Chapter 6
Scandalising the court

Where to now for the contempt of scandalising?

6.58In researching the scandalising contempt, the Commission has become aware of a number of unsavoury websites containing offensive material about judges. In many cases, these can be written off as emotional outbursts from unsuccessful litigants or ignorance. However, some sites take on a more menacing tone by appearing to be official or including photographs and personal details of judges, their children and grandchildren. On one site, there is even a photograph of the gravestone of a particular Judge’s parents.

6.59In Ahnee v Director of Public Prosecutions, Lord Steyn observed that scandalising proceedings were rare in England but that “it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for an offence of scandalising the court on a small island is greater.”283

6.60The Commission does not think that comment is applicable to New Zealand in 2014, which is one of the most stable democracies in the world and appears to have a justice system that is, by and large, respected by the population.

6.61Writing in 1990, Julie Maxton opined that:284

The scandalising jurisdiction seems a relic of an age where kingly rule dictated some forms of offence: it is outdated in an era when the only type of sovereignty which informs the content of laws is the democratic sovereignty of the populace.

6.62The Commission’s preliminary view is that retention of the common law offence of scandalising is untenable in light of the freedom of expression issues outlined in Chapter 2, the rule of law concerns also discussed in that chapter and the views of modern New Zealand society. The question then becomes whether the contempt should be replaced with a statutory offence of some kind, for example, an offence of publication of material imputing improper or corrupt judicial conduct, which, having regard to the nature of the statement, the status of the person making the statement and the likely audience, creates a real risk of impairing confidence in the administration of justice. There could be a defence to such an offence if the allegations were true or publication was for the public benefit. The defence might ensure the offence was compliant with the Bill of Rights Act. One problem, however, with enacting an offence with a defence of truth and public interest is that it would effectively put the judge on trial and subject the judge’s conduct to scrutiny outside the statutory process for dealing with complaints about the judiciary. On the other hand, how could truth not be a defence? We discuss our general approach to offences in Chapter 8.

Other avenues for sanctions and redress

6.63It is important to consider what remedies would be available in situations where judges are unfairly subjected to vitriolic criticism or threatening behaviour if the common law offence of scandalising were abolished.

6.64First, what other criminal offences might apply? It should not be forgotten that there already exist a number of relevant statutory offences, particularly in respect of acts at the most serious end of the contempt spectrum. Examples of relevant offences include:

6.65A civil defamation action is another obvious remedy, but this would involve judges leading evidence and being cross-examined. If successful, a defamation claim would only compensate for the damage done to the judge’s personal reputation. It would not address the damage to the reputation of the administration of justice. Defamation actions are expensive, and it is necessary to consider whether such an action should be financed by the public purse if the relevant damage is to the public’s confidence in the judicial system.

6.66An action under the Harassment Act may also be possible, depending on the nature of the abuse, but this, too, would not address the potential damage to the justice system itself.

6.67A frequently cited argument in favour of retaining the offence of scandalising in some form is that judges, by the nature of their position, have fewer options to deal with the abuse they are subject to than other holders of public office or members of the public.

6.68By convention, judges are unable to speak out in public to defend themselves or their judgments. A judgment must speak for itself. Further, a judge’s position makes an impartial trial of a defamation or harassment claim difficult.

6.69The Cabinet Manual states that the Attorney-General is the link between the judiciary and executive government, who:285

[R]ecommends the appointment of judges and has an important role in defending the judiciary by answering improper and unfair public criticism, and discouraging ministerial colleagues from criticising judges and their decisions.

6.70However, the Attorney-General is also a member of the executive, so it may be more appropriate for the relevant Head of Bench to provide comment and support in situations where judges have been defamed.

6.71The Commission is inclined to agree with the authors of Media Law in New Zealand, who have observed:286

The relative infrequency of recent authorities on “scandalising” in this country not only renders precise elaboration of the law in modern times difficult, but it might also suggest that sometimes the best way to deal with extravagant criticism is to ignore it.

6.72Unless one of the offences discussed applied, abolition of the scandalising offence would currently leave only civil defamation or harassment proceedings available to a judge who has been the subject of abuse. This is going to change, however.

Harmful Digital Communications BillTop

6.73In response to the Commission’s Ministerial Briefing on harmful digital communications,287 the Government introduced the Harmful Digital Communications Bill to the House in November 2013. That Bill had its first reading and was referred to the Justice and Electoral Committee in December 2013. The Committee is due to report to the House on 3 June 2014. The explanatory note states the purpose of the Bill is to “mitigate the harm caused to individuals by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress”.288
6.74The Bill defines “digital communication” as “any form of electronic communication [including] any text message, writing, photograph, picture, recording, or other matter that is communicated electronically”.289 It creates a new civil enforcement regime that enables initial complaints about harmful digital communications to be made to an “Approved Agency”, which may investigate a complaint and attempt to resolve it by negotiation, mediation and persuasion.290 An Approved Agency is to be appointed by Order in Council on the recommendation of the responsible Minister. The Approved Agency may be an individual or an organisation.291
6.75Where the Approved Agency cannot resolve a complaint, a person may apply to the District Court for a number of civil orders, including requiring harmful digital communications to be taken down, requiring the defendant to cease the harmful conduct and requiring the identity of the author of an anonymous communication be released.292 The court may also make a declaration that a communication breaches a communication principle. There are 10 such principles derived from the law and reduced to an accessible form (to serve an educational and deterrent function as well as establishing the basis for a complaint). These provide that a digital communication should not:293

6.76In performing functions under the Act, the Approved Agency and the courts must take these principles into account and act consistently with the Bill of Rights Act.

6.77Failure to comply with an order of the court is an offence punishable by a fine not exceeding $5,000 in the case of a natural person or $20,000 for a body corporate.294

6.78The Harassment Act 1997 will also be amended to provide that giving offensive material to a person by placing the material in any electronic media where it is likely it will be viewed by or brought to the attention of that person is a specified act of harassment in section 4 of that Act.

6.79The Commission considers the new regime for dealing with harmful digital communications through take-down orders and an offence of failing to comply with a take-down order together with the current criminal offences for extreme behaviour could provide sufficient protections for the judiciary, although this would not address any harm to the justice system itself. That harm would be extremely difficult to gauge, however. In the case of judges, the Commission considers a Crown solicitor, in the name of the Solicitor-General, should be able to make the complaint and act on behalf of a judge.

6.80The Bill does not indicate whether there is to be one Approved Agency or several. If there is to be more than one, for situations involving judges, the Commission is of the preliminary view that one Approved Agency could be the Judicial Conduct Commissioner. However, that office would need additional funding to undertake this extra role.

6.81The Judicial Conduct Commissioner is well placed to carry out the functions of an Approved Agency in respect of complaints by judges about digital communications affecting them, as it already investigates complaints about judges, and any serious complaint about a judge will likely ultimately end up being considered by that office. Acting as an Approved Agency would therefore complement the role of the Judicial Conduct Commissioner.

6.82The statutory judicial complaints process is an important element in maintaining the public confidence in the judiciary, which is also the purpose of the scandalising offence. As the authority of the law relies on that public confidence, it is important to maintain it. However, as Denniston J recognised, one “cannot compel public respect for the administration of justice”.295 Judges must maintain public confidence by giving litigants an opportunity to be heard and delivering fair and impartial judgments.

Questions

Q16 Do you agree the common law contempt of scandalising should be abolished by statute?
Q17 Do you agree that, when passed, the Harmful Digital Communications Bill together with other existing remedies will provide sufficient protection for the judiciary?
Q18 If the common law offence of scandalising were abolished, should a new statutory offence replace it? If so, what should be the nature of that offence?

283Ahnee v DPP (PC) [1999] 2 AC.
284Maxton, above n 232, at 392.
285Cabinet Office Cabinet Manual 2008 at [4.8] [emphasis added].
286John Burrows and Ursula Cheer Media Law in New Zealand (6th ed, LexisNexis, Wellington 2010) at 525.
287Law Commission The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC R128, 2013); Law Commission Harmful Digital Communications: The Adequacy of current sanctions and remedies (NZLC Ministerial Briefing, 2012).
288Harmful Digital Communications Bill 2013 (168-1) (explanatory note) at 2.
289Clause 4.
290Clause 8.
291Clause 7.
292Clause 17.
293Clause 6.
294Clause 18.
295Attorney-General v Blomfield, above n 239, at 574.