Abusive allegations and false accusations against judges and courts
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.
6.28Some of the early scurrilous abuse cases in this category make quaint reading today:
- A newspaper article describing a judge as “an impudent little man in horse hair” and “a microcosm of conceit and empty headedness”.
- Placards outside the Royal Courts of Justice alleging a judge had “defrauded the course of justice”.
- Letters to a judge accusing him of being “a liar, a coward, a perjurer”.
- A newspaper article describing a judge as “the bewigged puppet and former Tory Member of Parliament chosen to put Communist leaders away”.
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. Indeed, for many years, scandalising the court was considered “virtually obsolescent” in England. 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. While recommendations for its replacement by statutory provisions were not initially implemented, scandalising the court was finally abolished in 2013.
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.
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. 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, it remains part of the common law in Australia.
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. Wild and MacKenzie JJ said:
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.