Common law contempt by disobedience of an order for temporary suppression of a judgment

A non-publication order was issued by the High Court in respect of a pre-trial judgment on evidential issues. The order was made to protect the fairness of the forthcoming trial(s). A person, not involved in the proceedings but knowing of the order, published the judgment.

The person became an enthusiastic litigant, and it must be recognised that a result of this enthusiasm has been extensive judicial examination of the law of contempt.

I have mentioned here on 11 May 2012 the Court of Appeal decision in this litigation. But the Supreme Court had also looked at this litigant's efforts before, as I discussed here on 20 May 2010. So the finale last week from the Supreme Court is a monument to doggedness: Siemer v Solicitor-General [2013] NZSC 68.

At first glance you could hardly get a more obvious example of contempt of court. But the main issue was whether the court had an inherent power to suppress publication of a judgment. Another issue was who has standing at common law to apply for variation or rescission of a suppression order?

I only give a broad indication of what was decided here, in the interests of brevity. As always, the law is in the case, not in what I say.

Fair trial rights were held to dominate freedom of expression, so that if publication would compromise a fair trial, publication would have to yield [158] per McGrath, William Young and Glazebrook JJ, with Elias CJ concurring on this point at [19]. So yes, there is a common law power to suppress a judgment temporarily to protect fair trial rights [168]-[175]. Elias CJ dissented, holding that this power had been removed by statute [38]-[46], [86].

But at the post-publication stage it is too late for an alleged contemnor to protest that the court should not have made the order, except in limited circumstances. It is possible that an alleged contemnor may challenge, in the contempt proceedings, the court's jurisdiction to make the order [222], although whether it is a defence to an allegation of contempt that the court had no jurisdiction to make the order has been left undecided [footnote 283]. The majority recognised that there might be some exceptions in relation to third parties who have not had an opportunity to challenge an order or its terms, or who have taken available steps but not been heard, if obedience to the order would result in "irretrievable loss" of an important right [224]-[226].

The steps that are available to a third party who might wish to challenge a suppression order or its terms were specified and areas of uncertainty discussed at [181]-[187]. The majority noted that the effect on the common law of the position of the media under the Criminal Procedure Act 2011, ss 198, 200, 283 remains to be worked out in future cases [187].

Elias CJ would have allowed a third party to challenge the legality of an order in proceedings to commit him for contempt for disobeying it, unless such a challenge would be an abuse of process [8]-[9], [56], [61]-[85]. She would have allowed the appeal.

So, by a majority the appeal was dismissed and the appellant was ordered to report and commence serving his sentence of six weeks' imprisonment.

This is one of those cases where the law was (if the lack of unanimity in the Supreme Court is any indication) unclear at the time the alleged contempt was committed, and retrospective clarification is for the benefit of everyone except this appellant. However the Court can't just say, "Well fair enough Mr Siemer, you had a good crack at it and your case helped us clarify the law a wee bit, so don't bother with the imprisonment." As the majority said at [191]:

"Provided the court had power to make an order of its kind, a court order is binding and conclusive unless and until it is set aside on appeal or for other reason lawfully quashed. Collateral attacks on such orders are not permitted. Neither the parties, nor other persons subject to an order, are permitted to arrange their affairs in accordance with their perceptions of its flaws, including any individual views they may have concerning the validity of the order. The position is the same whether the order has been made in the High Court or in the District Court.[Footnote: 'Slater v R [2011] NZCA 568 at [17]. Mr Slater was not a party to the proceedings in which the order he breached was made.']"

And added [208]:

" ... The constitutional position with court orders is different from that of a collateral challenge to an executive or administrative action, and a different approach is required. The common law rule against collateral challenge to court orders is itself premised on the centrality of the rule of law. ... The special need in our society for compliance with judicial orders is the constitutional reason for treating disobedience of court orders differently from conduct in breach of subordinate legislation or administrative directive. No such rule of law concerns are raised when a defendant, charged in a criminal court with breach of the directions of an executive government agency, raises their unlawfulness, and resulting invalidity, as a defence. The defendant, of course, in such a case takes the risk of incurring a criminal conviction and punishment if his or her expectation of illegality proves to be wrong. Disobeying the government's administrative directions in this way does not impede the exercise of its functions. But if disobedience of court orders in that way were to be tolerated, the Court's authority and ability to discharge its functions would become seriously impaired. For that reason, the common law of contempt by disobedience of a court order rests on the existence of an order that was made with legal authority, and was thus lawful, as we have held in the present case. It does not matter whether or not the order should have been made at all or made in those terms... .]" [footnotes omitted]

A murky corner of the criminal law: punishment and dignity

Some annoyance has been expressed in the United Kingdom over the Strasbourg court's Grand Chamber decision in Vinter v United Kingdom [2013] ECtHR 645 (9 July 2013). The Court held that procedures in England and Wales for the release of prisoners serving life sentences imposed without right to apply for parole were so unclear as to leave such inmates without hope. This was a breach of Article 3 of the European Convention on Human Rights, which states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The essence of the decision was expressed by Judge Power-Forde in his concurring opinion:

"...Article 3 encompasses what might be described as "the right to hope". ... [H]ope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading."

Article 3 has a corresponding provision in the ICCPR, Article 7, which has been ratified by many countries, as can be seen from this Wikipedia entry.

Nevertheless, imprisonment for life without the right to apply for release on parole is something that many people find acceptable for the worst offenders. For example, in New Zealand s 103(2A) of the Sentencing Act 2002, and s 20(5) of the Parole Act 2002, both introduced on 1 June 2010, reflect the legislature's acceptance of this form of life sentence. The compassionate release provision in s 41 of the Parole Act 2002 appears to apply to these prisoners, but they have to be "seriously ill and unlikely to recover".

The Vinter controversy raises numerous elementary questions. If a law is enacted by a democracy, can it be called immoral? [Yes.] Who, outside the democracy, can call this law immoral? [Anyone.] When, if ever, should the democracy pay attention to an outsider's opinion about the morality of its law? [Big question. Subjectively: only if the democracy has decided to pay attention. Objectively and pragmatically: if it would be wise for the democracy to pay attention. Objectively and morally: if it would be right for the democracy to pay attention.] Can the democracy change its mind about paying attention to an outsider's opinion about the morality of its law? [As a practical matter, yes, if it insists that it has sovereignty in this respect.] Can the democracy simply ignore the outsider's opinion? [Yes, although it might be more comfortable doing so if there was clear democratic support for ignoring the opinion.] If ignoring the outsider's opinion amounts to breach of international treaty obligations, will there be consequences? [Probably "only" political ones in the form of criticism and perhaps loss of esteem (moral regard) in the context under discussion here.]

The same questions arise if the law was enacted not by a democracy but by a dictatorship, and if the "outsider" is more accurately seen as part of the legal system (a sort of sharer of sovereignty). In all cases the difference over what is moral is settled, as far as the legal system is concerned, by legislation.

A person whose Convention (or Covenant) rights have been breached may find it hard to get a remedy. The ECtHR often declares a breach and then says that the declaration is itself sufficient satisfaction. But as Judge Ziemele said in a concurring opinion in Vinter:

"...where a human rights court, in a dispute between a State and an individual, establishes a violation and where the individual concerned, an injured party, has claimed damages, the declaration that a finding of a violation is sufficient satisfaction does not answer that claim."

The tendency to say that a declaration of a breach is itself sufficient satisfaction reflects the political nature of international relations: there are occasions when what is said is all that can be done. But Judge Ziemele's point was that the court should address damages and if it thinks there should be no damages it should say so, otherwise it should say what is to be paid.

So, the United Kingdom is entitled to have whatever laws it wishes, although getting them may require some adjustment of current international law arrangements. If it wants laws that are internationally regarded as immoral, so be it.

Controversial use of the presumption of innocence

The extended meaning given by the European Court of Human Rights to the presumption of innocence (Art 6 § 2 of the Convention) requires a court, in declining to interfere with a refusal to award compensation to a defendant whose conviction was quashed on appeal and for whom no retrial was ordered, to avoid language that suggests the defendant was guilty: Allen v United Kingdom [2013] ECtHR 678 (12 July 2013).

New expert evidence cast doubt on the strength of the evidence that had been given against the defendant at the trial, although on the appeal against conviction the Court of Appeal (Criminal Division) observed (as recorded in [20] of the Grand Chamber's judgment in Allen):

"[153] ... We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount of force necessary to cause the triad, might reasonably have affected the jury's decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed."

This is quite different from concluding that no reasonable jury could have convicted the defendant. Compensation might be awarded to a defendant who, on the basis of new evidence, is shown to have been actually innocent of the crime for which a term of imprisonment has been partly or wholly served, or to a defendant in respect of whom, in the light of new evidence, no reasonable jury could properly have convicted: Adams, R (on the application of) v Secretary of State for Justice [2011] UKSC 18 (11 May 2011), noted here on 15 May 2011).

An inroad on this was sought to be made in Allen by resort to the extended (or what the Grand Chamber called the "second aspect" of the) presumption of innocence. This is [94]:

"... in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person's reputation and the way in which that person is perceived by the public. To a certain extent, the protection afforded under Article 6 § 2 in this respect may overlap with the protection afforded by Article 8 (see, for example, Zollman v. The United Kingdom (dec.), no. 62902/00, ECHR 2003-XII; and Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, §§ 27 and 56-59, 16 October 2008)."

The Grand Chamber held that this aspect of the presumption of innocence did indeed apply to this claim for compensation because there was a sufficient link between the quashing of the conviction without order for retrial and the claim for compensation [104], [107]-[108].

It was therefore necessary to look at the language used by the Court of Appeal in the civil proceedings when it dismissed the defendant's appeal against refusal of compensation [129]. The Grand Chamber concluded [134] that the language used by the domestic courts emphasised that it would have been for a jury to assess the new evidence, had a retrial been ordered, and did not undermine Ms Allen's acquittal.

The Grand Chamber was unanimous, but Judge De Gaetano delivered a short separate opinion, saying that the relevance of the presumption of innocence in such cases should be reassessed. He believes that the presumption has no place in civil compensation proceedings.

The case is interesting for its illustration of the use of the presumption of innocence. In a narrow and largely uncontroversial sense the presumption of innocence is a procedural guarantee in the context of a criminal trial, imposing requirements in respect of the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-trial publicity (with reservations noted below), and premature expressions by a trial court or by other public officials, of a defendant's guilt [93].

The presumption of innocence may have a role in pre-trial procedures, such as bail applications, although this will usually be modified by statute allowing consideration of the strength of the prosecution evidence and, for some defendants, placing on the applicant the burden of persuading the court that bail should be granted. The relevance of the presumption to name suppression decisions may be doubted (see, for example, Suppressing Names and Evidence (NZLC IP13 2008) at 3.56-3.57, and in its final report the Law Commission did not mention the presumption of innocence, only the presumption of openness: NZLC R109 2009).

Book review: “Law as a Leap of Faith” by John Gardner

A hankering for some difficult reading led me to click on "buy now" for the hard cover edition of "Law as a Leap of Faith" by John Gardner. He is Professor of Jurisprudence at Oxford.

I haven't had much of a look at jurisprudence since I was a law student. I had found HLA Hart's celebrated "The Concept of Law" and "Punishment and Responsibility" among the most awfully written, tedious and incomprehensible books I had ever been told I should read. My still largely-unread copies, on my shelves as I write, were lent to me all those decades ago, and the lender hasn't asked for them back.

I wanted the hard copy of Gardner's book because I knew I would be scrawling all over it as I struggled to grasp its meaning. I call him "Gardner" in imitation of the academics' habit of referring to each other by surname only, as if they were schoolboys or Great People like Socrates or Beethoven. I would rather call him John, as he seems a pleasant sort of chap, if his lecture in Auckland on reasonableness, which can be heard here, is any indication. But then people would wonder why I didn't call Hart "Herbie", and Dworkin "Ronnie" (which is what Gardner has called him: p 274, n7).

As a practising lawyer I have been content with what Gardner says (p 273) most lawyers like: the Austinian view of laws as commands; that is the nature of laws and that is all we need to know about that. I say "laws" because lawyers are concerned with "the" law, whereas legal philosophers tend to be concerned with "law" as a genre (p 184).

So, what does Gardner say about his approach as a legal philosopher? In his Preface he describes it in this way:

"Philosophy is not the art of compiling as many little thoughts as possible into as few big thoughts as possible, but the art of wearing every thought down to its rightful little size and then keeping it in its rightful little place. So the main mission of this book, as I see it, is unbundling: separating out disparate thoughts that have often been regarded, mistakenly, as part of some package deal."

There are 11 chapters, mostly based on previously published work or lectures. The first few chapters are, I thought, quite hard going, and it is eventually comforting to have Gardner admit in Chapter 9 that he finds some of the writing by his fellow philosophers difficult to follow (eg p 236: "Hart's treatment of morality ... is a mess") or simply wrong (eg pp 184-185 referring to Dworkin's critique of Hart's criteria for a legal system). Indeed in this book nearly all of the references to Dworkin are to what Gardner considers to be his errors.

Some initial difficulties arise from the technical terminology, which is not explained in a glossary. You need to quickly get used to thinking about "norms". Norms are, so it seems to me now, standards or rules of behaviour. Not an enormous insight, I admit, as this is pretty much the dictionary definition. They are not necessarily legal in nature, and there are lots of other sorts of norms: moral norms (and there is a process whereby these can become legal norms too), etiquette, rules of sports, rules of associations, etc (see p 296). Another important term is "legality". Although he seems to equate this with the rule of law at p viii of the Preface, Gardner uses legality more widely to refer to the quality a norm has when it is a legal norm. So Chapter 7, "The Legality of Law" is an inquiry into what is needed for a norm to be a legal norm.

I thought on first reading that there was a dreadful logical mistake on p 140, but, thank goodness, a hundred pages later it became clear that this was not so, thanks to Gardner's style becoming more reader-friendly (which is odd because the passage on p 140 was written in 2012, and that on p 240 in 1999: is he getting less clear as he grows up?) Could be me getting more used to the material as I read through from beginning to end. The chapters can be read in various orders, and the Preface helpfully provides what amounts to a roadmap for the book.

Following Hart (and Gardner tends to follow and improve upon Hart), an inquiry into the nature of law begins, not by analysing laws, but by considering what is required for a system of norms to be a legal system (p 179). I won't spoil your fun by telling you all of them, but very important is the requirement that the actions of the norm-applying officials can sometimes result in the making of more legal norms (p 180). Important too, and not noticed by Hart, is the legal system's claim to be supreme among the institutionalised normative systems (p 278). Legal norms are products of their legal system and encompass laws and rulings; the laws are of general application and the rulings apply to the parties in a case. Consideration of a ruling or a line of rulings in later cases may eventually result in development of a new law (eg p 185, 186-188).

Most laws are consistent with moral norms, so it is usually morally right for judges to apply legal norms. But there can be immoral laws, and this raises the question ("puzzle" p 189) of how officials become morally required to apply legal norms. Gardner calls this the main puzzle about law, and he says Hart was mistaken in saying that there is a generalised moral value in following laws (p 189). No, but officials are required to follow laws because a characteristic of legality is the binding power of the oaths taken by the officials, their contractual obligations, and the semi-voluntary obligations of their professions. Thus a judge must, in arriving at a determination, put justice above other moral imperatives such as kindness and prudence (191-192).

Laws have an inner morality, in a sense that reflects the quality of the means by which they serve their ends; it is preferable to describe laws as modal (concerned with means) rather than as procedural or substantive (pp 202, 206-207). Variations in the inner morality of different laws mean that not all laws live up to the ideals of legality. Hart thought there are two concepts of law, the wider positive law (law that is law because it satisfies the formal means by which it was made, so is correctly posited) and the narrower genre of law that lives up to an appropriate moral ideal (pp 193-194). Gardner, however, prefers to say that this second concept is unnecessary, and that it should be sufficient to say that there are specialised moral norms that are "partly constitutive of law as a genre" (p 194). Examples are the norms that law should be prospective (rather than retrospective in application), open, general, and with qualities such as these they constitute a distinctive ideal of legality, known as the rule of law.

But it's not just the internal morality of rules that determines compliance with the rule of law, but it is also the internal morality of the arrangements for upholding their purported application (pp 209-210). Gardner refers to arrangements identified by Raz: a robustly independent judiciary, affordable and easy access to the courts, effective judicial review of executive action, effective appeals, dispassionate professionalism among police, prosecutors, and other enforcement officials, strong respect for procedural propriety, and the giving of reasons for decisions. Gardner points out that it is a violation of the rule of law for a judge to declare a rule but not to apply it, or for a judge to deny there is a rule and to say a case is decided "on its particular facts" (p 210).

I should add that you might compare these requirements of the rule of law to those advocated by Tom Bingham in "The Rule of Law" (2010); he included the norm that the law must afford adequate protection of fundamental human rights, acknowledging in his Chapter 7 that this was not a principle which would be universally accepted as embraced within the rule of law, and he referred to the version of the rule of law put forward by Raz as being "close to what some economists have called a 'thin' definition of the rule of law". Bingham noted that the Universal Declaration of Human Rights and later international instruments have linked the protection of human rights to the rule of law, as has the European Court of Human Rights (citing Engel v The Netherlands (No 1) (1976) 1 EHRR 647, 672, para 69, and Golder v United Kingdom (1975) 1 EHRR 524, 589, para 34).

I found Gardner's discussion of justice in Chapter 10 particularly helpful. He reminds us that justice is proportionality in allocation of goods and ills (p 242). Justice is not peculiar to legal systems and questions of justice arise whether or not there are rules (p 256). But in a legal system the law is only subject to justice at the point where the benefits and burdens come to be allocated. (I interpose: this does not mean only at the end of a case, as judges often have to make decisions during a trial – for example by permitting or preventing some forms of cross-examination – by applying the criterion of the interests of justice.) There are competing moral norms, such as humanity, that a legal system can give priority to, but a court ought to be just above all (pp 244, 259).

Well I don't want to spoil your enjoyment of "Law as a Leap of Faith" by going through it all and revealing its arguments. But in wondering how philosophers work you might ask how all these (what Gardner would call) little thoughts fit into their rightful little places. You may find yourself making a diagram, if like me you are the sort of person who is assisted by images (click on image for full diagram and key).

I keep not depriving you of enjoyment to save myself the task of setting it all out, and also to assist in the accumulation of Gardner's royalties. Dan Brown is safe in the popularity stakes, but "Law as a Leap of Faith" has an excitement of its own that repays any effort needed to adjust to the technical prose.

Rational sentencing

In Elias v The Queen [2013] HCA 31 (27 June 2013) a common law principle of sentencing was clarified: a sentence is determined in relation to the offence for which the offender was convicted, it being irrelevant that another offence with a different maximum penalty could have been charged on the same facts.

Therefore it is wrong for a judge to reduce, or to increase, a sentence because a different maximum penalty was provided for another offence that could have been charged.

If the judge were to be distracted by referring to sentences for other offences, the consistency of sentencing for the actual offence for which the offender was convicted could be endangered. The Court referred [28]-[30] to its decision on consistency in Hili v The Queen (discussed here on 10 December 2010).

The prosecutor's choice of charge is not a fetter on the sentencing court's discretion, because a wide range of considerations, including the maximum penalty for the offence charged, go in to determining the final sentence. The maximum penalty is merely a yardstick provided by the legislature, and consideration of it may not necessarily play a decisive role in the final determination. Justice is individualised at sentencing and judges have a wide discretion, unconstrained by the maximum penalty [26].

The judge must not interfere with the choice of charge, and any abuse of the prosecutor's discretion alleged by the defendant can be the subject of a pre-plea application [35]. The separation of the functions of judge and prosecutor makes it just as inappropriate to sentence on the basis that the judge thinks a less serious charge should have been laid, as that it should have been a more serious charge [34].

This is all said in the context of the relevant sentencing legislation, the Sentencing Act 1991 [Vic]. Things may be different in your jurisdiction, which may give rise to questions about how rational a different regime may be if it permits the taking into account of the maximum penalties prescribed for other types of offences. The Sentencing Act 2002 [NZ], s 8(b) does exactly that. Does it thereby introduce risks of inconsistencies, does it abolish fetters, and does it blur the distinction between judge and prosecutor?