All jurisdictions have laws that are designed to maintain public confidence in the legal system and prevent interference in the administration of justice. In particular, it is important to ensure that the courts function properly, and that their work – and the respect that the community has in their work – is not damaged or undermined, either during the course of court proceedings or outside the context of court proceedings. In common law jurisdictions, the courts have the power to punish persons for refusing to comply with court orders, and for engaging in other conduct that is disrespectful to the courts, or interferes with the administration of justice in some way. The name that is given to such conduct – or the offence that is committed by engaging in such conduct – is contempt of court. This column outlines the laws governing contempt of court in common law jurisdictions and examines the position in mainland China by comparison.
Common law jurisdictions
The English word contempt traces its roots to the Latin word contemnere, meaning “to scorn or despise”. In common law jurisdictions, a distinction was traditionally drawn between civil contempt and criminal contempt. The purpose of civil contempt powers was to enforce compliance with court orders or to prevent frustration of court orders. The purpose of criminal contempt powers, on the other hand, was to punish and deter interference in the administration of justice. As both forms of contempt involve the same procedures and can lead to the same consequences (including imprisonment and fines), the distinction often does not have any real significance. If the contempt is treated as criminal, it must be proven beyond a reasonable doubt in the same way as any other criminal offence.
In civil proceedings in the US, courts distinguish between direct contempt – where a person commits contempt in the presence of the judge – and indirect contempt, where the conduct or of misbehaviour does not occur in the courtroom and includes the situation where a person fails to comply with a court order (this is also sometimes referred to as constructive or consequential contempt).
Contempt of court can take many forms and is governed both by legislation and also common law principles that have been formulated by the courts (for a discussion of judge-made law, see China Business Law Journal volume 3 issue 2: Binding or persuasive?). The three main types of contempt of court are outlined below.
Sub judice contempt. Sub judice is a Latin term that means “under judgment”. Sub judice contempt of court is an offence that prohibits the publication of material that has the potential to prejudice legal proceedings or interfere with the due administration of justice of those proceedings. It is less relevant in proceedings where no jury is involved as the general understanding is that a judge is not influenced by information that is reported in the media. However, it may also occur where a person puts improper pressure on a party to court proceedings, or prevents a witness from gaining access to the court.
Last year, the Supreme Court of Victoria in Australia found an online news service guilty of sub judice contempt for publishing an article during a murder trial. The court found that the article prejudiced the fair trial of a person who was accused of murder because it suggested that the accused person had a propensity for violence, which was information that should not have been put before the jury at the trial. The publication of the article led to the discharge of the jury and the selection of a new jury. The online news service was convicted of contempt of court and fined A$300,000 (US$228,000).
The potential harm that sub judice contempt can cause is greater in the digital world of today, where information published online can be spread very quickly through social media.
Scandalizing contempt. This type of contempt occurs where a person makes unjustified criticism of the courts that has the potential to undermine public confidence in the administration of justice. It may occur even where the conduct does not interfere with a specific case that is under way. Such action may lead to criminal prosecution.
Contempt can also arise where a person refuses to attend court, refuses to answer material questions in court, or refuses to disclose documents pursuant to a court order. In general, the giving of false answers will not constitute contempt, although it may constitute the offence of perjury if it is intentional. It is important to note that a contempt of court may also arise where a party destroys documents that are likely to be required for court proceedings, even if no court order has yet been made for their production.
This type of contempt was the subject of controversy recently in Australia, where certain politicians from the governing party criticized the courts in the State of Victoria for what they alleged to be inappropriately lenient sentences handed to people convicted of terrorist-related crimes. The criticism took the form of statements, including the following: “the attitude of judges like these has eroded any trust that remained in our legal system”, and “some of these judges are divorced from reality”.
The criticism was made while the Victorian Court of Appeal was hearing an appeal against a sentence handed down by the lower court, which meant that it also fell within the scope of sub judice contempt as outlined above. The politicians were ordered to appear before the court and subsequently apologised for, and withdrew, their statements in order to avoid being prosecuted for contempt of court. Relevantly, the court indicated that if the politicians had not apologised and withdrawn their statements, it would have taken steps to have them prosecuted for contempt of court.
It is necessary to strike a balance between, on the one hand, protecting freedom of speech and, on the other hand, protecting the administration of justice and upholding public confidence in the legal system. In fact, the Commonwealth Attorney-General responded to a question about the controversy as follows:
“The independence of the judiciary has never been understood by the judiciary themselves to be a prohibition against criticism… The courts cannot be and are not immune from criticism which may extend to robust observations of a particular decision or penalty.”
It is interesting to note that this offence was abolished in the UK in 2013 on the basis that it operates in an oppressive manner, but it still remains an offence in Australia.
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia/china-lexicon/.