Some reflections on the law of contempt

• Author: Donal O'Donnell
• Position: B.C.L., LL.M. (U.Va.), S.C.
• Pages: 87-128

SOME REFLECTIONS

ON THE LAW OF CONTEMPT

DONAL O’DONNELL*

I. INTRODUCTION

After 30 years of experience in dealing with the law

of contempt, Lawrence Gray, an Assistant Attorney General

in New York, concluded:

In one way or another, the law of contempt

permeates all law because force - not morality

- is the ultimate sanction. Those who will not

obey, or disrupt, are to be coerced and

punished in the name of the law. In law

school, contempt is a word used frequently but

seldom defined beyond a few maxims, such as

something about the key to one’s own jail cell.

After law school, contempt becomes a word

secretly feared by those who threaten it -

probably as much as those who are threatened

with it.1

It is, I think, not unduly controversial to suggest that

the law of contempt is feared by the judiciary more than by

the assorted collection of stubborn, contrary, unhappy or

misguidedly principled zealots and hard-nosed members of

the media who are subject to it. It may, however, be useful to

consider why this is so.

It was suggested to me that it might be useful to look

at this topic with some concrete examples in mind. A fairly

87 Judicial Studies Institute Journal [2:2

1 Lawrence Gray, “Criminal and Civil contempt: Some sense of a hodge

podge”, (1998) 72 St. John L. Rev 337.

* B.C.L., LL.M. (U.Va.), S.C. This article is based on a presentation

given to the Annual Conference of the High and Supreme Court in 2002.

simple example might be the following. Local people become

incensed by plans of a new owner of a local beauty spot to

turn it into a theme park for songs in the Eurovision Song

Contest which have received nul points. So incensed are the

local people that, following a media campaign, a number of

people announce that they are going to occupy the premises

and prevent any work on them. The owner obtains an

interlocutory injunction restraining a number of named

individuals (who are now well known from television and

other media appearances) from continuing to trespass. A

number of those persons, however, announced that they have

no intention of discontinuing their occupation and although

served with the orders (containing the appropriate penal

indorsement) remain in defiant occupation of the property.

The first question which arises is whether that is civil

or criminal contempt. In either case, is there any entitlement

to trial by jury? What if any of the other safeguards normally

apparent in a criminal trial will apply? Is there a requirement

of mens rea? If there is, what is it? Can the contemnors be

sent to jail for a fixed term or can they only be sent to jail

until they undertake to purge their contempt? If they can be

sent to jail for a fixed term, can they be released before the

end of that term on undertaking to abide by the Orders of the

Court? Is hearsay admissible? What is the standard of proof?

The obtaining of the injunction creates even greater

controversy and a number of individuals with experience

from anti-globalisation protests arrive at the site announcing

their intention of supporting the occupiers of the premises

and their willingness to take their place with a view to

demonstrating that the law is only the tool of the property

owning classes. Again the same questions arise: is it civil or

criminal contempt if the plan is carried out? Are they entitled

to trial by jury? If not, do any of the safeguards of criminal

proceedings apply? Is there a requirement of mens rea and

what is it? Can the individuals be sent to jail for a fixed term?

Must they be sent to jail until they undertake to purge the

contempt? If sent to jail for a fixed term, can they be released

2002] Reflections on Contempt 88

before the end of that term? Is hearsay admissible? And what

is the standard of proof?

In the course of the committal motion, the charismatic

ringleader of the occupiers insists on giving evidence because

he believes that this will be a platform which will allow him

to obtain further publicity for their cause. During the course

of his evidence, he is, however, asked by the judge to reveal

the names of a number of persons occupying the premises

who had not been previously identified. He refuses to do so

on the grounds of principle. He is warned of the

consequences and given time to consult with his lawyer. He

persists in his refusal. Again, the same questions arise.

By now, the matter is something of a cause célèbre.

The local newspaper, which has just obtained the services of

a new editor from Fleet Street, campaigns demanding the

withdrawal of the injunction and any contempt proceedings

and publishes a front page which contains only a picture of

the judge on the day of his or her call to the Inner Bar

complete with full bottomed wig, which is printed upside

down with the legend “You Fool”. Again, all the same

questions arise with the added complication of whether the

court can or should act itself.

The competing newspaper, not to be outdone,

conducts a paparazzi style pursuit of the judge with 24-hour

surveillance of the judge and daily reports and photographs.

Finally, the owner of the premises announces that he

has come to an agreement with the local people and, in return

for the erection of a permanent big screen for world cup

football matches, all aesthetic objections have been

overcome. He announces that, although he felt he had no

option but to “take out” an injunction, now that the matter is

all over his counsel will tell the judge to release the

imprisoned protestors. Can this be done? Can the court of its

own motion continue to treat something as contempt and

worthy of committal even if the civil action underlying it has

now been settled? If there has been imprisonment for a fixed

term, can that be revised?

89 Judicial Studies Institute Journal [2:2