How might the abolition of ‘scandalising the judiciary’ in statute affect public attacks on judges?
Dissatisfaction with judges is probably as old as the judiciary itself. Should the criminal law play a role in controlling such criticism? The offence of ‘scandalising the judiciary’ has been abolished by statute in England and Wales by section 33 of the Crime and Courts Act 2013 as ‘obsolescent’.
However, elsewhere in the common law world, it is alive and kicking.
In 1968, a certain Quintin Hogg QC MP, later to become Lord Hailsham, was prosecuted privately for scandalising the judiciary (a common law species of contempt of court), following his Punch magazine article ridiculing the courts for being out of touch. The application to commit failed.
Lord Denning said: ‘It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest… exposed as [the judiciary] are to the winds of criticism, nothing which is said by this person or that… will deter us from doing what we believe is right.’
More recently, an abortive attempt was made in Northern Ireland to prosecute Peter Hain MP (pictured), who described a High Court judge as being, amongst other things, ‘off his rocker’.
Other jurisdictions, whose law is based upon the common law, retain the offence. It has recently been the subject of prosecutions in New Zealand, Australia, Hong Kong and Singapore. The most recent use of the offence by prosecutors in Mauritius demonstrates the difficulties of the offence and its use in practice.
Dharmanand Dhooharika, the editor-in-chief of a Mauritian newspaper, Samedi Plus, was convicted of contempt by scandalising the judiciary. A published interview with a prominent former barrister and dissatisfied litigant had suggested that the chief justice had a case to answer in respect of allegations of bias and inappropriate use of power.
His conviction was overturned by the Privy Council. Though understandably reluctant to abolish judicially in Mauritius an offence which had required a statutory extermination in England and Wales, the judgment is a welcome clarification of the previous case-law and narrows the ambit of the offence substantially.
It is now clear that an individual cannot be convicted if he acts in good faith, even if subsequently his criticism cannot be objectively seen as correct and therefore cannot be said to be (to borrow the language of libel law) ‘fair comment’. Where the defendant asserts that he acted in good faith, then the prosecution must demonstrate bad faith to the criminal standard e.g. that the defendant intended to undermine public confidence in the administration of justice or was reckless as to whether he did or not.
For those who worry that this interpretation might lead to a free-for-all, it remains illegal to deliberately campaign to undermine public faith in the judiciary (see for an extreme example: Wong Yeung Ng v The Secretary for Justice  2 HKLRD 293 (CA) where a three-day paparazzi pursuit of a Court of Appeal judge was serialised in a newspaper).
Even though the courts might in theory able to turn to the criminal law to uphold public confidence in the administration of justice, surely they should be slow to do so in any particular case. In the same vein, sentence should be proportionate to the impact on public confidence and not give any impression of the judiciary seeking retribution for an offence against one of their own.
But, should the makers of such comments be exposed to threat of criminal sanction at all?
Retention of the offence, albeit within new narrow confines, is still bound to have a chilling effect on those who perceive that judicial errors have been made. It could prevent them from speaking out. Neither is it an effective method of insulating the judges from criticism.
Judicial conduct will be judged by the public mostly by reference to what judges do and say. Not by how often they convict their detractors.
Sarah Crowther is a barrister at 3 Hare Court