Procedural fairness and contempt proceedings

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.

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