Contempt of court – civil or criminal?
Recently, our Crime and Regulatory team represented a client in an extremely rare situation. Due to ongoing associated proceedings, we cannot go into detail about the particular facts or parties in the case, but suffice it to say that the case was a learning curve for all parties. Briefly, the matter concerned a restraint order (“RO”) made against the assets of an individual pursuant to section 41 of the Proceeds of Crime Act 2002. Our client, who was not the subject of the RO, nor were they a named party to the RO, faced contempt of court proceedings for allegedly disobeying the RO.
The proceedings were successfully defended.
This case was distinct from the outset because of the charging decision: third-party contempt of court. Oddly, rather than pursuing a criminal charge such as perverting the course of justice or money-laundering, the decision was taken to make an application for committal to prison for contempt of court.
In law, contempt of court is defined as “an act or omission calculated to interfere with the due administration of justice. Conduct is calculated to prejudice the due administration of justice if there is a real risk, as opposed to a remote possibility, that prejudice will result”. There is a distinction between civil and criminal contempt of court, although both can result in imprisonment or fines.
Civil contempt is a strict liability offence; all that must be proved is that the order was served on the accused, and that a prohibited action (or a failure to carry out an order) was carried out. Criminal contempt goes a step further, and requires proof that the accused intended to interfere with or impede the administration of justice.
Our case hinged upon this distinction, as most of the material facts had either been abandoned or agreed. The only outstanding issue was whether our client had intended to interfere with or impede the administration of justice.
Because this charging decision was so unexpected, it followed that there was little legal precedent to call upon in order to establish what type of contempt our client had allegedly committed. Case law makes clear that only a party to the proceedings can commit a civil contempt, but criminal contempt is committed if an order is breached by a “stranger to the litigation”.
Our position was firmly the latter; although our client had been served with the RO, she was unnamed in it and not a party to the proceedings, and therefore could only be deemed a “stranger” to the litigation. The prosecution did not state their case as highly as this, but accepted that at the very least, the issue was ambiguous, and that the court should resolve any ambiguity in favour of our client.
After two days at trial, the learned judge found that they could not be sure that our client had the requisite intent, and our client was therefore not in contempt. The standard of proof that underpins criminal justice in England and Wales, “beyond reasonable doubt”, had not been met by the evidence that was presented.
For us as defence lawyers, this case was a perfect reminder of the potency and protection that the law affords to those whose liberty, livelihood and careers are at stake when they face proceedings of this nature.