Arlidge, Eady & Smith on Contempt 5th ed

Wildy's Book of the Month: June 2017

Arlidge, Eady & Smith on Contempt is a comprehensive and authoritative commentary on the subject, explaining everything from the development of contempt, its origins in common law, its general principles, its various categories, and its statutory underpinnings (domestic and EU), through to the latest developments in this ever evolving area of law.

Since the last edition, there have been fundamental changes in the procedural landscape for contempt.

  The 5th edition addresses, among many others, the following changes:-

• Committal and sequestration in the County Court and High Court are now governed by the new CPR 81 and its linked Practice Direction
• The Practice Direction (Committal for Contempt: Open Court) (Senior Courts): [2015] 1 WLR 2192
• The Criminal Procedure Rules 2015 make provision for committal in the criminal courts as well as for court reporting restriction orders
• The continuing emphasis on open justice and transparency in the Family Court (as well as the Court of Protection), which has been reflected in the relevant parts of the Family Procedure Rules
• The relevant sections of the current rules are all gathered together conveniently in the new edition as appendices.  The importance of the procedural safeguards to be deployed in committal cases was again re-emphasised by the Court of Appeal in LL v Lord Chancellor [2017] EWCA Civ 237, the judgments in which were handed down on 10 April 2017, leaving time mainly just to note its significance.
• The availability of public funding for those sought to be committed for contempt: Legal Aid, Sentencing and Punishment of Offenders Act 2012; the Criminal Legal Aid (General) Regs 2013; and the Criminal Legal Aid (Financial Resources) Regs 2013.  Their application in the context of contempt has been addressed in important cases such as Re Ramet [2014] EWHC 56 (Fam) and Inplayer Ltd v Thorogood [2014] EWCA Civ 1511
• The Law Commission in England & Wales has produced a number of reports and proposals on the subject, including on the abolition in this jurisdiction of “scandalising” as a form of contempt , which has been achieved by statute (although in Scotland the law of “murmuring” remains for the time being untouched).  In New Zealand too there has been an Issues Paper from their law Commission which suggests that “scandalising” will probably be abolished there as being “untenable” in the modern New Zealand society. 
• The Law Commission here has not yet produced its anticipated report on “contempt in the face”- Att-Gen v Davey; Att-Gen v Beard [2013] EWHC 2317
• The topical and recurrent theme of juror misconduct has also been addressed by the Law Commission and the legislature. The offence of disclosing jury deliberations under s.8 of the Contempt of Court Act 1981 has been repealed and new offences have been introduced via s.20 of the Juries Act 1974.
• A new offence has also been created to meet the problems of jurors carrying out independent research (especially on the internet) into the facts of their cases or into the character of the defendant(s) being tried. 
• There have been a number of cases involving alleged breaches by the media of the strict liability rule, as set out in ss.1 and 2 of the Contempt of Court Act 1981, and further analysis by the courts of these sensitive issues: Att-Gen v Times Newspapers [2012] EWHC 3195; Att-Gen v Associated Newspapers Ltd [2012] EWHC 2029; Att-Gen v Conde Nast [2015] EWHC 3322.
• A further case has thrown more light on the somewhat vexed question of what is the appropriate mens rea for contempt outside the context of media publication: Sol-Gen v Cox [2016] EWHC 1241, where the court derived some help from the analysis in the Scottish case of Robertson and Gough v HMA [2007] HCJAC63. 
• Various further examples of penalties imposed by the courts and, in particular, in the context of the recurring theme of fraudulent claims for personal injury compensation. These follow on from the guidance given by the Supreme Court in Summers v Fairclough Homes Ltd [2012] 1 WLR 2004, to the effect that a custodial penalty will usually be appropriate.
• The changes envisaged in ss.45 and 45A of the Youth Justice and Criminal Evidence Act 1999 were finally brought into effect in April 2013.  The provisions of s.33 of the Children and Young Persons Act 1933, therefore, now only apply in civil and family cases. There remained continuing discrepancies and it was pointed out in Aitken v DPP [2015] EWHC 1079 that there may well be a need for yet further clarification by way of statute. 
• The need for the values of Articles 6 and 8 of the ECHR to be reconciled with the imperatives of open justice  has again been addressed in a number of significant appellate decisions: A v BBC [2015] AC 588; Re Guardian News and Media Ltd [2015] 1 Cr App R4; R v Marine A [2014] 1 WLR 3326; and BBC v Roden [2015] IRLR 627. 
• The practical problems that can arise for judges, when trying to accommodate the needs of accredited journalists in the course of a trial, while also making provision for protecting national security, were illustrated in Guardian News & Media Ltd v R and Incedal [2016] EWCA Crim 11.
• Chapter 9, on journalists’ sources, has been brought up to date to take account of recent thinking in judicial decisions such as Nagla v Latvia (2013) ECHR 668; Tillack v Belgium (2012) 55 EHRR 25; Keena v Ireland (29804/10);  and R (Miranda) v Home Secretary [2014] 1 WLR 3140.  But there is also consideration of the light thrown on the concept of journalistic “sources” in the Investigatory Powers Act.
• The law of contempt has been described as “Protean”. Difficulties can be thrown up suddenly and unexpectedly in the course of any litigation, criminal or civil,  It is thus useful to have available a text, and the relevant rules and precedents, to hand, in a single volume which attempts to cover the whole field – rather than being confined to one area of the law or category of disputes.
• The Scottish chapter 16 has for this edition been revised and updated by Lord Eassie, who brings to bear in that specialist field many years of practical experience and scholarship.