Contempt of court. When the court draws the line

CONTEMPT of court: the very phrase has a medieval ring to it, evoking chains and dungeons - and the dungeon in its modern form is just what was ordered by Judge Pearson when Sarah Holt and her friend and co-witness Sophie Bird refused to give evidence at Chelmsford Crown Court.

The young women had probably never heard of a "contempt in the face of the court", but it took an appeal to the Criminal Division of the Court of Appeal, accompanied by the usual howls from the tabloid press, to secure their release. So, what is contempt of court? And how is it dealt with in practice?

It has been described by Lord Justice Salmon as "an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done."

The dignity of the court might well have been disturbed if Stephen Balogh had succeeded in his plan to introduce nitrous oxide (laughing gas) into the air conditioning system of St Albans Crown Court. But he came before the redoubtable Mr Justice Melford Stevenson who found contempt proved and gave Balogh six months imprisonment.

On appeal Lord Denning offered various examples of when a court can punish a bare-faced instance of contempt, such as the throwing of an egg or tomato at the judge, with summary judgment and punishment. But, as Lord Denning stressed, a judge should only act to punish when it is imperative to act immediately.

In the case of Sarah Holt and Sophie Bird, immediate, and precipitate, action provided the grounds on which the Court of Appeal quashed their sentences. That court approved the CPS policy document on prosecuting cases of domestic violence. It suggested that instead of prison Judge Pearson should have used Section 23 of the Criminal Justice Act 1988, which allows a statement taken by a police officer or similar to be read if the person who made it does not give oral evidence through fear. As the Court of Appeal stressed, the best course is to allow the reluctant witness time to think.

A plea for time is also the best request a representative of a reluctant witness can make. Then there is the opportunity, if a witness is terrified, to be patient and sympathetic and obtain, if necessary, protection sufficient to provide reassurance. But refusal to testify is a serious matter and, whether the press likes it or not, immediate imprisonment is the judicially approved sanction.

The press has a distinctly blemished record when it comes to contempt. Newspaperman Paul Griffin was foolish enough to remove photographs from counsel's papers lying on the court bench, but fortunate to be found not guilty of contempt. One method of dealing with the problem of the intrusive journalist was employed against a hack who, many years ago, leafed through counsel's papers at Kingston Crown Court. By the afternoon the application judge of the Queen's Bench Division had granted an injunction excluding said hack from the court building.

The media can be unrestrained in its tilts at due process of law, as has been shown recently by the attempt to indict Colin Stagg, who was acquitted of the murder of Rachel Nickell, by newspaper. There will always be a tension between a free press and a fair, unprejudiced trial. The Contempt of Court Act 1981 limited the scope of strict liability in relation to publications (which are broadly defined) to those that create a substantial risk that the course of justice will be seriously impeded or prejudiced. The 1981 Act also has the practical effect of giving a court the power to ban publication of, for example, the names of witnesses and, unlike the situation in the US, a jury's deliberations are confidential.

In the 'ouija board' case the Court of Appeal showed sleight of hand by holding that a jury's stay at an hotel did not fall into deliberation within the Act, when it made their supernatural contacts known. For the future it may be necessary to have some amendment of the statute to allow for inquiries into alleged miscarriages of justice.

But always remember, for your client's sake: contempt of court is serious, and the ultimate sanction is loss of liberty.