Abusive allegations and false accusations against judges and courts
6.1This chapter deals with abusive allegations and false accusations made against judges and courts that are published and have a real risk of undermining public confidence in the judiciary as an institution. As already noted, public confidence in the independence, integrity and impartiality of the judiciary needs to be maintained because the general acceptance of judicial decisions, by citizens and governments, is essential for the peace, welfare and good government of the country. In this context, courts may invoke contempt of court in the public interest to punish those whose actions constitute false and egregious attacks on the integrity and impartiality of members of the judiciary, thereby impugning the integrity of the judiciary and adversely affecting the rule of law.
6.2It is important to emphasise at the outset that the purpose of this contempt of court is to uphold public confidence in the independence, integrity and impartiality of the judiciary as an institution, not to vindicate the judge as a person or to protect the feelings of individual judges. As Laddie J said in Re Swaptronics Ltd: “It is all too easy for a court to be impressed by its own status”.
6.3It is also important to emphasise that this contempt is not designed to prevent or deter legitimate criticism of court decisions or the views of judges expressed in those decisions or in papers or speeches. The right to freedom of expression, now affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA), extends to criticism of judges and courts. The New Zealand Court of Appeal has always recognised the right of the media and the public to criticise courts and their work. In Re Wiseman North P said:
… we wish to make it perfectly clear that Judges and Courts are alike 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. No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, public acts done in the seat of justice.
Similarly, in Solicitor-General v Radio Avon Ltd, Richmond P said:
The Courts of New Zealand, as in the United Kingdom, completely recognise the importance of freedom of speech in relation to their work provided that criticism is put forward fairly and honestly for a legitimate purpose and not for the purpose of injuring our system of justice.
6.4Criticism of the judiciary and its work is important in a democratic society and can play a significant part in increasing public confidence in the justice system rather than undermining it. No one can object to criticism of this nature. Modern judges generally accept that, as public figures responsible for upholding the rule of law and determining criminal and civil cases, which are often contentious and where invariably there is an unsuccessful party, they need to be robust and resilient in the face of criticism. Respect, like reputation, is earned by the timeliness and quality of their work and not conferred by any status attached to their office.
6.5There is also growing recognition that many criticisms are best ignored, especially perhaps those that are so extreme as to be simply unbelievable. As two of the Judges of the Ontario Court of Appeal put it in R v Kopyto, the criticisms there were “so preposterous that no right thinking member of society would take [them] seriously.” Put another way, if there were any substance in criticisms of this nature, the public would be entitled to expect steps to have been taken to remove the judge concerned from office. Inaction in this regard may serve to confirm that such criticisms have not been taken seriously by those responsible for taking such steps.
6.6At the same time, when criticism becomes abusive or contains false allegations or accusations that undermine public confidence in the independence, integrity and impartiality of the judiciary as an institution, action may be required. As the Hon Paul East, when Attorney-General, put it:
Constitutionally, the Judges can speak only through their judgments and cannot, by convention, publicly answer any criticism. The Attorney-General assumes responsibility over criminal contempts of court, whether arising in respect of criminal or civil proceedings, which undermine public confidence in the administration of justice. The Judge can deal with matters of contempt that occur in the face of the Court, but once it occurs outside the Court then it is a function of the Attorney-General to bring proceedings for contempt.
The convention that judges are not able to answer criticism publicly distinguishes the judiciary from other arms of government and explains why the Attorney-General, as the senior Law Officer of the Crown, has constitutional responsibility for upholding the rule of law and answering any unwarranted criticism of the judiciary.
6.7Mr East also pointed out that protecting freedom of speech needs to be balanced with the independence of the judiciary so that:
Often a public statement by the Attorney-General is all that will be necessary to remind the news media that unfounded attacks on the judiciary can undermine the stability of our Constitution which it is in all our interests to protect.
6.8This approach is reflected in the Cabinet Manual, which currently states that the Attorney-General:
… has an important role in defending the judiciary by answering improper and unfair public criticism, and discouraging ministerial colleagues from criticising judges and their decisions.
6.9As Mr East’s statements and the Cabinet Manual recognise, a public statement by the Attorney-General answering an unwarranted criticism of the judiciary may be sufficient to produce a retraction or apology, thereby avoiding any need for proceedings for contempt.
6.10Another alternative to contempt proceedings may be a formal written request by the Solicitor-General, as the junior Law Officer of the Crown, for a withdrawal of the unwarranted criticism and an apology to the particular judge involved. This alternative proved particularly effective in 1984 when the Solicitor-General on his own initiative wrote to the National Secretary of the New Zealand Police Association seeking and obtaining an apology for remarks attributed to him by the Sunday News, which included a statement impugning the impartiality of a Judge.
6.11In another example, in 2003, a website listed 14 judges and claimed to be investigating them. The website accused them of “corruption, incompetence and suspect character” and stated that evidence would be progressively published on the website to prove it. After the Solicitor-General sent a letter, the offending material was removed from the website.
6.12Responsibility for upholding the rule of law, including defending the independence, integrity and impartiality of the judiciary, does not rest solely with the Law Officers of the Crown. Under the Lawyers and Conveyancers Act 2006 all lawyers and the New Zealand Law Society (NZLS) are obliged to uphold the rule of law. Similar responsibilities are reflected in the Rules of the Auckland District Law Society Incorporated and the New Zealand Bar Association.
6.13The NZLS will, in appropriate cases, make public statements answering attacks on members of the judiciary. Recent examples have included:
- a response from the President of the NZLS to criticism of a High Court Judge’s decision not to impose a sentence of preventive detention on an offender who subsequently committed murder;
- a similar response to criticism of the sentencing of a young man who received a discharge without conviction for assault;
- comments regarding the need for criticism of court decisions to be measured and made in appropriate forums following extensive coverage of the extrajudicial comments of a retired judge on a high-profile case; and
- a video published by the NZLS in which a leading criminal barrister explains how the sentencing process works.
6.14An example from the independent bar is found in the response by Robert Lithgow QC and retired Judge Dr David Harvey, among others, to criticism of the discharge without conviction of a young sports player guilty of assault.
6.15When the criticism of a judge is made by a lawyer, the NZLS may also invoke disciplinary procedures. In a recent case the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found allegations by a lawyer of racism and corruption against two High Court Judges to be “baseless”, “without cause” and supported by “not one shred of evidence”, and imposed a sentence of 15 months’ suspension of practice, together with costs of over $250,000. The Tribunal’s decision, delivered some seven years after the allegations were first made, led to belated apologies by the lawyer concerned to both of the Judges.
6.16The result in that case was perhaps not surprising as the lawyer had made the allegations in complaints against the Judges to the independent Judicial Conduct Commissioner who had investigated and rejected them prior to the Tribunal’s decision. It is reasonable to assume, if there had been any truth in the allegations, steps would have been taken to remove the Judges from office long before the Tribunal’s decision in 2016. Instead the Judges remained in office with the unfounded allegations hanging over them. A more efficient and effective method for dealing with allegations of this nature is needed.
6.17Under the Constitution Act 1986 and the Senior Courts Act 2016 High Court Judges may not be removed from office except by the Sovereign or Governor-General acting upon an address of the House of Representatives. That address “may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.”
6.18Judges of the Senior Courts therefore have security of tenure until they reach the age of 70, when they must retire. District Court Judges must also retire at the age of 70, and may be removed from office by the Governor-General on the advice of the Attorney-General on the grounds of “inability or misbehaviour”.
6.19Members of the public who are concerned about the conduct of a judge may complain to the Judicial Conduct Commissioner under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, which was enacted to “enhance public confidence in, and to protect the impartiality and integrity of, the judicial system”. As the High Court recognised in Muir v Judicial Conduct Commissioner, the Act confirmed New Zealand’s commitment to the United Nations’ Basic Principles on the Independence of the Judiciary.
6.20Under the Act the Judicial Conduct Commissioner has statutory responsibility for examining complaints in private and, in appropriate cases, recommending the appointment of a Judicial Conduct Panel to investigate allegations of judicial misconduct. The Panel then has statutory responsibility for investigating, hearing in public and reporting on complaints. Subject to a right of appeal to the Court of Appeal, an adverse report by the Panel against a judge may lead to action by the Attorney-General and, ultimately, the House of Representatives may remove the Judge from office under section 23 of the Constitution Act 1986. Decisions of the Judicial Conduct Commissioner are also open to challenge by judicial review.
6.21While the Law Officers of the Crown and the NZLS have responsibility for defending the independence, integrity and impartiality of the judiciary by answering unwarranted criticism of judges and while there is a formal statutory regime in place for dealing with complaints by members of the public against judges, the question is whether there is any need to retain in any form the common law contempt of scandalising the court.
6.22The Solicitor-General has not brought a case alleging scandalising the court since 2004 when Dr Nick Smith MP, was found by a Full Court of the High Court to have been guilty of this contempt when making statements designed to lessen public acceptance of a Family Court custody decision.
6.23The absence of any cases since Smith does not mean, however, there have been no abusive allegations or false accusations against the judiciary over the last 13 years that have tended to undermine public confidence in the independence, integrity and impartiality of the judiciary. Recent examples include:
- websites with false and egregious criticisms of several judges;
- picketing by the Union of Fathers outside two Family Court Judges’ homes in Hamilton and Auckland in 2006;
- demonstrations outside the private homes of senior judges, upsetting their neighbours and families;
- website blogs and social media entries making derogatory statements against a Family Court Judge and her family and disclosing personal information about them (including photographs of her children and the name and address of their school); and
- unfounded accusations by a lawyer of racism and corruption against two High Court Judges in complaints to the Judicial Conduct Commissioner.
6.24None of the criticisms or allegations in the above examples was true. All of the targeted judges remained in office. Yet in none of these cases did the Law Officers of the Crown or the Police take any steps to answer or respond to the allegations. The reasons for taking no steps include uncertainty over the scope and effectiveness of the law in this area and concerns about drawing further attention to the allegations.
6.25The lawyer who made the unfounded allegations of racism and corruption faced professional disciplinary proceedings, but due to numerous interlocutory applications and other delays the proceedings took some seven years to be heard and determined.
6.26There is, therefore, a serious question whether the law of scandalising the court is currently workable in practice. If the law is to be retained, there are further questions as to the nature and gravity of the conduct covered by the offence, and where the line should be drawn between freedom of expression and conduct interfering with the administration of justice. If the law is retained, what is its appropriate form?