Chapter 6
Abusive allegations and false accusations against judges and courts

Position today

6.45There are still many ways today in which members of the New Zealand judiciary may face unwarranted attacks, threats, abusive allegations and false accusations or personal ridicule or threats that compromise or may compromise their ability to adjudicate without “fear or favour”.537

6.46In addition to statements published in the traditional media, unwarranted attacks include, as we have already noted, statements on websites, blogs or social media platforms such as Facebook and Twitter, and demonstrations outside judges’ private homes.

6.47While attacks and threats constituting criminal offences should be left to the Police to prosecute in the normal way, the advent of digital media has highlighted the need for the retention of some form of action for contempt of court in respect of published allegations and accusations which are false but appear credible and carry with them a real risk of undermining public confidence in the judiciary as an institution. With the internet being a permanent repository of information and with the potential for posts to go viral, we can no longer dismiss attacks on judges on the ground that today’s newspaper is tomorrow’s fire lighter.538
6.48As already noted above at [6.11], in 2003 a website appeared on the internet which listed 14 judges who it said it was investigating, accusing them of “corruption, incompetence and suspect character” and that evidence would be progressively published on the website to prove it.539 A letter from the Solicitor-General followed, and the material was removed from the website. Also in recent years, Mr Siemer, who was involved in protracted litigation against another businessman and against some higher court judges, has made statements in court documents filed in those proceedings, and also on his Kiwis First website that are similar. In one set of proceedings he stated that: “Many of [the judge’s] actions are sufficient to cause an impartial observer to wonder whether he is paid counsel for the respondents rather than an impartial arbiter”.540 Although these comments drew a firm rebuke from the Court of Appeal,541 such attacks and possible scandalising comments have otherwise been publicly ignored.
6.49For various reasons none of the other available remedies has proved adequate to deal with these actions. The demonstrators outside the judges’ homes have not been prosecuted.542 Solicitors-General have also been reluctant in recent years to bring contempt proceedings. Matters touching on this ground of contempt are referred to Crown Law regularly, but few result in action. The threshold for contempt is very high and the credibility of the attack is central to whether a contempt action on this ground could ever be successful. If extreme and vitriolic language is used, people are less likely to regard it as credible, making it difficult to demonstrate a real risk to the administration of justice.
6.50As noted above at [6.3], a balanced approach is also required because of the right to freedom of expression. Fair and honest criticism of judgments and courts is legitimate and needed in a democratic society.543
6.51The recent press activity in England following the first judicial decision that Brexit could not be triggered without a vote by Parliament illustrates how the balance has shifted towards freedom of expression following the abolition of the contempt of scandalising. As a result of this judicial decision, three newspapers published photos of the three judges involved, with headings such as “enemies of the people” and “the judges versus the people” and, within the articles, making allegations that the judiciary was biased: “infested with Europhiles”, as well as making attacks on each of the judges on a personal level. There were calls for the Lord Chancellor to defend the judges. The Lord Chancellor, however, in essence made it clear that while the rule of law is important so too is freedom of the press and she was not prepared to criticise the newspapers because they had not broken the law. This did not quiet criticism however, and Sir Geoffrey Palmer QC subsequently wrote:544

It took an embarrassingly long time for the Lord Chancellor to issue a statement defending the Judges and upholding the basic constitutional principle of English law, the independence of the judiciary.

6.52In 2013, as we have noted earlier, England abolished the common law contempt of scandalising so, while some of the coverage was quite distasteful and misleading, there could be no suggestion that the newspapers were breaking the law in this respect.

537Oath and Declarations Act 1957, s 18. See also above at [3.42].
538Eady and Smith, above n 497, at [5-207].
539Cheer, above n 465, at 558.
540Siemer v Ferrier Hodgson, above n 492, at [32].
541At [31].
542Possibly because of the decisions in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 and Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
543Solicitor-General v Radio Avon Ltd, above n 458, at 231; Gallagher v Durack, above n 458, at 243. See also [6.3]–[6.4]; and Cheer, above n 465, at [16.1].
544Geoffrey Palmer “Do the British understand their own unwritten Constitution?” [2017] NZLJ 27 at 27.