Undermining public confidence in the administration of justice is one of them

In last week’s Tales from the Coffeeshop, Patroclos asked rhetorically: is everyone who publicly repeats some wild allegation about the courts investigated for contempt? To which the answer is a very English yes and no.

Broadly speaking publishing an unfounded scurrilous allegation that a court was influenced by outside pressure to reach a particular decision is capable of being in contempt if it scandalises the court.

The contempt is not because someone has interfered with active legal proceedings – the usual reason for bringing a contempt prosecution – but because he or she has undermined public confidence in the administration of justice.

The test at common law is a real risk – not just a possibility – that public confidence would be undermined by unfounded allegations of judicial misconduct. The contempt jurisdiction is concerned with unfounded allegations made in the course of serious discourse in the mass and social media. It is not generally concerned with exaggerated complaints by loser litigants or idle coffee house talk in which people are free to express themselves as wildly as they please.

In modern advanced democracies like the UK, prosecutions for scandalising the judiciary are obsolete. It is thought the judiciary in UK is robust enough and has no need for special protection from criticism even if it is unfounded and scurrilous.

But even in UK not long ago when a judge was criticised unfairly by the prime minister and the leader of the opposition in parliament for a judgement she had given in favour of a Palestinian refugee, Lady Chief Justice Sue Carr was furious.

She put out a trenchant public statement that the proper course for a government dissatisfied with a judgement was to appeal it rather than undermine the authority of the judiciary by scoring cheap political points in parliament.

Also English common law recognised in a case from Mauritius as recently as 1999 that “the administration of justice is more vulnerable in small communities than in the UK and the need for the offence of contempt of court for scandalising the court on a small island is greater.”

In Europe human rights case law is to the effect that as the courts guarantee justice under the rule of law, they must enjoy public confidence which is sometimes necessary to protect from seriously damaging attacks that are unfounded. In the case of Barford v Denmark in 1989 the ECtHR held that the state had a legitimate interest in protecting the reputation of judges and that “the impugned statement was not a criticism of the reasoning of the judges but rather a defamatory accusation.”

Of course if an allegation that a court was influenced politically is well founded on strong clear evidence then any prosecution for contempt would be out of the question, the impugned judgement would have to be set aside and the judges involved should themselves be dismissed for conduct unbecoming.

But the evidence must be clear and incontrovertible. For example, in the case of Chile’s General Augusto Pinochet in 1999 it was incontrovertible that Lord Hoffman did not disclose he was a director of Amnesty when sat as a judge in the final appeal of Pinochet, regardless of the fact that Amnesty had intervened in the appeal to have Pinochet extradited to Spain for crimes against humanity. A very embarrassed top UK appeal court set its own judgement aside and reheard the case without Lord Hoffman.

Patroclos’ rhetorical question was referring to the case of the former auditor-general who was dismissed from his job by the Council of the Supreme Court for conduct unbecoming his office as auditor-general. His dismissal still rankles and the other week he insinuated that the Supreme Court had been leaned on by the president and is being investigated for criminal contempt of court.

It is important to appreciate that as the case is active, comment must be confined to facts in the public domain. The victim of the alleged contempt is not the president but the Council of the Supreme Court or, more conceptually, public confidence in the administration of justice in Cyprus.

It is not as if the reasoning of the Council of the Supreme Court in the case of the dismissal of auditor-general cannot be criticised. This column was mildly critical of both its preliminary ruling in June and its final decision to dismiss the auditor-general in September but only with the proper decorum due a top court.

More generally contempt of court arises in different sets of circumstances. There is criminal contempt in the face of the court when a party or a witness or a lawyer or a member of the public disrupts court proceedings. Most judges try to calm things down by cajoling and warning rather than invoking the courts’ powers to punish for contempt.

The most memorable case in England was when a judge at the Southwark Crown Court in the 1980s went over the top and ordered the arrest of a barrister with whom he clashed over a point of law. The judge told the barrister to sit down and when he refused the judge ordered him to be arrested. The barrister apologised and calm was restored.

The best-known case in which a barrister was sent to prison for five days for contempt in the face of the court happened at the Limassol Assize Court in 2001 in the case that came to light in Kyprianou v Cyprus in the ECtHR in 2005. In that case the ECtHR held that the barrister’s imprisonment for contempt was unlawful for a number of reasons, the most pertinent being the court performed all four roles in a criminal prosecution, namely of complainant, witness, prosecutor and judge which the court held was unfair.

In criminal cases of contempt the power to punish is usually for publishing material prejudicial to criminal proceedings in progress. You can’t say in public that the person is guilty or innocent, or that they have previous convictions or name a child a person the judge rules should remain anonymous or otherwise defy the judge’s rulings concerned with national security.