Contempt of Court

By BRIAN INGLIS Nunsatisfactory feature of the Bank rate leak' inquiry has been the vague threat in the background of contempt of court proceed- ings. Awed by it, financial correspondents fell over themselves disclosing the names of their contacts in the City; and the problem of to what extent comment on the proceedings was per- missible gave rise tb much scratching of heads in newspaper offices and television studios. The end-result was thoroughly unsatisfactory. It meant a break in the established and, on balance, valuable tradition that newspapermen do not `sneak' on their contacts; and it enabled Labour politicians to connect the Chancellor's resignation with the tribunal while refusing to justify the allegation because it might put them in contempt. In short, the whole business served as a reminder of how unsatisfactory the law of contempt is.

I am not here concerned with that aspect of the law which deals with enforcement in cases where, say, a divorced husband is gaoled for re- fusing to hand over his child to his wife on a court order; nor with those cases, now surpris- ingly rare, in which judges exercise their right to deal summarily with disturbances in courts only with those cases in which the Courts use their powers to punish a newspaper editor or writer, or a distributor, for any report or com- ment which they think has prejudiced a de- fendant's prospects of a fair trial, or has sub- tracted from the majesty of the law.

It is not the power to punish for contempt which is the unsatisfactory feature, but the fact' that it can be exercised in ways which are capricious and arbitrary. Capricious to some ex- tent it is bound to be, no matter how it is exer- cised, because contempt, like libel, is not a matter of fact; a phrase deemed libellous by public opinion in one decade may be harmless, or even complimentary, in the next. But public opinion is not the same as bench opinion; and judges were so apt to put their own, often re- actionary, construction on phrases that the power to decide what constituted a libel had to be taken away from them, in 1791; and the de- cision is now in the hands of a sample of public opinion —a jury—who may also be capricious, but who are on balance less so than judges.

The position in contempt cases, it has been argued, is not quite the same, because contempt is not simply a matter of public opinion; the Courts must be able to regulate their own affairs. This is much the same argument as the Houses of Parliament use to defend their privilege pro- cedure; but is it sound? The object of the Courts is to provide justice; and one of the first prin- ciples of justice in this country .has long been th'at no man shall be judge in his own case. But that is what the Commons are, in privilege cases; and what judges may be, in cases of contempt— for though the action may be initiated on behalf of the defendant, there is a natural tendency for judges to identify themselves with what they con- sidered to be the Courts' privileges : of preventing comment on cases which are sub judice. Further- more, there is no appeal from a contempt de- cision. The court, as Lord Fitzgerald complained nearly a century ago, 'is at once judge of the law, of the facts, of the intention, and of the sentence, and the decision is without any power of review.' Even if there had been no recent decision to worry about, this would be an unsatisfactory situation; but in fact there have been quite a number where, had appeal been possible, it might have succeeded.

One such was the Odhams case in 1956 when the People called for the prbsecution of a man who was in fact being prosecuted. It was not contended that the People knew this (it was per- fectly clear they didn't) and the defence cited a couple of precedents from 1889 and 1906 where the judge had decided that knowledge is an essen- tial ingredient of contempt. The High Court dis- missed these precedents, basing its decision on two cases in 1806 and 1742, when judges had de- cided that knowledge was not an essential in- gredient of contempt.

Now it is my opinion—based, admittedly, on a study of the press rather than on a study of the law—that legal precedents in all press cases before the 1820s, at the earliest, should be gingerly handled. To begin with, the press was not, before that time, considered in any sense a fourth estate; as far as most judges were con- cerned most newspapers were on a level that would today be represented by a merger of Confidential with the Daily Worker. And no matter what the theory of the division of powers was at the time, judges often took their orders from the Government; the Chief Justice might be a member of the government; and correspon- dence shows how closely the judiciary, especially in such matters as libel, acted as an arm of the executive. Contempt procedure was only one of various expedients used quite deliberately to harry opposition newspapers—and the rule that knowledge is not ran essential ingredient of con- tempt was made largely to prevent 'contrivance' —to stop harried editors from sliding out of their responsibilities by saying that they were in the country at the time the newspaper was printed.

In any case, it is hard to agree with the High Court's belief that these early cases were more significant than the recent precedents the other way—and I was interested to see that as dis- tinguished an authority as Professor A. L. Good- hart broadcast a few weeks later that so draconian a ruling appeared to him unduly strict.

It is possible to argue that the climate of opinion about newspapers is now more nearly what it used to be in the eighteenth century; that the press, as reflected at least in the People, hardly deserves to be considered as the fourth estate, and consequently no longer deserves the benefit of the doubt in such cases. But unsavoury though the People's stunts may appear, they may on balance be performing a public service; cer- tainly in the. Messina case it seems to have been the People which provided the evidence that made prosecution possible; and the stock argument against the 'sensationalism' of that paper, it may be recalled, was also used against the unfortunate W. T. Stead, whose worthy attempt to get the laws against white-slave-prostitution strengthened landed him in gaol.

But the more serious decision, from any point of view, was that taken by the High Court arising out of a report in Newsweek last April on the Bodkin Adams case. It can hardly be seriously thought that the Newsweek article deprived the defendant of a chance of a fair trial, in view of all the earlier publicity. However, the unfortu nate part of the decision, from the press poin of view, was that as Newsweek had nobody in thi country who could be held responsible for wha appeared in it, the court punished the distribu tors—the only persons who could be made amenable to discipline. The result, it will be re membered, was something like panic among the distributors, who found themselves faced witl the prospect of reading every issue of ever: foreign paper that comes into the country fo libels and contempts. But was this decision reall! justified on the facts?. The court, after all, wen on to say that it would not have dealt similarl! with newsagents who sold such papers, because no blame could really be attached to them—al argument which could equally have been use( to absolve the distributors.

There have been a. few other contempt cases too, where an appeal might have succeeded; in one the editor of the Daily Sketch was fined for allow ing comment to appear about the sentence on soldier for cowardice in Korea, after sentence was promulgated but before it had been con firmed. This is normally overlooked (though, no long before, The Times had received a pat message from the Home Office deprecating the practice); and the chances that the authorities would allow themselves to be influenced, let along intimidated, by anything appearing in the Dail; Sketch might be thought to be small.

The same argument applies to comment of the 'leak' tribunal; in fact, it might almost 131 argued that the .fear of commenting was itsel contempt of court, in that it implied that thi court was composed of easily suggestible 0] easily intimidatable gentlemen.

The damage which the present state of till contempt law does, in fact, is not confined t( actual cases. Its worst influence has been it silencing press criticism of the Courts and Oil judiciary; of decisions (where there appear reason to believe that they have been unfair and of judges (where they have been behaving it a manner deserving of criticism). Does any news• paper dare to criticise a judge who acts a• prosecutor, or who interrupts too frequently, Does any newspaper complain when judges ail strong personal opinions that certain laws preven them from giving sentences as stiff as they wan' to, in spite of the fact that they may have to to cases based on those laws? How can the public be expected to believe that a judge can give a fail sentence to men who have been convicted of g crime he has thus anathematised? But newspapers do not protest. Where once they felt as free to criti cise the stupidity or arrogance or incompetence of judges as freely as they now criticise theg

fa to

a it 11. is th ilings in politicians, now they are Silent. What, day, would be the reaction of a judge who saw, s Mr. Justice Darling did in 1900, a leading 'title saying, 'No newspaper can exist except on merits, a condition from which the Bench, ippily for Mr. Justice Darling, is exempt. There not a journalist in Birmingham who has any- ing to learn from the impudent little man in irsehair, a microcosm of conceit and empty- adedness'7 The editor got off With a fine of 00; imagination teeters at the thought of what paid happen to him today.

It is not so much, though, that newspaper 0 vners or editors are afraid of immediate retali- ation; it would be unlikely that criticism, provided at was not immoderately expressed, would lead to immediate attachment for contempt, What they are afraid of is prejudicing judges against them, for fear that on some later occasion the judge Will get a chance to take it out of them. It is no e expecting judges to be free from such feelings; as the Spectator has found to its cost. The,in- ei lent is related by Wilson Harris in his Life So in connection with a libel action which had b tn settled out of court : One condition of the settlement was that it should be mentioned in court, and Hewart, who. as Lord Chief Justice at the time could choose his case, decided it should be mentioned before him. There was more significance in this than appeared. Not very long before I had written in the 'Notebook' page of the Spectator a para- graph expressing the view that it was derogatory to the dignity of the Lord Chief Justice to be contributing articles to the Sunday papers, as • Hewart had 'been doing. Hewart was furious . . . [his]• comment was couched in language which unfortunately disqualifies it from quota- tion here, and from that time the conviction' prevailed in the Spectator office that if ever we had a case before- Hewart we should fare ill. We did in this case. . . . Hewart took the op- portunity to express in the most caustic language he could command (and he was not incompetent in that sphere) his amazement that a journal of the traditions of the Spectator should have been guilty of a piece of defamation so outrageous —and so forth.

The result is that, today, a great many editors a id owners of newspapers are thoroughly frightened of the Courts, even- to the extent of allowing egregiously hypocritical articles, which in private they joke about as their insurance Policies, to be put in about judges. Criticism is virtually banned. But it is not good for any in- stitution, judiciary or legislature, to be above criticism;-still less for any institution to have the right to decide whether criticism of it is fair or not. That there should be a law of contempt, to protect the courts from unjust calumny, and in- viduals from biased juries, is obvious. But there is no reason why the law should not be enforced through the ordinary courts—as it used to be; newspaper editors prosecuted for 'attempt- ing to pervert the course of justice' had the right Of trial by jury and of appeal. This • procedure seems to have fallen out of use; clearly, legislation is required. Over fifty years ago, the Commons passed a. resolution that `the jurisdiction of the lUdges in_ dealing with contempt of court is prac- tl :ally arbitrary, and calls for the action of Par- liament with a view to its definition and limita- '`ti0tt.' The present House should find time to ' talte that action—perhaps at the same time that It reforms its'own privilege procedure.