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Scandalised by the Law Commission’s recommendation

By Steven | August 23, 2017

In my last post, I discussed the Law Commission’s report on contempt of court. I generally supported the recommendations. Here’s one I think they got wrong.

The Commission proposes replacing what is now called “scandalising the judiciary” with a new, more limited, statutory offence. I think it should be scrapped altogether, as has been done in England, Canada and the United States, and as has been recommended by the Australian Law Reform Commission.

The existing law is amorphous and multi-pronged, if such a thing can be. Wade through the Nick Smith contempt case if you dare. The law aims to protect the justice system against unfounded attacks that damage its functioning, usually by impairing public confidence through attacks on the integrity of judges. It has always seemed to me to rest on a series of extremely dubious assumptions:

  1. There are attacks on judges out there that actually do cause some widespread loss of confidence in the judiciary.
  2. Those attacks are entirely untrue and unjustified.
  3. The public believe them anyway.
  4. This demoralises the public so much that we don’t trust the court to hear our cases properly, so we don’t take cases to court, or it disinclines us to obey court orders.
  5. Those making such attacks, and others disposed to do so, will be deterred by a law against scandalising.
  6. Confidence in the judiciary will be restored by a finding by judges that the attacks on judges are unfounded.
  7. This restorative effect will be stronger than the harm caused to public confidence in the justice system by (a) drawing attention to the attacks and (b) judges punishing people for criticising them.
  8. The scandalising law will actually be enforced, consistently and even-handedly.
  9. Authors, lawyers and courts can readily and objectively distinguish between legitimate criticism of the judiciary and illegitimate, criminal attacks on their integrity.
  10. The law will not have the effect of deterring more legitimate criticism than illegitimate attacks.
  11. Any scandalous attacks cannot be adequately met with a defamation lawsuit, which judges do sometimes bring, an action under the Harassment Act or the Harmful Digital Communications Act, or a response by the Law Society, the Attorney General or the head of one of the judicial benches.
  12. Judges can be trusted to resolve these issues sensibly, when they tend to engage in reasoning such as this (from Solicitor-General v Smith):

The rights guaranteed by the Bill of Rights depend upon the rule of law, the upholding of which is the function of Courts. Courts can only effectively discharge that function if they command the authority and respect of the public. A limit upon conduct which undermines that authority and respect is thus not only commensurate with the rights and freedoms contained in the Bill of Rights, but is ultimately necessary to ensure that they are upheld.

In other words, anything that punishes someone for hurting the reputation of the judiciary cannot be inconsistent with the right to free speech in the Bill of Rights, because we need judges to protect our rights. The reasoning really is that circular and self-serving.

Wait. Did I just scandalise the judiciary?

The Law Commission does address some of these points, but doesn’t reach what seems to me to be the obvious conclusion: let’s just ditch it.

Instead, they want to codify it, trimmed back a bit. The proposal would make it an offence to publish:

an allegation or accusation…against a judge or court, and there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or a court.

The court could then order material to be taken down or withdrawn (and a correction or apology published) if it finds an “arguable case” that an offence has been committed.

Shall I count the ways this is a bad idea?

No public interest defence

There’s no public interest defence, as the Commission proposes for sub judice contempt. Courts often say that their powers are not to be exercised to prevent legitimate criticism, and that they are  not there to protect  judges’ reputations but the integrity of the system. So why not spell that out? Isn’t the absence of a parallel public interest defence inviting the inference that it’s been deliberately omitted?

Nor is there a defence of qualified privilege, in marked contrast to the courts’ willingness to immunise political criticisms from legal repercussions, even when they are wrong and cause harm, because of the importance of free-flowing discussion about representative and responsible government. Mightn’t the same be said about the importance of commentary about our courts?

The role of truth

After some hand-wringing, the Commission accepts that there must be a truth defence. In the body of the Commission’s report, it describes the offence as publishing “untrue” allegations. But that’s not reflected in its draft law. The draft law makes it a defence to show that the allegations were true, which isn’t quite the same thing.

That truth defence is taken almost straight out of the Defamation Act. Yet there’s no consideration of how truth works in defamation cases. The first and often the most significant battle in defamation cases is over meaning. The Commission’s discussion effectively assumes that this will not be an issue. The meaning will be obvious. This flies in the face of experience. What if it’s ambiguous? Who has  to prove meaning? The prosecution? By what standard? The defamation standard? In a criminal offence?  Can the defendant raise a contested meaning and bring evidence to prove that?

No honest opinion defence

The Law Commission says the offence “covers statements of opinion, which are not capable of proof”. But it rules out an honest opinion defence. This seems astonishing.

Its reasoning is equally astonishing:

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.

So… almost all cases covered by this offence would be otherwise covered by an honest opinion defence, and we can’t have that. Let me spell that out. This means that – according to the Commission – most cases covered by this offence are expressions of genuine opinion, clearly conveyed to the audience as opinions, based on sufficient true facts that are set out or well known. Those are the requirements of an honest opinion defence. They’d stop a judge suing for defamation. But not a Solicitor-General prosecuting for criminal contempt.

It’s worse than that. If you take the care to express your view clearly as an opinion based on accurate facts, you are in a worse position than if you just expressed it as a factual allegation. Because the Commission says you can’t have a truth defence for an expression of opinion and you can’t have an opinion defence at all. Might as well rark up the rhetoric. Instead of “I think the judge might be corrupt”, say “The judge is corrupt”. At least you’ll have a shot at a defence.

I admit, this is a bit unreal. It’s extremely unlikely that the Solicitor-General would choose to prosecute a carefully reasoned criticism. I’d hope that if the attack was clearly expressed as an opinion then it wouldn’t get prosecuted at all, even if it was irrational or extreme. But that’s no excuse for not making sure that the ambit of our criminal law is sensibly constrained.

Real risk

How do you prove, beyond reasonable doubt, that someone’s publication has created a real risk that the public’s confidence in the independence, integrity or impartiality of the judiciary could be undermined? The test in publication contempt cases (real risk of prejudice to a fair trial) is bad enough. But at least we have some fairly well-defined notions of what a fair trial requires. This test is far more amorphous. It’s hard to imagine what evidence could be brought to bear. A poll? What will happen is that a particular judge will think that public confidence might be undermined, and that will be enough. I am  inclined to think that this offence actually creates a very low threshold, partly because it is proved by showing mere possibilities that are incapable of being factually proved or disproved (“risk”, “could”), partly because judges have a tendency to over-estimate the dangers of this sort of threat, and partly because the wording of the section (and the “demonstrably justified” provision in the Bill of Rights Act) allows free reign for judges’ perceptions.

Injunction threshold

You read that right. The judges can issue a gag based on an “arguable case” that this offence has been committed. First thing to note: you can’t get an injunction in a defamation case based on an arguable case. That’s because of the importance of free speech and the dangers of judges acting as censors. Not here.

We now have a situation where a judge can order your criticism taken down (by your web host if you won’t do it) on a showing that there is an “arguable case” that your criticism creates a “real risk” that public confidence in the judiciary “could” be undermined. Let’s call that at least a 20% chance that there’s a 30% chance that there’s a 25% chance that public confidence in the judiciary will be undermined.

Compare this with the injunction threshold in privacy cases: “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information”.

Recall that falsity is not an element of the offence. And since take-down orders can be made before any charges are filed, and in the absence of the defendant, it may well not be clear whether the defendant wants to advance a truth defence, and on what basis. Do the courts even have to consider the potential truth of the allegation before making such an order?

But perhaps the interests to be protected here – the integrity of the justice system – are more important than some ordinary plaintiff’s reputation. Perhaps. I don’t buy it. Here are some of the descriptions of particular named judges on Vince Siemer’s Kiwisfirst site, based on what purports to be an objective survey of lawyers:

impervious to the law and often undeterred by facts

obsessed with self-image, which this judge understands can only be maintained by kowtowing to powerful special interests

an intellectual and moral lightweight

few lawyers were convinced this judge has anything but a facade of integrity

a bent judge whose recklessness has increased with his time on the bench

generally regarded as highly partisan to self-serving interests, with suspect use of discretionary powers to get around the law

I suspect that most of these judgments arise from the acerbic anonymous comments of a handful of disgruntled lawyers, but they are not portrayed that way. If Vince Siemer’s website, which stabs at the heart of judicial integrity, can exist for years without doing any noticeable harm to the justice system, it’s hard to see what can. At least, it’s hard to see a need for this sort of urgent injunctive power.

Note too that the Commission would allow the courts to order a defendant to apologise, a power that has always struck me as silly. Defendants who don’t actually feel sorry are put in the position where they are breaching a court order if they don’t lie.

Yes, these powers must be exercised consistently with the Bill of Rights Act, which protects freedom of speech. But judges are not always very good at applying it. And it too provides a lot of room for expansive views about what sorts of limits on speech can be justified.

Do we need it?

There’s little demonstrated need for this offence. The last scandalising prosecution was in 2004, against Nick Smith, in a case that would have been decided the same way even without a scandalising law. The Law Commission can point to few examples of threats to confidence in judicial integrity, and those it does point to include pickets and complaints to the Judicial Conduct Commissioner, which would not fall under this law.

There is no attempt real attempt to see whether the sky has fallen in the countries that have abolished the law. The Commission does point to some news stories in Britain about a Supreme Court decision about Brexit:

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.

A few things. Do our papers ever go this far? If they did, is it obvious that we’d want to criminally prosecute them? Might the Press Council be a better remedy?

The Law Commission’s justifications for keeping the offence of scandalising

Here’s the Commission’s reasoning, and a few comments from me.

(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.

In fact, the best response to most false criticisms, such as those on Mr Seimer’s website, may well be to leave them unanswered. It is, at least, what we’re doing now. And there’s been no noticeable undermining of public confidence in the justice system. It hardly follows that this offence is the best way to go about answering such allegations.

(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.

This seems to contradict the premise in (a) that the rule of law will be seriously jeopardised if such allegations are left unanswered. I take it as relatively clear that the rule of law is doing pretty nicely in NZ at the moment, given that we’re 8th out of 113 countries in the World Justice Project’s Rule of Law index.

(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.

I think in many cases, those general remedies would work just fine. Some judges sue for defamation, for instance. Those remedies would be good enough for all of the (few) examples raised by the Law Commission in its illustrations of unanswered contempt. But they’re not really being tried, sometimes for good reason. Besides, there are other avenues to reduce challenges to public confidence, including rebuttal statements by heads of bench or the Attorney-General, whose job it is to defend the judiciary. (Hello? Chris Finlayson? Have you ever done any of this?)

Also: if those remedies have failed, why assume that this one will work better?

Also: we already have the power to deal with this sort of contempt. It’s called contempt by scandalising the judiciary. We’re not using it. Why assume we’ll use the new statutory offence?

 

 

 

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