Contempt and ecclesiastical courts

Unlike the tribunals of other denominations, the Church of England’s courts are part of the English legal system. The final court of appeal in faculty cases that do not involve a question of doctrine, ritual or ceremonial is the Judicial Committee of the Privy Council – a secular court. The ecclesiastical courts are subject to the supervisory jurisdiction of the High Court upon an application for judicial review.

They also enjoy a degree of control over their proceedings not shared by, for example, the tribunals of the Roman Catholic Church. S 81 Ecclesiastical Jurisdiction Measure 1963 (Evidence and general powers and rights of courts and commissions), as amended, provides as follows:

“(1) Any court or commission established under this Measure and the Vicar-General’s Court of each of the provinces of Canterbury and York shall have the same powers as the High Court in relation to the attendance and examination of witnesses and the production and inspection of documents.

(2) If any person does or omits to do anything in connection with proceedings before, or with an order made by, such court or commission or Vicar-General’s court which is in contempt of that court or commission by virtue of any enactment or which would, if the court or commission had been a court of law having power to commit for contempt, have been in contempt of that court, the judge or presiding judge of the court or the presiding member of the commission, as the case may be, may certify the act or omission under his hand to the High Court.

(3) On receiving a certificate under subsection (2) above the High Court may thereupon inquire into the alleged act or omission and after hearing any witnesses who may be produced against or on behalf of the person who is the subject of the allegation, and after hearing any statement that may be offered in defence, exercise the same jurisdiction and powers as if that person had been guilty of contempt of the High Court.”

So what? I hear you asking.

What occasioned this post was a recent judgment, Ewing v Crown Court Sitting at Cardiff & Newport & Ors [2016] EWHC 183, about the circumstances in which it is appropriate for a Crown Court judge to order that members of the public may not make notes of a hearing otherwise being held in public. It is worth mentioning, in passing, that the claimant, Terence Patrick Ewing, was a “vexatious litigant” and had been subject to a Civil Proceedings Order since 1989 [2].

Which led us to wonder whether or not it is possible to contemn an ecclesiastical court. To which the answer is “yes”: see above. Moreover, that principle is of long standing: in R v Editor etc of Empire News and Davidson ex parte the Bishop of Norwich [1932] All ER 516, Lord Hewart stated that “the justification is an inherent one, and just as this court may correct an inferior court such as the consistory court, so also in proper circumstances it may protect such a court.” However, it would appear that the court can only certify an act or omission where it would have been a contempt in relation to a secular court.

As to the issue of note-taking in open court, Burnett LJ and Sweeney J held in Ewing that the default position is

“that those who attend public court hearings should be free to make notes of what occurs. It is a feature of the principle of open justice that those attending public hearings should ordinarily be able to make notes of what occurs. For any number of reasons a visitor to a court may wish to have a record of the proceedings for later use or out of interest. In this jurisdiction there is no good reason why the starting point should be that note-taking is not allowed unless permission has been sought and granted. Note-taking by members of the public is unlikely, without more, to interfere with the due administration of justice” [23].

That, however, is subject to the control of the court which, “for good reason”, may withdraw the liberty to make notes if the judge considers that note-taking would be likely to interfere with the proper administration of justice [24]. The Law Society Gazette has a short report on the case here.

So the position seems to be that you can take notes a consistory court hearing always provided that the chancellor for good reason doesn’t tell you that you can’t.

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For the current position in relation to reporting of criminal proceedings, see

Cite this article as: Frank Cranmer, "Contempt and ecclesiastical courts" in Law & Religion UK, 10 February 2016, https://lawandreligionuk.com/2016/02/10/contempt-and-ecclesiastical-courts/

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