Tuesday, July 18, 2017

Scandalising the court

If someone says "we have a pliant court system" and it is his honest opinion and he says it without malice, should he be charged for "scandalising the court"?

Suppose many people hold this opinion, but they are not willing to say it for fear of being charged, does this reflect a sad state of affair for our country?

My personal view is that most of our judges do act independently and fairly. However, they are some occasions where I am very disappointed with the judgment. Am I scandalising the court in expressing this honest opinion?

What is fair criticism that is a defence against scandalizing the court?

I found this passage in the case where author Alan Shadrake was charged under this offence and found guilty.

For example, in Ambard (which is often cited as one of the seminal cases with regard to fair criticism), the key passage in Lord Atkin’s judgment (delivered on behalf of the Privy Council) is as follows (at 335):

But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

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