Scathing attacks upon the judiciary are not uncommon. Contempt proceedings against the authors of such attacks are far less frequent. In a remarkable recent development, the Attorney General for Northern Ireland has been granted leave to prosecute Peter Hain MP for the arcane offence of “scandalising the court”. The move has important implications for free speech in relation to court proceedings and judicial matters. It also raises sensitive issues about the relationship between the judiciary, politicians and the press – a relationship currently under intense scrutiny in Parliament and at the Leveson Inquiry.
The factual background
Details of the factual background to this case are fairly sparse. The contempt proceedings relate to passages in Mr. Hain’s recently published memoirs, “Outside In”, which contain critical remarks about Mr. Justice Girvan (now Lord Justice Girvan) and his conduct of a 2006 judicial review case challenging the appointment of Bertha MacDougal as Interim Victims Commissioner (Re Downes, Application for Judicial Review  NIQB 77).
A statement made by John Larkin, the Attorney General for Northern Ireland, says the passages “constitute unwarranted abuse of a judge in his judicial capacity that undermines the administration of justice in this jurisdiction, and consequently constitute a contempt of court”. The statement adds that the book “create[s] without justification a real risk that public confidence in the judicial system will be undermined”.
The application for leave to proceed against Mr. Hain was granted by Lord Justice Higgins in late March 2012. Mr. Hain and his publisher, Biteback Publishing, intend to mount a vigorous defence to the charge. According to Biteback, the manuscript was submitted to the Cabinet Office and the Northern Ireland Office in advance of publication. Neither office requested any changes to the parts of the book that concerned Mr. Justice Girvan. Mr. Hain has released a statement expressing his shock at the Attorney General’s decision:
“I am astonished at this turn of events. I worked harder than anyone as Secretary of State for Northern Ireland to uphold the rule of law and judicial independence and delivered the 2007 settlement which helped secure that. If free speech and comment in a political memoir is to be suppressed then people will be entitled to ask: what system of justice prevails?”
Contempt of court – Scandalising the court
The offence of “scandalising the court” is of some antiquity and the precise parameters of the offence are unclear. As long ago as 1899 it was described as “obsolete in this country” (McLeod v St Aubyn  AC 549, per Lord Morris at 561). However just one year later in R v Gray  2 QB 36 the offence was successfully invoked against a journalist who published a stinging personal attack against a sitting judge. During a prosecution for obscene libel the judge, Darling J, cautioned the press against reporting the alleged obscenity. After the trial a local newspaper published an article describing the judge as “an impudent little man in horse-hair” and a “microcosm of conceit and empty headedness”. It went on:
“No newspaper can exist upon merits, a condition from which the Bench, happily for Mr. Justice Darling, is exempt. Mr. Justice Darling would do well to master the duties of his own profession before undertaking regulation of another.”
Contempt proceedings were launched against the author of the article, which Lord Russell CJ described as “scurrilous abuse of a judge in his character of a judge”. In sentencing the journalist for contempt, the Lord Chief Justice explained that “[a]ny act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court.” At the same time, he suggested that “reasonable” criticism of judicial decisions would escape penalty:
“Judges and Courts alike are open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of Court.”
In 1928 the Editor of the New Statesman was convicted of scandalising the court after the magazine published an article suggesting judicial prejudice in a trial involving Dr Marie Stopes, the well-known birth control advocate. The Divisional Court explained that the article
“imputed unfairness and lack of impartiality to a judge in the discharge of his judicial duties. The gravamen of the offence was that by lowering his authority it interfered with the performance of his judicial duties.” (R v Editor of News Statesman, ex p. DPP (1928) 44 T.L.R. 301).
The precise actus reus of the scandalising law is unclear. The early cases tend to focus on the insulting or scurrilous nature of the impugned publication. In Ambard v Attorney General for Trinidad and Tobago  AC 322 Lord Atkin said:
“…whether the authority and position of an individual judge, or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.”
Similarly in R v Commissioner of the Metropolis, ex. p. Blackburn (No. 2)  2 QB 150 Salmon LJ said:
“The authority and reputation of our courts are not so frail that their judgments needs to be shielded from criticism… It is the inalienable right of everyone to comment fairly upon any matter of public importance… It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing that it keeps within the limits of reasonable courtesy and good faith.”
More recently, in the Scottish case of Anwar, Respondent  JCJAC 36 the High Court of Justiciary appeared to identify the relevant actus reus as
“conduct that denotes willful defiance of, or disrespect towards, the court or that willfully challenges or affronts the authority of the court or the supremacy of the law itself”.
The respondent was the solicitor for several men who had been convicted of terrorism offences. Following their trials the respondent made “angry and petulant criticism of the outcome of the trial process” including “a wholly inaccurate statement of the nature of the convictions” which was “entirely unfounded in fact”. The High Court of Justiciary found there had been no contempt: the respondent’s actions had not challenged or damaged the authority of the courts or the supremacy of the law. Judges could expect to be “publicly and trenchantly criticized” from time to time while jurors must be “robust in the face of any subsequent criticism of the verdict”.
It is also unclear what (if any) mens rea is required for a finding of scandalising contempt. Some of the older authorities suggest that an intention to undermine public confidence in the administration of justice is necessary (see, for instance, Almon’s Case, (Wilmot’s Notes (1765) 243; R v Castro, Skipworth and the Defendant’s Case (1873-74) L.R. 9 Q.B. 219). Others imply that the offence is one of strict liability (see R v Editor of News Statesman, ex p. DPP (1928) 44 T.L.R. 301).
Whatever the exact constituents of the offence, the judgment of Munby J in Harris v Harris; Attorney General v Harris  2 FLR 895 suggests courts today will be far less ready to make a finding of scandalising contempt than in previous times:
“There is, I think, much to be said for the view that the judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt. Moreover, a much more robust view must, in my judgment, be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant of strong or even offensive language. Society has in large part lost its previous habit of deferential respect. Much of what might well, even in the comparatively recent past, have been considered by the judges to be scurrilous abuse of themselves or their brethren has today, as it seems to me, to be recognized as amounting to no more than acceptable if trenchant criticism.”
Scandalising the court and Article 10
The compatibility of the scandalising law with Article 10 of the Convention is questionable. The text of Article 10(2) permits restrictions on freedom of expression that are “prescribed by law and necessary in a democratic society…for maintaining the authority and impartiality of the judiciary”. In De Haes and Gijesels v Belgium (1997) 25 E.H.R.R. 1 the European Court referred to the “essential role” played by the press in imparting “information and ideas on all matters of public interest, including those relating to the functioning of the judiciary”. However it added that:
“The courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded, especially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism.”
The tension between free expression and the protection of the judiciary was explored in Sunday Times v United Kingdom (1979-80) 2 E.H.R.R. 245. The Strasbourg court emphasized that the expression “authority and impartiality of the judiciary” must be understood “within the meaning of the Convention” taking proper account of “the central role occupied in this context by Article 6, which reflects the fundamental principle of the rule of law”. The court went on:
“The term ‘judiciary’…comprises the machinery of justice or the judicial branch of government as well as the judges in their official capacity. The phrase ‘authority of the judiciary’ includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, the public at large have respect for and confidence in the courts’ capacity to fill that function.”
In view of the uncertainty regarding the actus reus, mens rea and any possible defences, it is quite possible that “scandalising the court” would fail to satisfy the Strasbourg quality of law test, which requires that legal norms be “formulated with sufficient precision to enable the citizen to regulate his conduct” (see Tammer v Estonia (2003) 37 E.H.R.R. 43 at ). In addition, any prosecution would need to be justified as a proportionate means of achieving a pressing social need – not necessarily an easy task, given the imortant free expression rights at stake.
This is not the first time that Peter Hain has been the subject of an extraordinary prosecution. In the 1970s Mr. Hain stood trial at the Old Bailey accused of robbing a bank. He was sensationally acquitted. Years later it transpired he had probably been framed by the South African security services in retaliation for his anti-apartheid activities. The basic facts of the present case appear far less contentious. However the underlying issues are similarly controversial.
It is doubtful whether the scandalising offence has any legitimate role in a modern rights-based democracy. The judiciary – and the public’s faith in it – is surely robust enough to withstand powerful criticism, no matter how vituperative or unfounded some attacks may be. The more outlandish the denigration, the less likely it is to trigger a general crisis of confidence in the legal system. Conversely the more valid the criticism, the greater the public interest in having it fully ventilated. This is so whether the attack is leveled at an individual judge or at the judiciary in general.
One can sympathize with judges’ restricted ability to speak out against baseless criticism and personal slurs (the Australian judge, Michael Kirby, famously described judges as “shackled combatants”). However the law of defamation provides adequate protection for judicial reputations – Sir Stephen Sedley, for example, twice brought successful libel claims against national newspapers following unjustified attacks on his judicial conduct. At the same time, the Contempt of Court Act 1981 protects the fairness of current and future legal proceedings, while the criminal incitement laws are an effective safeguard against inflammatory statements that incite public disorder.
Free expression is the lifeblood of democratic debate. The prospect of a politician standing in the dock for criticizing a judge is therefore deeply alarming. History shows that moral authority is rarely achieved by outlawing dissenting voices. Parliament and Government receive no protection against “scandalising” attacks. In an increasingly irreverent world, the courts’ claim to special treatment is difficult to justify.
Edward Craven, Barrister, Matrix Chambers