CHAPTER THREE – THE DIFFERENT TYPES OF CONTEMPT
Lord Mansfield CJ said in Morgan v Jones (1773) Lofft 160, 176
“Most of the disputes in the world arise from words.”
Not unlike medicine or dentistry, the legal profession and the courts have had their own way of excluding laypeople from understanding the words they use in court or in documents. The law in England Law has grown up with the use of different languages including English, French and Latin. All of which were used interchangeably in our courts for centuries. In more recent times, since Lord Woolf’s pronouncements as Master of the Rolls we use much less Latin in court and in legal documents, but even now some language and words remain obscure to many.
In this way, contempt of court is ‘chameleon’ or ‘protean’. Although attempted many times, the courts and jurists have struggled to easily classify the varying types of contempt of court. Therefore, I seek to attempt to assist the reader with some of the more recent views of the senior courts.
There is much that can be said about the difference between criminal and civil contempt, but a lengthy history is not necessary in view of the helpful judgment of Lord Toulson in the Supreme Court’s judgment in Regina v O’Brien  UKSC 23,  1 A.C. 1246 when he succinctly explained,
37. There is a distinction long recognised in English law between “civil contempt”, ie conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed, and “criminal contempt”. Among modern authorities, the distinction was explained in general terms in Home Office v Harman  1 AC 280 (in particular by Lord Scarman, at p 310)…
38. Breach of an order made (or undertaking obtained) in the course of legal proceedings may result in punishment of the person against whom the order was made (or from whom the undertaking was obtained) as a form of contempt… However, a contempt of that kind does not constitute a criminal offence. Although the penalty contains a punitive element, its primary purpose is to make the order of the court effective. A person who commits this type of contempt does not acquire a criminal record.
39. A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice. Examples include physically interfering with the course of a trial, threatening witnesses or publishing material likely to prejudice a fair trial…
42… It is necessary to look at the nature and purpose of the order. It is fallacious to argue that because the order was made by a criminal court, rather than a civil court, disobedience to the order amounts to a crime, whereas it would not have been a crime to disobey a similar order imposed by a civil court. The question whether a contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on nature of the conduct. To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial. Conversely, disobedience to a procedural order of a court is not in itself a crime, just because the order was made in the course of criminal proceedings. To hold that a breach of a procedural order made in a criminal court is itself a crime would be to introduce an unjustified and anomalous extension of the criminal law. “Civil contempt” is not confined to contempt of a civil court. It simply denotes a contempt which is not itself a crime.”
Open Justice is vital, but reports in publications and the media can interfere with justice in ongoing criminal trials. The Contempt of Court Act 1981 is the main legislation in respect of proceedings for contempt if such reporting may have an impact on the course of criminal proceedings.
Further sub-divisions of contempt
Again, because of the historical way that the case law has built upon and because of different statutes over a long period of time, the categories of contempt do not fall into neat categories, and indeed they can overlap. I deal here with some of the more common situations which arise.
Contempt in the ‘face of the court’.
There is frequently reference to ‘contempt in the face of the court’, but what does it actually mean?
It is the power to deal ‘at once1 with those who interfere with the administration of justice’. Therefore, it is a ‘summary’ process, albeit my view is that this is no longer appropriate ‘to deal at once’ with final decisions on contempt. There must be significant safeguards to this summary process, including the right to legal representation and to the right to silence. It means therefore that the days of imprisonment with an order for committal on the same morning following an outburst from a court attendee should not occur.
I will deal below at chapter eight with the procedure to be followed and at chapter nine with the penalties or sanctions which can be imposed for contempt in the face of the court, but the starting and end is that set out by the Court of Appeal in Morris v Crown Office  2 Q.B. 114
The celebrated Lord Denning M.R. set out the facts of Morris,
“A group of students, young men and young women, invaded the court. It was clearly prearranged. They had come all the way from their University of Aberystwyth. They strode into the well of the court. They flocked into the public gallery. They shouted slogans. They scattered pamphlets. They sang songs. They broke up the hearing. The judge had to adjourn. They were removed. Order was restored.”
Lord Denning went on to hold,
“…a judge of the High Court still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence.”
At the time this must have been seen as a very harsh decision when the students in question were protesting about something as important as the protection and use of the Welsh language. Leading counsel for the students had submitted to the Court of Appeal that these were students of impeccable character from ‘good and hard-working Welsh families’.
The students’ downfall though was the disruption that they had caused to the proceedings. The issue was not the strength of their cause. To look at this another way, the courts do not prevent properly presented written and oral submissions, even if those submissions might be controversial. What the courts do not permit though, even if based on good intention, is a rally or demonstration within the court room itself.
In cases I have presented at the Royal Courts of Justice, the clients’ cause was ‘presented’ outside the famous entrance on the Strand with supporters having placed banners on the railings, with placards or by supporters blowing whistles and shouting chants demanding justice. Such demonstrations with permission and agreement are permissible, but a repeat of such behaviour inside the court is not. The court will usually permit such interested parties in the case to remain in the court room’s public gallery for as long as they wish, but the demonstrators must remain as mere observers and not vocal protesters or by holding up placards or the like. Courts and judges acknowledge that feelings and emotions will be running high in cases that come to them for consideration. ThejJudge though has to deal with the case efficiently and without disruption.
Any person attending court must therefore appreciate that the court has very wide powers indeed to ensure that they behave and act appropriately. The courts jealously guard the need to ensure that the sanctity of the court is upheld.
The judges in those cases remind the public gallery that they are free to remain but that the judge will make a decision on the evidence and submissions that are heard and not on how loud the protest might be. That has to be right. Sometimes those with the quietest voice or even no voice are the ones who need justice and the courts’ assistance the most.
If the Morris protestors had caused serious disruption now, then since 1 October 2020 the procedure to deal with it is much more streamlined than it was previously.
That is because of the introduction of Civil Procedure Rules Part 81.6(1)2. That specifically refers to contempt in the face of the court and states,
81.6.— Cases where no application is made
(1) If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court on its own initiative shall consider whether to proceed against the defendant in contempt proceedings.
(2) Where the court does so, any other party in the proceedings may be required by the court to give such assistance to the court as is proportionate and reasonable, having regard to the resources available to that party.
(3) If the court proceeds of its own initiative, it shall issue a summons to the defendant which includes the matters set out in rule 81.4(2)(a)-(s) (in so far as applicable) and requires the defendant to attend court for directions to be given.
(4) A summons issued under this rule shall be served on the defendant personally and on any other party, unless the court directs otherwise. If rule 81.5(2) applies, the procedure there set out shall be followed unless the court directs otherwise.
Therefore, the judge would now be able to deal with the protestors more efficiently as set out in this new provision.
Examples of contempt in the face of the court can include:
Assaulting or threatening people in the court
Assaulting or threatening the judge. Unfortunately, in recent times, the willingness of litigants to attack judges has become more commonplace and is to be deplored3.