The Law Officers’ approach to contempt of court referrals
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Applies to England and Wales
The Attorney General and the Solicitor General (the Law Officers) are the chief legal advisers to government and ‘Guardians of the Public Interest’. As Guardians, they can deal with incidents of contempt by instituting proceedings against people in the High Court.
However, this power is reserved for rare circumstances where the wider public interest requires it. The Contempt Public Interest Framework sets out the public interest factors that are applicable to all contempt referrals, to assist the Law Officers in their decision making and to enable the public to understand the considerations that apply in these cases.
Incidents of contempt should in the first instance be dealt with by a judge or the litigants themselves.
This page provides guidance on contempt of court and explains the role of the Law Officers in contempt proceedings. It is not legal advice.
Before contacting the Attorney General’s Office you should be aware that:
• The Law Officers would most usually expect a referral to come from a judge.
• The Law Officers are unlikely to take up a contempt matter where others, such as the litigants themselves, are better placed to do so.
• The Law Officers are unable to provide legal advice to members of the public.
Introduction
What is contempt of court?
Contempt of court refers to behaviour that takes place during, or in connection with, legal proceedings that prejudices or impedes the administration of justice or creates a real risk of that happening. Examples of contempt of court include deliberately breaching a court order, taking, and publishing photographs in court, and publishing information that could prejudice a trial. Contempt can be punished by a fine or up to two years in prison. Contempt of court is not a criminal offence, even though it is punishable by imprisonment. The police and Crown Prosecution Service (CPS) have no power to institute proceedings for contempt.
In civil and family cases, other parties to the proceedings may be able to bring proceedings for contempt. In other circumstances, the behaviour may also amount to a criminal offence. In those cases, criminal proceedings may follow without the involvement of the Law Officers. The judge hearing the case may deal with a contempt or may refer it to a higher court.
What is the role of the Law Officers in contempt proceedings?
In certain limited circumstances, usually involving the most serious instances of contempt and where the public interest requires their intervention, the Law Officers may decide to institute contempt proceedings themselves. These proceedings are heard in the High Court and are sometimes called committal proceedings. The Law Officers consider the evidence and decide whether it is enough to prove contempt, and if it is in the wider public interest for them to start proceedings. However, this is a power to be exercised sparingly, with most proceedings being instituted by judges or other parties involved in the case.
The Law Officers can also issue Media Advisory Notices if they are concerned about widespread reporting which is taking place in apparent ignorance of a restriction on reporting, whether a specific order in a case or contrary to the ‘strict liability’ rule as set out in the Contempt of Court Act 1981 (see “Publication contempt”, below). They advise the media and the public that care should be taken when reporting the case to ensure that they do not commit contempt of court. This can occur particularly in high-profile proceedings, such as those relating to alleged terrorist attacks.
Types of contempt
The Law Officers can start contempt proceedings for all types of contempt. However, the most common types of contempt that they deal with are:
• Photography and filming in court
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Publication contempt
The Contempt of Court Act 1981 states that publishing information that creates a substantial risk of serious prejudice or impediment to any active proceedings can be contempt of court.
The Act applies to information shared through newspapers and on television and radio. It also applies to information shared in posts on social media either by the media or members of the public. This means that once somebody has been arrested, it is important to think very carefully about what is shared online and ensure that care is taken not to share information that could prejudice or impede those proceedings.
There is a danger that if jurors on that case hear about such information outside of the court process it could affect the way they think about a case, or prejudice it so much that a trial cannot take place or has to be stopped. An example of prejudicial material includes information about a suspect or defendant’s previous convictions. More examples can be found here.
The Law Officers can start contempt proceedings against those responsible for the publication.
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Filming and photographs in court
Save for very limited circumstances, it is a criminal offence to take photographs or videos in a court room, the court building, or its precincts, or to publish such photographs or videos (section 41 of the Criminal Justice Act 1925). This includes photographs or videos of live proceedings. Breaches can be investigated by the police and then passed to the CPS, who will apply the Code for Crown Prosecutors to decide whether there is sufficient evidence (and whether it is in the public interest) to prosecute.
In certain circumstances, taking illegal photographs or videos can also amount to contempt of court. Sometimes, the wider circumstances of the offence are so serious that the Law Officers conclude that it is in the public interest to start contempt proceedings.
It is also contempt of court to make or publish an audio recording of court proceedings without the permission of the court. If this happens, the judge may deal with it as contempt of court or may refer the matter to the Law Officers, who will decide whether to start contempt proceedings.
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Breaking a court order
Court orders can be imposed by a judge in legal proceedings and breaching them can amount to contempt of court or a criminal offence.
Orders made in civil/family cases
Breaching an order imposed during civil or family proceedings, can amount to contempt. It is expected that the parties themselves will inform the court of the breach and start contempt proceedings without involving the Law Officers. In only a very limited number of cases where a party is either unable to start contempt proceedings, or there is a significant public interest involved, the Law Officers may start proceedings. Contempt applications in civil cases are governed by Part 81 of the Civil Procedure Rules, and in family cases, by Part 37 of the Family Procedure Rules.
Family proceedings involving children
It is a criminal offence to identify a child as being involved in current proceedings under the Children Act 1989 or the Adoption and Children Act 2002. This applies, for example, to Family Court proceedings concerning contact and residence arrangements and cases where social services have become involved. Parents who identify themselves when posting material online about such cases are also likely, by doing so, to identify the child, and therefore likely to commit the offence. Sometimes the Court will publish its judgment in anonymised form. Publicising that judgment alongside other details that are likely to identify the child in question is likely to amount to an offence.
In Family Court cases, the Court may make orders prohibiting identification of the child concerned even once the proceedings have finished, or prohibiting the identification of the local authority, social workers, or expert witnesses concerned. Breach of such an order is likely to be a contempt of court. Additionally, in many family law cases involving children it is a contempt of court to report the substance of a hearing held in private. Great care should be taken before publishing material about family proceedings concerning children. Any breaches, or suspected breaches, should be brought to the attention of the judge in the case (if the proceedings are on-going) or the police.
Orders made limiting the publication of information in legal proceedings
In all types of legal proceedings the court has the power to postpone the reporting of the proceedings or prevent a name or other information from being published in connection with the proceedings (sections 4(2) and 11 of the Contempt of Court Act 1981 respectively). These orders will apply until a time specified by the judge in the order. Breaches of these orders can amount to contempt of court and the Law Officers will consider instigating contempt of court proceedings.
In rare situations, the courts will grant an injunction prohibiting publication of any information identifying the applicant. These orders are known as ‘contra mundum’ or ‘against the world’ and are indefinite. Breaching an injunction could amount to contempt of court; for example the Law Officers will start contempt proceedings against people who breach the order relating to Jon Venables and Robert Thompson, the killers of James Bulger. That order primarily forbids the publication of any detail purporting to identify either Venables or Thompson, or their current whereabouts.
Reporting that can amount to a criminal offence
In some situations, reporting certain information about legal proceedings will automatically amount to a criminal offence. Some examples involving children have been given above, but identifying the victim of a sexual offence, or a child involved in youth court proceedings will also be an offence.
In other situations, the court may make an order, breach of which can amount to a criminal offence. These types of order are usually made in criminal proceedings. For example, a judge may order that a child involved in criminal proceedings in the Crown Court should not be identified, or they may prohibit reporting that would identify a witness in a criminal trial.
These orders apply to everyone, not just the media. Breaches can be investigated by the police and then passed to the CPS, who will apply the Code for Crown Prosecutors to decide whether there is sufficient evidence (and whether it is in the public interest) to prosecute. Deliberately or recklessly publishing information that breaches a reporting restriction may also constitute contempt of court. This includes cases in which the circumstances of the offence are so serious that the Law Officers conclude that it is in the public interest to start contempt proceedings, often following referral from the trial judge.
Court Directions
Courts will often make directions during legal proceedings that relate to the management of that particular case, such as the dates on which relevant paperwork needs to be filed with the court and the disclosure of information to the parties. It is only in exceptional cases where the Law Officers will consider failure to comply with directions as amounting to contempt of court. Failure to comply with court directions, such as deadlines, should ordinarily be brought to the attention of the judge, who will then decide how best to proceed in relation to the case.
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False statement contempt
Witness statements are a vital part of a criminal investigation, and it is a criminal offence to deliberately make a false statement. It is also a criminal offence to deliberately make a false statement when giving live evidence in criminal or civil proceedings. This is commonly known as perjury.
Allegations of perjury can be investigated by the police and then passed to the CPS, who will apply the Code for Crown Prosecutors to decide whether there is sufficient evidence (and whether it is in the public interest) to prosecute. The Law Officers play no part in these criminal matters.
Lying in civil proceedings can also amount to contempt of court. A person may be in contempt if they deliberately make a false statement in a document prepared for or used in civil proceedings if that document is accompanied by a signed statement of truth.
If this happens during proceedings, a judge can refer the matter to the Law Officers who will consider whether to start contempt proceedings. The Law Officers will expect the referral to come from a judge, who will have been able to consider the evidence from all the parties to determine whether the statement is in fact untrue. The parties themselves may also apply for permission to bring committal proceedings.
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Embargoed Judgments
Judgments subject to embargo are draft judgments handed down to parties in court proceedings in advance of those judgments being made public. This process is subject to strict obligations of confidentiality and the use that the parties may make of the draft, prior to the final judgment being formally handed down, is strictly limited. The release of draft judgments to the parties plays an important role in ensuring that any inaccuracies or inappropriate material (such as the material that could lead to the identification of a victim who has been granted anonymity) can be rectified before the judgment is made public. Embargoed judgments play an important role in the fair administration of justice.
Publication of embargoed judgments or any of their contents, such as the outcome of the proceedings, outside of the parties to the proceedings before being made public is viewed as a breach of confidentiality and can amount to contempt of court. The Law Officers also view the unauthorised receipt and deliberate retention of any information obtained from an embargoed judgment, even if not actively sought, as potentially amounting to contempt of court.
The guidance surrounding the use of embargoed judgments can be found under Practice Direction 40E of the Civil Procedure Rules.
The Solicitor General issued a media advisory notice on 15 October 2020 in relation to embargoed judgments which should be read alongside this guidance. Tim Crosland was convicted of contempt of court in May 2021 for deliberately disclosing the result of a Supreme Court appeal prior to the official release of the judgment.
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Juror Offences
Historically, a person could be found in contempt if they misbehaved whilst acting as a juror. However, the introduction of several criminal offences means that juror misconduct is more likely to be punished as a criminal offence. For example, under the Juries Act 1974, it is a criminal offence for a juror to fail to attend jury duty, conduct research about a case and tell someone who is not on the jury details of the jury’s thoughts and decisions on the case they are considering.
These offences are investigated by the police and then passed to the CPS for consideration. The CPS will apply the Code for Crown Prosecutors to decide whether there is sufficient evidence to provide a realistic prospect of conviction and whether it is in the public interest to prosecute. Some of the offences require the Law Officer’s consent to prosecute. In such cases, the Law Officers will review the case and grant consent if they agree that the test set out in the Code for Crown Prosecutors is met.
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Updates to this page
Published 15 September 2021Last updated 20 July 2022 + show all updates
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Page linked to the Contempt Public Interest Framework
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First published.