Can a court still be scandalised?

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Scandalising the court. The phrase summons images of swooning judges, wigs askew, smelling salts wafted beneath judicial nostrils. Which is nonsense, really, because judges, perhaps more than any of us, have seen and heard it all. They are just not the swooning sort.

Judicial resilience not withstanding, the offence of scandalising the court is still on the England and Wales statute book, although its days may be numbered as the Law Commission opens a consultation asking whether the offence should be retained or consigned to history.

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It is already almost history: the offence has not been successfully prosecuted in England & Wales for 81 years, although we had a near miss earlier this year.

So what is scandalising the court? It is a form of contempt of court that you might commit if you do or publish anything that is likely to bring the administration of justice into disrepute. This might include, for example, being extremely offensive towards a member of the judiciary or suggesting that he or she is corrupt.

Unlike certain other contempt offences, however, the offence is not concerned with prejudicing particular proceedings, but only with affecting the administration of justice generally.

And there you have it. Interest in the offence was revived in March 2012 when the attorney general for Northern Ireland obtained leave to prosecute Peter Hain MP for statements in his book Outside In, in which he criticised Lord Justice Girvan’s handling of a judicial review application. The prosecution was discontinued after Hain issued a statement clarifying the intention behind his remarks.

Apart from that glitch earlier this year, it doesn’t seem to be an offence that the courts are quick to evoke. Tales are legion of the bar and the bench winning verbal points off one another, and even when the judge comes off second best, no prosecution has ensued.

There is the anecdote about an infuriated judge who asked barrister FE Smith: ‘Mr Smith, what do you think I am here for?’ To which Smith replied: ‘My lord, it is not for me to question the inscrutable workings of providence.’ Smith wasn’t clapped in irons for scandalising the court. In fact, he went on to become lord chancellor.

The press has been treated leniently, too. During the 1988 Spycatcher case, which cost taxpayers £3m, a certain newspaper described judges as ‘fools’ and no prosecution ensued.

So maybe it is time to scrap the offence. We have libel laws, after all, and anyway the offence may be incompatible with article 10 of the European Convention on Human Rights, which protects our right to free speech.

And why should the judiciary, in any case, be offered special protection? They are not the swooning sort.

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