Defending contempt cases in the High Court – the overriding need for fairness
High Court contempt proceedings have always held a unique and somewhat uncomfortable position in the judicial system. Whilst civil in nature and governed by Part 81 of the Civil Procedure Rules, they are nonetheless quasi-criminal in substance. This is illustrated by the availability of custodial sentences if the contempt is found proved and by other factors as well, for example the application of the criminal burden of proof and also the eligibility of defendants for criminal legal aid (Liverpool Victoria Insurance Co Ltd v Khan  3 WLUK 261).
This highlights the importance of the proceedings being conducted in a proportionate, fair and transparent manner. For those with no experience of prosecuting, however, and who are used instead to the bear pit of civil litigation, this requires a change of mindset, which will come more naturally to some than others. As a result, when defending in contempt cases, it is vital to ensure that the duty of the claimant to act appropriately is discharged.
Two obvious areas of concern will be disclosure and the imposition of sanction at the end of the case. As for disclosure, this will be governed by the civil regime but lawyers for the claimant must ensure that the duty to disclose material potentially adverse to their client’s case is rigorously observed. If it is not, and as the Court of Appeal has observed many times in a criminal context, the scope for miscarriages of justice is rife. As this could entail wrongful imprisonment, the importance of getting disclosure right is clear.
As for sanction, this requires a measured approach. Whilst the claimant is entitled to draw any relevant aggravating features to the attention of the court, it is inappropriate to urge the court to pass the maximum available sentence (as leading counsel did in a recent contempt case in which I defended). Equally, counsel for the claimant should ensure that the court is aware of the following general principles, as identified by the relevant case law:
- Imprisonment is a measure of last resort, especially in cases of civil contempt (eg for breach of a court order).
- The court should also consider a suspension of the sentence before imposing an immediate term of imprisonment.
- Immediate custodial sentences will only ordinarily be imposed if the contempt is wilful or at the very least reckless.
- If a sentence of imprisonment is to be imposed, it must be for the least period which the defendant’s conduct can properly justify.
- If the defendant has not previously experienced prison and a term of 12 months or less is under contemplation, the court should consider whether an even shorter term than this might suffice.
- The court should also take into account standard features of mitigation, such as a discount for admissions and previous good character.
In the same way as would apply in a criminal case, counsel for the claimant is therefore as much a ‘minister of justice’ as he or she is a representative of the client. If those defending have concerns as to how matters are being conducted, they should therefore remind the claimant’s lawyers of their responsibilities, if necessary by reference to the available guidance. In this light, the Code for Private Prosecutors (available here) is as good a starting point as any. If that does not produce the necessary results, however, the matter should be raised with the court – there is simply too much at stake to let it pass.