Contents

Chapter 6
Abusive allegations and false accusations against judges and courts

Historical background

6.27The common law contempt of court, known by the antiquated description “scandalising the court”, covers “scurrilous abuse” of a judge or attacks on the integrity or impartiality of a judge or court.497

6.28Some of the early scurrilous abuse cases in this category make quaint reading today:

6.29During the twentieth century, this contempt fell into disuse in England largely because courts preferred to ignore attacks on themselves or leave them to be pursued by individual judges through civil remedies, such as damages for defamation.502 Indeed, for many years, scandalising the court was considered “virtually obsolescent” in England.503 In 1974, the Phillimore Committee recommended that scandalising the court should cease to be part of the law of contempt, but it should be an offence to defame a judge in such a way as to bring the administration of justice into disrepute.504 While recommendations for its replacement by statutory provisions were not initially implemented,505 scandalising the court was finally abolished in 2013.506
6.30This brought the position in England into line with the United States and Canada where scandalising the court has been held to breach rights of freedom of speech and expression.507
6.31In New Zealand, however, the Court of Appeal in the 1978 Radio Avon case rejected a submission that contempt proceedings for scandalising the court had become obsolete.508 The Court emphasised the need for caution, but did not accept that the jurisdiction was one that should no longer be exercised under any circumstances. The position in Australia is similar. Despite the Australian Law Reform Commission recommending in 1987 that scandalising the court be abolished,509 it remains part of the common law in Australia.510
6.32The enactment of NZBORA in 1990 has not undermined this contempt. In Solicitor-General v Smith a Full Court of the High Court considered the contempt of scandalising the court survived the enactment of NZBORA because it was a reasonable limit on freedom of expression that could demonstrably be justified in the free and democratic society that exists in New Zealand today.511 Wild and MacKenzie JJ said:512

We do not accept that the offence of scandalising the Court cannot be justified as a reasonable limitation upon freedom of expression… The rights guaranteed by the [NZ]BORA depend upon the rule of law, the upholding of which is the function of Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the [NZ]BORA, but is ultimately necessary to ensure that they are upheld.

6.33The High Court’s view that a common law contempt of court may constitute a justifiable limit on the right to freedom of expression prescribed by law is consistent with the approach of the Supreme Court in the two Siemer cases.513
497David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [5-204], Laws of New Zealand Contempt of Court (online ed) at [30]; Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 366.
498R v Gray [1900] 2 QB 36; see Maxton, above n 497, at 368, for full story.
499R v Vidal, The Times October 14, 1922; see Maxton, above n 497, at 369, for full story.
500R v Freeman, The Times, November 18, 1925.
501R v Wilkinson, The Times, July 16, 1930.
502Eady and Smith, above n 497, at [5-207]–[5-208].
503McLeod v St Aubyn [1899] AC 549 (PC) at 561 per Lord Morris; Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 (HC) at 347A per Lord Diplock.
504Lord Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmnd 5794, December 1974) at 94.
505Eady and Smith, above n 497, at [5-210]–[5-215].
506Crime and Courts Act 2013 (UK), s 33.
507Bridges v California 314 US 252 (1941) at 287; R v Kopyto, above n 465.
508Solicitor-General v Radio Avon Ltd, above n 458, at 237–238.
509Australian Law Reform Commission Contempt (ALRC Report 35, 1987). Initially, in response to the Australian Law Reform Commission, a Government position paper was prepared and circulated, outlining the federal government's position on the Commission's recommendations in 1992. Although four jurisdictions initially agreed to work together for the purpose of agreeing on uniform contempt legislation, state and territory interest in the project lapsed and the project is no longer being actively pursued; ALRC, “Contempt” (12 July 2010) <www.alrc.gov.au>.
510Gallagher v Durack, above n 458.
511Solicitor-General v Smith, above n 491, at [133] and [136]. We discuss this case in some detail at [2.41]–[2.43].
512At [133].
513Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [24]–[25]; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [229]. See also discussion at [1.75], [2.36] and [5.30].