Judge Jock Special Report: A Tale of Juicy Judicial Scandal

Judge Jock is well aware there is nothing new under the sun – especially when it comes to scandal.

So it is no surprise the law commission has scandal on its mind as it embarks on a review of that hoary old chestnut contempt of court - which bears a stunning resemblance to one which has been going on in the United Kingdom for ages.

One of the problems with contempt of court is that no-one really knows what it means – including most judges and probably all lawyers.

Over the years it has been sparingly applied – albeit with much wig-bristling judicial sabre-rattling - on a “suck it and see” basis, with the odd exception.

Contempt sniffers unleashed
In a public announcement this week the law commission singled out the case of defiant judicial thorn Vince Siemer, who was briefly jailed during a long-running contempt conflict with the Solicitor-General.

The Siemer case was highlighted by the commission as an example of what it said  the Court of Appeal meant when it said in 2009: “consideration should be given to legislative reform in this area of law as happened in the United Kingdom.”

Senior judges have commented in recent times on the difficulties of reconciling some aspects of the law of contempt with the Bill of Rights Act.

Mr Siemer maintains a website which, among other things, is highly critical of judges, their appointment process and accountability.

It is widely acknowledged that largely judge-made contempt law – aimed at protecting the integrity of the justice system and right of accused to a fair trial - is vague, uses out-dated language and concepts, is inaccessible to the public and at odds with the internet age.

Some bloggers and tweeters hide behind anonymity and, for example, blatantly ignore court suppression orders with little chance of being identified or punished.

Targets for probing
Now the law commission is going to great lengths to review and make recommendations on contempt law, including an examination of such things as:

•Contempt by publication, including the dissemination of information by members of the public via social media;
•Juror contempt – such as jurors undertaking Google research or disclosing jury deliberations;
•Contempt known as “scandalising the court;”
•Civil contempt and enforcement of court orders and
•Other contempts relating to interference with the administration of justice.

Brits already on to it
The UK law commission’s project on contempt already focuses more succinctly on similar concerns:

•Scandalising the court;
•Contempt by publication;
•The impact of the new media;
•Contempts committed by jurors, and
•Contempt in the face of the court.

The most tantalisingly juicy contempt is the one known as “scandalising the court.”

In its poke around centuries of contempt law, the UK commission says scandalising the court was  defined as early as 1900 as “any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority.”

Read more at your peril
The UK commission was, of course, referring to the now hilariously famous 1900 case of Little Tich, characterised as a “scurrilous abuse”of a judge by then Lord Chief Justice of England and Wales, Dublin-educated Lord Russell of Killowen.

The case was R v Gray, in which the editor of the Birmingham Daily Argus newspaper was deemed to have engaged in abuse of Justice Charles Darling, the 1st Baron Darling (caricatured by Leslie “Spy” Ward in Vanity Fair in 1897 as “Little Darling.”)

Justice Darling was a character in his own right – known for what Wikipedia describes as his erudition and at times inappropriate wit, both on and off the bench.

His Honour was always impeccably dressed, wearing a silk top hat as he rode to court on a horse, accompanied by a liveried groom.

While trying a case of obscene libel, Justice Darling warned the press against reporting the indecent evidence.

The editor of the Birmingham paper took issue with Justice Darling’s warning and castigated him in a scathing editorial.

Among other things the editorial concluded that Justice Darling would do well to master the duties of his own profession before undertaking regulation of another.

To punish the editor, the courts revived an ancient form of contempt of court which the Privy Council had declared the previous year to be "obsolete in this country: scandalising the court".

According to an article discussing the case, and published in the Gazette of the Law Society of Ireland in 2000, the Birmingham editor duly apologised and was fined £100, with £25 costs, by the Queen’s Bench Divisional Court.

You have been warned
Apparently the words were such that the official law reports discreetly suppressed the language used in the newspaper, as did other reports, but some other journals reported the words in full.

Here they are (courtesy of the Gazette of the Law Society of Ireland):

“If anyone can imagine Little Tich upholding his dignity upon a point of honour in a public-house, he has a very fair conception of what Mr. Justice Darling looked like in warning the Press against the printing of indecent evidence.

His diminutive Lordship positively glowed with judicial self-consciousness …

No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr. Justice Darling, is exempt.

There is not a journalist in Birmingham who has anything to learn from the impudent little man in horse-hair, a microcosm of conceit and empty-headedness.

One is almost sorry that the Lord Chancellor had not another relative to provide for on the day that he selected a new judge from among the larrikins of the law.

One of Mr. Justice Darling’s biographers states that “an eccentric relative left him much money”. That misguided testator spoiled a successful bus conductor…”

It’s not new but isn’t that a classic???

What happened to others
Compared with other English contempt cases, Editor Gray got off pretty lightly in the enlightened days 113 years ago.

In 1631 a felon had his right hand cut off – the customary penalty for contempt at the time – and immediately hanged.

A chap was jailed for five months in 1877 for expressing his displeasure with the court by hurling an egg at the judge.

And when Thomas Harrison ran into court in 1638 accusing a judge of high treason, he was fined £5000 – a huge sum then - followed up by a libel suit from the judge.

But it has not always gone against the allegedly contemptuous.

In 1975 leading English jurist Lord Denning was dealing with someone who suggested to a Crown Court judge he was “a humourless automaton. Why don’t you self-destruct?”

Lord Denning, said to have had an unsual tolerance for contempt, reflected that no punishment ought to be inflicted because “insults are best treated with disdain  - save where they are gross and scandalous.”

Five years earlier Lord Denning dodged two law books thrown at him by a litigant upset by his ruling but declined to punish the woman for contempt.

And so it goes on…

What's all the fuss about?

All of which puts Mr Siemer’s disregard of a court order into sharp context and gives the law commission something salacious to play with.

janderson@nbr.co.nz