Some judicial powers
Contempt in the face of the court
9.3The statutory power to hold someone in contempt of court is commonly known as “contempt in the face of the court”. This is because it covers misconduct in court (and in some circumstances on the way to and from court), and disobedience of court orders. Where a person acts in such a way, the presiding Judge is empowered to have the “contemnor” taken into custody and detained until the rising of the court. The Judge can, ultimately, sentence the person to a term of imprisonment or impose a fine.
9.4In Issues Paper 29, we noted that there are a number of differently worded contempt in the face of the court provisions currently in existence, and we identified three issues relating to them:
- Should they include assaults on, and threats to, judges, court staff, jurors and witnesses (as some of the existing provisions do), or should these specific matters be left to the general criminal law?
- Does the “savings” subsection in each of the provisions retain the courts’ inherent powers only in respect of other contempt measures, or also with respect to contempt in the face of the court?
- Is there any reason to have separate provisions for contempt in the face of the court either between the courts, or for civil matters and criminal cases?
9.5Our provisional view was that assaults and threats should not come within the sections’ scope, the “savings” subsection only retains the courts’ inherent powers in respect of other contempt measures (and that this should be made clear), and that there was no reason to have separate provisions for either.
9.6Following on from this last point, we considered that there should be one provision in a new Courts Act that should apply to all courts and proceedings. Therefore, the specific criminal provision recently enacted as section 365 of the Criminal Procedure Act 2011 would no longer be required, but could rather be replaced with a “signpost” provision directing the user to the relevant section of the new Courts Act. However, we considered section 365 to be a good model, and we ultimately proposed in Issues Paper 29 that the contempt in the face of the court provision in new courts legislation should be drafted in similar terms.
9.7We summed all this up by asking the question:
Do you agree that there should be a generic provision in a new Courts Bill for contempt in the face of the court, dealing with all courts and proceedings, and drafted in similar terms to s 365 of the Criminal Procedure Act 2011?
9.8No submitters disagreed with our proposal, and many expressly agreed with it. Accordingly, we recommend that the draft contempt provision from Issues Paper 29 be included in new courts legislation, and that section 365 of the Criminal Procedure Act 2011 be repealed and replaced with a “signpost” provision. The draft provision is included in this Report as Appendix 4.
9.9One final point does, though, need to be addressed before we leave this topic. In Issues Paper 29, we noted that the Law Commission had recently received a reference to address the whole law of contempt, and that the interface between that reference and the present consideration of only the contempt in the face of the court provisions could be problematic. However, we concluded that, as the overall proposal in Issues Paper 29 was to repeal all the existing courts legislation and replace it with a new Courts Act, something needed to be done about contempt in the face of the court now, so as not to leave a “hole”.
9.10We did not receive any negative feedback on our proposed way forward. Further, given that the Law Commission has not commenced the general contempt reference at the time of writing this Report, we are fortified in our view that this is the appropriate course.
R42 There should be a generic provision in new courts legislation for contempt in the face of the court, dealing with all courts and proceedings, and drafted in similar terms to section 365 of the Criminal Procedure Act 2011.
R43Section 365 of the Criminal Procedure Act 2011 should be repealed, with a “signpost” provision retained in its place directing users to the relevant section of the new courts legislation.