Some reflections on the law of contempt

AuthorDonal O'Donnell
PositionB.C.L., LL.M. (U.Va.), S.C.
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

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