Procedural
fairness in contempt proceedings is the topic of general interest in Dhooharika v The Director of Public
Prosecutions (Mauritius) [2014] UKPC 11 (16
April 2014). Of subsidiary interest is the analysis of the common law offence
of scandalising the court.
The
appellant, a newspaper editor, had published comments that were subsequently
held by the Supreme Court of Mauritius to have undermined public confidence in
the independence of the judiciary and the administration of justice.
This offence
of contempt requires that, as an actus
reus, the act or writing published must carry a real risk that public
confidence in the administration of justice will be undermined, and the mens rea is intentionally, or
subjectively recklessly, undermining public confidence in the administration of
justice [42], [48] – [49].
As to
fairness [50]:
“
... The Board understands that it may be necessary for the DPP in an
appropriate case to take summary action and that a classic form of trial may
not always be necessary, but the Board is of the clear view that the alleged
contemnor is always entitled to a fair trial and that, depending upon the
circumstances, he will almost certainly be entitled to call oral evidence on
his behalf, including his own evidence. In the instant case the Board has
formed the view that the appellant was, as a matter of practical fact, deprived
of his right to give evidence on his own behalf.”
Since the
trial was unfair the conviction could not stand [54], but independently of the
fairness difficulty, the published comments were not proved to have been made
in bad faith [57] (meaning that mens rea was not proved).
The conviction
was quashed, but the Judicial Committee observed that the procedure at
sentencing had been unfair [60]:
“[The
Board] ... would have allowed the appeal against sentence on the simple ground
that the appellant should have been afforded an opportunity to make submissions
in mitigation before a conclusion as to the correct sentence was reached. The
transcript shows that the court proceeded to sentence immediately after
delivering its judgment on the merits. There were a number of points which
could have been advanced on his behalf in support of the conclusion that a
custodial sentence was not necessary. The experience of this case shows that
the prosecuting authorities should be careful to remind the trial court of the
need to hear and consider submissions that go to possible mitigation of the
sentence before sentence is pronounced.”
The Board
surveys the history of contempt by scandalising the court [21] – [26], and
considers its continuing existence, particularly in Mauritius but also elsewhere
in the Commonwealth [29] – [41] (especially at [38] and Annex 1 to the judgment).
And (this is
me now, not the UKPC) aspects of the law of contempt remain uncertain. Perhaps
because flexibility in procedure may be essential if contempt has to be dealt
with urgently, statutory procedures leave some areas untouched. Are there
occasions when a charging document should be filed and the usual criminal procedures
utilised, even though dealing with the alleged contempt may fall only within
the court’s inherent power (see O’Brien v
R [2014] UKSC 23 (2 April 2014), noted here
on 4 April 2014)? How can a charging document be filed if there is no enactment
against which the contempt is alleged? If there is no charging document, how
should the court record its orders? If civil procedures are adopted to initiate
proceedings, to what extend do they colour subsequent steps?
Some points
can be stated with confidence because they have been established by case law. As
Finn, Mathias and Mansfield say in Criminal
Procedure in New Zealand (Thomson Reuters, Westlaw NZ online) at [1.3.3]:
“Both
common law and enacted contempt require the criminal standard of proof [footnote: Newman (t/a Mantella Publishing) v Modern Bookbinders Ltd [2000] 1
WLR 2559, [2000] 2 All ER 814 (CA)] and the alleged
contemnor has the rights of a person charged. [footnote: Siemer v Solicitor-General [2010] NZSC
54, [2010] 3 NZLR 767 at [53]–[56] per Blanchard, Wilson and Anderson JJ] Neither form of
contempt carries a right to elect jury trial and all offences of contempt are subject
to maximum penalties which are less than the level at which jury trial could be
elected. [footnote: Siemer v
Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [60], [62]–[65] and
[67] per Blanchard, Wilson and Anderson JJ, decided under the former law which
gave the right to elect jury trial whenever (with a few exceptions, such as
those which were mentioned in the Summary Offences Act 1981, s 43, with due
respect to Tutu v R [2012] NZCA 294
at [19]) the maximum penalty was imprisonment for more than three months. Now
all contempts are category 2 offences.] The judge must identify the act or acts
giving rise to the alleged contempt with sufficient particularity to ensure the
defendant understands what is alleged, and must give the defendant the
opportunity to take legal advice.”
Whether there
is still a need for the common law offence of scandalising the court may be
debatable, as is illustrated by the points made by Lord Pannick and referred to
in Dhooharika at [28].
Our Law
Commission is currently
reviewing the law of contempt. And there is a particularly interesting paper by
Professor ATH Smith, Reforming the New
Zealand Law of Contempt of Court – An Issues/Discussion Paper available at Crown Law.
