3.25While there is now High Court authority for a separated process for dealing with contempt for disruptive behaviour in the courtroom, we consider it should be put in statutory form so it is readily accessible and understandable. We see three steps being necessary:
Step one: citation and, if necessary, removal from the courtroom;
Step two: hearing; and
Step three: punishing the disruption.
Step one: citation
3.26The first step would empower a judge to deal immediately with an in-court interruption by citing the disruptive person and, if necessary, having the person removed from the courtroom. The disruptive person would, if necessary, be held in the court cells until the rising of the court that day, or some earlier point that day if the disruptive behaviour is mitigated by an apology.
3.27The power to remove someone from the courtroom is essential to ensure courts can progress their business efficiently. The citation and any necessary removal may take place any time the judge considers he or she needs to intervene. From this point on, the person is on notice that he or she will have to show why he or she should not be found in contempt and punished accordingly.
3.28This first step would allow a judge to deal with an interruption immediately while also imposing a cooling-off period before making any finding and imposing further punishment. The cooling-off period should assist by allowing opportunities for the person cited to apologise to the court and the opportunity to obtain independent legal representation. The cooling-off period also allows the judge time to reflect on the disruptive behaviour, consider any apology, and decide whether to set the matter down for determination. In many cases steps two and three will not be necessary. For example, if the person cited returns from the cells and makes an apology for his or her behaviour, the judge may decide not to take further action. As the Judges of the District Court pointed out in their written comments on the Issues Paper, in most cases a disruption is adequately dealt with by a few hours in custody and an apology.
3.29Some judges we discussed this issue with expressed concern some disruptive conduct that may occur during a trial could require an immediate determination of contempt. They suggested to us that during an ongoing trial such action may be required if the disruptive person is the defendant or a witness who is not cooperating, or their disruptive behaviour reoccurs. We consider that where the disruptive behaviour is continuing and cannot be addressed by simply removing the person from the court, the judge may exercise his or her authority or power repeatedly by citing the person and, if necessary, ordering him or her to be placed in the cells until the rising of the court that day. Where the ongoing disruptive behaviour is that of a witness, a judge should use section 165 of the Criminal Procedure Act, which empowers a judge to imprison a witness who refuses to give evidence.258
Step two: hearing
3.30Step two is the hearing to determine whether any further action is required. The case would need to be set down for determination if, after reflection and consideration of any apology, the judge decides the conduct of the person cited for disruption may be sufficiently serious to justify further punishment.
3.31As discussed above, McAllister v Solicitor-General 259 outlines the minimum standards that must apply in this step. First, the judge must identify the act or acts with sufficient particularity to ensure that the person, and any counsel appointed or engaged to advise the person, understand the nature of the allegations. The person should receive the opportunity to take independent legal advice. Second, the judge should proceed on the basis of a reliable factual platform. This may require giving the disruptive person an adequate opportunity to explain his or her actions before making a final decision. We recommend statutory provisions clarifying these minimum standards:260
(a) the judge should give written reasons to the person specifying the behaviour he or she believes may constitute disruptive behaviour in the courtroom and makes the person liable for further punishment; and
(b) the judge may receive any explanation he or she determines helpful to ensure the case proceeds on a reliable factual platform.
3.32Once the judge has set the matter down for determination, the disruptive person, unless in custody for other reasons, may be released on bail during the period of adjournment. The Bail Act 2000 should apply, with the necessary modifications, as if the person cited were charged with an offence that carries the penalties required by that Act.
Step three: punishing the disruption
3.33If the judge considers the behaviour constitutes disruptive conduct, the judge may impose a fine or a period of imprisonment. Depending on the circumstances, imposition of the punishment may happen at the hearing or at a later date.
3.34In the past there was uncertainty whether the court could impose a community-based sentence for contempt. This is because the definition of offender in the Sentencing Act 2002 expressly includes a person dealt with for contempt of court,261 while the relevant sections in the Act only empower the court to impose a community-based sentence where “the offender is convicted of an offence punishable by imprisonment”.262 The High Court has, however, held recently in two decisions that a community-based sentence may be imposed under the Sentencing Act for contempt.263
3.35We recommend the new statute contain a provision confirming that community-based sentences are available as an alternative to imprisonment and that the sentencing principles in the Sentencing Act apply.264 We note the important point made in the comments of the District Court Judges that this would require pre-sentence reports and further adjournment and could extend the time. We do not consider this sufficient reason, however, for departing from general sentencing principles.
3.36In the Issues Paper the Commission raised the possibility that two judges should be involved in the process for contempt for disruptive behaviour in the courtroom so that after the person had been cited for contempt by the first judge determination and punishment of the contempt would be conducted by a second judge.
3.37Most people consulted did not consider a two-judge process necessary. Those consulted considered it fundamental to the administration of justice that a judge is able to maintain order in his or her court. Where a judge cannot deal with the immediate disruption and enforce the standards he or she has set by holding the disruptive person to account, there is a risk that his or her authority is undermined.
3.38There is also practical value in having the first judge, who witnessed the disruption, deal also with the punishment phase. He or she can confirm the sequence of events and form a view about the seriousness of the disruption in the proceeding at the moment it happened. It may be difficult or artificial for the second judge to reach a view on those matters.
3.39A few submitters pointed out that a two-judge process may require the second judge to summon the first judge as a witness. This would be undesirable. Further, depending on the nature of the judge’s evidence, the judge may not be required to give evidence because section 74 of the Evidence Act 2006 provides judges are not compellable witnesses in respect of their conduct as judges.265
3.40The comments from the District Court Judges recognised that having another judge impose the sentence could sometimes be beneficial, such as where there are disputed facts or a danger of bias. They also noted, however, that if it was a statutory requirement there would be serious rostering issues. In circuit courts, courts that sit infrequently, and single-judge courts there may be significant delays before a different judge becomes available. This would turn a short, summary procedure into a lengthy ordeal for all concerned.
3.41In our view the issue turns on impartiality. Nobody disputed that a person cited for contempt must appear before an independent and impartial judge to determine the contempt. Impartiality is an essential requirement for a judge and must exist both as a matter of fact and as a matter of reasonable appearance. The right to an independent and impartial judiciary is protected in the New Zealand Bill of Rights Act 1990 (NZBORA).266 The Judiciary’s Guidelines for Judicial Conduct provide that a judge should disqualify him or herself:267
…in circumstances where a fair-minded, properly informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The standard is one of real and not remote possibility, rather than probability. Judges are not disqualified from sitting merely because the issues involved in a case are in some indirect way related to the Judge’s personal experience.
3.42Having the judge who witnessed the disruption conduct the hearing appears to be at odds with this requirement of impartiality, given the judge is both witness and judge. A judge should, however, be able to act impartially, and “through training, professional experience and commitment to proper exercise of the judicial function will decide a case, at all stages, impartially according to the merits of what is put to the court as the judge sees it”.268 On taking up appointment, a judge must take an oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.269 As McGrath J pointed out:270
The importance of that solemn commitment to independence and impartiality during judicial service is substantial. Adherence to that responsibility is a fundamental aspect of judicial integrity, commitment to which is the guiding principle in every decision that a judge takes. The oath is accordingly a continuous strong force for judicial neutrality.
3.43The Judiciary’s Guidelines for Judicial Conduct stipulate that a judge should not accede too readily to an allegation of bias and should be mindful of the burden that passes to other judges if he or she resorts to disqualification without need.271 There would be a risk to the justice system if judges were always to disqualify themselves from cases in which there was only a remote possibility of bias.272
3.44For these reasons, we do not consider the law should routinely require a second judge to conduct the hearing.Subject to the normal rules of recusal, we envisage a second judge would be required only in exceptional circumstances. Where a second judge is to hear and determine the case a transcript of the earlier hearing should, where proceedings were recorded, be available to the court.
3.45As already mentioned, a person is not charged with contempt of court.273 Since a charge is not laid, the standard trial procedures and protections in the Criminal Procedure Act 2011 do not apply. Additionally, a person found in contempt of court is not convicted of an offence and will not have a criminal conviction entered against their name.274 As Lord Esher MR explained:275
The plaintiff was not a prisoner convicted of crime. There are none of the elements of a conviction of crime in the case of a proceeding under s. 32. There is nothing in the nature of a trial. There is no verdict of a jury or anything equivalent to it. There is no regular criminal charge formulated as in the case of an indictment found by a jury, or an information before justices. The evidence in such a case is on affidavit. Surely the Court would read an affidavit by the party proceeded against. If so, the proceeding cannot be of a criminal nature. The order is not a conviction, but a mere order made in the exercise of a summary jurisdiction to punish for contempt.
3.46In the Issues Paper the Commission raised the possibility that the process for contempt for disruptive behaviour in the courtroom should commence as an ordinary prosecution with a formal charge.
3.47Most people we consulted on this issue did not favour requiring a criminal charge to be laid and prosecuted under the Criminal Procedure Act 2011 in the usual way for offences.276 Imposing the ordinary criminal process on this particular category of contempt of court would undermine the ability of judges to manage effectively their courtrooms. Also in order to be effective the prosecution of charges in this area would need to receive greater priority than category 2 offences normally receive. Even if prioritised, the prosecution process would lengthen and delay the process.
3.48For these reasons we conclude that contempt for disruptive behaviour in the courtroom should not commence as an ordinary prosecution with a formal charge, and should not result in a criminal conviction. While the protections attaching to any criminal hearing are important, our proposed statutory procedure ensures a fair hearing.
Recommended approach: separate citation for contempt from contempt hearingTop
3.49We recommend that a statutory procedure for dealing with disruptive behaviour in the courtroom separate out the citation and removal from the courtroom from the hearing and punishment.277 To do this, the new statutory provisions should enable the following:
(a) Authorise the judge to deal with the immediate disruption by citing the person for disrupting the court and, if necessary, ordering the person to be taken into the court cells until the rising of the court that day. At this point the person is on notice he or she will have to show why he or she should not be held for disruption of the court and punished accordingly.
(b) Give the person the opportunity to exercise their right to consult and instruct a lawyer under section 24(c) of NZBORA.
(c) Allow a reasonable opportunity for the person cited for disruptive behaviour in the courtroom to make an appropriate apology to the court.
(d) Require the judge to review the matter before the close of day and consider whether he or she considers that further punishment may be necessary by having the matter set down for determination.
(e) If the matter is set down for determination, the Bail Act should apply, with the necessary modifications, as if the person cited for disruptive behaviour in the court were charged with an offence that carries the penalties required by that Act.
(f) If the matter is set down for determination, require the judge to give the person written reasons specifying the behaviour the judge believes constitutes disruptive behaviour in the court and that makes the person liable for further punishment.
(g) If the matter is set down for determination, direct the judge to decide whether exceptional circumstances warrant a different judge hearing the case.
(h) Give the judge hearing the case the discretion to receive any explanation offered by the person to ensure the case proceeds on a reliable factual platform.
(i) Clarify that if a person is found guilty of disruptive behaviour in the court he or she will not be convicted of an offence.
3.50Clauses 16 to 18 included in the draft Bill in Part 2 of the Report give effect to this recommended approach.
3.51We are satisfied that overall the benefits of the three-step process should outweigh any additional costs associated with the new procedure and there should be no unintended consequences from our recommended reforms. Minor disruptions, which are resolved at step one, are more effectively filtered out without further punishment. Where offending conduct is more serious, steps two and three, which will be more time consuming, should ensure a more measured approach that better serves the interests of justice and result in fewer appeals.
3.52There are a few tribunals that have the same or very similar powers as courts to punish for disruptive behaviour. The Human Rights Tribunal is able to order that a person be detained in custody during a hearing where that person is disrupting a hearing.278 A Commission of Inquiry has the same powers as the District Court in respect of citing parties and maintaining order279 and, when headed by a present or former High Court Judge, has the same powers to punish for contempt as the High Court and in the same terms.280 These bodies can also impose a fine or term of imprisonment on a person who disrupts the proceedings, misbehaves in the tribunal hearing or does not comply with the tribunal’s orders during the hearing. In respect of both the Ombudsman281 and the Independent Police Conduct Authority,282 it is an offence to hinder or obstruct or fail to comply with a lawful requirement. The Customs Appeal Authority has the same powers as the District Court in respect of maintaining order at hearings.283
3.53We recommend the new statutory procedure for disruptive behaviour in the court set out above at [3.49] and consistent penalty levels should also apply to those tribunals that can order detention and custody.
3.54The majority of tribunals, however, do not have power to detain a person in custody where the person is disrupting the tribunal proceedings or to impose fines or commit to prison. The Residential Tenancies Tribunal, the Disputes Tribunal, the Copyright Tribunal, the Health Practitioners Disciplinary Tribunal, the Lawyers and Conveyancers Tribunal and the Weathertight Homes Tribunal, for example, all fall within this group.284 These tribunals can exclude people from the hearing where they are disruptive or misbehave, but cannot impose a fine or a term of imprisonment on a person for disrupting proceedings or refusing to comply with the tribunal’s orders or directions.
3.55The law does not treat disruptive behaviour, misconduct and non-compliance with an order as contempt where it occurs in one of these tribunals. Instead, it is an ordinary criminal offence. The person faces charges and prosecution in the District Court under the Criminal Procedure Act and if the person is found guilty a conviction is entered. We consider this approach remains appropriate because the tribunals in question, when constituted, were not given this jurisdiction to imprison or punish for contempt. We have therefore not recommended including these tribunals in our reforms.
Drafting issues, consolidation and penalty levelsTop
3.56During the process of considering a statutory procedure for disruptive behaviour in the courtroom, we have reviewed the wording of the new contempt of court sections in the Senior Courts Act 2016 and the District Court Act 2016. In the Commission’s report, Review of the Judicature Act 1908: Towards a New Courts Act, the Commission argued for a relatively narrow provision to cover disruptive behaviour in the courtroom. The Commission said it should not include conduct such as assaults or threats because the criminal law deals with that type of behaviour, whether it occurs in a court or elsewhere. The new provisions in the Senior Courts Act and the District Court Act reflect that recommendation. Having reviewed the wording again, however, we think Parliament should further refine it. The sections do not need to refer explicitly to insulting behaviour because that is a subset of misbehaviour which the criminal law already covers.285
3.57We have also considered whether the current sections dealing with disruptive behaviour in the courtroom should remain in the Senior Courts Act and District Court Act. We recommend that, together with the new procedural provisions discussed above, they should be in the proposed new Administration of Court (Reform of Contempt of Court) Act. Our preference is for the new Administration of Court (Reform of Contempt of Court) Act to have a single set of provisions applying to all courts and those tribunals that currently have power to impose sanctions for disruptive behaviour. To achieve this, Parliament would need to make consequential amendments to the relevant Acts to apply these provisions to the Employment Court, Māori Land Court, Māori Appellate Court, Environment Court and Human Rights Tribunal. Clauses 16 to 18 of the draft Bill attached to the Report reflect this approach. The Bill also includes consequential amendments to the statutes establishing these courts.
3.58Finally, we recommend that Parliament should update the penalty for disruptive behaviour in the courtroom. The monetary penalty in the Senior Courts Act and the District Court Act does not adequately cover the scope of conduct that may come within the provision. We recommend a maximum penalty of a term of imprisonment not exceeding three months or a fine not exceeding $10,000. Our discussion around how we have set penalties is in chapter 7.286
R11 New statutory provisions dealing with disruptive behaviour in the court should:
(a) Authorise the judge to deal with the immediate disruption by citing the person for disrupting the court and, if necessary, ordering the person to be taken into the court cells until the rising of the court that day.
(b) Give the person the opportunity to exercise his or her right to consult and instruct a lawyer under section 24(c) of the New Zealand Bill of Rights Act 1990.
(c) Allow the person a reasonable opportunity to apologise to the court.
(d) Require the judge to review the matter before the rising of the court that day and decide whether he or she considers further punishment may be necessary by having the matter set down for determination.
(e) Apply the Bail Act 2000, with the necessary modifications, as if the person cited for disrupting the court was charged with an offence that carries the penalties required by that Act.
(f) If the matter is set down for determination, require the judge to give the person written reasons specifying the behaviour the judge believes constitutes disruptive behaviour in the court and makes the person liable for further punishment.
(g) If the matter is set down for determination, direct the judge to consider whether exceptional circumstances warrant a different judge hearing the case.
(h) Give the judge hearing the case the discretion to receive any explanation offered by the person to ensure the case proceeds on a reliable factual platform.
(i) Clarify that a person found guilty of, and punished for, disruptive behaviour in the court is not convicted of an offence.
R12 Conduct giving rise to a potential determination of disruptive behaviour in court should be focused on conduct that interrupts proceedings and poses a threat to the due administration of justice.
R13 On making a finding that a person is guilty of disruptive behaviour in court, the court may sentence the person to a term of imprisonment not exceeding 3 months or a fine not exceeding $10,000.
R14 The Sentencing Act 2002 should apply in respect of any sentence imposed by the court under the new provision as if the person had been convicted of an offence.
R15 Appeals against any finding that a person is guilty of disruptive behaviour under the new provision should be heard under subpart 5 of Part 6 (sections 260 to 269) of the Criminal Procedure Act 2011.
R16 The new statutory provisions that deal with disruptive behaviour in court should apply to all courts, the Human Rights Tribunal, and any other tribunals that currently have the power to impose sanctions for disruptive behaviour.
R17 The new statutory provisions dealing with disruptive behaviour in court should be located in a new Administration of Justice (Reform of Contempt of Court) Act.
258Criminal Procedure Act 2011, s 165; Senior Courts Act 2016, s 43; District Court Act 2016, s 102.
259McAllister v Solicitor-General, above n 235, at –.
260See cl 16(4)(b) and (c) of the draft Bill, Appendix 2.
261Sentencing Act 2002, s 4; Global Kiwi NZ Ltd v Fannin  NZHC 1767 at .
262For example: Sentencing Act 2002, ss 45 and 55.
263Queen Elizabeth the Second National Trust v Netherland Holdings Ltd  NZHC 1094,  NZAR 1815 at – and Global Kiwi NZ Ltd v Fannin, above n 261,at .
264A Full Court of the High Court has stated that a penalty ought to be assessed applying a methodology akin to that used for sentencing a criminal offender: Solicitor-General v Miss Alice  2 NZLR 783 at . Discussed at [5.68]–[5.69].
265This issue is discussed in more detail in chapter 6 at [6.77].
266New Zealand Bill of Rights Act 1990, ss 25(a) and 27.
270Saxmere Company Ltd v Wool Board Disestablishment Company Ltd,above n 268, at .
271“Guidelines for Judicial Conduct”, above n 267, at . For a general discussion on recusal see also Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Portland, 2009).
272If a practice were to emerge in New Zealand of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge they think is more likely to decide in their favour: “Guidelines for Judicial Conduct”, above n 267, at –.
276The Crown Law Office questioned in its submission whether a standard criminal prosecution process would really be appropriate for contempt. It noted that currently the procedure is characterised by the use of written evidence rather than oral, limited cross-examination and matters being proved to the judge’s satisfaction based on their own judicial knowledge and by taking judicial notice in light of their experience. These features do not lend themselves to a standard criminal prosecution.
277The appeals process, for appeals against any finding that a person is guilty of criminal contempt and also for an appeal against sentence, is currently provided in Subpart 5 of Part 6 of the Criminal Procedure Act 2011. It is not proposed that this will change.
284For example see: Residential Tenancies Act 1986, s 112; Disputes Tribunals Act 1988, s 56; Copyright Act 1994, s 221; Health Practitioners Competence Assurance Act 2003, sch 1, cl 13; Lawyers and Conveyancers Act 2006, s 251; Weathertight Homes Resolution Services Act 2006, s 115.