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Contempt - a solicitor advocate's perspective

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In the first part of our annual series celebrating the nominees for the Solicitor Advocate of the Year award at the Law Society’s Excellence Awards, Adam Tear, the 2013 winner, offers his expert take on handling committal hearings - few and far between, perhaps, but an ever-changing area of the law.

Everyone knows about committal and how to commit someone for contempt – or do they?

The simple answer is no. The vast majority of people who appear before the courts at any level pay proper respect whilst in court and to the orders of those courts. As such, the day-to-day work of a lawyer tends not to involve dealing with committal hearings. Committal hearings are few and far between, which means that few people bother to keep up to date on this ever-changing area of law.

By example, in 2013, we had the first award of legal aid under a LASPO 2012 criminal contract in Bunning [2013] EWHC 3390 (QB), followed by confirmation in Brown [2015] EWCA Civ 483 of funding in the county courts on the same principles. By the end of 2015, however, the Court of Appeal cast some doubt on whether Bunning was correctly argued, in Tiernan [2015] EWCA Civ 1419. As such, on this particularly issue we are to watch this space until Bunning is heard in the Court of Appeal, on costs issues, in October 2016.

Types of committal

Broadly speaking, there are two types of contempt. The first is contempt in the face of the court. Generally, these are actions that amount to misconduct linked to the court, either through location or context. These are often easily proved and more akin to a criminal action. Often they will be committed in the view of the judge and can be dealt with summarily there and then, if proper representation can be obtained. Often, no more than an apology is required or wanted at the minor end of the scale. At the more serious end of the scale are what often amount to criminal actions, which require prosecution under the criminal system in any event and cannot be punished twice, although the perpetrators can be held in contempt.

The more difficult type of contempt is for breach by act or omission of a requirement of the court, not in the face of the court. Here you have to prove the respondent: knew of the terms of the order and actually disobeyed it; knew of the facts of the disobedience; and deliberately committed the act or the omission that caused the breach.

No matter how hopeless your client’s case may seem at first glance, remember the basic principles and review them, and apply them to your client’s case.

  • In Bunning, the principle was that there must be a provision of legal aid for a defendant. The result was the first ever grant of legal aid under LASPO 2012.
  • In Inplayer [2014] EWCA Civ 1511, the principle not to self-incriminate was not upheld as strongly as it should have been, and as such the party ended up a ‘very lucky man’.
  • In Haederle [2016] EWHC 1866 (Ch), the court, establishing what a worldwide freezing order actually said, found that for the purposes of committal the order was defective, such that committal could not be based upon that part of the order.

Even if your client is committed, that does not mean prison is inevitable, even if this is their second contempt, and they had been imprisoned previously. In ABC v DEF [2014] EWHC 3346 (QB) and Re Hancock [2015] EWHC 2324 (Fam), both defendants had previously been found in contempt, and sent to prison. On their second time in court, with proper mitigation, both received suspended sentences so as to encourage compliance with the orders of the court.

Procedure in the courts

As a rule, the law for contempt is the same in all types of civil and criminal law. The principle remains that these are trials to the criminal standard and burden of proof, within the remit of article 6 of the ECHR . In each area, there are procedural common law cases setting out best practice for judges in different scenarios.

In criminal law, the primary legislation is the Contempt of Court Act 1981 and part 48 of the Criminal Procedure Rules. The Lord Chief Justice has provided direction in part 48A for contempt in the face of magistrates.

In general civil law, contempt rules can be found within part 81 of the Civil Procedure Rules (CPR) and provide for a wide spectrum of cases. In family law, very similar provisions are provided in CPR 81 and there is also part 37 of the Family Procedure Rules. Both sets of rules also provide for practice directions.

The Court of Protection has rules on contempt proceedings (rules 185–194), with practice direction 21(A), although where these do not cover an issue, the fall-back is to CPR 81.9.

Conclusion

Contempt remains a vital, if draconian, tool in the proper administration of justice. Strict compliance with the rules by the judges and to safeguards are vital to avoid tyranny in these matters. The use of an experienced advocate, who ensures adherence to the law, is essential as the last line of defence or first line of attack.

Adam Tear is a Solicitor Advocate with Duncan Lewis Solicitors, and Secretary to the Solicitors Association of Higher Court Advocates. Described by Legal 500 as a ‘calm, industrious and reliable’ professional, Adam has a significant London practice in judicial review claimant matters. He was awarded the Law Society Solicitor Advocate of the Year Excellence Award in 2014 and has been shortlisted in 2013, 2015 and 2016 respectively. He has recently been appointed a Level 3 IAAS Assessor by the Law Society. 

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