6.28There are a number of problems with the common law contempt of scandalising the court.
6.29The term “scandalising” is itself problematic, as it harks back to a bygone era and no longer reflects the nature of the harm caused by the offence or what the punishment is meant to achieve. If an offence of a similar nature is to be retained, the Law Commission considers it should not refer to “scandalising”.
6.30More so than with other forms of contempt, the scope of the scandalising contempt is unclear.
6.31The requisite mens rea for committal of the contempt and whether truth or justification is a defence are also unresolved issues.
6.32As scandalising does not protect a particular trial, it is doubtful whether use of the summary procedure is justified in a proceeding dealing with a scandalising matter. In practice, the courts are unlikely to proceed without giving the accused some opportunity to be heard and considering whether the matter should be heard by another judge, but there does not seem to be an agreed uniform procedure for judges to follow.
6.33Clearly, criticism and critical debate about the judicial system are not wholly off limits, but where is the line to be drawn? At what point does criticism go too far? Would the administration of justice really be undermined if people were free to say what they wished about judges and the courts? There is plenty of existing criticism on New Zealand blog sites and social media that does not seem to have had an appreciable negative effect on confidence in the New Zealand justice system. It might also be thought convictions later found to be wrongful are likely to be far more damaging.
6.34Does the fact that there have been no scandalising prosecutions for several years suggest that it is no longer of any relevance? If asked, most people would almost certainly say that they did not know they could be imprisoned for abusing a judge in such a way as to undermine the administration of justice. Media companies are aware of it, however.
6.35In tracing the history of the contempt, it is easy to see that comments that may have constituted commission of the contempt in days gone by would certainly not meet the threshold for prosecution today.
6.36The infrequency of proceedings for scandalising, particularly after the enactment of the Bill of Rights Act, means it is difficult to ascertain where the courts will draw the line in future cases.