Last November, the Law Commission published Contempt of Court: Report (Part 1) on Liability. The proposed reforms come in response to the government’s request for a review of the area in 2022, and the commission’s consultation in July 2024, followed by a supplemental consultation paper in March 2025.
The recommendations seek to reshape the outdated law of contempt of court to create a clearer framework appropriate for our current age, by defining the elements and thresholds for different types of contempt.
Current position
The current position is a combination of the common law, the Administration of Justice Act 1960 (AJA) and the Contempt of Court Act 1981 (CCA), which contains a rule of strict liability where ‘conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so’.
Although not always a criminal offence, contempt can lead to fines, asset confiscation, or imprisonment for up to two years. The commission reports that it is estimated that over 100 people annually receive immediate or suspended prison sentences for contempt.
Recommendations
The report proposes that contempt liability should depend on the level of interference with justice and the individual’s state of mind, with thresholds and defences varying by the type of contempt.
The commission recommends removing the distinction between civil and criminal contempt, while retaining the criminal standard of proof: beyond reasonable doubt. The recommendations define four categories of contempt:
i. Contempt by breach of court order or undertaking;
ii. Contempt by publication when proceedings are active;
iii. Contempt by disrupting proceedings; and
iv. General contempt – a residual category for conduct not covered by the other three.
Breach of a court order or an undertaking
The first category aims to codify a type of contempt which is currently derived from the common law, with the procedural support of CPR Part 81.
Fault is relatively straightforward here: to establish a breach of a court order, the order would need to contain a contempt warning on its face, and should be properly served. If the commission’s recommendations are implemented, three defences would be available where:
(i) a breach was accidental;
(ii) an innocent mistake of fact had been made (not available where terms of an order or undertaking are simply misunderstood/ misinterpreted); or
(iii) lack of knowledge of the order (for example, if a person was absent when the order was made orally in court, or where an order has effect against the whole world).
The ‘lack of knowledge’ defence would not apply to undertakings, as they are given by the person themselves.
Contempt by publication
The second category – contempt by publication where proceedings are active – is arguably where clarity is most needed, particularly with the prevalence of social media, where anyone, anywhere, can publish or republish. The proposals would replace the strict liability contempt established under the CCA.
Reflecting current thresholds, the proposals for this category have a lower fault threshold (with the burden on the applicant) due to its potential gravity, but a higher conduct threshold to protect freedom of expression, especially for publications in the public interest.
The conduct must involve two components:
(i) the act of publication (‘to make available to the public or a section of the public’); and
(ii) causing a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced.
The term ‘a section of the public’ is intended to be flexible and judged case by case. Publication to a smaller group would be less likely to meet the risk threshold for contempt.
Key changes are proposed for defining ‘active proceedings’; for example, in criminal cases, proceedings would be active from charge, rather than arrest, and in extradition proceedings, from when the suspect first appears in a court in respect of a request/arrest for extradition to or from the UK.
The proposals recommend that any applicant should have to prove that the defendant knew that proceedings were active or was aware of a risk that proceedings were active. A ‘defence’ of publication in the public interest will remain, with additional clarity around:
(i) Whether a publication is incidental: this should depend on how closely the subject matter of the publication relates to the specific legal proceedings; and
(ii) The burden and standard of proof: although it is for a defendant to raise the defence, the applicant would bear the burden of disproving it beyond a reasonable doubt.
While the consultation queried whether there should be a broadening of the defence for public safety or national security, on considering responses, this has not been put forward.
The commission also recommends retaining the requirement of obtaining consent of the attorney general (AG) to bring proceedings for this category of contempt, serving as an additional safeguard.
Disrupting proceedings
Initially, the consultation had anticipated that this type would be a sub-category within ‘general’ contempt. However, the report considers it distinct enough and deserving of a lower fault threshold to warrant being standalone.
The commission recommends that to establish contempt by disrupting proceedings, the court must be satisfied of the following beyond reasonable doubt:
(i) conduct: the defendant’s conduct was abusive, threatening or disorderly, resulting in disruption of proceedings;
(ii) circumstance: a judge or court official witnessed the conduct; and
(iii) fault: the defendant was acting intentionally and was aware that legal proceedings were active.
Contempt proceedings of this type are more likely to be brought by the court of its own motion.
‘General’ contempt
For this ‘catch-all’ category, the report proposes that liability is only found if:
(i) the conduct interfered with the administration of justice in a non-trivial way, or created a substantial risk of the same; and
(ii) there was a specific intention behind such an interference.
It differs from the other three narrower categories in that general contempt is recommended to apply before proceedings have commenced and after proceedings have concluded (in recognition of the fact that conduct may create a risk of interference with proceedings even after they have come to an end). The report acknowledges that there will be a need for clear government guidance for court users (lay and professional alike) about general contempt.
Further recommendations
The report also recommends repeal of most of section 12 of the AJA (which creates contempt liability for publishing information in certain private hearings; for example, concerning children or mental health), although the recommendation does not affect contempt in private hearings for national security.
Significantly, in order to increase confidence in the process for obtaining AG consent to bring actions for contempt by publication and address any perceived political bias, the report also recommends making the AG’s decisions subject to judicial review, which to date has not been an available route of challenge.
Next steps
Part 2 of the report, expected in 2026, will focus on day-to-day practice, addressing procedure, the AG’s consent regime, sanctions, appeals and reporting.
The government will then review the commission’s recommendations, including those from Part 2. If adopted, they will codify contempt law into the proposed four-category framework, aiming to balance public interest, the rights to freedom of expression and a fair trial, and the proper administration of justice.
Tim Sales is a partner at CMS and a London Solicitors Litigation Association committee member. Lisa Fox is a senior associate and solicitor advocate in the litigation and arbitration team at CMS
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