Balli, Re Contempt of Court Act 1981 (Rev. 1)

Contempt in the face of the court requires a direct and cogent connection with ongoing court proceedings. It is a summary power, to be used cautiously, and procedural safeguards reflecting a criminal trial must be observed. A solicitor’s unauthorised conduct is particularly serious because the administration of justice depends on legal representatives being qualified, authorised and reliable. Where contempt also constitutes a criminal offence, the contempt court marks the breach of the rule of law and secures future compliance; it does not punish the separate offence. Imprisonment must be no longer than necessary, and the court must consider suspension, mitigation for admissions and the relevant sentencing factors. In an exceptional case involving deliberate impersonation of a solicitor, a custodial sentence may be required even where no fee was charged and no irremediable prejudice was caused.

The respondent, a former solicitor who had been struck off and whose firm had been dissolved, continued to conduct litigation in the name of the firm. He filed applications and witness statements, made statements of truth, appeared before a district judge, instructed counsel and held himself out to the court and other legal representatives as an authorised solicitor.

The respondent admitted 13 particulars of contempt. The proceedings were initiated by the judge as contempt in the face of the court. The court also considered the relationship between the contempt proceedings and potential offences under the Solicitors Act 1974 and the Legal Services Act 2007, including the risk of duplicative proceedings and double jeopardy. The central issues were the applicable safeguards, the seriousness of the contempt and the appropriate sanction.

1. Contempt in the face of the court is a summary power which is not lightly invoked. The expression is not confined to conduct physically occurring during a hearing or within court premises, but requires a direct and cogent connection with proceedings ongoing before a court.

2. The court must comply with the requirements of section 6 of the Human Rights Act 1998. A contempt proceeding is to be treated as the trial of a criminal charge. The respondent is entitled to legal assistance where the interests of justice require it, is not obliged to give evidence and has the protection of article 6.1 against self-incrimination. Written notice should ordinarily be provided, allowing legal advice, representation and a cooling-off period.

3. The purpose of contempt proceedings is distinct from punishment for any related criminal offence. The court marks disapproval of the breach and secures future obedience to court orders and adherence to the rule of law. Under section 14 of the Contempt of Court Act 1981, the available sanction is imprisonment for up to two years, a fine or both.

4. In deciding whether imprisonment is necessary, the court must impose the shortest term commensurate with the gravity of the contempt and deterrence. It must consider whether imprisonment can be suspended, give appropriate credit for an admission, and assess the relevant matters identified in JSC BTA Bank v Solodchenko (No 2) [2010] EWHC 2843 (Ch). The approach in R v Trigger [2007] EWCA (Crim) 254 was also relevant to the custody threshold and sentencing of a first offender.

5. The respondent’s deliberate presentation of himself as an authorised solicitor, including appearing on the record, appearing as a solicitor advocate, signing statements of truth and instructing counsel, was a serious interference with the administration of justice. A fine was inadequate. The entry point was 12 months, reduced by four months for lack of previous imprisonment and by a further two months for the early admission. A six-month sentence was imposed and was required to be served rather than suspended.

6. The respondent was sentenced to six months’ imprisonment for the admitted contempt. Under section 258(2) of the Criminal Justice Act 2003, he was to be released unconditionally after serving one-half of the term.