The future of civil contempt
Comparing civil and criminal contempt
7.34The essence of the conceptual distinction between civil and criminal contempt turns on whether the contempt involves an act that so threatens the administration of justice that it requires punishment from the public point of view. If it does, it is a criminal contempt, even when the contempt itself takes the form of a breach of a court order made in civil proceedings. By contrast, disobedience of a court order or undertaking by a person involved in litigation is civil contempt where the purpose of imposing sanctions is primarily coercive or remedial. McLachlin J in the Supreme Court of Canada explained the distinction, where the contempt involves a breach of a court order, in the following way:
A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lesson societal respect for the courts is added to the breach, it becomes criminal.
7.35This conceptual distinction between civil and criminal contempt has been much criticised. As discussed already, a true dichotomy does not exist because, although conceptualised as remedial, the courts intervene in civil contempt because disobedience of court orders challenges the authority of the courts. The effective administration of justice requires that court orders are obeyed or properly challenged.
7.36There have been calls for the abolition of civil contempt in a number of jurisdictions. In practical terms, the significance of the distinction has been diminishing over time anyway, as the courts have increasingly extended the rights and protections available to a defendant facing criminal contempt proceedings to defendants facing punitive sanctions in civil contempt cases.
Solicitor-General v Siemer
7.37The 2010 decision of the Supreme Court in Siemer has arguably moved civil and criminal contempt closer together in New Zealand. To understand the current position, it is helpful to examine that decision in some detail.
7.38The proceedings for contempt arose from a deliberate and ongoing breach over a number of years of an injunction issued by the High Court in private civil litigation in 2005. The injunction required Mr Siemer not to publish, in any form, material containing allegations of criminal, unethical or other improper conduct by a chartered accountant and his firm in relation to their administration of the receivership of a company associated with Mr Siemer.
7.39After Mr Siemer was held in contempt twice, following earlier applications by the chartered accountant, Mr Stiassny, and his firm, the Solicitor-General brought an originating application in the High Court seeking to commit Mr Siemer to prison for contempt for an indefinite period until he complied with the injunction. The High Court found that the contempt was proved and that the prohibited allegations had been published on a website controlled by Mr Siemer. He was sentenced by the High Court to a finite term of imprisonment of six months.
Court of Appeal decision
7.40Mr Siemer then appealed to the Court of Appeal against the High Court decision. The principle issue the Court of Appeal considered was whether Mr Siemer was entitled to elect trial by jury on an allegation of contempt of court. He argued that proceedings for contempt were in substance criminal proceedings and consequently triggered a right to elect trial by jury, provided for in section 24(e) of the Bill of Rights Act, which (prior to amendment last year) entitled anyone charged with an offence punishable by imprisonment for more than three months to elect a jury trial.
7.41After canvassing the state of the law in New Zealand, as well as in similar jurisdictions, the Court of Appeal concluded that there is still a distinction in New Zealand law between criminal and civil contempt. The Court said that the purpose of civil contempt is to coerce rather than punish. Where the disobeyed order remains current and able to be obeyed and the sanction is designed to ensure obedience and comes to an end when that objective is achieved (that is, the contemnor “carries the keys of the prison in his own pocket”), the sanction is properly classified as civil. That is so, notwithstanding the obvious fact that any imposition of a sanction such as imprisonment has a punitive or penal aspect to it.
7.42The Court held that, where a contempt was properly classified as civil rather than criminal, the right under section 24(e) of the Bill of Rights Act to trial by jury was not triggered. In other words, an allegation of civil contempt could not amount to being “charged with an offence”.
7.43In this case, the application by the Solicitor-General was properly classified as civil because it was designed to coerce compliance with the court order. However, the High Court had imposed a fixed term of imprisonment not contingent on continued defiance of the Court order. The High Court had incorrectly imposed a punitive criminal sanction rather than a civil sanction. The Court of Appeal quashed the High Court’s order and substituted an order under which the six-month term of imprisonment was a maximum and subject to Mr Siemer’s compliance with the injunction and his provision of an undertaking to the Court to comply, at which time, the term of imprisonment would come to an end.
Supreme Court decision
7.44Mr Siemer appealed to the Supreme Court. Unlike the Court of Appeal, the Supreme Court did not dwell on the distinction between civil and criminal contempt. Instead, the Court focused on the penal consequences, such as imprisonment, that could follow a finding of either.
Bill of Rights protections apply
7.45The Supreme Court unanimously considered that the Bill of Rights Act required a generous reading and that the form of the proceedings could not be determinative of the rights afforded the defendant. In the minority judgment, McGrath J said:
When a court holds someone to be in contempt of court, whether the contempt is one categorised as criminal or civil, its determination stigmatises that person. The effect of the court’s finding is equivalent to that resulting from conviction on a charge of committing a statutory crime.
7.46For the majority, Blanchard J similarly explained:
Whenever someone faces a proceeding for contempt they face the possibility of a sentence of imprisonment for such length as the court may reasonably impose. It would be extraordinary if, as must be the case, someone charged with minor offending had the benefit of the ss 24 and 25 guarantees, insofar as they can apply in the circumstances, when, as a matter of law, that person may not actually be liable to imprisonment or where as a matter of practice imprisonment will never be imposed, and yet a person proceeded against for contempt and undoubtedly exposed to the possibility of imprisonment did not.
7.47The Court considered that the purpose of the criminal process rights in the Bill of Rights Act is to accord the various protections to those who are the subject of an official accusation that they have breached the criminal law. The protections are there because of the nature of the consequences to an individual, including exposure to the punishment that will follow. Exactly the same consequences apply to adverse findings of contempt of court, whether criminal or civil, and the penal orders that may then be imposed. The purpose for which the Bill of Rights Act confers section 24 protections applies equally to the position of those against whom contempt proceedings are brought.
7.48The Supreme Court also confirmed the position that the only way in which contempt of court (civil or criminal) could be dealt with was by summary process. Trial by jury was not available. In the majority judgment, Blanchard J made the following observation:
[W]e do not believe that the jury trial procedure for contempt would ever be appropriate, even accepting that a means exists or could be devised for summoning a jury and putting a case for contempt before it. Such a procedure would be highly undesirable because it would undermine the authority of the court by interposing a body of lay persons between the court’s order and its enforcement and giving to them the task of interpreting the order. That task should be for the court alone to undertake.
Application of section 5 – a justifiable limitation?
7.49By majority decision (Blanchard, Wilson and Anderson JJ), the Court considered that the consequence of section 24(e) applying was that the power of a New Zealand court to impose a sentence of imprisonment for contempt was limited to imprisonment for no more than three months (and/or a fine). A person would have a right to elect trial by jury if exposed to a longer maximum term of imprisonment. The majority said they reached that view “not without hesitation” because the three-month limit in section 24(e) does not appear to have given consideration to the effect on the punishment of contempts. Section 24(e) of the Bill of Rights Act has subsequently been amended, and the right to elect trial by jury now only applies where the maximum penalty is imprisonment for two or more years. That change was made as a consequence of the adoption of the Criminal Procedure Act 2011.
7.50The minority judgment (Elias CJ and McGrath J) considered that the power of a court to impose a sentence of imprisonment for contempt was not limited to three months under section 24(e), because the summary procedure for all contempt of court proceedings was a justified limitation under section 5 of the Bill of Rights Act that created an exception to the right to a jury trial under section 24(e).
7.51The Supreme Court decision in Siemer clarified that the Bill of Rights Act protections apply to all defendants facing allegations of contempt, whether civil or criminal. However, this has left uncertainty as to what now remains of the differences between civil and criminal contempt. As was noted by McGrath J in the minority judgment, the right to trial by jury is just one of the rights in relation to the criminal law process under sections 24 and 25 of the Bill of Rights Act. The other process rights, which are collectively aimed at protecting the right to a fair trial, also apply to both civil and criminal contempt. These include rights to legal representation, the right against self-incrimination and the right to properly be heard.
Common features of all contempts
7.52The Supreme Court did not directly address the Court of Appeal conclusion that there is still a distinction in New Zealand law between criminal and civil contempt. However, the consequence of the decision is that few of the historic differences between civil and criminal contempt remain. The traditional classification of contempt into civil or criminal no longer seems to be a helpful one given the number of features common to both:
- The criminal standard of proof applies in both civil and criminal proceedings.
- The right to be released on bail, on reasonable terms and conditions, applies in both civil and criminal contempt proceedings.
- The maximum sentence of imprisonment for either civil or criminal contempt is the same. Following the amendment of section 24(e) in 2013, it is now limited to two years.
- Rights to legal representation, including the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means under section 24(f), apply in both the civil and criminal context.
- Rights to natural justice and a fair trial apply in both civil and criminal contempt proceedings, including the right against self-incrimination and the right to properly be heard.
- In both civil and criminal contempt proceedings, the defendant must also be given proper and adequate notice of the particularity of the allegations.
7.53The statutory basis for appeals differs, but appeal rights do not differ much in substance. Civil contempt rulings are subject to appeal to the Court of Appeal under section 66 of the Judicature Act 1908, while criminal contempt rulings are subject to appeal under part 6, subpart 5 of the Criminal Procedure Act 2011. However, section 25(h) of the Bill of Rights Act provides a right, if convicted of the offence, to appeal according to law to a higher court against the conviction or sentence or against both. It must therefore be the case that a defendant held to be in civil contempt has equivalent rights of appeal.
7.54It seems that both section 66 of the Judicature Act and the relevant sections of the Criminal Procedure Act provide equivalent rights of appeal, although the latter does not use the language of rehearing. Under section 66, appeals are by way of rehearing, which in this context requires the appeal to be conducted on the record of the evidence given in the court below, subject to the power to admit further evidence under the rules of court. There is not, therefore, a complete rehearing in the sense of a new trial with the evidence recalled, but the court hearing the appeal considers and determines for itself the issues determined at the original hearing on the basis of the record of the proceedings. It then applies the law as it is when the appeal is heard and not as it was when the trial occurred.
7.55The Criminal Procedure Act provides a first right of appeal against a finding of contempt and/or any sentence imposed other than an order that a person be detained in custody until the rising of the court. An appeal against a finding of criminal contempt is heard and determined, with necessary modifications, as if the appeal was a finding against a conviction. There is no longer any express reference to an appeal against conviction following a judge-alone trial, proceeded by way of a rehearing, as there was in earlier legislation. However, Adams on Criminal Law says, arguably, nothing has been lost as a result of this omission, because the relevant replacement provision (section 232(2)(b)) requires the appeal court to give the judge’s reasoning close scrutiny and come to its own decision on the facts, which is fundamentally what is involved in a rehearing.
Remaining differences between civil and criminal
7.56The only difference marking off civil contempt proceedings is that they can be taken by and for the benefit of the party in whose favour the original order or injunction was made. The entitlement that parties to litigation currently have to initiate contempt proceedings reflects the historic origins of civil contempt as an enforcement mechanism to remedy private wrongs as well as affronts to the administration of justice. Any reform of civil contempt will need to preserve the ability of individual litigants to protect their private interests in securing compliance with court orders.
7.57Related to the private interests of the successful litigant is the question of whether civil contempt can be waived by the person for whose benefit the order was made. Criminal contempt, involving the breach of a court order, cannot be waived. Arlidge, Eady and Smith on Contempt say that it seems to have been largely just assumed for a long time that civil contempt can be waived. While the authors note some authority to support this, they say the position is not straightforward. In some cases, the public interest may come into play and require that the court’s authority be vindicated irrespective of the wishes of the parties. They state that:
There is little recent authority on the significance of waiver in the context of civil contempt. It would seem that it will not normally be possible to waive a civil contempt if the breach constitutes a deliberate defiance of the authority of the court (especially in cases of public defiance), or requires to be punished or otherwise pursued from the public point of view.
7.58The Phillimore Committee, in its 1974 Report on Contempt of Court, makes the point that the position from earlier times, that if the aggrieved party waived the contempt that was usually the end of the matter, does not fully accord with the modern views of the court’s role. The court in civil proceedings is not viewed any more as “a mere ringholder for the contest between the parties”.
7.59A final, and perhaps obvious, distinction between civil and criminal contempt is that sequestration orders are only available as a remedy in civil contempt.