Scandalising the court

Booker Prize-winning novelist Arundhati Roy spent one night in jail in New Delhi due to her lack of remorse for the criminal contempt of India’s Supreme Court. Her crime? To be involved in a protest against the court’s decision to approve a dam project in central India – and to shout abuse at lawyers outside the court. When summonsed to turn up and explain herself to the court, she refused – responding with an affidavit in which she claimed that the court was attempting to “harrass and intimidate those who disagreed with it”.

In sentencing her for the offence of scandalising the court, it stated: “We keep in mind that the respondent is a woman and the hope that she should return to the cause of art and literature”|.

In Australia, the Supreme Court of Victoria at Melbourne found Raymond Hoser guilty in respect of the publication of two books entitled Victoria Police Corruption. The prosecution pressed for his imprisonment. However, the sentencing judge decided that a fine was appropriate of AU$5,000 (£2,038) and ordered him to pay the prosecution’s legal costs.

The criminal offence is also recognised in other common law jurisdictions, including Canada and New Zealand. Although the last successful prosecution for scandalising the court in England was brought in 1931 and the court itself referred to it as being “virtually obsolescent” in 1985, it is also still recognised here.

The laws of contempt of court are designed to balance freedom of expression and the judiciary’s need to maintain its authority and safeguard public order. Criticism of a judge, his judgement or the judiciary, can amount to contempt and is at the heart of the offence of scandalising the court.

The publication of such criticism must create a real risk that public confidence in the judicial system will be undermined. The court will look at all the circumstances, including the status of the author and publisher, the breadth of the publication and the substance of what is alleged.

In England and Wales the court would consider it necessary to prove an intention to undermine the public confidence in the judiciary. In some commonwealth countries, this has not been considered necessary but is taken into account in sentencing.

The UK courts have historically preferred to avoid exercising these powers: advice to new judges is to grin and bear criticism as to their competence. The most recent reported case in the UK is in relation to an allegation of bias made by an advocate against an employment tribunal. The Court of Appeal held that the tribunal should have metaphorically shrugged its shoulders and got on with the matter rather than striking out the proceedings.

The court’s robust view can be summarised by the following quote from the judgement of Lord Denning given in 1986: “It is the right of every man, in Parliament, and out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest – they can say we are mistaken, our decision erroneous, whether they are subject to appeal or not”.

The Press Complaints Commission has recently issued guidance confirming that approaching judges, or members of their family, for comments about a judge’s involvement in a case, or the decisions of other judges, may amount to harassment, in breach of the code.

The PCC points out that “judges are bound by convention not to comment outside the courtroom on any case over which they are presiding, or have presided, or discuss any decision they have made, or any sentence they have imposed.”

These rules were relaxed in 1989.

The then Lord Chancellor, Lord Mackay of Clashfern, said at the time that “it must be left to the judges themselves to decide whether, and on what conditions, they should give interviews to journalists or appear on radio or television”.

The PCC is clearly interested in achieving a balance; the court should not be above any form of criticism.

However, the judge may consider that he is limited in his ability to respond. It seems that authors and publishers reporting on the decision of the UK courts are unlikely to fall foul of the court itself in reporting criticism of a judge, his judgement or the judiciary. In seeking a comment from the judge, however, they may fall foul of the PCC.

The PCC emphasises that editors must ensure that their staff are aware of the protocol which prevents judges from discussing cases that they have tried and satisfy themselves that any material based on an approach to a judge has been obtained in accordance with the code.

Dinah Spence is a partner in Charles Russell’s media disputes team.

by Dinah Spence

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