Contempt of Court
A. This part of the Memorandum provides guidance as to the procedure to be adopted when a judge is considering whether the conduct of any person during a trial constitutes a contempt of court. It supersedes the Memorandum by the Lord Justice-General on Contempt of Court dated 2 July 1975.
1. The appropriate time to make a judicial finding of contempt will vary according to the circumstances. In the case of prevarication, before the judge considers the making of a finding of contempt he should encourage the witness to speak up while there is still opportunity to do so, such as by giving him or her, outwith the presence of the jury, a firm warning and a clear explanation of the likely consequences of continued prevarication, and affording the opportunity to reflect on the situation and return to court and purge the contempt by giving further evidence.
2. No finding of contempt should be made before the person in respect of whom the judge is considering making the finding has had the opportunity to obtain legal advice and representation (and if necessary legal aid) in regard to whether a finding of contempt should be made and, if so, with what consequences to that person.
3. In the case of contempt by a witness or by a party to the proceedings in a trial, whether civil or criminal, before a jury, it is important to avoid creating prejudice in the mind of the jury. It may be appropriate for the judge to consider dealing with the matter at the conclusion of the day's proceedings after the jury have left the court.
4. Whether the alleged contemnor should be detained in custody or released subject to appropriate conditions, and, if to be detained in custody, for how long, should be given careful consideration. It is inappropriate for detention to be longer than is necessary. It may be possible for the hearing of the question of contempt to take place in 24 hours or less. It should not be assumed that it is necessary to continue the hearing until the end of the trial. The witness should not be ordered to be detained in the presence of the jury.
5. If the offence is one of prevarication, the judge should normally ascertain whether the Crown intends to bring criminal proceedings against the offender before deciding whether to deal with the matter himself as a contempt. It may be necessary to consider the making of an order in relation to the media.
6. If the judge is of the opinion that a person has committed a contempt, a judicial finding to this effect should be made at the appropriate time and, as a matter of record, entered in the minutes.
7. It is normal for the presiding judge to decide if conduct amounts to contempt. There may, however, be circumstances in which exceptionally it would be inappropriate for him or her to do so. In these circumstances the judge should remit the case to the High Court at Edinburgh on a specified diet, either detaining or releasing the person as may be appropriate. Likewise, once a finding of contempt has been made, it is for the judge to decide whether the circumstances warrant an exception to the normal rule that the judge who makes the finding of contempt ought personally to deal with the appropriate punishment for the contempt of the court. If the judge considers that the case is of such an exceptional nature that he or she cannot properly deal with the issue of punishment, he or she should, after making the formal finding of contempt, remit the case to the High Court at Edinburgh, on a specified diet, either detaining or releasing the offender as may be appropriate.
8. Although an act of contempt should be dealt with expeditiously, it is much more important that it be dealt with - and be seen to be dealt with - fairly and objectively. When the judge has made a finding of contempt he or she should consider whether to adjourn the matter to enable the offender to consider his position. The period of adjournment will depend on the circumstances. It will be a matter for the judge to determine, in the light of the circumstances of each case, whether the offender should be detained in custody until the adjourned diet, or released subject to such conditions as the judge considers appropriate. If the offender is under 21 years of age, has never before been in prison or is under social work supervision, the judge should bear in mind the propriety of obtaining a social inquiry report.
9. At the adjourned diet the offender should be given a full opportunity to apologise for his conduct and making a statement in mitigation. If a custodial sentence is imposed, it should normally be made to run consecutively to any sentence the offender is currently serving, and this would be a factor in determining severity.
B This part of the Memorandum offers guidance to judges as to the procedure to be adopted where prejudicial publicity is alleged against a newspaper or the broadcaster of a radio or television programme. It supersedes the Further Memorandum by the Lord Justice-General on Contempt of Court dated 21 June 1995.
1. It is the practice for representatives of the newspaper or the broadcaster to be ordered to appear in court to answer the allegation. This should be done in all cases where the information before the court is sufficient to show that there is a need to consider the question of contempt, and it should also be done where the question arises as to the appropriate punishment. But it is not necessary for the editor of the newspaper, the producer of the broadcast or others in senior positions to be ordered to appear in person in all such cases. The question will be whether the absence of that person from his other duties which his attendance in court would involve can reasonably be justified.
2. An order for the personal appearance of the editor or producer should only be made where the alleged contempt is of a kind where his appearance in person is thought to be necessary so that an adequate explanation can be given or with a view to deciding what punishment is appropriate. It will be sufficient in all other cases or order that the newspaper or broadcaster be represented at the hearing, leaving it to the discretion of the newspaper or broadcaster as to whether the editor or producer or some other person in a senior position should be present also on its behalf.
Lord Justice-General
Edinburgh
28 th March 2003