Contempt of Court
Introduction
1. Contempt of court is principally a common law doctrine, albeit partly codified by the Contempt of Court Act 1981 (external link) (CCA 1981). The doctrine exists to protect the integrity of the court by imposing appropriate penalties on those who interfere with, obstruct, impede or prejudice the administration of justice. The purpose of the law of contempt was described in the case of Re Yaxley-Lennon (external link):[1]
The law of contempt exists to protect the course of proceedings from interference, to safeguard the fairness and integrity of proceedings and to ensure that orders of the court are obeyed. It comes in many forms, both statutory and under the common law.
2. As Lord Donaldson has succinctly put it: [2]
‘Contempt of court’ is an unfortunate term which conveys to some the concept that the court and the judges are concerned for their personal dignity. Of course they are not. Their concern, and that of the law, is that the authority, impartiality and independence of the courts shall be upheld, which is quite different. Accordingly, the principal types of contempt are (a) conduct which impedes or prejudices the course of justice and (b) disobedience of orders made by the court.
Types of contempt
3. In England and Wales, contempt may be classified as:
a) Criminal contempt:
i) Contempt in the ‘face of the court’;
ii) Disobedience of a court order;
iii) Breach of an undertaking to a court.
b) Civil contempt:
i) Failure to attend court despite a court summons to attend;
ii) Failure to comply with a court order.
4. The standard of proof for both criminal and civil contempt is the criminal standard of beyond reasonable doubt and the person committing the contempt is referred to as the ‘contemnor’. Whilst the maximum penalty that may be handed down under the CCA 1981 for criminal contempt by a superior court is committal to prison for a term of two years and a fine of £2,500, the coroner’s court as an ‘inferior court’ may not impose a term of imprisonment exceeding one month.[3]
5. Whilst there are various ways to commit a contempt of court, a coroner is only empowered to deal directly with those cases where there is contempt in the face of the court. Whilst there is no single definition of contempt in the face of court, it is generally accepted that it involves misconduct that (1) creates a real risk of serious interference with the proper administration of justice and (2) is committed within the ‘personal knowledge’ of the court. For example, the refusal of a witness to answer a proper question or the refusal of some person to conform to proper and reasonable behaviour in the court.
6. ‘Personal knowledge’ has been construed broadly and whilst it most commonly applies to disruption in the courtroom itself, it can also extend to misconduct within or immediately outside the court precincts.[4] It therefore covers a broad spectrum of misconduct, including assaulting or threatening judges, jurors and other officers of the court, taking photographs of people within the court precincts[5] and disruptive behaviour in the public gallery.[6]
7. Where the disobedience is non-compliance with a properly issued (and served) notice in accordance with schedule 5 (external link) of the Coroners and Justice Act 2009 (the Act), requiring a witness to attend court to give evidence or to produce documents to the court, this will usually be dealt with by the coroner in accordance with Schedule 6, Part 2, para 6 (external link) of the Act, rather than as a contempt of court.
Contempt in the face of the court
8. This may take the form of interrupting court proceedings in some manner, such as disorderly or insolent behaviour towards the coroner (or another party or a legal representative)[7] causing a disturbance in court, using offensive language in court or language which attacks the integrity of the court.
9. A coroner may only deal with contempt ‘in the cognisance of the court’, ie in the courtroom or court building. Whilst this does extend to matters occurring in the court that have not been seen by the coroner, it is a power only exercisable when it is imperative to act immediately.[8] As an inferior court of record, the coroner has no power to punish conduct which may amount to contempt but was committed outside the court precincts.
10. Taking a photograph of any person involved in court on a mobile phone or other device (whether still or moving images) or any photography of a person within the precincts of the court may also be treated as contempt in the face of the court[9] notwithstanding that this will also be an offence under s.41 of the Criminal Justice Act 1925 (external link) (CJA 1925).[10]
11. As a coroner has no power to deal with the criminal offence summarily, it will usually be preferable to tackle the behaviour immediately as a contempt in the face of the court if a person is actively using a mobile phone camera in the courtroom. A coroner who discovers after a hearing that photographs have been taken and published of their proceedings should report the matter to the police to deal with the offence under the CJA 1925.
Immediate response to a disturbance in court [11]
12. Where there is a disturbance in court the paramount priority is the safety of the coroner and other court users. Where the misconduct could put anyone in the courtroom at risk, the coroner should trigger their panic alarm (if one is available) and safely exit the court, in accordance with any local emergency response procedure. The police should be called on 999 if anyone in the court building is put at risk by the misconduct. This will normally be done by the Court Security Team (where available) but can be done by the court clerk / coroner’s officer if the situation is especially urgent.
13. If the misconduct is disruptive but does not put anyone at risk of harm or require the attendance of the police, the coroner may wish to attempt to deescalate the situation by calmly reminding the potential contemnor of the importance of respecting the rules of court. Adopting a calm, clear, even-handed and empathic tone to explain the potential for contempt proceedings, combined with offering the opportunity for a short break, can diffuse tensions.
14. It may be that the misconduct is not sufficiently serious to warrant any further action because the coroner is either satisfied that the misconduct did not create a sufficiently serious risk of interference with the proper administration of justice to amount to a contempt, or that an apology has purged the contempt. In such circumstances, the coroner may wish to reduce the risk of any further misconduct by issuing an informal warning to the person and those others present in the court.
15. Coroners do not have the power to institute summary committal proceedings for contempt in the face of the court. Where the disruption has been serious involving violence to persons or property then referral to the police for criminal investigation may be the appropriate step.
16. Where the incident is serious enough for the police to have been called, it should be reported to the Chief Coroner’s office as soon as practicable.
Contempt by a witness refusing to answer a question
17. A witness who has attended an inquest may be held in contempt of court if they refuse to be sworn, leave the court before their evidence is completed, or refuse to answer a relevant and necessary question[12], unless the answer attracts a legally recognised form of privilege.[13], A question is relevant and necessary if the answer to it would serve a useful purpose in the proceedings in hand.[14]
18. A witness who has been primarily called to give factual evidence may not refuse to provide their opinion on a relevant matter if they have the knowledge and expertise to answer a relevant and necessary question. Whilst a witness cannot be required to express a view on an issue if they do not have one, a witness who does have an opinion and refuses to give it in circumstances where no privilege applies could be held to be in contempt of court.[15]
19. Under rule 22 (external link) a witness may not be compelled to answer any question if their answer would tend to incriminate them. The privilege is associated with the individual questions and not the witness’s testimony as a whole. A witness cannot rely upon this privilege to refuse to enter the witness box.
20. The privilege permits a witness to decline to give a potentially incriminating answer to a question, but it can only be claimed after the witness has been sworn and after the specific question has been asked of them. To invoke the privilege the witness must therefore state on their oath that they honestly believe that giving an answer to the question just asked of them will tend to incriminate them.
21. The privilege can only be claimed in respect of one’s own criminal liability (not civil or professional liability) and may not be relied on to protect someone else from criminal liability. It is for the coroner, not the witness or their representative, to decide whether or not the witness is entitled to rely upon the privilege. The privilege applies when to answer the question would carry a real or appreciable risk of its use in the prosecution of that person and so the risk may not be merely fanciful. But if such level of risk does exist, coroner should then allow the individual “great latitude” [16] in judging for themselves the effect of any particular question and so making the claim.
22. Even if it has been indicated that a witness will claim the privilege they should still be brought into the witness box and have the relevant questions asked of them. A witness may be asked a long series of relevant questions even if they have declined to give answers to earlier questions. However, the process should not be permitted to become oppressive (for example interested persons should not be permitted to ask a question that has already been put by the coroner and the privilege already claimed).
23. If it appears to a coroner that a witness has been asked such a question there is a duty on the coroner to protect the witness by informing the witness that they may refuse to answer the question. The coroner might say: “You do not have to answer that question, but if you do choose to answer you must answer truthfully”.
24. A witness may choose to waive their privilege in respect of a particular question and give an answer to it, but by doing so does not waive the privilege in respect of any other question.
25. A witness may be held in contempt even though they show no disrespect to the court. In R v Warner (Nicholas) (external link) [2020] EWCA a witness in a criminal case declined to answer a question put to him on religious grounds (in particular, his duty of confidentiality as a religious elder); the Court of Appeal held that, in principle, this was correctly considered a criminal contempt, despite the absence of any lack of respect for the court. However, in the particular circumstances of the case the Court held that there had been a serious procedural unfairness in not fully and clearly explaining the circumstances to the appellant and refusing the appellant’s request for an opportunity to take legal advice before being asked the questions again. Therefore the fine that had been issued against him was quashed.
Disobedience to a Schedule 5 notice
26. The Act did not remove or alter the powers of a coroner under common law to summon witnesses, require evidence to be given and to punish for contempt in the face of the court. However, to secure a witness’ attendance a coroner will now more usually issue a ‘Schedule 5 notice’ under that part of the Act (external link).[17] Such a notice may require the named recipient to (a) provide a witness statement regarding matters specified in the notice (b) produce documents or produce something for inspection relevant to the investigation and/or (c) attend the inquest at a specified time and place to give evidence and/or produce the relevant document or item for inspection.
27. There is no requirement to pay fees or expenses in advance on issuing a Schedule 5 notice; hence, unlike a witness summons, an offer of conduct money is not a pre-requisite to taking action for any breach of such a notice. [18]
28. A coroner may fine a person up to £1,000 if there is a breach of a Schedule 5 notice without reasonable excuse.[19] Before any decision is made regarding issuing a fine the person should be given an opportunity to receive legal advice and or representation and to explain their failure to comply. [20]
29. If a witness does not attend an inquest, having been properly issued with a Schedule 5 notice the coroner’s common law power also extends to issuing a ‘bench warrant’ to enforce their attendance. The warrant is addressed to the police requesting the absent witness is brought to court.[21]
Contempt by jurors
30. In addition to the offences by jurors set out in Schedule 6 (external link) to the Act, the Criminal Justice and Courts Act 2015 (external link) (CJCA 2015) introduced four new criminal offences into the Juries Act 1974 (external link) (JA 1974) each which may also amount to a contempt of court.[22] Where a juror’s conduct falls within the behaviour specifically proscribed by the JA 1974 or one of the offences created in Schedule 6 of the Act, it should be dealt with accordingly as a criminal offence. The powers in relation to contempt of court remain unaffected by the creation of these offences and so jury misconduct which falls outside that covered by the statutory provisions should continue to be treated as a contempt of court.
31. To ensure jurors do not commit any offence or contempt unknowingly, coroners should provide jurors with a Juror Notice[23] (which sets out the offences which could be committed when sitting as a jury member) and should help them to understand it. The following process is suggested:
- all jurors should be given their own individual copy of the Juror Notice;
- the coroner should take the jury through the contents of the Juror Notice orally at the outset of the hearing, underlining the importance of complying with it;
- the coroner should allow a short break at the first reasonable opportunity for the express purpose of giving the jury sufficient time to read through the Notice.
32. In addition to informing jurors that they must not discuss the case with someone who is not a member of the jury, and that they must not make enquiries into the circumstances of the case or into the parties beyond what is described in evidence, it is important for the coroner to highlight that it is an offence to carry out research; share such research with other jurors; engage in other prohibited conduct and disclose jury deliberations.[24]
33. A conviction for a juror for any of the offences contained in the JA 1974 is included on the list of criteria for disqualification of a person from future jury service.[25]
Contempt related to audio recordings of proceedings
34. It is a contempt of court for any participant or observer to use any recording device for recording sound in court, except with the leave of the court.[26] It is also a contempt of court to publish a recording of legal proceedings, by playing it in the hearing of the public (or section of the public) or to dispose of it with a view to such publication.[27]
35. Coroners can lawfully provide an audio or video link to proceedings to facilitate access to proceedings by participants and the public (including the media) who are outside the court building.[28] The coroner should however make it clear to all listeners and viewers that this permission applies only to remote access to the hearing, and it will remain a contempt of court for any person to make, play to the public, distribute or publish an audio or video recording of the proceedings or to capture any still or moving images of participants in the proceedings.
Contempt related to images from court
36. It is an offence under s.41 CJA 1925 to take or attempt to take, with a view to publication, any photograph, or make or attempt to make in any court any portrait or sketch of a person, being a judge, juror, witness or party to any proceedings before the court, or to publish any photograph, portrait or sketch so made.
37. This section does not prevent an individual from making a sketch from memory after having left court. Nor does it prevent the taking of photographs/video footage of a person who is on public land before they enter the court precincts. However, photography of a person within ‘the building or in the precincts of the building in which the court is held’ is banned.[29] Any person in breach of this section on summary conviction is liable to a fine not exceeding £1,000.
Breach of reporting restrictions
38. The imposition of reporting restrictions in Coroners Courts is dealt with in Chapter 8 (link). Breach of a reporting restrictions order imposed by a coroner will be prosecuted as a substantive offence by the Crown Prosecution Service and not as contempt of court by the coroner, because the offence (the publishing of a report that breaches the restrictions) will generally not have been committed in the ‘face of the court’.
39. Breaches of reporting restrictions imposed under s.39 Children and Young Persons Act 1933 (CYPA 1933) are summary offences and effectively are offences of strict liability. A contemnor must have been aware of the order, therefore it is good practice for the coroner to announce having made a s.39 order at the outset of any attended hearing and also ensure that a copy of the order is placed on the court door. The CPS guidance[30] is that a tough stance is taken in such cases as public identification of children and young people is irreversible and can cause both immediate and long-term distress and harm. Therefore, it will almost always be considered in the public interest to prosecute those who have responsibility for publication of material that breaches s.39 CYPA 1933.
Dealing with contempt from the bench
40. Where the potentially contemptuous behaviour takes place whilst the coroner is on the bench the coroner will usually need to address the matter directly. If the behaviour continues, the coroner may feel it appropriate to rise for a short time to provide an opportunity for calm to return and/or for their officer in court to seek to calm the situation.
41. A principle of natural justice requires those who may be in contempt to be allowed to offer an explanation and be given the opportunity of purging their contempt and/or mitigating their behaviour before any sanction is imposed. Therefore, on resuming court, the coroner may wish to seek an explanation and an apology. Where what is primarily required to enable the inquest to proceed is the cessation of the behaviour, obtaining an apology alongside an agreement for future compliance will often suffice. If disruptive behaviour continues, the coroner may have to consider excluding the alleged contemnor from the court.
42. Coroners may deal with contempt in the face of the court summarily, but this power should only be exercised when it is essential to act immediately. A coroner should not adjourn the question of contempt to deal with at the conclusion of the inquest, as a coroner has no statutory power to detain the alleged contemnor until the conclusion of the proceedings. When dealing with contempt, coroners must be seen to act fairly. Even though coroners do not enjoy the same powers as magistrates there is some helpful guidance, albeit applicable to Magistrates’ Courts, in para. V.54 of The Consolidated Criminal Practice Direction (PDF).
43. A coroner should not decline to deal with a matter as contempt of court just because the behaviour also amounts to a separate criminal offence. Consideration should be given as to whether, given the behaviour in question, dealing with the matter as a civil contempt is preferable.
44. Where contempt proceedings are to follow the inquest, these can only be instituted with the consent of the Attorney General[31]. The Chief Coroner should be informed before a coroner decides to refer a matter to the Attorney General.
General approach to potentially contemptuous behaviour
45. In dealing with potentially contemptuous behaviour the following points may assist:
- Explain to the perpetrator that the conduct in question, if it continues, may amount to a contempt of court which can result in a fine or imprisonment.
- Consider asking/ordering the perpetrator to leave the court, assuming the hearing can proceed without them. This is often far more effective than seeking to impose a penalty.
- Consider whether a brief adjournment or ‘cooling off’ period will resolve the situation without the need for further escalation.
- Allow the perpetrator an opportunity to explain their conduct and apologise to the court (perhaps after an adjournment) before any further action is taken.
- In most cases a suitable warning from the coroner and an explanation and/or an apology from the perpetrator, together with an undertaking from the perpetrator to refrain from further misbehaviour, will suffice.
46. If, however, cessation of the behaviour and/or where appropriate an explanation or apology is not forthcoming, or the situation is significantly serious, a coroner may consider using powers to commit or fine for contempt.
47. Summary committal proceedings are often undesirable because they require the coroner to act as a prosecutor, judge and jury, and in certain circumstances, they will also be the victim.
48. If a summary procedure is to be followed the contemnor should be afforded an opportunity to seek legal representation. In a coroner’s court, this may not always be possible (as there may not be any lawyers in the vicinity of the court to assist), in which case great care should be taken by a coroner who deals with a contempt summarily to ensure a fair hearing takes place with an unrepresented contemnor.
Approach where contempt is admitted
49. The coroner should explain, in terms that the perpetrator will understand, the conduct in question that is being considered as a contempt of court. The alleged contemnor should be asked whether they admit or deny the contempt. If the contempt is admitted, the court can proceed to deal with the contempt, by either taking no further action, accepting an apology, or (if appropriate) imposing a financial or other penalty. It is important to record in detail on the court file what the contempt is that has been admitted.
50. If a financial penalty is being considered, the coroner should first enquire into the contemnor’s personal circumstances and financial means, and it may be appropriate to ask the contemnor to complete a ‘statement of means’.[32] This is to ensure that any financial penalty does not impose undue financial hardship on the offender and/or their family.
Approach where contempt is denied
51. If the contempt is denied, then unlike the criminal courts the coroner has no power to adjourn the hearing to another day and so must enquire into the conduct there and then. The coroner and the contemnor may call witnesses to give evidence (if there are any present who have witnessed the alleged behaviour). If the contempt is proved, the coroner must record their findings in relation to the contempt and then consider whether to impose a financial penalty or commit the contemnor to prison. If committal to custody is being considered, the contemnor should be given an opportunity to secure legal representation (if practicable).
52. A coroner may commit a contemnor to prison for a period that may not exceed one month. [33] A term of detention should only be imposed where the contempt is ‘so serious’ that no other penalty is appropriate. Alternatively, the coroner may impose a fine not exceeding £2,500.[34]
53. Before making a fine or committal, factors that a coroner should consider include:
- the seriousness of the contempt, including the extent to which it has disturbed or disrupted the proceedings, undermined the coronial process and/or interfered with natural justice;
- whether the contempt was repeated in the face of a warning;
- whether any remorse has been shown or apology offered; and
- any relevant practicalities e.g. the coroner’s ability to enforce any committal to prison.
Enforcement of financial penalty imposed
54. Any fine imposed by a coroner will be enforced by the local magistrates’ court, not the coroner.[35] The coroner must certify the financial penalty imposed for the contempt which requires enforcement in a ‘Certificate of Fine’ (see appendix 9.5) which is then provided to the HM Courts Criminal Fines Collection and Enforcement Unit at the following email address enforcementrsu@justice.gov.uk with the email subject line ‘Fines imposed by a Coroner’. The body of the email should also identify the magistrates’ court for the coroner area.
55. An account will be created, and an application will be made for a collection order. Once the fine has been formally registered with the appropriate magistrates’ court for collection and enforcement the coroner will receive, by email, a copy of the transfer order that was generated. A local fines officer can then require the attendance of the contemnor at the magistrates’ court using their powers under Schedule 5 Courts Act 2003 (external link) so that arrangements can be made to pay the fine in full, or instalments until discharged.[36]
56. The process is set out in a flow chart at appendix 9.6.
Appeal from the coroner’s court following a finding of contempt of court
57. An appeal against a decision of a coroner in respect of a contempt of court is to the King’s Bench Division of the High Court.[37] Permission to appeal is not required where the contemnor has been committed to prison. The court may reverse or vary the order made or may impose an order it considers to be just.[38] Proceedings may also be brought by way of judicial review asking for the coroner’s decision to be quashed on the grounds of a lack of jurisdiction or breach of the rules of natural justice – such as a failure by the coroner to explain or warn that the conduct was being dealt with as a contempt of court, or failure to allow the offender to explain their conduct before a decision was made in relation to the alleged contempt.
[1] [2018] EWCA Crim 244 (the defendant is also known as Tommy Robinson)
[2] Pickering v Liverpool Daily Post and Echo Newspapers plc. [1991] 2 AC 370
[3] Section 14(1) Contempt of Court Act 1981 (external link). This being a civil committal for contempt any warrant must specify the number of days imprisonment and the prisoner remains in custody for exactly that many days, without remission.
[4] Balogh v St Albans Crown Court [1975] Q.B. 73
[5] HM Solicitor General v J Holmes (PDF) [2019] EWHC 3765
[6] HM Solicitor General v S Holmes PDF) [2019] EWHC 1483 (Admin)
[7] Wilkinson v Lord Chancellor’s Department [2003] 1 WLR 1254 (external link), CA
[8] Balogh v St Albans Crown Court [1975] Q.B. 73 §84.
[9] R v Vincent D (Contempt of court: Illegal photography) (PDF) [2004] EWCA Crim.1271
[10] section 41(1) and s.41(2)(c), Criminal Justice Act 1925.
[11] Further general guidance to the judiciary on dealing with contempt in the face of the court, issued in December 2023, is available here CHECK LINK.
[12] Section 97 Magistrates’ Court Act 1980 (external link) permits a magistrates’ court to sentence a person who refuses to be sworn or give evidence or produce a document, to a term of imprisonment of one month or a fine of £2,500. Coroners do not enjoy the same statutory power as Sch.6, para.6 is limited to a fine but may treat the witness as being in contempt of court which would carry the (up to) one month imprisonment.
[13] See Attorney General v Mulholland [1963] 2 QB.
[14] See R (Bailey) v Secretary of State for Justice (external link) [2023] EWHC 821 (Admin)
[15] See R (Bailey) v Secretary of State for Justice (external link) [2023] EWHC 555 at §102 and R (Bailey) v Secretary of State for Justice (external link) [2023] EWHC 821 (Admin) at §56.
[16] R v Boyes (1861) 1 B & S 311, 330
[17] See example notices appended at 10.1 and 10.2
[18] HM Coroner for Kent v Terrill [2000] Inquest LR 16
[19] Coroners and Justice Act 2009, Schedule 6 para 6.
[20] See CSEW website 20 August 2019 and UK Inquest Law Blog (external link) for an account of the fine imposed upon and subsequent prosecution of Dr Lawrence after failing to give evidence at inquest.
[21] The coroner cannot ‘back’ the warrant with bail – as the bail provisions contained in the Bail Act 1976 and s.117 of the Magistrates’ Court Act 1980 do not apply to the coroners’ court. See example warrants appended at 10.4
[22] JA 1974, s20 A–D
[23] In English (external link) and in Welsh (external link) (although the notice refers to trying the defendant, the remainder of it is applicable to coroners’ courts).
[24] These are the offences under JA 1974, s20 A–D. See also Chapter 11 on Juries.
[25] The period of disqualification would be for 10 years – JA 1974, s.1, Sch1.
[26] Section 9(1)(a) CCA 1981 but there is guidance to say that such leave should normally be given, subject to a warning about publication.
[27] Section 9(1)(b) CCA 1981
[28] Section 85A Courts Act 2003 and see this Bench Book at chapter 6
[29] Section 41(2)(c) (external link) Criminal Justice Act 1925. This would include for example in the court’s own carpark but not on the public highway directly outside the court building.
[30] Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings (external link) (2018)
[31] See this guidance on the law officers’ policy on dealing with contempt (external link).
[32] Coroners may wish to establish the contemnor’s financial means by referring to MC100 HMCTS Statement of Means Form (PDF).
[33] Section 14(1) Contempt of Court Act 1981 (external link).
[34] Section 14(2) Contempt of Court Act 1981 (external link) (as amended by the Criminal Justice Act 1991.
[35] Section 67(1) Criminal Justice Act 1988 (external link).
[36] With grateful thanks to Sarah Edwards MBE Legal Team Manager HMCTS – Criminal Fines Collection and Enforcement for providing advice on enforcement of a financial penalty imposed by a coroner.
[37] s.13 Administration of Justice Act 1960 (external link).
[38] s.13(3) Administration of Justice Act 1960 (external link).