This article first appeared in New Law Journal, 14 October 2011
The ramifications for those found to be in civil contempt (as presided over by the High Court), and, in particular, the court's power to enforce such a finding against a contemnor who resides overseas, are more far reaching than many (civil) lawyers realise. Wilful non compliance with a court order, or an undertaking given to the court, is a civil contempt of court.
An application for committal for contempt will normally be instigated by the opposing party although the High Court retains the power to instigate committal if it wishes. The nature of the civil proceedings in the course of which the alleged contempt has been committed will determine whether or not it is necessary to seek permission from the High Court before formally serving the application on the alleged contemnor. Unless the High Court directs otherwise, the hearing of the committal application will not take place less than 14 days after service on the alleged contemnor. The application will normally be held in public. There are some limited circumstances where the High Court may agree to hear the application in private but even then an individual found in contempt will not be able to avoid publicity as the name of the contemnor, the nature of the contempt and the penalty imposed will still be published.
Contempt of court must be proved to the criminal standard of beyond all reasonable doubt and, if found to be in contempt, an individual may be committed to prison for a maximum of two years' imprisonment (of which he or she will serve half) and an unlimited fine.
A last minute reprieve may, however, be offered to those who unexpectedly find themselves facing a period of time in prison as the High Court has the power to temporarily suspend the committal to prison if it considers the contemnor will finally comply with the original order or undertaking.
Whilst civil contempt is not a criminal offence (even if committed in connection with a criminal offence), it is a mistake to assume that a contemnor is not at risk of the same enforcement powers as a convicted criminal would be. The High Court has the inherent power to issue warrants for the arrest of an individual in contempt proceedings both before the actual hearing (so as to secure his/ her attendance) and once an order for committal has been made (in order to ensure the contemnor is detained). A warrant of arrest issued by the High Court will be circulated on the police database (the Police National Computer or 'PNC') and the fact of this warrant may be linked to the individual if he/she has to provide any form of identification to the authorities. For an individual travelling in and out of the UK frequently, the risk of the warrant being flagged up upon entry is extremely high. Once the authorities have identified the individual and the fact of the outstanding warrant of arrest, he/she will rapidly find themselves arrested and taken into custody.
A warrant for arrest following a ruling of contempt of court will remain in force for two years (unless a further order is made by the High Court). An individual might therefore conclude that it is safe to remain outside the UK until the warrant has expired. Such a move would, however, fail to take into account the power of the UK authorities to seek their extradition back to the UK. It will come as a surprise to many that civil contempt can fall under the category of an 'extradition offence' pursuant to the Extradition Act 2003. The only restriction on the power of the UK authorities to apply for a European Arrest Warrant is that the individual in question must have been committed to prison for contempt for at least four months.
European Arrest Warrant
Should the UK authorities choose to embark on the extradition route, a European Arrest Warrant ('EAW') may be issued by a UK court and from there it will be passed to the Serious Organised Crime Agency ('SOCA') for transmission to other European countries. If the UK authorities know where the contemnor is, the EAW can be sent directly to the authorities in that country. If the whereabouts of the individual are unknown, the EAW can be distributed to all member states via the International Criminal Police Organisation ('Interpol'). The Interpol Notice is called a 'red notice' and will leave the individual at risk of arrest by any member state that picks up on it. Once the contemnor is found, the arresting country will consider the EAW and whether or not it complies with their domestic legislation before deciding if he/she will be extradited back to the UK. Finally, it should also be borne in mind that this risk is not peculiar to Europe as an individual may be stopped in any non-European country if the red notice is picked up on and the UK may still initiate an extradition request (the success of which will rely on the relationship between the two countries and the existence of any treaty).
So, those individuals based overseas who might consider that it is better to risk a finding of contempt in absence rather than comply with an order which is onerous or may have severe financial consequences in the belief that they are beyond the reach of the High Court's jurisdiction, need to think again.
The recent case of JSC BTA Bank v Solodchenko & Others (June 2011) is an illustration of how seriously the High Court treats civil contempt. In Solodchenko's case, the High Court heard the application for his committal in absence (as he was thought to be out of the jurisdiction) and, having found him in contempt for failure to comply with an international freezing order, committed him to prison for 18 months. It will be interesting to follow the steps the High Court and the UK authorities will now surely take to ensure the order for committal is complied with.http://www.corkerbinning.com
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