What is contempt?
Contempt of court is a subject in which restrictions and limits are open to a considerable amount of subjectivity when decisions are made.
EVERY now and then, someone will threaten another with contempt proceedings. Most people who have some idea of the subject will know that being found in contempt of court could result in a person being fined or even imprisoned.
Sometimes there is a tendency to confuse contempt with the sub judice rule. The Concise Dictionary Of Law describes the sub judice rule as a rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue or influence the jury.
This is because sub judice refers more to the status of the proceedings or the matter. On the other hand, contempt is made up of words or statements that may influence or prejudice the outcome of a particular matter.
The common law definition of contempt of court is, according to Bower LJ in Helmore v Smith, an act or omission calculated to interfere in the due administration of justice.
Our law of contempt has its roots in English Law. Under the English Common Law, the offences under the law were either the creation of political process in that they were created by the executive or the legislature. Otherwise it is said the law has been the result of incremental customary development.
In our country, the power of contempt is conferred by statute. It is also recognised as being within the inherent jurisdiction of the courts. Yet nowhere is contempt defined. This allows a wide discretion for the judge in exercising contempt jurisdiction.
Some acts clearly disclose themselves as constituting contempt. Direct interference with court proceedings would be contempt. So would anything done to influence or intimidate a judge or witnesses or for that matter, deter a litigant. This would be interference with due administration of justice.
So, too, is disobeying the express orders of the court or scandalising the judge as it would lower the court’s dignity and adversely impact the administration of justice. Anthony Arlidge and David Eady in the Law Of Contempt states its development in three stages.
“First of all there were persons being punished for speaking disrespectfully of the court on service of process. Then the stage was reached where matter scandalising the court constituted a contempt whenever published. Finally the courts began to punish persons who published matters calculated to prejudice the fair trial of the pending cause.”
Contempts that fall into the first two categories are easy to comprehend. However, the third category poses a greater challenge. This is especially so when it comes to the commission of crimes and their discussion before the judge has had the opportunity to decide.
In earlier times, public discussion of a possible crime was very restricted. In 1742 in the case of Roch v Garvan, Lord Hardwick committed the printer of the St James Evening Post for publishing libel against witnesses in a matter pending before a court. He was wary of the impact of the press and stated the judicial response to the growing influence of the press at that time:
“Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented. Nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard.” Whilst scandalising the court such as ridiculing judges or intimidation of those involved is clearly taboo, it is more difficult to draw the line where the contempt published has the potential to influence the outcome. Or it may seek to prejudge the issue, thereby usurping the adjudication function of the court.
Limits of permissibility
Half a century ago, a local publication carried a report of an accident, and it urged the police to prosecute the driver of the car involved in the accident. It was said that the driver of the car was driving above the speed limit and there was evidence of brake marks on the road. The article was held to be in contempt.
However, over the years there has been more discussion of happenings, especially when personalities are alleged to be or at least suspected of being involved. This leads readers to conclude, at least in their minds, on the guilt or otherwise of those referred to. Is such media exposure for better or worse?
The more liberal atmosphere today may perhaps be attributed to a more educated and informed public, and the fact that as juries are no longer deciding, a judge is better trained and placed to deal with such matters despite media coverage. It may also be attributed to the belief that pending litigation or prosecution is not just between the parties involved but affects society as a whole. Therefore society has a right to know what goes on.
The fact remains that the eventual determination of whether action for contempt ought to be taken or whether a court will hold a person in contempt is always very flexible, and reliance on it may vary from time to time and place to place.
In EVB Kotte Air, the Nagpur High Court refused to make a finding of contempt and went on to say: “Courts, no doubt, have to be jealous to guard against any interference with their functions, but on the other hand, they should not be too sensitive where no harm has been caused or was intended to be caused.”
The flexibility of its application is to be found in a statement that the law relating to contempt of court is literally what the judges wanted to make of it. Otherwise the judges were able to adapt the Law of Contempt to suit the problems which they faced.
This state of the law has been acknowledged from time to time. Even the Phillimore Committee, in its conclusion, has said that the law as it stands contains uncertainties which impede and restrict reasonable freedom of speech. It should be amended and clarified by statute to allow as much freedom of speech as is consistent with the objective to maintain the rights of the citizen to a fair and unimpeded system of justice.