Judges to have wider powers in contempt rules rewrite

Coulson: Unsatisfactory wording of part 81

Judges could be handed wider powers to take the initiative over contempt of court in draft rules proposed by the Civil Procedure Rule Committee (CPRC).

The new rules would also require judges and advocates to be robed at all times and hearings to be in public unless the court decided otherwise – requirements currently set out in practice directions or guidance.

Under the existing rules, the courts in some cases of civil contempt must refer the matter to the Attorney General before proceedings can be launched.

The rule proposed by the CPRC in a consultation on changes to part 81 states that where courts consider a contempt may have been committed, the court “of its own initiative shall consider” whether to take action.

“While some may object that judges are already hard pressed enough, in many cases if the judge does not take the lead, serious contempts will go unpunished.

“It is not sufficient to notify the Attorney General; he or she will have other important priorities.

“There is a precedent in the judicial obligation to consider making a civil restraint order where an application is found to be totally without merit. The obligation there (and here) is only to consider the issue. The judge is not obliged to summon the defendant.”

The CPRC said that although “it may be thought odd” to include robing in a rule, rather than practice direction or guidance, it would emphasise “the gravity of contempt proceedings”.

Under the draft rule, advocates and the judge “shall appear robed in all hearings of contempt proceedings, whether or not the court sits in public”.

The CPRC said it had also included the “critically important open justice provisions” currently contained in the Lord Chief Justice’s 2015 practice direction, which applies to civil and criminal contempt.

All hearings of contempt proceedings would be in public, regardless of the parties’ consent, unless the court directed otherwise.

Before deciding whether to sit in private, the court must alert the media, and consider submissions from the media and the parties. The court must “give a reasoned public judgment setting out why it is doing so”.

Whether or not the hearing is in private, the court must sit in public to give a reasoned judgment on its findings and any punishment.

The CPRC proposes to change the language of civil contempt applications, using the words ‘claimant’ and ‘defendant’ instead of ‘applicant’ and ‘respondent’.

“In contempt proceedings, the important person is the defendant. Unrepresented parties are more likely to understand the word defendant than respondent.”

Where contempt proceedings were heard by the High Court, the CPRC said it was “for discussion” whether a single Administrative Court judge could decide on permission. “We do not see why not but it is a policy decision”.

Likewise, the CPRC said it had not “formed a view” on whether those who were not full-time, salaried High Court judges should sit in contempt proceedings, and “whether or to what extent” district judges or masters should be empowered to determine contempt proceedings and punish people.

“We have not formed a view on whether the present position should change. District judges currently deal with some contempt issues, e.g. anti-social behaviour orders.”

In his foreword to the consultation, Lord Justice Coulson, deputy head of civil justice, said “a number of senior judges had commented on the unsatisfactory wording of part 81 and expressed the hope that the CPRC would consider revisions to it”.

Coulson LJ said the CPRC set up a sub-committee to consider the issue in July 2019, and at its September 2019 meeting agreed that “the procedural aspects of contempt proceedings are causing frequent difficulties and that the sub-committee should look at ways of simplifying, shortening and strengthening the procedural rules”.

Coulson LJ said the current part 81 was made up of rules moved from Rules of the Supreme Court to the CPR “with little amendment”.

“Consequently, part 81 is segmented, long, complicated and repetitive. It replicates substantive law as well as dealing with procedure.”

Coulson LJ said the procedural content was “largely repeated” in a practice direction, supplemented by a further one and practice guidance from the Lord Chief Justice, with “no less than 27 prescribed forms” to be used in contempt proceedings.

He added that the new approach to part 81 omitted “nearly all” the substantive law, dealt with procedure in rules rather than practice directions, reduced the number of forms and created a “uniform procedural code”.

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