Law Commission Recommends New Framework For Contempt Of Court Liability Based On Four Forms Of Contempt

The Law Commission yesterday published part one of its report in its review of contempt of court, which concerns issues of liability. The report contains recommendations for a new contempt liability framework which establishes four forms of contempt. The report also contains recommendations concerning associated matters, including the role of the Attorney General in protecting the public interest in the administration of justice.

The review was established in 2022 in recognition of a lack of coherence, consistency and clarity in the current law and procedure concerning contempt of court. In July 2024, the Law Commission published a consultation paper setting out its provisional reform proposals (see our earlier blog post here). During the consultation, it met with roughly 450 people (from differing backgrounds, including the judiciary, lawyers, academics, journalists, government officials, civil society organisations and members of the public) and received 139 written responses.

The key recommendations from part one of the Law Commission's report are:

• Discarding the traditional distinction between civil and criminal contempt.
• Creating a new liability framework with four forms of contempt:
  • General contempt;
  • Contempt by breach of court order or undertaking;
  • Contempt by publication when proceedings are active; and
  • Contempt by disrupting proceedings.
• Retaining the Attorney General's contempt function but making its contempt decisions subject to judicial review.

These recommendations are outlined in more detail below. Other recommendations which are not considered further include, for example, repealing certain provisions which impose contempt liability for publishing information relating to certain proceedings heard in private.

The report makes clear that the recommendations are not intended to alter fundamentally the foundations of contempt liability. Instead, they aim to clarify and codify the elements required to prove contempt, and ensure an appropriate balance is struck between the different rights and interests that are affected by the need for the effective and efficient administration of justice. These include, for example, the right to a fair trial and the right of freedom of expression.

The Law Commission intends to publish part two of its report in 2026. That will consider issues such as: which courts, tribunals and other bodies should have contempt protection and powers; further aspects of the role of the Attorney General; procedure; costs; sanctions; and appeals.

Following publication of part two, it will be for the Government to decide whether and to what extent it will adopt the recommendations and change the law of contempt of court.

New liability framework

The report notes that the traditional distinction between civil and criminal contempt lacks clarity and cohesion, has led to confusion and serves little practical purpose. Responses received to the Law Commission's 2024 consultation showed strong support for its provisional proposal to abandon the distinction.

The report therefore recommends that the distinction should be discarded, and that contempt should not be a criminal offence. In place of this distinction, the report recommends the introduction of four forms of contempt liability:

1. General contempt;
2. Contempt by breach of court order or undertaking;
3. Contempt by publication where proceedings are active; and
4. Contempt by disrupting proceedings.

For each form of contempt, the required elements (as to which see further below) must be proved beyond reasonable doubt, as is currently the position.

It is expected that an applicant will ordinarily allege that only one form of contempt has been committed, but there may be circumstances where an applicant might seek to argue alternative grounds.

General contempt

It is intended that general contempt will capture any contempt that does not fall within one of the other three forms. It will be established where:

1. the defendant's conduct interfered with the administration of justice in a non-trivial way, or created a substantial risk of a non-trivial interference with the administration of justice (the conduct element); and
2. the defendant intended to interfere with the administration of justice in a non-trivial way (the fault element).

The Law Commission concludes that recklessness is not an appropriate standard of fault for general contempt. Proof of intention to interfere with the administration of justice is important as the sanctions for contempt include imprisonment. As to the conduct element, the report notes that the type of conduct that may qualify as general contempt is necessarily broad and that any attempt to further define the requisite type of conduct could be unhelpful, particularly considering potential technological developments.

The report also recommends that general contempt should apply before proceedings have commenced so that the law of contempt will apply where false statements are made at that stage, for example when complying with the pre-action protocols.

Contempt by breach of court order or undertaking

The report recommends that contempt by breach of court order or undertaking will be established simply where a person breaches an order or undertaking (the conduct element). However, prior to breach, the order must have been served and publicised in accordance with the relevant court rules. Further, the court must have issued a contempt warning to the individual (except in cases involving sealed orders where failure to give a contempt warning will not preclude a finding of contempt).

The report further recommends that three defences will be available, where the defendant can prove on the balance of probabilities that:

1. the conduct constituting contempt was accidental;
2. they did not realise they were breaching an order because they made an innocent mistake of fact (but not a mistake as to the terms of the order or undertaking); or
3. they lacked knowledge of the order (although this will only apply if the order was either made orally when the defendant was not present in court or had effect against the whole world).

The report notes that the recommendations largely retain and codify the current law, but the approach to contempt resulting from breach of an order will no longer depend on the type of order made. (Under the existing law, civil contempt applies to breaches of orders made in private litigation, but not to all types of court order - for example reporting restriction orders, breach of which may amount to criminal contempt).

Contempt by publication where proceedings are active

The report recommends that contempt by publication where proceedings are active will be established where:

1. the defendant has published material which creates a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced (the conduct element); and
2. the defendant was aware of a risk that active proceedings were active (the fault element).

Unlike general contempt, the Law Commission concludes that the fault element could be established by proving that the defendant was reckless as to whether proceedings were active. The report further recommends that a defence will be available where the publication was in the public interest and the risk of impediment or prejudice to the proceedings was "merely incidental to the discussion".

The Law Commission notes that these recommendations retain most of the existing law but introduce some important reforms including that, instead of the current "strict liability" approach, an applicant will be required to prove beyond reasonable doubt that the defendant was aware of a risk that proceedings were active.

The report accepts that guidance which identifies categories of information as generally safe to publish might serve an important operational function (for example where police forces and media organisations need to make informed decision quickly) but notes that such guidance must be understood as indicative rather than determinative. Further, the legal test for contempt must be context-dependent and cannot be reduced to fixed categories. In the Law Commission's view, attempting to define certain types of information as always safe to publish would risk creating false certainty that a substantial risk of serious impediment or prejudice would not arise.

Contempt by disrupting proceedings

The report recommends that contempt by disrupting proceedings will be established where:

1. an individual engaged in abusive, threatening, or disorderly behaviour that resulted in the disruption of proceedings (the conduct element);
2. they intended to perform the act and were aware that legal proceedings were taking place when they performed it (the fault element); and
3. the conduct was witnessed (eg, seen or heard) by the judge or a court official.

The Law Commission notes that its recommendations retain significant aspects of the current law but importantly create a uniform test for all courts.

Role of the Attorney General

The Attorney General currently has an important role to play in relation to contempt proceedings. For example, the Attorney General can bring contempt proceedings where it is in the public interest to do so, and proceedings for strict liability publication contempt can only be brought by or with consent of the Attorney General (unless the court acts on its own motion).

Despite apparent concerns that the political character of the role may result in actual or apparent bias in decisions about whether to bring contempt proceedings, the report recommends that the Attorney General retain its contempt function. The Law Commission considers the Attorney General to be well suited to determining whether it is in the public interest to bring proceedings, and there are no clearly appropriate alternative bodies or individuals that could exercise this function.

However, to alleviate concerns about potential conflicts of interest, the report recommends that all contempt decisions made by the Attorney General be subject to judicial review.

Finally, the Law Commission recommends that proceedings for contempt by publication when proceedings are active should only be brought by or with the consent of the Attorney General, unless the court acts on its own motion (which reflects the current position for strict liability contempt by publication). The Law Commission considers that this consent requirement is a valuable protection for freedom of expression and limits the number of contempt applications pursued against the media or other publishers. The report does not recommend a consent requirement for any other form of contempt.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.