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Petitioner: DHOOHARIKA VS Respondent: DIRECTOR OF PUBLIC PROSECUTIONS
Court Name: The Privy Council of England Judge(s): Lord Hodge, Lord Wilson, Lord Kerr, Lord Clarke, Lord Hale Title: DHOOHARIKA vs DIRECTOR OF PUBLIC PROSECUTIONS Case No.: Council Appeal No,0058 of 2012 Date of Judgment:2014-04-16 Reported As: 2014 SCMR 1423 Result: Appeal allowed
JUDGMENT
JUDGMENT ' LORD CLARKE Introduction 1. This appeal centres on the existence and scope of a criminal offence known as scandalising the court or, in Scotland, murmuring judges. It originated as a common law offence in England and Wales but the last successful prosecution was R v Colsey, The Times, May 9, 1931. It was abolished, as from 25 June 2013, by section 33 of the Crime and Courts Act 2013, which provides: "33(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales. (2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court". 2. The offence has, however, been acknowledged in recent years as still existing in a number of Commonwealth countries and, indeed, in Mauritius. The first question for decision in this appeal, as formulated in the Statement of Facts and Issues, is whether the offence still exists in Mauritius in the light of section 12 of the Constitution of Mauritius. If it does, the second question is what are the ingredients of the offence, the third question is whether the court refused to allow the appellant to give evidence and, if so, whether his trial was unfair as a result and the fourth question, which relates to the third, is whether the appellant was properly convicted of the offence. Finally, the fifth question is whether the appellant should have been sentenced to an immediate term of imprisonment having regard to all the circumstances of the case, including, in particular, the failure to invite the appellant to make submissions in mitigation. ' The facts
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3. The appellant is, or was in 2011, a journalist and the editor-inchief of a French language weekly newspaper published in Mauritius called Samedi Plus. On 17 October 2011, the appellant and Contact Press Ltd, which is the owner and publisher of Samedi Plus, were convicted by the Supreme Court (Matadeen SPJ and Caunhye J) of contempt by way of "scandalising the court" and sentenced to three months' imprisonment and a fine of R300,000 respectively. Only the appellant sought leave to appeal to the Board. On 10 May 2012 the Supreme Court (Matadeen SPJ and Angoh J) refused special leave to appeal to the Board but the Board subsequently granted leave, whereafter the Supreme Court stayed execution of the sentence pending the decision of the Board. 4. The prosecution arose out of the publication of Samedi Plus on Saturday 14 August 2010 in which several pages were given over to allegations against the Chief Justice of Mauritius at that time, Bernard Sik Yuen. It was said that they amounted to the crime of scandalising the court, which is a form of contempt of court. 5. The publications complained of arose out of hearings before the Chief Justice in the case of Paradise Rentals Co Ltd v Barclays Leasing Co Ltd ("the Paradise Rentals action"), in which Paradise Rentals, a car hire company, was being sued by Barclays Leasing, which claimed the return of many vehicles it had leased to Paradise Rentals. Hamuth J had ordered that the cars be seized. Hearings took place in chambers before the Chief Justice, on 5, 19, 26 and 30 July 2010. At the first hearing, on 5 July, the Chief Justice refused leave for Mr Dev Hurnam, who was a disbarred barrister and a director of Paradise Rentals, to represent the company. On 27 July, Mr Hurnam wrote a letter to the President of Mauritius complaining about the Chief Justice's actions and requesting him to set up a tribunal to investigate the Chief Justice's conduct. Mr Hurnam sent copies of the letter to the Mauritian media and held a press conference criticising the Chief Justice. On 11 August the President replied saying that he found no merit in Mr Hurnam's complaints. He thus refused to set up a tribunal. On 13 August Mr Hurnam lodged a motion seeking to have the Chief Justice committed for contempt. He spoke to several organs of the media, alleging, inter alia, that the Chief Justice had acted wrongfully and beyond his powers by hearing the case in chambers and that he was biased. Mr Hurnam gave a long and live national radio interview on Radio One making these allegations. No action was taken against the radio broadcaster in respect of the interview. 6. The Board notes that Mr Hurnam is well known both to the courts and to the public in Mauritius. He had been struck off the roll of barristers in 2008 when the Board restored his conviction for conspiring to hinder a police investigation: DPP v Hurnam [2007] UKPC 24. He is a former member of the National Assembly. 7. The appellant also interviewed Mr Hurnam and on 14 August 2010 Samedi Plus published an extensive account of that interview under the title "Barclays Leasing Scandal". On the front page it published a photograph of the Chief Justice beside a headline which declared "Dev Hurnam reclame la prison pour le chef juge". Underneath it was said "Il reclame un ordre judiciaire `Committing Bernard Sik Yuen to jail' pour outrage a la cour" and -Yuen doit se retirer comme chef juge', soutient Dev Hurnam." 8. On pages 4-5 of the newspaper, under the same headline, there was an article written by the appellant reporting that Mr Hurnam had lodged a motion in the Supreme Court for the committal of the Chief Justice for contempt of court. That article purported to set out some of the history of the proceedings in the Paradise Rentals action. It detailed Mr Hurnam's allegation that the Chief Justice had made remarks in chambers that were intended to prejudge the issues in the action. It reported the allegation thus. "Il accuse Bernard Sik Yuen d'avoiri nfluence la conduite d'un litigant". The article added that Mr Hurnam was also asking the Supreme Court to set aside a ruling of the Chief Justice refusing him leave, as its director and authorised representative, to appear to represent Paradise Rentals in the action. The article further asserted that Mr Hurnam was seeking a
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declaration that the Chief Justice had influenced "other jurisdictions" of the Supreme Court, which were to hear two related appeals. 9. The grounds on which Mr Hurnam said that he considered the Chief Justice to be in contempt of court were further set out in two more articles in the same edition. The first was a piece appearing on page 5 under the headline: "Le Chef Juge aurait agi en `excess' de sa jurisdiction'. It was reported that at the hearing on 26 July 2010 counsel for Barclays Leasing had complained that, as of that date, 46 cars had not been returned to Barclays Leasing pursuant to an existing order of the court and that since 5 July no vehicle had been returned. He had sought clarification from the attorney, Mr Moutia, who was by then appearing on behalf of Paradise Rentals. Mr Moutia had responded that he did not have any instructions in the matter. The Chief Justice enquired of Mr Moutia who was instructing him, to which the latter responded that, apart from Mr Hurnam, he was not aware who was instructing him. There was then reported an exchange between Mr Moutia and the Chief Justice in which the latter had directed that, at the next hearing, there should be produced a duly certified statement from the Registrar of Companies identifying all of the directors of Paradise Rentals and that the directors should appear before him. The Chief Justice was reported as observing: "let it be made clear that. I am not granting any injunction prayed for by the applicant which would hamper any judicial process pending before any jurisdiction for the moment. So all other jurisdictions have got free hands. That is clear." ' Mr Hurnam took objection to those remarks. 10. In an interview with the appellant summarised on page 18 of the same edition of Samedi Plus, Mr Hurnam was reported as having made the following comments in response to various questions he was asked: (i) that the Chief Justice had committed "multiple abuses and non-respect for constitutional rights"; (ii) that there was a case for contempt based on the manner in which the Chief Justice handled the Paradise Rentals case and on the statements he made in court quoted above; (iii) that by making the statements, he had committed a contempt of court because, in Mr Hurnam's opinion, he "influenced subsequent decisions which would be taken by the competent courts"; (iv) that the Chief Justice had demonstrated partiality to Barclays Leasing and that in consequence Mr Hurnam was asking the President to constitute a tribunal to investigate the Chief Justice's "misbehaviour" and, in the meantime, had requested the removal of the Chief Justice; (v) that the investigation should examine the "abuse of authority by the Chief Justice while he was conducting chambers business", that he had "demonstrated his complete partiality in the record (of that hearing)", that he had "sent a bad signal to other jurisdictions where other cases are pending and that, even though the Chief Justice had no jurisdiction, he put himself in the position of the Supreme Court"; (vi) that "the Chief Justice had held on to the case instead of taking the normal course of transferring it to the Master and Registrar and, in doing so, he demonstrated his interest. ..."; (vii) that the Chief Justice had violated section 12 of the Courts Act, section 10 of the Constitution, the provisions of the Supreme Court Rules and the IGCA among other things; and (viii) that he had demonstrated bias ("il a pris parti") by "acting as the legal advisor to Barclays Leasing", that he "gave the impression that he was in possession of a brief for Barclays Leasing and that he attacked the integrity of the judicial process by acting in complete violation of the Guidelines for Judicial Conduct." 11. The appellant's conclusions were summed up in an editorial at page 3 of the newspaper entitled "On Equal Justice" in this way. "The Chief Justice possesses, as we all do, many qualities and defects." Then, after making some observations on the importance of justice and the need for a judge to maintain complete control over himself "so as not to succumb to the temptations of money or other material benefits", he wrote that "within the four corners of chambers or the court, judges and magistrates deliver justice according to their conscience. And those who allow
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themselves to be governed by their ego cannot be fair." He added that it was incumbent on Samedi Plus to "hold our judges to account", that the judges should "make public their assets and how they acquired them" and that "when the question involves deciding between the interests of one company to the disadvantage of another, the test of integrity applies. Only the judge, in his soul and conscience, knows if he has been fair." 12. The appellant then summarised Mr Hurnam's allegations and his formal request to the President for an investigative tribunal. He continued: "We are not equipped to judge a Chief Justice. It is therefore incumbent upon the Chief Justice to defend the independence of his charge and the authority of the court. ' As far as we know, judges are not intended to exercise any activity which could be incompatible with their judicial duties and cause their independence to be doubted. Persons seeking justice correctly check to see that our judges are impartial and that this impartiality is reflected in the conduct of their duties whether this involves chambers business or court activity. Judges avoid all conflicts of interest, as well as situations which might reasonably lead one to find the existence of a conflict of interest." 13. The appellant concluded with what the respondent says was a call for the Chief Justice to submit to a tribunal of inquiry: "But how can one dissipate the doubts of those who believe that a judge was influenced or that he assumed jurisdiction that was not his own. ' In alleged cases of misconduct, it is, of course, incumbent on the accused judge to defend his integrity by agreeing to appear before a competent court named by the President of the Republic. ' Judges exercise their freedom of expression and association in a manner compatible with their charge and which must neither affect nor give the impression of having affected judicial independence or impartiality." 14. The DPP also placed some reliance at the hearing of the subsequent proceedings upon articles written by the appellant and published in Samedi Plus on 21 August 2010 and 4 September 2010. However they were not relied upon in the formal written case against the appellant and, in these circumstances, the Board does not think that they should be regarded as relevant, save perhaps as to sentence. In any event they contained similar material to that published in the edition complained of and add little or nothing to the case against the appellant. 15. On 18 August 2010 the DPP brought these contempt of court proceedings against the appellant and the newspaper's owner and publisher, alleging that the material published in the 14 August edition scandalised the Supreme Court and brought the administration of justice into disrepute. The Board notes in passing that the DPP has also brought contempt proceedings against Mr Hurnam, which have been long drawn out and, indeed, are still on foot. They are not relevant to this appeal. The procedure before the Supreme Court 16. Each party relied upon affidavit evidence before the Supreme Court. An affidavit in strong terms was made on behalf of the DPP on 18 August 2010. The DPP's approach was justified in this submission which (according to the DPP's case before the Board) was made to the Supreme Court: "These kinds of articles, these kinds of aspersions, casting doubts, bring the judiciary into disrepute. The public lose confidence in the administration of justice and that is why the applicant decided, the DPP decided, to act immediately. That is why in view of the nature of the offence of contempt, we don't go by way of information because it takes too much time. We lodge a case immediately by way of motion and affidavit, again not to protect the Honourable Chief Justice, but to protect the administration of justice which is for the good of the people." ' No oral evidence was called on behalf of the DPP. 17. On 17 September 2010 the appellant made an affidavit in response. The thrust of his case was that the editorial, articles and interview were written and published in good faith and in the public
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interest He did not intend to cast any doubt or innuendo adverse to the Chief Justice. In short, his evidence was that he was simply reporting the views of Mr Hurnam and that he was justified in the public interest in doing so. As the Board reads his evidence, his case was that he was not endorsing (or intending to endorse) the views of Mr Hurnam as if they were his own. In so far as he reported that a letter had been sent to the President by Mr Hurnam inviting him to set up a Tribunal, the appellant accepted that that was true but denied the allegation that he had brought the judiciary into disrepute or that any reasonable person could have thought that he did. In short he denied that he intended to or had scandalised the court. In circumstances discussed below, the appellant did not give evidence before the Supreme Court. ' Conclusions of the Supreme Court 18. The Supreme Court gave judgment on 17 October 2011. It made the following findings which are relied upon by the DPP in this appeal. The appellant did not dispute that he had published the various articles but contended that he had published them in good faith in the, public interest. The various articles were however highly defamatory of the Chief Justice. Any reasonable reader would have concluded from the front page that the Chief Justice must have been guilty of serious wrongdoing. The editorial at page 3 had expressed the personal views of the appellant and the only inference to be drawn from it by a reasonable reader was that the Chief Justice was not administering justice impartially and that he should explain his decisions in the Paradise' Rentals case before a tribunal. There was nothing to justify the heading on page 14 that "the Chief Justice has acted in excess of his jurisdiction". The questions in the interview with Mr Hurnam had been couched in such a way as to give him an opportunity to say whatever he wanted against the Chief Justice. The references to Mr Hurnam, a convicted and disbarred barrister, as "Maitre" and to the. Chief Justice as simply "Bernard Sik Yuen", were a significant indication of the appellant's attitude. The various articles and their presentation, taken as a whole, were intended to convey the message that the allegations of Mr Hurnam were justified and that the Chief Justice should resign and appear before a Tribunal of Inquiry. The appellant had failed to follow up and verify whether the President had accepted or rejected Mr Hurnam's request for a Tribunal to investigate the Chief Justice's conduct, whereas in fact three days before the first publication, on 11 August 2010, the President had sent a letter to Mr Hurnam stating that he had considered his representations but found "no merits in them". There had been no mention of the President's reply in any of the articles published by the appellant, even those published on 4 September 2010. Although contempt proceedings had by then been issued, the publication on 4 September had continued to cast doubt on the integrity of the Chief Justice and such allegations could only bring the administration of justice into disrepute. The allegations in the articles were baseless and malicious and calculated to undermine the authority of, and public confidence in, the judiciary and particularly the Chief Justice. ' The case for the DPP 19. The written case lodged on behalf of the DPP supports the findings of the Supreme Court and concludes by submitting that the administration of justice was more vulnerable in Mauritius than "in large and well established jurisdictions such as the United Kingdom". It adds that from the language, presentation and contents of the articles, as well as the appellant's approach to the proceedings, they had not been published in good faith or purely because the subject was newsworthy and in the public interest, as contended by him. The contempt, the full extent of which could only be appreciated by examining the newspaper as a whole, including its visual impact, was grave and the appellant had shown no recognition of wrongdoing. Finally, the case concludes that a sentence of 3 months' imprisonment was appropriate. ' The appellant's case
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20. The appellant's case before the Board is that the offence should be declared no longer to exist in Mauritius, that, if it does exist the prosecution must prove that the defendant intended to cause damage to the administration of justice (or perhaps was reckless as to whether such damage would occur), that, whatever the test, the appellant did not receive a fair trial and that the appellant should not have been convicted. The Board turns to the five questions identified in para 2 above. (1) Scandalising the court - does the offence still exist in Mauritius? 21. The criminal offence known as scandalising the court is a common law offence which is (or was) part of the law of contempt. It is generally regarded as having been invented by Wilmot J in the 18th Century in R v Almon in a draft judgment which was never delivered because the prosecution was dropped. It was subsequently published "because it was thought to contain so much legal knowledge on an important legal subject, as to be worthy of being preserved": (1765) Wilm 243. The history of the offence is discussed in detail by Douglas Hay in Contempt by Scandalising the Court: a Political History of the first Hundred Years (1987) 25 Osgoode Hall Law Journal 431. It is also discussed in Arlidge, Eady and Smith on Contempt, 4th edition 2007, at paras 5-220 to 5-240. See also the 1st supplement, as at October 2013. 22. It was submitted on behalf of the appellant in this appeal that the offence should no longer be treated as existing in Mauritius. The arguments for and against the offence were considered in the Law Commission Consultation Paper in England and Wales No 207 in 2012. In the event, as stated above, the common law offence was abolished in England and Wales in 2013. 23. By the end of the nineteenth century, in McLeod v St Aubyn [1899] AC 549 the Privy Council regarded the offence as obsolete in England. In giving the advice of the Board, Lord Morris said at p 561: "Committals for contempt of court by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court." ' The reference to "coloured populations" would be wholly inappropriate today. 24. Contrary to the view of the Board in 1899, the offence proved alive and well the very next year. The classic definition of scandalising the court was stated by Lord Russell of Killowen CJ in the famous case of R v Gray [1900] 2 QB 36, where a journalist was found to be in contempt by scandalising the court for describing Darling J as "an impudent little man in horsehair, a microcosm of conceit and empty-headedness" and, adding that "no newspaper can exist except upon its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt". Lord Russell described the offence thus at p 40: "Any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court. The former class belongs to the category which Lord Hardwicke LC characterised as `scandalising a court or a judge'. That description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court." 25. In Ambard v Attorney General for Trinidad and Tobago [1936] AC 322, Lord Atkin, giving the advice of the Board in another well-known judgment, after quoting the passage from McLeod v St
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Aubyn cited above, stressed the limitations of the offence at p 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 {{FOOT NOTE}} In re Read and Huggonson (1742) 1 Atk 291,469. {{FOOT NOTE}} 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." 26. Nearly 80 years have passed since that decision. As Lord Pannick (who was a proponent of the abolition of the crime in England and Wales) pointed out in a recent article published in January this year2, other distinguished judges have said much the same: see eg R v Commissioner of Police for the Metropolis ex p Blackburn (No 2) [1968] 2 QB 150 per Lord Denning MR at p 155, Salmon LJ at p 156 and Edmund Davies LI at pp 156-7; and Secretary of State for Defence v Guardian Newspapers [1985] 1 AC 339, per Lord Diplock at p 347A, where he said that the offence was "virtually obsolescent in England". 27. Lord Pannick also noted that, in the light of the exceptions to free speech recognised in Ambard and Blackburn, prosecutions for…
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