CONTEMPT

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CHAPTER 9 - CONTEMPT	DEFINITION: Contempt is any such behaviour which tends to interfere with the administration of justice or bring it into disrepute. It is a form of professional misconduct but the Court itself has the inherent jurisdiction to regulate and guard its processes by punishing those deemed guilty of criminal contempt.
Lord Russell in the case of R v. Gray nicely separated the two (2) classes of contempt:-	1) Any act done or writing published, calculated to bring the court or a judge of the court into contempt or to lessen his authority, is a contempt of court. 2) Any act done, or writing published, calculated to obstruct or interfere with the due course of justice, or the lawful process of the court.
What is the main difference between professional misconduct and contempt?	When the court punishes an attorney for professional misconduct, it exercises its supervisory jurisdiction over said attorney as an officer of the court . When the court punishes an attorney for contempt, it is protecting its own processes. For instance, one difference is that contempt of court is not punishable by an order to pay costs (Weston v. Central Criminal Courts Administrator).
What is CRIMINAL CONTEMPT?	Words spoken or conduct which clearly and unequivocally obstruct or which are calculated to obstruct, prejudice or interfere with the administration of justice during the course of either criminal or civil proceedings.
Preparatory steps to creating an actual disturbance in court does not amount to contempt.	Note the case of:- Balogh v. Crown Court at St. Albans
Balogh v. Crown Court at St. Albans	B, being bored with a case, planned to insert a cylinder of laughing gas at the inlet to the ventilating system on the roof of the courthouse. He stole a cylinder from the hospital. On the day of the proceedings, B placed a briefcase with the cylinder of gas in a corner of the public gallery of the court waiting for a moment when he could go onto the roof of the court and access the ventilating system. However, he was apprehended and thereafter admitted what he intended to do. This was eventually held to not amount to criminal contempt because the actions taken by B were merely preparatory in nature.
Improper conduct in the face of the court may amount to criminal contempt.	Note, however, the case of:- Parashuram v. The King Emperor (considered to be the gold standard)
Parashuram v. The King Emperor	For words/actions used in the face of the court or in the course of judicial proceedings to amount to criminal contempt, they must be such as would interfere or tend to interfere with the course/administration of justice. An insult to opposing counsel or litigant is different from an insult to the court itself or to the jury which forms part of the tribunal. However, if the language used by the party is of such an outrageous or provocative nature so as to lead to a brawl in court, the offence could be said to have been committed.
Categories of Criminal Contempt are:-	1) Improper Conduct; 2) Scandalising the court (not in the face of the court); 3) Failure of attorney to attend court; 4) Abuse of Pleading Process; and 5) Abuse of Court Process.
1) IMPROPER CONDUCT... ...in the face of the court may amount to criminal contempt if it is found to be a CLEAR and UNEQUIVOCAL interference in the administration of justice so that it affects or is intended to affect the course or outcome of judicial proceedings.	Note the cases of:- 1) Vidyasagara v. The Queen 2) R v. Gray 3) Re Johnson 4) Re Pershadsingh
Vidyasagara v. The Queen	This matter concerned an industrial dispute between a union and one, P who refused to employ workers who were members of the union. The appellant in the case of contempt was counsel for the union who read a statement saying with regards an order made by the Industrial Court of Ceylon: "...the union having felt that this court by its order had indicated that an impartial inquiry could not be had before it has appealed to the Minister to intervene in the matter." This was held to be contempt because the statement's speculation about the Court's impartiality was an act calculated to bring it into disrepute. It is irrelevant that the appellant was merely reading a statement by the union because by so doing he accepted responsibility for its contents.
R v. Gray	This contempt was in relation to an article published in the Birmingham Daily Argue wherein the Defendant basically inferred that one Darling J. was a publicity hound, amongst other insults. HELD: Any act done or writing published which is calculated to bring the court or judge of the court into contempt or lessen his authority is a contempt of court categorised as "scandalising the court itself." However, judges and courts are otherwise open to reasonable criticism. Moreover, the summary power of committal should be exercised with scrupulous care and only where the case is beyond reasonable doubt. Otherwise, a fine may suffice.
Re Johnson	A solicitor, immediately after the hearing of an application before a Judge in Chambers, while the parties were on their way from the judge's room to the entrance of the building, made use of "violent language of the lowest description" and made threatening gestures to the opposing solicitor in reference to the recently concluded proceedings. Such conduct amounts to contempt of court.
Re Pershadsingh	Opposing counsels Mr. Pershadsingh and Mr. Parkinson began quarrelling noisily in the course of proceedings with each man verbally abusing the other. They were warned by the judge to desist or else they would be fined. Mr. Parkinson desisted but Mr. Pershadsingh continued and was subsequently fined for contempt. Such behaviour amounted to contempt on Mr Pershadsingh's part and he was deserving of punishment. However, before punishment is ordered, an individual who is liable for contempt must first be given the opportunity to show cause and explain his conduct.
2) SCANDALISING THE COURT: any acts or published words which are calculated to bring the court or a judge into contempt or to lower his authority or interfere with the administration of justice: e.g. wilfully insulting a judge or writing abusive letters to a judge/court officials.	Note the cases of: 1) Daw v. Eley 2) Ambard v. AG of Trinidad and Tobago
Daw v. Eley (See also: Part A Rule 38 Code of Ethics)	In a pending suit to restrain the infringement of a patent, one issue raised was the novelty of the Plaintiff's invention. A discussion arose in a newspaper about the invention and the Defendant's solicitor, writing under an assumed name, sent a letter to the newspaper disclosing facts purporting to disprove the novelty of the invention. The attorney was subsequently found to be guilty of contempt for publishing letters tending to influence the outcome of the suit.
Ambard v. AG of Trinidad and Tobago	A newspaper published an article commenting on the inequality of sentences, citing as examples two sentences at the local sessions in charges of intent to murder BUT expressly disclaimed the suggestion that one of the judges was habitually severe while the other was habitually lenient. This was held to not amount to contempt. Criticisms of the court or its decisions whether written or oral, even if inaccurate, is not contempt provided that criticism is not actuated by improper motives or a malicious attempt to impair the administration of justice.
3) FAILURE OF ATTORNEY TO ATTEND COURT: If an attorney deliberately fails to attend court after being informed of his need to by way of official communication or court order, with the intent to hinder or delay the hearing, this would amount to contempt of court as it would be seen as interference with the administration of justice.	Note the cases of:- 1) Izuora v. The Queen 2) Weston Central Criminal Courts Administrator
Izuora v. The Queen Weston v. Central Criminal Courts Administrator (For discourtesy see: Part A Rule 36 Code of Ethics)	In both cases, the attorneys were summoned to appear before the court to explain their absences from court on certain dates. In both instances, the attorneys were verbally informed that their attendances were required by their clients. They were not informed by court order or other official means. It was found that their behaviour did not amount to contempt of court but rather, to discourtesy and possibly a dereliction of their duty to their clients. This would have differed, however, if they had received notice of their required attendance by court order as this would have amounted to interference with the administration of justice.
4) ABUSE OF PLEADING PROCESS: behaviour which may involve the filing of pleadings containing false and/or fictitious facts or issues.	Note the cases of: 1) Linwood v. Andrews and Moore 2) Re Elsam 3) R v. Weisz
Linwood v. Andrews and Moore	An attorney was committed for contempt of court when he knowingly conspired with others to deceive the court, despite it being his duty to disclose to the court the fact that affidavits were going to be used amounting to chicanery. He made himself a party to fraud by conspiring with others to induce one A to make the false affidavits.
Re Elsam	A special case was stated for the opinion of the court. The greater part of the statement was fictitious and the attorney in question was fined for contempt (for instituting proceedings on fictitious facts).
R v. Weisz	A writ included the endorsement "“The plaintiff's claim is for the sum of £373 13s 4d being the balance found to be due from the defendant to the plaintiff on accounts stated between them in writing and contained in a letter … dated 26 September 1950.” This endorsement on the writ had been settled by counsel but not viewed by his client. In fact, there never had been an account stated between the parties. It was HELD that the attempt to deceive the court by disguising the true nature of the claim and by concealing that the action was not maintainable in law was a contempt.
5) ABUSE OF COURT PROCESS: Includes acts of dishonestly or fraud: for e.g. the forging or altering of documents.	Note the case of:- Chamberlain and Edwards v. Agard and the Superintendent of Prisons of St. Catherine District
Chamberlain and Edwards v. Agard and anor.	An appellant was sentenced to death. A motion seeking a declaration for a stay of execution was denied on ground that the application was devoid of merits. Despite this ruling, the day before the execution, the attorney filed a second motion which was a replica of the first. This was considered to be a flouting of the court's previous decision and an abuse of the course of justice. It was deemed contempt.
PUNISHMENT FOR CRIMINAL CONTEMPT	The possible forms of punishment are:- 1) Committal after hearing; 2) Imposition of a fine; 3) Bond for good behaviour; 4) An injunction barring further contemptuous behaviour; and 5) Summary committal (imprisonment);
Imposition of a Fine (R v. Odhams Press Ltd.)	The Defendant, a newspaper with wide circulation printed an article attacking one M on activities which were similar in nature to the one with which he was committed to stand trial; i.e. he was charged with keeping a brothel. Odhams Press was held to be liable for contempt since its article was viewed as tending to prejudice M's ability to get a fair trial. The Defendant was fined and in deciding the size of the fine, the court took into consideration the fact that the newspaper failed to uphold the standard of care as is required in the field of journalism.
The court's summary power to punish contempt by committal is a necessary power since it is needed to maintain the dignity and authority of the court and to ensure a fair trial. However, SUMMARY COMMITTAL should be practised with scrupulous care and used only when absolutely necessary.	Note the cases of:- 1) R v. Gray 2) Balogh v. St. Albans 3) Parashuram v. King Emperor
R v. Gray (Hint: scrupulous care)	The summary power of committal should be exercised with scrupulous care and only where the case is beyond reasonable doubt. Otherwise, a fine may suffice.
Balogh v. St. Albans (Hint: instances where summary power of committal should be used)	"This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately—so as to maintain the authority of the court—to prevent disorder—to enable witnesses to be free from fear—and jurors from being improperly influenced—and the like." Examples of instances given in this case: "...throwing a missile at the judge, be it a brickbat, an egg or a tomato. Recently, too, when a group of students broke up the trial of a libel action."
Parashuram v. King Emperor	"The summary power of punishing for contempt should be used sparingly and only in serious cases, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended."
The power of summary committal may be invoked in situations where contempt has been committed in the face of the court and in situations other than in the face of the court.	With regard to contempt not committed in the face of the court, committal must only be ordered when nothing else will do to protect the ends of justice and ensure that the trial in process or about to start can be brought to a proper and dignified end.
For instance, note the case of Lecointe v. Courts' Administrator of the Central Criminal Court as cited in the case of Balogh v. St. Albans. The contempt in that case occurred in the court but was not witnessed by the judge.	"At the Old Bailey a man distributed leaflets in the public gallery inciting people to picket the place. A member of the public reported it to a police officer, who reported it to the judge. The offender denied it. Melford Stevenson J immediately heard the evidence on both sides. He convicted the offender and sentenced him to seven days' imprisonment."
Committal by Judge of his own Motion To be invoked in situations where it is deemed absolutely imperative to maintain the authority of the court. The judge may commit the offender instanter and without notice.	AGAIN: Balogh v. St. Albans "It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately—so as to maintain the authority of the court—to prevent disorder—to enable witnesses to be free from fear—and jurors from being improperly influenced—and the like."
RIGHT TO BE HEARD Before allowing punishment for contempt, the court ought to give him the opportunity to show cause or explain his conduct. Whilst doing so, the contempt must be explain clearly and distinctly to the offender and the offender also ought to be allowed to consult a solicitor before he is dealt with (Re Pershadsingh).	Note the cases of:- 1) Re Pollard 2) Maharaj v. AG of Trinidad and Tobago
Maharaj v. AG of Trinidad and Tobago	"Where a person was charged with contempt of court particulars of the specific nature of the contempt had usually to be made plain to the alleged contemnor by the judge before he could be properly convicted and punished. The judge had failed to explain to the appellant that the contempt with which he intended to charge him was 'a vicious attack on the integrity of the court'. That failure vitiated the appellant's committal for contempt since he had not been afforded the opportunity to explain what he had meant by his allegation of 'unjudicial conduct'".
CIVIL /PROCEDURAL CONTEMPT	This arises where an attorney disobeys a judge's order or other process. It is considered to be a wrong done to the person who is entitled to the benefit of the judgment/order.
What is the punishment for civil/procedural contempt?	The punishment is the same as with criminal contempt. However, the order must have been clear and the disobedience involve impropriety, fault or other misconduct by the attorney. If disobedience unintentional, attorney may be ordered to pay the costs of the committal application but he may not be committed. Civil contempt can be waived by the court.
BREACH OF UNDERTAKING	Part A Rule 43: An attorney-at-law shall not give a professional undertaking that he cannot fulfil, and he shall fulfil every such undertaking that he gives.
What is an undertaking?	A pledge or promise made by an attorney in his professional capacity to do or to refrain from doing some act. An undertaking may be given orally but must preferably be reduced into writing.
An undertaking may be enforced by the court by committal for contempt when:-	The undertaking is given by the attorney:- a) personally; b) in his professional capacity; c) is in clear terms; d) and the court is fully aware of it; and e) it is capable of being performed.
What is the procedure which must be followed if a committal is sought?	Step 1: The court must first issue an order to compel the attorney to perform the undertaking. Step 2: Should this order be disobeyed, the court may then make an order for committal. (See: Re A Solicitor)
Options available to an aggrieved party for breach of an undertaking include:-	1) An action at law; 2) An application to the Law Association to take and/or recommend disciplinary proceedings against the offending attorney; or 3) Application to the court requesting that it exercise its jurisdiction over the attorney as one of its officers.
JURISDICTION OF COURT TO ENFORCE UNDERTAKINGS	An undertaking may be enforced by the court if given by an attorney to his client, to a third party or to the court. The court may enforce the undertaking by virtue of its summary jurisdiction once the undertaking has been given by the attorney in his professional capacity or in his capacity as an agent of the client (Silver & Drake v. Baines).
What motivates the court's jurisdiction to enforce undertakings by summary process?	The court requires its officers to observe a high standard of professional conduct. It's concern is to secure the honesty of its officers and to protect and/or indemnify a client who has suffered wrong. It's main concern is not merely that of punishment.
Would the court exercise its summary jurisdiction is every case?	The court would only exercise this jurisdiction in clear cases. "The court, however, will always have in mind that a solicitor is not necessarily to be regarded as having misconducted himself by failing to honour an undertaking when, for example, the issue of whether the words amounted to an undertaking, or the further issue of whether there has been a breach, turns on the answer to a fine or subtle point of construction. Likewise where there was real scope for genuine misunderstanding on what was said or meant by a solicitor on a particular occasion. In that sense this supervisory jurisdiction will only be exercised in a clear case." (See: John Fox v. Bannister & Rigbeys)
EXAMPLES OF UNDERTAKINGS include an undertaking:-	a) To enter an appearance in an action (Re Kerly, Son and Verden); b) To repay money lent for benefit of client by another solicitor (Silver v. Baines); c) To hold sum of money pending outcome of negotiations (Re A Solicitor); d) To forward documents of title (Wong v. Johnson and anor); e) To pay money to a third party (United Mining v. Becher); and f) To pay another attorney's costs of a loan transaction (Rooks Rider v. Steel).

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