6.65After careful consideration of all these submissions, we have reached the following principal conclusions:
(a) It remains in the public interest to have an offence which is designed to deter and, if necessary, punish persons responsible for publishing allegations and accusations against judges and courts which appear credible but are not in fact true and which carry with them a real risk of undermining public confidence in the judiciary as an institution.
(b) The offence should be a statutory one and replace the common law offence of scandalising the court, which should be abolished.
(c) The Solicitor-General should be responsible for investigating and bringing prosecutions for the new offence.
(d) The Solicitor-General should prosecute the new offence in the High Court following the filing of charges under the Criminal Procedure Act.
(e) The High Court should also have power to make orders, both interim and final, for the retraction or take down of the allegation or accusation.
6.66Our reasons for concluding there should still be an offence are:
(a) It is in the public interest we maintain confidence in the independence, integrity and impartiality of the justice system. False allegations, which are published without justification and which carry a real risk of undermining public confidence in the judiciary as an institution, should not go unanswered. Maintaining public confidence in the judiciary as an institution is essential for upholding the rule of law in New Zealand.
(c) The general remedies (defamation, trespass, harassment, and harmful digital communications) do not address the public interest in maintaining confidence in the judiciary as an institution. Instead, they focus on the interests of the individual judge. They also require the judge to initiate proceedings, which almost inevitably involves further personal publicity, time and cost for the judge.
6.67Our reasons for concluding there should be a new statutory offence replacing the common law offence of scandalising the court are:
(a) The common law contempt of scandalising is outdated. Its antiquated language is no longer appropriate in a modern world. We need to address its summary process and the uncertainties surrounding proof of intention and the availability of defences.
(b) The new offence would define the proscribed conduct with precision, settle the issue of whether there should be a defence of truth, and prescribe appropriate penalties. It would be clear that it does not prevent legitimate criticism of judgments and courts by anyone exercising their rights to freedom of expression.
(c) Although the statutory offence would be a new one, it would replace and clarify an existing common law offence.
(d) The principal purpose of the offence would be to act as a deterrent. As we explain below, we anticipate other remedial steps being taken first and prosecution being a last resort.
6.68Our reasons for concluding the Solicitor-General should have responsibility for prosecuting the new offence are discussed below at [6.87]–[6.89].
6.69Our reasons for concluding courts should also have power to make orders, both interim and final, for the retraction or take down of allegations or accusations are:
(b) A retraction or take down order is likely to be the most effective way of dealing with allegations in this context, especially with online publications. The orders may be made against the owners of servers (responsible ones are likely to comply) and New Zealand residents responsible for the websites and blogs.
6.70Our recommendation is that it should be an offence for any person to (i) publish an untrue allegation or accusation against a judge or a court where (ii) there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary as an institution. The recommended offence would cover statements of opinion, which are not capable of proof, as well as allegations of fact that are untrue. This is because opinions can be equally damaging. After considering the options, we determined the offence should also cover attacks on the court system as a whole or a particular court as well as those against a judge. The scope of the offence should make it clear that the underlying policy behind the offence is an attack on the administration of justice and not the protection of the feelings of individual judges.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for maintaining the authority and impartiality of the judiciary.
6.78We consider the defence should largely be the same as the defence of truth in section 8 of the Defamation Act 1992 and clause 24(3) in the draft Bill reflects this approach. While defamation is a civil proceeding and the new proposed offence is criminal, the same underlying rationale applies. The defence of truth exists in defamation law because an individual cannot claim damage to a reputation that he or she does not have. Similarly, a defendant cannot be said to be responsible for undermining public confidence in the judiciary where the allegations made are in fact true. Section 8 reads as follows:
(1) In proceedings for defamation, the defence known before the commencement of this Act as the defence of justification shall, after the commencement of this Act, be known as the defence of truth.
(2) In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication.
(3) In proceedings for defamation, a defence of truth shall succeed if—
(a) the defendant proves that the imputations contained in the matter that is the subject of the proceedings were true, or not materially different from the truth; or
(b) where the proceedings are based on all or any of the matter contained in a publication, the defendant proves that the publication taken as a whole was in substance true, or was in substance not materially different from the truth.
6.79Section 8(2) provides that where a claim is based on only part of a statement, it is open to the defendant to plead and prove the defence of truth in relation to the statement as a whole. Accordingly, where the truth of part of the statement cannot be proved, the defence may succeed if that part is immaterial in the context of the whole. Consistent with our approach to adopting section 8, we consider that the same rule should apply for the proposed new offence. This is a factor the Solicitor-General would be able to take into account when considering whether a prosecution is in the public interest, as it will not be possible to limit a prosecution to only those allegations that are incontrovertibly false and the defendant may be entitled to plead the truth of other parts of a statement which cannot be responded to without calling members of the judiciary to give evidence.
6.80We have considered whether there should be some restrictions on a defendant raising a defence of truth. In particular, whether there should be some link between being able to raise the defence and the outcome of a complaint under the Judicial Conduct Commissioner and Judicial Conduct Panel Act. As we have already explained, that Act provides a formal regime for dealing with complaints against judges. In the absence of a complaint or an adverse recommendation, it would be reasonable to take the position that the allegation is without foundation. One option we therefore explored was whether a defence of truth should only be available where the defendant had made the allegation or accusation the subject of a complaint under the Judicial Conduct Commissioner and Judicial Conduct Panel Act and then only if the allegation or accusation was consistent with the ultimate outcome of the complaint under that Act.
6.81We concluded, however, that this option was too complicated and likely to result in undue delay. It would require the prosecution to be adjourned pending determination of any complaint by the Judicial Conduct Commissioner. Also, the Judicial Conduct Commissioner and Judicial Conduct Panel Act processes, while designed to assess complaints, do not necessarily make legal determinations about the truth or otherwise of specific factual allegations. We have concluded that the Judicial Conduct Commissioner and Judicial Conduct Panel Act processes should remain separate from the criminal offence, especially as there would be potential for significant delay in the prosecution process. At the same time, however, we have also concluded that the existence of an unresolved complaint to the Judicial Conduct Commissioner might be a factor the court could take into account when deciding whether to make an interim take down order. The rejection or absence of a complaint under the Judicial Conduct Commissioner and Judicial Conduct Panel Act is also a factor the Solicitor-General might take into account in considering whether a prosecution for the new offence was in the public interest.
6.82For completeness, we note we do not consider that there should be a further defence of honest opinion such as that available in an action for defamation under section 9 of the Defamation Act. This defence has never been a part of the law of contempt, and it is not consistent with the overall purpose of this part of the law of contempt, which is to protect the independence, integrity and impartiality of the judiciary as an institution. Further, the likely effect of a defence of honest opinion would be to confine the proposed offence to a very small selection of exceptional cases.
6.83The High Court should have statutory powers to make both interim and final orders for the retraction or take down of the allegation or accusation. The Court should be able to exercise the power to make a take down order in any case where a person has been charged with the new offence and the Court is satisfied there is an arguable case that the person has committed the offence. The Court should also be able to make an interim order pending the filing of a charge.
6.84The High Court’s powers here would be discretionary. The Court would have to be satisfied that the risk of undermining public confidence was sufficient to justify interfering with the person’s rights to freedom of expression. Under the provision, the Court would not remove statements of legitimate criticism by anyone exercising their rights to freedom of expression. Non-compliance with any order to retract or take down the allegation or accusation would also be a separate criminal offence.
6.85In addition we recommend that the High Court be able to make orders requiring the publication of a correction or an apology. Clause 26(1) of the draft Bill gives effect to this recommendation.
6.87We have considered whether the Solicitor-General or the Police should be responsible for investigating and bringing prosecutions for the new offence. We have discussed the different options with the Solicitor-General and the Police Prosecutions Service and have reached the view that the Solicitor-General should retain responsibility in this area. The Solicitor-General agrees.
6.88We discuss prosecution issues in more detail in chapter 7 at [7.47] to [7.54] of the Report, but there are five reasons why responsibility for investigating and, where appropriate, bringing proceedings for the new offence should be with the Solicitor-General:
(b) The fact that the other new offences are to be prosecuted by the Police in the normal way does not mean that the new offence replacing scandalising the court, which has always been in a special category of its own, should now be prosecuted by the Police. Statutory codification is not a reason for altering the classification of this offence.
(c) The Solicitor-General should assess the public interest element in bringing proceedings for the new offence, taking into account wider public interest considerations (such as the risk of further adverse publicity), the defendant’s privilege against self-incrimination and whether the judge involved is likely to need to give evidence (refer above to separate discussion at [6.77]), the absence or outcome of any complaint to the Police (in the case of an allegation of bribery or corruption) or the Judicial Conduct Commissioner (in the case of alleged misconduct) and the adequacy of any explanation.
(d) The evidence for such contempts (a public statement in the media or online) will usually be in the public domain and it should usually be a relatively straightforward matter to seek an explanation from the potential defendant. The fact that Crown Law is not set up to conduct first instance investigations, obtain search warrants or seize evidence, is therefore not the barrier it could be for other types of offences. If such steps are required, there is no reason why Crown Law should not be able to obtain appropriate assistance from the Police. When necessary Crown Law should be able to request the Police to exercise the enforcement powers the Police have to investigate an alleged offence.
(e) We are also concerned that there would be practical difficulties in changing the prosecutorial responsibility for these particular contempt offences. The Police have made it clear to us that administration of justice offences of this nature do not receive investigation or prosecution priority. This means that our proposals, if implemented, would be unlikely to lead to charges in cases where they are currently needed if the Police were to have prosecutorial responsibility.
6.89We therefore recommend that the Solicitor-General should be responsible for filtering prosecutions by investigating and deciding whether there is a sufficient evidential base to bring a prosecution and whether the prosecution is in the public interest. Only the Solicitor-General would then also be able to apply to the High Court for a take down order. Our recommendations concerning take down orders are reflected in clauses 26 to 27 of the draft Bill.
6.90With our recommendations we envisage there would be a number of steps that would normally occur before a prosecution was brought by the Solicitor-General. Prosecuting the replacement scandalising offence would normally be the last resort. We see the following steps being available:
(a) A public statement by the Attorney-General or Solicitor-General, following a complaint or acting on his or her own initiative, responding to the unwarranted attack on the judiciary and seeking a retraction or an apology.
(b) A letter from the Solicitor-General, following a complaint or acting on her own initiative, to the alleged offender asking for a retraction and a voluntary take down of the offending publication and/or an apology.
(c) An application by the Solicitor-General for an interim take down order to have the offending publication removed where there is an arguable case an offence has been committed. Non-compliance with that order would be a separate offence.
(d) A prosecution by the Solicitor-General for the replacement scandalising offence. The High Court could make interim orders for the removal of the offending publication pending the hearing of the prosecution. The Court could also make permanent orders where appropriate.
6.91Prosecution of the new offence would be transferred to the High Court. We discuss the reasons for this later in the section on prosecutions in chapter 7, but essentially it is to reflect the more serious nature of the offence, to ensure that a consistent approach is taken, and, to the extent this is possible, to ensure cases are seen to be dealt with in a disinterested court.
6.92The public interest test to be applied in deciding whether to bring proceedings would be applicable as it is required in the Prosecution Guidelines for all public prosecutions.
6.93The existence of the new offence as the ultimate sanction should act as a cost effective deterrent. The existence of other effective remedial steps before a prosecution is brought should also ensure that prosecution for the new offence is the last resort.
6.94The more serious nature of the offence warrants a penalty that is greater than the six months’ imprisonment proposed for publishing information that poses a real risk of prejudicing a fair trial. We note that a term of imprisonment not exceeding two years is imposed for the offence of causing harm by posting digital communications under section 22 of the Harmful Digital Communications Act 2015. We consider this new offence to be just as serious and recommend that the maximum penalty for the offence should be a term of imprisonment up to but not including two years or a fine not exceeding $50,000, or a fine not exceeding $100,000 for a corporate defendant. A maximum penalty at this level would ensure the prosecution would be heard by a judge alone sitting without a jury.
6.96During the course of our review, members of the judiciary, the Solicitor-General and members of the legal profession have raised concerns about whether the scope of any new offence should extend to cover more subtle ways of subjecting the courts and judges to pressure, including conduct such as the deliberate publication of private information about judges (their private addresses and facts about their family members) and the sending of offensive material in documentary form or online to courts, judges and court staff. We share the concerns expressed about the publication of private information and communications of this nature, as well as other more covert attempts to influence judges, especially in the age of the internet and social media. We consider these to be serious forms of abuse which are becoming real issues inimical to the due administration of justice and potentially to judicial and court staff recruitment.
6.98While we share these concerns, we do not consider it would be appropriate to extend our proposed new offence to cover conduct of this nature. The publication of private information which is true would not be caught by our proposed new offence. Private communications which are not published would not be capable of undermining public confidence in the independence, integrity and impartiality of the judiciary as an institution. In our view, an extended offence of this nature would therefore be outside the scope of this reference.
6.99At the same time, however, these concerns do warrant further consideration. In our view they may ultimately need to be addressed by separate legislation, possibly by the addition of new specific judicial harassment provisions in the Harmful Digital Communications Act or the Harassment Act or the enactment of a specific new offence akin to abuse of a public office holder. In our view, the following factors would be relevant to such further consideration.
6.102Second, the issue of deliberate publication of personal information specifically targeted at judges may begin to affect the due administration of justice. With the digital age, people have an almost unrestrained ability to communicate their views and share any information they wish by way of the internet and social media. This lack of constraint has resulted in damaging and unwarranted targeting of many people in public life. In some situations, the material published is sufficiently objectionable to be defamatory, but other times it is not. It is simply the public exposure of factual information about the person that causes distress.
6.103Third, some of the offensive material sent to courts and members of the judiciary is grossly abusive. There is little doubt that those responsible ought to be held accountable for their conduct.