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19 December 2012
The Law Commission is recommending that the offence of scandalising the court should be abolished and not replaced.
Scandalising the court, also known as scandalising judges or scandalising the judiciary, is a form of contempt of court. The offence might be committed by publishing anything that ridicules the judiciary to such an extent that it is likely to bring the administration of justice into disrepute. This might include, for example, being extremely offensive towards a member of the judiciary or suggesting that they are corrupt.
Following a 10-week consultation, the Commission has concluded that the offence of scandalising the court is no longer necessary, is out of step with social attitudes and represents an infringement on the freedom of expression.
Scandalising the court has not been successfully prosecuted since 1931. The Commission concludes that it has no place in today's society. The offence belongs to an era when deferential respect to the judiciary was the norm. But social attitudes have changed. Enforcing the offence today would do little to reinforce respect for the judiciary and, if judges are thought to be using it to protect their own, could strengthen any existing distrust or disrespect.
Freedom of expression is a basic right under the European Convention of Human Rights. It ensures that opinion and information about those who govern us, and their errors or shortcomings, are available to citizens. However, the Commission considers that using the threat of proceedings for scandalising the court to suppress complaints about the judiciary, even those that are wholly unjustified or abusive, is likely to restrict freedom of expression and have a “chilling effect” that would deter people from making justified complaints.
Professor David Ormerod, the Law Commissioner leading the project, says: “Abusive publications about judges and courts occur frequently but are never prosecuted as scandalising. The offence has fallen out of use. It no longer serves as a deterrent, and any symbolic power it once had to drive home the message that scandalising the court is unacceptable is much diminished. Scandalising also amounts to a restriction on freedom of expression, and it is not clear that the infringement is necessary. We have found, on the contrary, many strong reasons for removing this restriction.”
Supporting its conclusion that the offence is no longer required, the Commission explains that the more serious forms of scandalising behaviour are covered by several existing statutory offences and, in the event of false accusations of corruption or misconduct, judges would have recourse to defamation proceedings.
The report, Contempt of Court: Scandalising the Court, is available on the Commission's website.