When comments may lead to contempt

To express opinions on ongoing court proceedings, one should be well-informed and avoid influencing outcomes and insulting judges.

I RECENTLY wrote about the AntiFake News Act and the Sedition Act. Some readers are asking why I have not been commenting on the country’s current issues, particularly regarding vessels of one type or another.

There are two reasons for taking this approach.

First, the hot topic that the readers are referring to is all about shipping and maritime laws and maritime charges. A considerable understanding of the subject is required.

As far as the charges relating to breach of trust and money laundering are concerned, anybody can look up the statutes, read the relevant sections and summarise them and make some comments. However, it is equally important to know well the context and facts of these charges.

Second, if prosecution of the proceedings is pending or imminent, there could also be a question of contempt, for which the court has the power to punish the writer.

Many people bring up the term “sub judice” when discussing the legal implications of publishing reports on current court cases. However, there is sometimes a mixup in its use. Sub judice really means that the matter is ongoing and is not completed.

Thus, a newspaper will often get a letter from an aggrieved person complaining that what has been reported about what was said in court is wrong and therefore, under the sub judice rule, the newspaper or publisher should not continue publishing such reports.

Essentially, contempt of court refers to failure to comply with the order of court or an act of resistance or insult to the court or judges. Or it is conduct that is likely to prejudice a fair trial.

It is regarded as a strict liability offence that may interfere with the course of justice, regardless of the intention of the contemner (the person who commits contempt).

This rule needs to be looked at from two points, the first being the possibility of prejudicing the outcome of a trial. However, given the present circumstances and the evidence that has surfaced so far, it can only be a contempt of court to try to influence the judges.

In reality, I do not think the rea- soning of our judges can be easily influenced by a news article.

Instead, it is more a question of whether anything written would be treated as insulting to our judges, especially when it is perceived as criticism. This depends on the sensitivity of the judges – those in different countries may look at such matters differently.

The best way to understand whether an article is in contempt or not is to look at the facts of some cases.

An English case centred on a 1972 article in The Sunday Times about legal proceedings relating to a drug that caused birth defects. The article contains the pivotal paragraph below:

“Thirdly, the thalidomide children shame Distillers. It is appreciated that Distillers have always denied negligence and, if the cases were pursued, the children might end up with nothing. It is appreciated that Distillers’ lawyers have a professional duty to secure the best terms for their clients.

“But at the end of the day what is to be paid in settlement is the decision of Distillers, and they should offer much, much more to everyone of the thalidomide victims. It may be argued that Distillers have a duty to their shareholders and that, having taken account of skilled legal advice, the terms are just.

“But the law is not always the same as justice. There are times when to insist on the letter of the law is as exposed to criticism as infringement of another’s legal rights.

“The figure in the proposed settlement is to be £3.25mil, spread over 10 years. This does not shine as a beacon against pre-tax profits last year of £64.8mil and company assets worth £421mil. Without in any way surrendering on negligence, Distillers could and should think again.”

After a long court battle, it was finally ruled that the article did not violate the law of contempt of court.

In a state legislature in India immediately after independence, the Chief Minister said, “At present our Constitution is new, the High Court is new. In many instances, the immaturity of the High Court is apparent. In many instances, the decision given by the High Court has been corrected by the Supreme Court. The Supreme Court also held that in many instances, the High Court has abused the powers given to it.”

Was it in contempt? The Court said yes, it was.

Another example is a case in England revolving around an article published in a magazine in the late 1960s.

The writer lashed out at the courts, wielding sentences such as this one: “The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges.”

“Everyone, it seems, is out of step, except the courts,” he wrote.

He urged judges to remember the golden rule in the matter of obiter dicta (non-essential opinions or remarks by a judge), adding: “Silence is always an option.”

The English Court decided it was not contempt.