Chapter 6
Scandalising the court

International approaches to the contempt of scandalising

Developments in England and Wales

6.38The last successful prosecution for scandalising in England and Wales was in 1931.262
6.39In 1974, the Phillimore Committee recommended that “scandalising the court” should cease to be part of the law of contempt.263 Instead, the Committee said it should be made an indictable offence to defame a judge in such a way as to bring the administration of justice into disrepute. The Committee recommended further that proof that the allegations in question were true and that publication was for the public benefit should be a defence.264

6.40Such a provision was not included in the Contempt of Court Act 1981 (UK), which focuses on publication contempts affecting a particular trial and the test for when a matter is sub judice.

6.41Following the Spycatcher litigation, in which the House of Lords upheld an injunction preventing the publication of the memoirs of a former MI5 agent in England when the material had been published in other countries,265 the Daily Mirror published upside-down photographs of the Law Lords who had allowed the Spycatcher injunction to continue under the banner headline “You Fools”. Contempt proceedings were not initiated,266 which illustrates there was a high threshold for prosecution of a scandalising offence in the United Kingdom at the time.
6.42The offence of scandalising made headlines in the United Kingdom again in March 2012, when the Attorney-General for Northern Ireland obtained leave to prosecute Peter Hain MP for comments he had made in his published memoires, Outside In, criticising a Judge’s handling of a judicial review application267 and saying the Judge was “off his rocker”.268
6.43The action was discontinued following a statement issued by Mr Hain clarifying the intention behind his remarks, but it led to Lords Lester and Pannick calling for the abolition of the offence of scandalising the court.269
6.44In response, the Law Commission for England and Wales expedited its work on scandalising in its own review of contempt of court and concluded that the contempt of scandalising should be completely abolished.270

6.45The Commission said the common law offence arguably infringes the European Charter of Human Rights and is unnecessary, given that the more serious scandalising conduct will generally fall within the scope of other offences, such as offences under sections 4A and 5 of the Public Order Act 1986 (UK) (threatening, abusive or insulting words or behaviour), section 1 of the Communications Act 1988 (UK) (sending offensive or false communications), the Protection from Harassment Act 1997 (UK) or assisting and encouraging an offence under the Offences Against the Person Act 1861 (UK).

6.46The Commission said it considered the retention of the contempt would serve no practical purpose and would be counter-productive in that prosecutions for scandalising are likely to attract more publicity than the original publication, which would otherwise have begun to fade from public memory.

6.47The Commission found that the offence of scandalising is clearly not an effective deterrent, as there is a large volume of online material containing abuse of judges.

6.48It also said it did not believe the existence of the offence or prosecutions for it would increase public respect for judges. In fact, it considered quite the opposite to be the case.

6.49Further, the Commission considered that the offence is not well-known enough to have symbolic value.

6.50Subsequent to the Commission’s Report on the scandalising contempt, the contempt was abolished in England and Wales by the Crime and Courts Act 2013 (UK). Section 33 of that Act provides:

(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt under the common law of England and Wales.
(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.

AustraliaTop

6.51The contempt of scandalising remains a common law offence in Australia along similar lines to that which exists in New Zealand.

6.52In Gallagher v Durack, the High Court of Australia justified the existence of the contempt by saying:271

The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.

United StatesTop

6.53In contrast to the Commonwealth countries, scandalising was long ago found to violate the United States First Amendment constitutional rights of freedom of speech and of the press and was dismissed as “English foolishness”.272

CanadaTop

6.54In Canada, the most influential decision on the offence of scandalising the court remains that of the Ontario Court of Appeal in R v Kopyto.273 In that case, Mr Kopyto issued the following statement to a newspaper in response to a decision of the Toronto Small Claims Court:274

This decision is a mockery of justice. It stinks to high hell.

It says it is okay to break the law and you are immune so long as someone above you said to do it. Mr Dowson and I have lost faith in the judicial system to render justice.

We’re wondering what is the point of appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police. The courts and the RCMP are sticking so close together you’d think they were put together with Krazy Glue.

6.55Each of the majority opinions make clear that the Canadian offence of scandalising the court had been adopted from the English case of R v Gray.275 The offence was committed by someone whose “acts or words published were calculated to bring the administration of justice into disrepute”.276 There is no requirement to prove the administration of justice had in fact been brought into disrepute.277 The majority accepted that, at least prior to the Canadian Charter or Rights and Freedoms 1982 (Charter), the statement made by Mr Kopyto would have satisfied this test, but the majority said that the offence, as currently articulated in the common law, constituted an impermissible limitation on freedom of expression.278
6.56The dissenting opinion of Dubin and Brooke JJA adopted a different definition of the essential elements of the offence. The actus reus, in their opinion, was that there is a serious risk that the administration of justice would be interfered with. The risk of prejudice needed to be serious, real or substantial.279 The mens rea of this offence is intention to bring the administration of justice into disrepute.280 The dissent found the requisite mens rea but not the actus reus. They found there was no substantial risk because the suggestions made were “so preposterous that no right thinking member of society would take them seriously”.281
6.57Back in 1982, the Law Reform Commission of Canada had recommended that an offence of affront to judicial authority be included in the Canadian Criminal Code.282 It also recommended that statutory recognition be given to the practice whereby the offence is tried by a judge other than the judge who was the subject of the affront. Although a Bill to effect this was drafted, it was never enacted. Nevertheless, the Charter means a prosecution for the offence of scandalising is unlikely to ever succeed in Canada.
262R v Colsey, The Times, 9 May 1931.
263Henry Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmd 5794, 1974) at 94.
264At 94.
265Attorney-General v Observer Ltd [1988] 1 AC 109 (HL).
266Geoffrey Robertson and Andrew Nichol Media Law (4th ed, Penguin Books, London, 2002).
267See for example Clare Dyer “Archaic law used against critic of ‘legal mafia’” The Guardian (online ed, United Kingdom, 1 October 1999).
268Peter Hain Outside In (Biteback Publishing, London, 2011) at 332.
269D Pannick “Judges must be open to criticism to help expose injustice” The Times (online ed, United Kingdom, 24 May 2012).
270Law Commission of England and Wales Contempt of Court: Scandalising the Court (LawCom No 335, 2012).
271Gallagher v Durack (1983)152 CLR 238 (HCA) at 243.
272Bridges v California 314 US 252 (1941) at 287.
273R v Kopyto (1987) 62 OR (2d) 449 (ONCA); 47 DLR (4th) 213 (ONCA).
274At [168].
275At [178]–[179] per Cory JA; at [135]–[137] per Goodman JA; and [107] per Houlden JA.
276At [136]–[137] per Goodman JA; see also Cory JA at [177].
277At [134]–[136] per Goodman JA.
278At [184] per Cory JA; [108] per Houlden JA; and [136] and [144] per Goodman JA.
279At [38]–[39] per Dubin and Brooke JA (dissenting).
280At [44] per Dubin and Brooke JA (dissenting).
281At [83]–[84] per Dubin and Brooke JA (dissenting).
282Law Reform Commission of Canada Contempt of Court (LRCC Report 17, 1982).