‘Scandalising judges’ laws to be reviewed in England & Wales, what now for crooked, corrupt members of Scotland’s judiciary ?

Laws protecting crooked judges from criticism of their conduct while in office are to be reviewed. THE CRIMINAL OFFENCE of “Scandalising a judge or the judiciary”, a law invoked to protect members of the judiciary from media reporting of corruption or public criticism of their dubious conduct in cases, are to be reviewed by the Law Commission of England & Wales, who are holding a consultation on the issue which can be downloaded here : Scandalising the Court consultation paper (pdf)

The similar offence of "murmuring judges" in Scotland, or scandalising judges or scandalising the judiciary, is a form of contempt of court but has rarely been used over the years. However, those reporting on the dodgy conduct of Scotland’s judiciary have been known to occasionally be ‘reminded’ by elements of the legal establishment to “watch out” in case they fall foul of the law although as a search for stories on corrupt judges in Scotland returns, there is a healthy level of criticism of Scotland’s judiciary.

Diary of Injustice recently investigated Scotland’s judiciary, reporting on some alarming findings, here : CAREER CROOKED : Investigation reveals Scottish judges are CONVICTED CRIMINALS, Drunk Drivers,Tax Dodgers & alleged BENEFITS CHEATS & here : ALL THE LORD PRESIDENT’S MEN : Benefits cheats, drunk drivers & tax dodgers, yet identities of convicted Scottish judges to remain secret for now

During the course of the investigation, evidence emerged of improper relationships between Scottish judges & law firms, which have not been declared to litigants involved in cases where on several occasions, Sheriffs & even Senators of the Court of Session have ruled in favour of parties they have financial interests with which amazingly need not be declared under current judicial rules allowing highly paid Scots judges to keep their financial interests & private work a secret. However, to correct this, moves are also being made to file a petition at the Scottish Parliament calling for a Register of Judges interests, more of which will be reported soon by Diary of Injustice.

The offence itself, of scandalising a judge, or judges can be committed by doing or publishing anything that ridicules the judiciary to such an extent that it is likely to bring the administration of justice into disrepute, with scandalising the court defined in a one hundred & twelve year old case by Lord Russell of Killowen CJ in the case of R v Gray [1900] 2 QB 36, 40, 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".

The Guardian newspaper reports on the story, citing a recent use of the law against former Northern Ireland Minister Peter Hain MP, here : Scandalising a judge may no longer be an offence

The Law Commission’s consultation is available here : Scandalising the Court. Readers are reminded the consultation closes on 05 October 2012. Readers should participate, and are encouraged to call for a similar review of laws in Scotland.

Status: Our work on scandalising the court forms part of our wide project on Contempt. Work on this aspect of contempt has been brought forward to tie in with the Government's consideration of the possible abolition of the offence under the Crime and Courts Bill.

A well-publicised case in spring 2012 highlighted the historic common law offence of scandalising the court. This offence covers conduct likely to undermine the administration of justice or public confidence in the administration of justice, where the conduct does not impinge on particular proceedings. Scandalising the court has been defined 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" (R v Gray [1900] 2 QB 36, 40, by Lord Russell of Killowen CJ). There has not been a successful prosecution for scandalising the court in England and Wales since 1931, although it has been used more recently in other common law jurisdictions.

The controversy surrounding this offence is in relation to:

the lack of clarity about both the conduct element and the mental element
the lack of clarity about the defences available
the justification for retaining such an offence in a well-established democracy, and
the compatibility of the offence with freedom of speech and the European Convention on Human Rights.

The consultation considers whether the current offence of scandalising the court should be abolished or, in the alternative, whether it should be retained but modified and, if so, how.

The consultation relates to our project on Contempt

Reference number: LCCP 207 Scandalising the Court consultation paper (pdf)