by outside pressures.
In the common law countries of the UK, Australia and New Zealand, the legal test to determine liability requires a real risk, as opposed to a remote possibility, that public confidence in the judicial system would be undermined. The term ‘real risk’ in international law, means “a reasonable degree of likelihood.” In the UK, intention is not required to establish liability.
These countries differ in judging whether accusations of bias in judges amounts to contempt. In the English case of R. vs. Editor of New Statesman [1928], a newspaper was found in contempt of court after it published an article that imputed that the religious beliefs of the judge made it certain that he would rule against a woman who advocated for birth control. Conversely, the court judgement of the Australian case of Attorney-General for NSW vs. Mundey [1972] demonstrated that an accusation of bias does not necessarily constitute contempt.
In the US, the legal test is that the publication must create a “clear and present danger” to the administration of justice. The Canadian legal test in establishing if there was offense is close to the American test. In the leading case of R. v. Koptyo [1987], a barrister had been charged with contempt of court after he made critical remarks about the judiciary to a newspaper reporter after his client lost a case. There was a majority consensus in the Ontario Court of Appeal that to establish that contempt has been committed, there had to be “clear and present” or “imminent” danger to the administration of justice.
In the legal reasoning of Cory JA in this case, he stated that “The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their operations or decisions.” Thus, the barrister was acquitted by the Ontario Court of Appeal as the charges against him was deemed to be unconstitutional.
As for the European Court of Human Rights, the court uses the same three-condition legal test as described earlier (Paragraph 2 of Article 10). In addition, the European court typically finds that criticism of the court does not constitute contempt of court if:
(a) the criticism is targeted towards the legal reasoning of the judges rather than a personal attack on the judges,
(b) the criticism in question is not unfounded.
To see how the court operates with regard to cases of “scandalizing the court”, two landmark cases are looked at here: Barfod v. Denmark [1989], and De Haes and Gisjels v. Belgium [1987]). These cases are explained in detail below:
The Greenland Local Government decided to introduce taxation of Danish national working in United States bases in Greenland. This resulted in the challenge of the decision by a number of individuals on the grounds that they did not have the right to vote in local elections and that they do not receive any benefits from the Local Government. The High Court of Greenland, which made up of one professional judge and two lay judges ruled in favour of the taxation by the Local Government. In response, Mr. Barfod wrote an opinion piece in the publication Gronland Dansk accusing the two lay judges of conflict of interest as they were also both employees of the Local Government. Mr. Barfod was subsequently convicted of defamation of character by the High Court of Greenland
The ECHR judged in a 6-1 majority that the High Court’s decision did not constitute a violation of Mr. Barfod’s right to freedom of speech. The European Court judged that the defamatory accusation by Mr. Barfod was not a criticism of the legal reasoning of the two lay judges (which would not have constituted contempt), but was a personal attack against the lay judges and would have likely lowered the public esteem of the judges. In addition, the European court found that the defamatory accusations in the opinion piece did not have any supporting evidence.
(2) De Haes and Gisjels v. Belgium
In this case from Belgium, there were two defendants: an editor and a journalist of a weekly magazine. They published five articles which criticised judges in their decision in a divorce case to award custody of children to a father, who is a self-confessed Nazi and had been the subject of criminal proceedings for incest and abuse of his children. The articles accused the judges of sharing the father’s political ideologies and used medical reports to support their criticisms. These medical reports showed that the children had returned from visits with their father with evidence of being raped. The judges and advocate-general pressed charges of defamation against the editor and the journalist. The defendants from the Court of Appeal were ordered to pay damages and the court’s judgement of contempt was ordered to be published in the defendants’ magazine.
The ECHR, however, overturned this judgement and held that the defendants’ right to freedom of expression had been violated. While the ECHR judged that the restriction met the first two conditions (of the ECHR legal test) of being “prescribed by law” and having a “legitimate aim” to maintain the authority of the judiciary, it ruled that the restriction was not “necessary in a democratic society”. In its judgement, the European court emphasized the importance of the press in imparting “information and ideas on all matters of public interest, including those relating to the functioning of the judiciary.”
Importantly, the ECHR ruled that judges must be protected from “destructive attacks that are unfounded”. It acknowledged that since the articles published were based on in-depth research and proper evidence, no contempt had been committed and the defendants’ rights to freedom of expression had been infringed.