Chapter 5 - Some judicial powers

Contempt

Introduction

The principal purposes of the law of contempt have been described as being to “preserve an efficient and impartial system of justice, public confidence in the administration of justice as administered by the courts, and to guarantee access to the courts by potential litigants”.99 The law of contempt developed through the common law, but in New Zealand over the years there have been some limited statutory incursions. As a result, the law has a distinctly patchwork appearance, which is confusing for the public and creates difficulties for lawyers and the judiciary.

In this Issues Paper, we are dealing only with one aspect of the law of contempt – what is often called “contempt in the face of the court”. This is the only type of contempt that is statutorily provided for in the legislation we are reviewing. Each of the District Courts Act 1947, the Judicature Act 1908 and the Supreme Court Act 2003 has slightly different provisions relating to this type of contempt.100  As part of the consolidation exercise we are undertaking, we need to consider which, if any, should be adopted in a new Courts Bill.

A preliminary issue

The Law Commission presently also has a reference from the Government to tackle all aspects of the law of contempt. That reference, which is still being scoped, provides an appropriate vehicle in which to deal with other, non-statutory, types of contempt. However, we acknowledge that the interface between the review in this Issues Paper of contempt in the face of the court, and the Law Commission’s broader contempt project, may be problematic.

For example, if, for the sake of argument, the latter project recommended that a Contempt Act be enacted that dealt with all types of contempt, this could overtake any contempt in the face of the court provision(s) in a new Courts Bill.

Further, the contempt reference is likely to include consideration of such issues as whether the maximum penalty for contempt should be changed, and whether a process for hearing contempt applications should be provided, by statute or otherwise. Neither of these matters is within our remit in this consolidation exercise.

However, if, as we currently propose, the various courts statutes are to be revoked and replaced by a new Courts Bill, something has to be done about contempt in the face of the court now. A “hole” cannot and should not be left in the law. Accordingly, we set out below our provisional views on what a contempt in the face of the court provision in a new Courts Bill should look like.

Contempt in the face of the court

A typical contempt in the face of the court provision, such as is found in s 56C of the Judicature Act 1908, provides:

56C Contempt of Court

(1) If any person—

(a) Assaults, threatens, intimidates, or wilfully insults a Judge, or any Registrar, or any officer of the Court, or any juror, or any witness, during his sitting or attendance in Court, or in going to or returning from the Court; or

(b) Wilfully interrupts or obstructs the proceedings of the Court or otherwise misbehaves in Court; or

(c) Wilfully and without lawful excuse disobeys any order or direction of the Court in the course of the hearing of any proceedings—

any constable or officer of the Court, with or without the assistance of any other person, may, by order of the Judge, take the offender into custody and detain him until the rising of the Court.

(2) In any such case as aforesaid, the Judge, if he thinks fit, may sentence the offender to imprisonment for any period not exceeding 3 months, or sentence him to pay a fine not exceeding $1,000 for every such offence; and in default of payment of any such fine may direct that the offender be imprisoned for any period not exceeding 3 months, unless the fine is sooner paid.

(3) Nothing in this section shall limit or affect any power or authority of the Court to punish any person for contempt of Court in any case to which this section does not apply.

As Lord Denning stated in Morris v Crown Office:101

The phrase “contempt in the face of the court” has a quaint old-fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in the courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power.

We are not aware of any suggestions that a contempt in the face of the court provision is no longer necessary. The question for consideration is what the provision, or set of provisions, in a new Courts Bill should look like.

 

Criminal procedure reforms

The Law Commission considered the “contempt in the face of the court” provisions in the criminal statutes recently in its review of the law relating to the suppression of names and evidence.102  In that report, we considered section 401 of the Crimes Act 1961 and section 206 of the Summary Proceedings Act 1957. Both of those sections deal with insults, interruptions and disobedience, but the Crimes Act 1961 provision (like the Judicature Act 1908 provision) also includes assaults and threats as amounting to contempt, whereas the Summary Proceedings Act 1957 provision does not.

The Commission recommended that the two criminal provisions be replaced by a single provision in the Criminal Procedure Bill, drafted in terms of the narrower section 206 of the Summary Proceedings Act 1957.103  The Commission concluded:104

Assault and threats are offences that may be prosecuted and, if proved, punished under the criminal law. We believe it would be preferable for those matters to be dealt with by the ordinary criminal process, rather than by way of contempt. The terms of section 401(1) [of the Crimes Act 1961] would allow a person who assaults a juror, for example, to be taken into custody, imprisoned or fined without the benefit of a trial or any of the other protections that would attach if he or she were charged under the criminal law.

This recommendation was carried through into section 365 of the Criminal Procedure Act 2011, which provides:105

365 Contempt of court

(1) This section applies if any person—

(a) wilfully insults a judicial officer, or any Registrar, or any officer of the court, or any juror, or any witness, during his or her sitting or attendance in court, or in going to or returning from the court; or

(b) wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or

(c) wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.

(2) If this section applies,—

(a) any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer, take the person into custody and detain him or her until the rising of the court; and

(b) the judicial officer may, if he or she thinks fit, sentence the person to—

(i) imprisonment for a period not exceeding 3 months; or

(ii) a fine not exceeding $1,000 for each offence.

(3) Nothing in this section limits or affects any power or authority of a court to punish any person for contempt of court in any case to which this section does not apply.

Our provisional view

We consider that a new Courts Bill should contain one generic provision dealing with contempt in the face of the court. This provision should apply to all the courts which are the subject of this reference. Our provisional view is that a section in similar terms to that recently enacted as section 365 of the Criminal Procedure Act 2011 should be adopted in a new Courts Bill. This has the benefit of consistency and it is the most current iteration of a contempt in the face of the court provision by our Parliament.

This section is broadly consistent with the current provision in the District Courts Act 1947, but is slightly narrower than the first limb of the provisions in the Judicature Act 1908 and the Supreme Court Act 2003. The former covers only wilful insults, while the latter two also refer to assault and threats. We see no reason to depart from the conclusion the Commission reached in 2009 that assaults and threats should be dealt with by the ordinary criminal process, rather than by way of contempt.

In our view, the savings provision in section 365(3) of the Criminal Procedure Act 2011 is intended to make it clear that the courts’ inherent jurisdiction is retained in respect of other contempt matters (ie matters other than contempt in the face of the court). It is not intended that the court can still use its inherent jurisdiction to hold people in contempt when the matter already falls within the scope of the contempt in the face of the court section.

This is of some practical importance. Counsel and judges – understandably burdened with an already difficult body of law – are inclined to proceed on the basis that they can rely on the inherent jurisdiction or the statutory provision in a contempt in the face of the court situation. That is not our understanding, at least with respect to the Criminal Procedure Act 2011, and we think the same position should be made plain in the proposed Courts Bill provision.

Finally, if a generic provision was enacted in a new Courts Bill, there would be no need for section 365 of the Criminal Procedure Act 2011 to be retained. The broader provision, applying in all courts, could adequately deal with contempt in the face of the court in criminal as well as civil proceedings.

However, as contempt law has to be invoked in the equivalent of “battlefield conditions” when something unexpectedly breaks out in court, practitioners might immediately turn to the Criminal Proceedings Act 2011. For that reason, a “signpost” section 365 could be kept, directing the user to the relevant provision of the new Courts Act.

A draft contempt in the face of the court provision is set out in appendix 3.

Q13

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?

ATH Smith Reforming the New Zealand Law of Contempt of Court – An Issues/Discussion Paper (18 April 2011) at 8.

District Courts Act 1947, s 112; Judicature Act 1908, s 56C; and Supreme Court Act 2003, s 35.

Morris v Crown Office [1970] 2 QB 114 at 122B-C.

Law Commission Suppressing Names and Evidence (NZLC R109, 2009).

At 71.

At 70.

This section is not yet in force.