Contents

Chapter 6
Abusive allegations and false accusations against judges and courts

Our assessment

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.

Reasons for our conclusions

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.

(b) As we have noted, since the Smith case in 2004 there have in fact been several serious false allegations made against judges which have gone unanswered.547

(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(a) The common law contempt of scandalising is outdated.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:

(a) While the powers to take down or suppress material exist at common law in other contexts,548 it is preferable to prescribe them by statute so that breach of the orders may be made a separate criminal offence and capable of relatively straightforward enforcement in New Zealand.

(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.

The recommended offenceTop

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.

6.71In this context “publish” will require knowledge of the publication by the person involved. In the context of liability for third party publications, such as comments on one’s social media account, for example, we have considered analogous cases from defamation law. We agree with the Court of Appeal in Murray v Wishart that actual knowledge of the third party publication should be required.549 A lower standard of “ought to know” is challenging to apply consistently in the context of social media, potentially widens the scope of liability quite dramatically and is difficult to justify as a reasonable limitation on freedom of expression.
6.72We consider people should be liable for third party publications where there is (i) actual knowledge of the publication, (ii) a deliberate act (including inaction in the face of actual knowledge) and (iii) power and control over the offending material.550 This test was described by the Supreme Court of British Columbia in Pritchard v Van Nes as representing the position in Canada, although the court in that case departed from the requirement of actual knowledge. This test is broadly similar to that in Murray v Wishart. It differs, however, in that it makes express the requirement of power and control, and removes the “inference that [the defendant] was taking responsibility” for the publication from the elements of the test itself.551 Some people have raised concerns this limb of the test could potentially permit a host to avoid liability by expressly disclaiming responsibility while continuing to host the offending material. As far as the Court in Pritchard disagreed with Murray on the subject of actual knowledge,552 however, we consider the Court of Appeal in Murray was correct for the reasons outlined above. Where Murray v Wishart required actual knowledge, the Court in Pritchard v Van Nes was willing to find liability for defamatory comments by third parties where the defendant “ought to have anticipated” that such comments would be made.553 In Pritchard, the defendant had responded to various comments on her original post and actively encouraged discussion, but had not responded specifically to the comment at issue. On such facts, however, it arguably would be open to the court to infer actual knowledge circumstantially without having to remove the requirement altogether.

Freedom of expression

6.73The requirement that there must be a real risk that the publication could undermine public confidence in the judiciary would make it clear that the right to express legitimate criticism is not proscribed. Consistent with the decision of the Full Court of the High Court in Solicitor-General v Smith,554 the offence remains, in our view, a reasonable and necessary limitation upon the right to freedom of expression guaranteed by section 14 of NZBORA. The rights guaranteed by NZBORA depend upon the rule of law. The function of courts is to uphold the rule of law, and the courts can only effectively discharge that function if they command the authority and respect of the public.555
6.74The position is similar under Article 10 of the European Convention on Human Rights.556 Article 10 protects the right to freedom of expression, and further provides:

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.

The European Court of Human Rights has accordingly recognised reasonable limitations on the right to freedom of expression in pursuit of the legitimate aim of maintaining the authority and impartiality of the judiciary. Factors that the Court has taken into account in determining the reasonableness and proportionality of such limitations include whether or not the expression was made in the conduct of proceedings or by a lawyer in the context of defending or pursuing a client’s interests;557 whether the expression is properly characterised as criticism, insult or even gratuitous;558 whether the subject of the expression was a matter of public interest;559 the chilling effect that the limitation may have on legitimate criticism, including upon lawyers advocating for their clients;560 and whether there was a factual basis for criticism.561
6.75For example, in Peruzzi v Italy the Court determined that there was no breach of Article 10 where a lawyer was convicted and fined for defaming a judge after sending a letter to the Judge and the Judge’s colleagues alleging that the Judge had wilfully disregarded his or her ethical obligations and possibly committed a criminal offence.562 In Ravelo v Spain, on the other hand, the Court held a lawyer’s conviction for libel for attributing similar blameworthy conduct to a judge in a written application in civil proceedings to be a violation of Article 10. While the Court considered the lawyer could legitimately have been punished for his conduct, it was influenced by the communication having been made solely in writing and only to the court in the context of defending a client’s interests, and the severity of the penalty.563

Defence of truth

6.76We consider that a defence of truth should be available in cases involving allegations of fact if the person who has published the allegations or accusations is able to prove, on the balance of probabilities, that the allegation or accusation was in fact true or not materially different from the truth. As we have already noted, it is currently unclear whether the defence of truth is available at common law. With the enactment of NZBORA, it would perhaps now be difficult to justify the approach taken in Attorney-General v Blomfield over 100 years ago.564 Truth should now be a defence.
6.77Consistent with the requirements of NZBORA, defendants should be able to raise the defence of truth as of right. Also relevant to this consideration is the compellability of a judge to give evidence. We are concerned to avoid the situation of a judge having to give evidence in court. If the allegations are in respect of the judge’s conduct as a judge, the judge cannot be compelled to give evidence: section 74(d) of the Evidence Act 2006.565 If, however, the allegations relate to conduct outside the scope of section 74(d), then a judge might be compelled to give evidence, unless the court decides the evidence the judge is being asked to give is inadmissible, irrelevant or oppressive, or it would be an abuse of process for the judge to be required to give evidence.566 These are factors which the Solicitor-General would be able to take into account when deciding whether it would be in the public interest to prosecute the new offence.

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:

8 Truth

(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.

No defence of honest opinion

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.

Take down orders

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.

6.86In the same way as we have provided for this in relation to take down orders made to preserve a fair trial,567 we recommend that the accredited media should have standing to be heard in relation to, any application for a take down order.

Investigation and prosecution

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:

(a) This is the current position in respect of the common law contempt of scandalising the court.568 This reflects the constitutional role of the Law Officers of the Crown in upholding the rule of law by responding to unwarranted attacks on the independence, integrity and impartiality of the judiciary.569

(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.

Approach in practice

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.

Penalty levels

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.

6.95Further discussion around how we have set penalty levels across the Report is found in chapter 7.570

An extended offence?Top

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.

6.97In the United Kingdom a recent survey found “strong levels of disenchantment” among the judiciary, with many judges reportedly intending to leave their jobs early in the next five years. Over a third of the judges surveyed were concerned for their safety outside court, and 15 per cent were worried specifically because of social media, fearing threats and personal abuse or being identified and targeted.571 The survey also pointed to, among other concerns, low judicial morale and a loss of judicial independence.

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.

6.100First, the Harmful Digital Communications Act is still new. It may be able to address some of these concerns. We have already described this legislation572 and the view of some submitters that it is unlikely to prove effective in its present form to deal with judicial harassment, particularly because they consider that it may require attempts at mediation before seeking court orders.573 We think, however, that this may be too literal a reading of the new Act. As discussed above at [6.43], the Act provides that mediation and negotiation along with other methods are to be used “as appropriate”.574
6.101The Approved Agency, Netsafe, may decide to take no action and the complainant may seek an order from the court after Netsafe has had a reasonable opportunity to consider the complaint.575 Further, the Police may proceed directly to seek an order from the court where a threat to the safety of an individual is at issue. The policy of Netsafe investigating complaints is not to contact alleged perpetrators without the consent of the complainant. We consider that, while the issue has yet to be considered other than hypothetically, it is unlikely Netsafe would request or require that judges attend mediation with those making allegations against them. The response of Netsafe is likely to be to take no further action and instead permit the complainant to proceed to court to seek an order.576

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.

recommendations

547See [6.23].
548L v R [2015] NZCA 279, [2016] 2 NZLR 21. See also David Harvey internet.law.nz (4th ed, LexisNexis, Wellington, 2016).
549Murray v Wishart [2014] NZCA 461, [2014] 3 NZLR 722 at [137]–[143].
550Pritchard v Van Nes [2016] BCSC 686 at [108].
551Murray v Wishart, above n 549, at [148].
552Pritchard v Van Nes, above n 550, at [117].
553At [110] and [117].
554Solicitor-General v Smith, above n 491. See above at [6.32]–[6.33].
555Solicitor-General v Smith, above n 491, at [133] and [136].
556European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5 (opened for signature 4 September 1950, entered into force 3 September 1953), art 10.
557Morice v France (2016) 62 EHRR 1 (Grand Chamber, ECHR); Nikula v Finland (2004) 38 EHRR 45 (Section IV, ECHR).
558Erdogan v Turkey (346/04 and 39779/04) Section II, ECHR 27 May 2014.
559Erdogan v Turkey, above n 558.
560Ravelo v Spain (48074/10) Section III, ECHR 12 January 2016.
561Peruzzi v Italy (39294/09) Section IV, ECHR 30 June 2015.
562Peruzzi v Italy, above n 561.
563Ravelo v Spain, above n 560.
564Attorney-General v Blomfield, above n 520. See above at [6.36].
565Warren v Warren [1997] QB 488 (CA). See also Deliu v New Zealand District Court [2016] NZHC 2806, [2017] NZAR 120 at [16]–[33].
566Note there is no statutory provision in New Zealand relating to the setting aside of either a witness summons issued under s 159 of the Summary Proceedings Act or a subpoena under r 9.52(1) of the High Court Rules, but it is accepted in both situations the Court has jurisdiction to do so: Re Golightly [1974] 2 NZLR 297 (SC), Senior v Holdsworth [1976] 1 QB 23 (CA), and Tuck v Registrar of District Court (1991) 3 PRNZ 459 (HC) at 462–463. See also T Jenns “Subpoena of Judges” (2000) NZLJ 198.
567See above at [2.83].
568See Re Wiseman, above n 463; Solicitor General v Radio Avon, above n 458; and Solicitor-General v Smith, above n 491.
569See McGrath, above n 466, at 203 and 213–214.
570See chapter 7 at [7.59]–[7.66].
571Frances Gibb “Dejected judges look to the exit as pay falls and personal danger grows” The Times (online ed, United Kingdom, 10 February 2017).
572See above at [6.42]­–[6.44].
573See above at [6.63]­–[6.64].
574Harmful Digital Communications Act 2015, s 8(1)(c).
575See above at n 530.
576In a recent case, a person was able to complain directly to the Police of an alleged offence under s 22 of the Harmful Digital Communications Act 2015, and the matter was dealt with as a standard criminal prosecution without resorting to alternative resolution processes: New Zealand Police v B, above n 536, at [6].