Abusive allegations and false accusations against judges and courts
6.38When considering the future of the contempt of scandalising the court, it is important to take into account other remedies that are available for the Police to prosecute, and for judges to pursue, in the same way as anyone else. These other remedies include a range of criminal offences and civil actions. It is also relevant to note in this context the existence of the Ministry of Justice National Security Operations Section which has responsibility for judicial security. Judges are able to refer all types of attack, including online abuse, to the Section for investigation and, if necessary, further action.
6.39Serious attacks or threats of attacks against judges may constitute criminal offences under the Crimes Act 1961:
- threatening to kill or do grievous bodily harm: section 306;
- threatening to destroy property: section 307;
- threats of harm to people or property: section 307A; and
- threatening acts: section 308.
6.40Less serious conduct may constitute criminal offences under the following legislation:
- section 4 of the Summary Offences Act 1981 (offensive behaviour);
- section 8 of the Harassment Act 1997 (criminal harassment);
- sections 21 and 22 of the Postal Services Act 1998 (posting noxious substances, noxious things or indecent articles);
- section 112 of the Telecommunications Act 2001 (misuse of telephone device); and
- sections 21 and 22 of the Harmful Digital Communications Act 2015 (failing to comply with a take down order and posting a digital communication with intention to cause harm).
6.41Civil remedies available to judges who are the subject of attacks, threats, abusive allegations or false accusations include:
- civil claims for defamation;
- actions for trespass;
- actions for harassment under the Harassment Act (civil harassment); and
- complaints under the Harmful Digital Communications Act.
6.42The Harmful Digital Communications Act was enacted following the Law Commission’s review of “Regulatory Gaps and the New Media”. The purpose of the Act is to:
(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and
(b) provide victims of harmful digital communications with a quick and efficient means of redress.
Under the Act digital communication is defined as “any form of electronic communication [including] any text message, writing, photograph, picture, recording, or other matter that is communicated electronically”.
6.43The Act creates a new civil enforcement regime that enables specified persons to make initial complaints about harmful digital communications to the Approved Agency. The Approved Agency may then investigate the complaint and attempt to resolve it using advice, negotiation, mediation and persuasion as appropriate. A specified person may apply to the District Court for a number of civil orders, but only once a complaint has been made and the Approved Agency has had a reasonable opportunity to assess it and determine a course of action. Where a communication constitutes a threat to the safety of an individual, the Police may apply directly to the court without having to first make a complaint to the Approved Agency. These orders may include those requiring harmful digital communications to be taken down and requiring the defendant to cease the harmful conduct. It is also a criminal offence under the new Act for a person to post a digital communication with the intention that it causes harm or to fail to comply with an order made under the Act.
6.44In the Act’s first year, there have been 132 charges filed and 50 convictions. It appears many of the prosecutions have related to harmful communications after the breakdown of intimate relationships.