[2014] UKPC 11
Privy Council
Appeal No 0058 of 2012
JUDGMENT
Dhooharika
(Appellant)
v
The Director of
Public Prosecutions (Respondent)
From the Supreme
Court of Mauritius
before
Lady Hale
Lord Kerr
Lord Clarke
Lord Wilson
Lord Hodge
JUDGMENT
DELIVERED BY
Lord Clarke
ON
16 April 2014
Heard on 10 and
11 February 2014
Appellant
Geoffrey Robertson QC
Anya Proops
Roshi Bhadain
(Instructed by Howard Kennedy
Fsi LLP)
Respondent
Geoffrey Cox QC
Rashid Ahmine
Faisal Saifee
(Instructed by Royds Solicitors)
Intervener
(Commonwealth Lawyers’ Association)
James Guthrie QC
Sarah Crowther
(Instructed by Charles Russell
LLP)
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
3. The appellant is, or was in 2011, a journalist and the
editor-in-chief 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 réclame la prison pour le chef juge”. Underneath it was said
“Il réclame un ordre judiciaire ‘Committing Bernard Sik Yuen to jail’ pour
outrage à 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'avoir influencé 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 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 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 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
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 emptyheadedness” 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 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 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 year , 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 LJ 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 contempt by
scandalising the judiciary have continued to be brought over the last 40 years
in many jurisdictions in the Commonwealth and many of them have succeeded. He added that although many of the courts
emphasised that such prosecutions should be reserved for exceptional cases,
none of them upheld contentions that the existence of the common law offence
was of itself a breach of the right to freedom of expression.
28. Lord Pannick identified four main points in support of
abolition. First, the crime is based on
dubious assumptions as to its necessity; for example that if confidence in the
judiciary is so low that statements by critics would resonate with the public,
such confidence is not going to be restored by a criminal prosecution in which
judges find the comments to be scandalous or in which the defendant apologises. Second, the existence of the offence will
deter people from speaking out on perceived judicial errors and freedom of
expression helps to expose error and injustice and promotes debate on issues of
public importance. Third, the modern
offence recognises that some criticism of the judiciary is lawful. Fourth, where criticism deserves a response,
there are other methods of answering it, as for example in appropriate
circumstances by a public statement made by the Lord Chief Justice or by libel
proceedings. Lord Pannick added that a
wise judge follows the advice of Simon Brown LJ in Attorney General v Scriven,
as quoted in Arlidge, Eady and Smith at para 5-207n: “a wry smile is, I think,
our usual response and the more extravagant the allegations, the more ludicrous
they sound.” And during the committee
stage of the Bill that led to the recent Act Lord Carswell said that if judges
were unjustly criticised, “they have to shrug their shoulders and get on with
it”.
29. There is considerable force in these points and it is readily
understandable that the law in England and Wales has now been altered by
statute. However, in this appeal the
Board is concerned, not with the law of England and Wales, but with the law in
Mauritius. This involves a consideration
of decisions both in Mauritius and elsewhere, especially in the
Commonwealth.
30. In the context of Mauritius, the offence was most recently
considered by the Board only about 15 years ago in 1999 in Ahnee v Director of
Public Prosecutions [1999] 2 AC 294 in a judgment delivered by Lord Steyn. At pp 301-305 Lord Steyn considered what he
called “Issue A: The existence of the power to punish for contempt”. For the reasons given in the judgment, which
it is not necessary to repeat here, the Board held at p 304G that the Supreme
Court of Mauritius had an inherent power to punish for contempt at common law
and at p 305D that section 15 of the Courts Act as amended in 1981, was an
additional sufficient basis for the power to punish for contempt. Those conclusions were not challenged in this
appeal.
31. By contrast, the reasoning of the Board at pp 305F to 307E
under the heading “Issue B: The impact of the Constitution on the power to
punish for contempt” was subjected to detailed scrutiny in the course of the
argument in this appeal. Section 12 of
the Constitution provides:
“12(1) Except with his own
consent, no person shall be hindered in the enjoyment of his freedom of
expression, that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference, and freedom from interference with
his correspondence.”
(2) Nothing contained in or
done under the authority of any law shall be held to be inconsistent with or in
contravention of this section to the extent that the law in question makes
provision –
(a) in the interests of
defence, public safety, public order, public morality or public health; (b) for
the purpose of ... maintaining the authority and independence of the courts …
except so far as that
provision or, as the case may be, the thing done under its authority is shown
not to be reasonably justifiable in a democratic society."
32. In Ahnee it was submitted that the continued existence of the
offence of scandalising the court was inconsistent with section 12 of the Constitution. The Board rejected that submission. Lord Steyn noted at p 305H that in the first
part of the judgment it had concluded that the offence of scandalising the
court exists to protect the administration of justice, which left the question
whether the offence is reasonably justifiable in a democratic society within
the meaning of section 12 of the Constitution.
33. In that regard Lord Steyn observed that in England such
proceedings were rare and that none had been successfully brought for more than
60 years, but he added that it was permissible to take into account that on a
small island such as Mauritius the administration of justice is more vulnerable
than in the United Kingdom. The need for the offence is greater. He referred in that regard to Feldman, Civil
Liberties & Human Rights in England and Wales (l993), pp 746-747 and
Barendt, Freedom of Speech (l985), pp. 218-219.
34. Lord Steyn added at p 306A-E:
“Moreover, it must be borne
in mind that the offence is narrowly defined.
It does not extend to comment on the conduct of a judge unrelated to his
performance on the bench. It exists solely to protect the administration of
justice rather than the feelings of judges. There must be a real risk of
undermining public confidence in the administration of justice. The field of
application of the offence is also narrowed by the need in a democratic society
for public scrutiny of the conduct of judges, and for the right of citizens to
comment on matters of public concern. There is available to a defendant a
defence based on the ‘right of criticising, in good faith, in private or
public, the public act done in the seat of justice:’ see Reg v Gray [1900] 2 QB
36, 40; Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322, 335
and Badry v. Director of Public Prosecutions [1983] 2 AC 297. The classic
illustration of such an offence is the imputation of improper motives to a
judge. But, so far as Ambard's case [1936] AC 322 may suggest that such conduct
must invariably be an offence their Lordships consider that such an absolute
statement is not nowadays acceptable. For example, if a judge descends into the
arena and embarks on extensive and plainly biased questioning of a defendant in
a criminal trial, a criticism of bias may not be an offence. The exposure and
criticism of such judicial misconduct would be in the public interest. On this
point their Lordships prefer the view of the Australian courts that such
conduct is not necessarily an offence: Rex v Nicholls (1911) 12 CLR 280. Given
the narrow scope of the offence of scandalising the court, their Lordships are
satisfied that the constitutional criterion that it must be necessary in a
democratic society is in principle made out. The contrary argument is
rejected.”
35. Under “Issue C: mens rea” Lord Steyn said this at p 307D:
“Counsel for the contemnors
submitted that the Supreme Court was wrong to hold that mens rea was not an
ingredient of the offence of scandalising the court. The publication was
intentional. If the article was calculated to undermine the authority of the
court, and if the defence of fair criticism in good faith was inapplicable, the
offence was established. There is no additional element of mens rea. The
decision of the Supreme Court on this point of law was sound.”
36. In the course of the argument in this appeal there was some
debate as to how those two quotations from the judgment can be reconciled. In particular there was argument as to the
meaning of “good faith” in the first quotation and as to the meaning of “fair
criticism in good faith” in the second quotation. It is at least arguable that the latter
imports an objective question, namely whether the criticism was fair, so that a
person could be convicted on the basis that the criticism was not objectively
fair even if he acted throughout in good faith.
37. The Board does not however so construe the judgment. It appears to the Board that, if there is any
difference between the two formulations, the first (and more detailed) analysis
is to be preferred. Thus the question is
whether the defendant was acting in good faith.
If he was, he has a defence to the allegation of contempt by
scandalising the court even if his criticism cannot be shown to be objectively
fair. This view is supported by the
authorities, many of which have stressed the necessity for a defendant who is
convicted to have acted otherwise than in good faith. For the reasons given in para 48 below,
although good faith is sometimes described as a defence, the true position is
that the burden is on the prosecution to prove absence of good faith.
38. The question remains that stated by Lord Steyn, namely whether,
in Mauritius, the offence is reasonably justifiable in a democratic society
within the meaning of section 12 of the Constitution. The Board answered that question in the
affirmative only about 15 years ago.
Moreover, it has existed at common law for very many years and, although
it has been much criticised and has been abolished by statute in England and
Wales, it continues to exist in many parts of the common law world. A list of examples is contained in Annex 1,
which is taken from a number of sources, including
Lord Pannick’s article,
Arlidge, Eady and Smith and the case for the intervener, The Commonwealth
Lawyers’ Association, to which the Board is much indebted. Those cases show that not all courts approach
the issues in the same way. The specific
ingredients of the offence may vary across different jurisdictions. It is interesting to note that, as shown in
Annex 1, the offence was established in 26 of the 34 cases, albeit in varying
contexts. It is not necessary to analyse
the cases in any detail in order to resolve the issues in this appeal.
39. The Board further notes that the European Court of Human Rights
has not declared the existence of the offence incompatible with Article 10 of
the European Convention on Human Rights provided that the restrictions on free
speech are proportionate: see eg De Haes and Gijsels v Belgium (1998) 25 EHRR 1
and Zugic v Croatia (no. 3699/08, 31 May 2011).
40. Moreover, the offence of murmuring judges in Scotland has not
been affected by the abolition of the offence in England and Wales. In the
Scottish case of Anwar, Respondent [2008] HCJAC 36 a solicitor made a statement
to the media following the jury’s verdict in which he criticised the
proceedings. The specific charge of murmuring was not used but contempt
proceedings were brought against the solicitor. The court observed at para 37:
“It is quite possible to
conceive of language which would be of such an extreme nature that it did
indeed challenge or affront the authority of the court or the supremacy of the
law itself, particularly perhaps where the integrity or honesty of a particular
judge, or the court generally, is attacked. That would be true, whether or not
it related to particular ongoing proceedings. For that reason, if for no
others, we reject the submission of senior counsel for the respondent that
there could not be a contempt of court following the conclusion of the
particular proceedings in question. We believe that what we have just said is
wholly consistent with the terms of art 10 of the Convention.”
41. In conclusion, although the Board would not now distinguish
between small islands and larger territories merely on the grounds of size, it
recognises that local conditions are relevant to the continued existence of the
offence. It concludes that it would be
inappropriate to depart from the decision in Ahnee and that, if the offence is
to be abolished in Mauritius, it should be abolished by statute. It accordingly answers question (1) in the
affirmative.
(2) Scandalising the court –ingredients of the offence
42. What then of the
ingredients of the offence? In the passage
from R v Gray quoted at para 24 above Lord Russell described the actus reus
thus:
“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.”
The word ‘calculated’ is
ambiguous and could be understood as meaning ‘subjectively intended’. However the authorities have construed it as
meaning ‘objectively likely’: see eg R v Kopyto (1987) 47 DLR (4th) 213, 257
and 298-299; Nationwide News Pty v Wills
(1992) 177 CLR 1, 24; R v
Hoser and Kotabi Pty Ltd [2001] VSC 443, para 40; R v Mamabolo
[2001] ZACC 17, para 70; and
Secretary for Justice v Choy Bing Wing [2011] UKPC 63, para 37. Further, as Lord Steyn put it in the passage
from Ahnee at p 306 quoted above, the offence exists solely to protect the
administration of justice rather than the feelings of judges. There must be a
real risk of undermining public confidence in the administration of
justice.
43. What then of the mens rea?
This question is considered by Arlidge, Eady and Smith on Contempt at
paras 5-246 to 5-251. It was originally
said by Wilmot J that “it is the intention which, in all cases, constitutes the
offence: ‘actus non fit reum, nisi mens sit rea’. He did not however describe the mens rea he
had in mind.
44. As Arlidge, Eady and Smith observe at para 5-247, the decision
of the Divisional Court in R v Editor of New Statesman Ex p DPP (1928) 44 TLR
301 proceeded on the basis that mens rea was not necessary. Lord Hewart CJ said at p 303 that the article
complained of constituted a contempt:
“It imputed unfairness and
lack of impartiality to a Judge in the discharge of his judicial duties. The gravamen of the offence was that by
lowering his authority it interfered with the performance of his judicial
duties.”
Immediately thereafter he
added:
“If they had come to the
conclusion that that was intended by the writer, who was also the editor, the
only proper course would have been to commit him to prison for contempt.”
45. As Arlidge, Eady and Smith observe, that suggests that no
intention was required to establish liability but it might affect the
appropriate penalty. They also observe,
correctly, that that decision has been widely influential in Commonwealth
decisions. They cite, no doubt simply by
way of example, A-G for NSW v Munday [1972] 2 NSWLR 887 at 911-2; Solicitor
General v Radio Avon Ltd [1978] 1 NZLR 225 at 2324; Re Oullet (1976) 67 DLR
(3d) 73 at 92 and A-G v Lingle [1995] 1 SLR 696. They also cite Ahnee, presumably referring to
page 307 quoted above.
46. By contrast Arlidge, Eady and Smith say that the issue of mens
rea needs to be addressed in the light of the later decisions. They refer to A-G v News Group Newspapers Plc
[1989] 1 QB 110, A-G v Sport Newspapers Ltd [1991] 1 WLR 1194 and A-G v
Newspaper Publishing Plc [1997] 1 WLR 926 at 937. In the opinion of the Board these decisions,
although not conclusive, give some support for the conclusion that the
prosecution must prove that the defendant intended to interfere with the
administration of justice.
47. The editors of Arlidge, Eady and Smith, writing of course
before the recent statute, conclude at para 5-248 that in England and Wales it
would probably be necessary to prove an intention to interfere with the
administration of justice. In support of
that proposition they direct the reader to the remarks of Lord Atkin in Ambard
quoted at para 25 above, where he says:
“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.”
48. The Board agrees. As
Lord Steyn made clear in Ahnee, if the defendant acts in good faith, he is not
liable. Since the court is here
concerned with a criminal offence, the burden must be on the prosecution to
establish the relevant facts beyond reasonable doubt. There can be no legal burden on the
defendant. Thus, at any rate once the
defendant asserts that he acted in good faith, the prosecution must establish
that he acted in bad faith. If the
prosecution establish that he either intended to undermine public confidence in
the administration of justice or was subjectively reckless as to whether he did
or not, that would in the opinion of the Board, be evidence of bad faith. It is perhaps for this reason that Lord Steyn
expressed the view that the defendant had to act otherwise than in good faith,
that is in bad faith, and that there was no further element of mens rea
required.
49. The Board has considered whether a defendant might be guilty on
the basis of some more general bad faith than is comprised in the intention or
recklessness referred to above. While
the Board would not entirely rule it out, it appears to the Board that, once it
is accepted that, as Lord Steyn put it in the context of actus reus, there must
be a real risk of undermining public confidence in the administration of
justice, the relevant mens rea should be related to the creation of that risk
and that, while it makes sense to hold that the defendant commits the offence
if he intends to undermine public confidence in the administration of justice
or is subjectively reckless as to whether he did so, it is not easy to see that
any other, more general, state of mind would amount to relevant bad faith
sufficient to support a conviction.
(3) Did the appellant receive a fair trial?
50. The Board answers this question in the negative. Article 10 of the Constitution guaranteed the
appellant’s right to a fair hearing. The
Board understands that it may be necessary for the DPP in an appropriate case
to take summary action and that a classic form of trial may not always be
necessary, but the Board is of the clear view that the alleged contemnor is
always entitled to a fair trial and that, depending upon the circumstances, he
will almost certainly be entitled to call oral evidence on his behalf,
including his own evidence. In the
instant case the Board has formed the view that the appellant was, as a matter
of practical fact, deprived of his right to give evidence on his own
behalf.
51. The context is important.
The DPP was represented at the hearing before the Supreme Court by the
Senior Assistant DPP and two Senior Crown Counsel. On 31 March 2011 Matadeen SPJ expressed some
exasperation with counsel for the appellant and asked him how long he had been
practising at the Bar, to which he replied “over one and a half years”. A little later he was asked whether the
affidavits were on record and he said that they were but that he would like to
call the appellant. The following
exchange between the court and counsel then took place:
“COURT: No, he has put in an
affidavit. You should know your procedure. At the beginning of the case, I said
all affidavits, I don't know whether you were present or not, but somebody was
replacing you, I would wish to have all affidavits on record as quickly as
possible.
COUNSEL: Well, in that case,
I will not call Mr Dhooharika.
COURT: Whatever he has to
say would be in the affidavit. Do you agree or not? It must be in affidavit.
COUNSEL: Yes, my Lords.
COURT: You should not be
interrupted.
COUNSEL: I do agree, My
Lords.
COURT: Where is your
attorney? Your attorney is next to you.
You can talk to your
attorney [and] get instructions.
COUNSEL: Yes, My Lords, I do
agree that everything has ….
COURT: You agree that
everything should be by way of affidavit and you have put your case in the
affidavit. Yes, anything else you have to say?
COUNSEL: Not at this stage,
My Lords.”
The court then proceeded to
hear the submissions of the parties.
52. It was submitted on behalf of the appellant that he had been
treated unfairly by the court and that he should have been permitted to give
evidence. It was, however, submitted on
behalf of the DPP that counsel had accepted the point made by the court that the
evidence was in the affidavits and that he had been given the opportunity to
take instructions on the point.
53. The Board has reached the conclusion that the appellant should
have been permitted to give evidence.
Somewhat inexperienced counsel was put under some pressure to accept the
court’s view that everything the appellant could say was or would be in his
affidavit. In the opinion of the Board
the court should have considered whether justice required that the appellant
should have been given the opportunity of giving oral evidence in circumstances
where his good faith was in issue and where, if he was convicted, he would or
might be sent to prison. If the court
had considered that question it would surely have concluded that it was not
sufficient to say that all relevant material must be in the affidavits. For these reasons the Board concludes that
the trial was unfair to the appellant.
(4) Was the appellant properly convicted of the offence?
54. The Board answers this question in the negative because of its
answer to question (3). It nevertheless
turns to the substance of the matter. As
explained above, in order to convict the appellant the court must be satisfied
beyond reasonable doubt that the appellant acted in bad faith in publishing the
articles and the editorial and that there was a real risk of causing damage to
the administration of justice. Assuming,
contrary to the Board’s view, that it was permissible to determine the matter
on the documents without hearing evidence from the appellant on the question
whether he acted in good faith, the Board concludes that the Supreme Court was
not justified in holding that he was acting in bad faith. In particular, it does not agree that any
reasonable reader would have concluded from the front page that the Chief
Justice must have been guilty of serious wrongdoing or that the only reasonable
inference to be drawn from the editorial on page 3 was that the appellant was
expressing his own view that the Chief Justice was not administering justice
impartially and that he should explain his decisions before a tribunal.
55. The appellant’s case was that he was simply reporting the views
of Mr Hurnam on a matter of public interest.
The material must be read as a whole.
There is no part of the publication in which the appellant espoused the
views of Mr Hurnam as his own view or the views of the paper. The article on page 18 summarised in para 10
above essentially set out points made by Mr Hurnam, not the views of the paper
or the appellant.
56. The editorial at page 3 of the newspaper, which is summarised
at para 11 above, being an editorial, is essentially somewhat different. However, it too centred on the allegations
made by Mr Hurnam. It did so in the
context of Mr Hurnam’s request to the President of Mauritius that he set up a
tribunal of inquiry into the allegations against the Chief Justice. That request was contained in a letter dated
27 July 2010 and was based on similar allegations to those made by Mr Hurnam in
his interview. It is important to note
that, under section 78(4)(a) of the Constitution, where in relation to the
removal of the person holding the office of Chief Justice, the President
considers that the question of removing the Chief Justice should be
investigated, he must appoint a tribunal to investigate the matter. Under section 78(4)(b), the tribunal must
investigate the matter and recommend whether the question of his removal should
be referred to the Judicial Committee.
By section 78(4)(c), where the tribunal so recommends, the President
must refer the question accordingly.
57. The Board does not agree with the Supreme Court that 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. The thrust of them was rather that the
allegations were such that they should be investigated and that the Chief
Justice should put his position before the tribunal. The editorial expressly conceded that the
paper was not equipped to judge a Chief Justice. It was for that reason that it expressed the
view that the allegations should be judged by a tribunal, concluding that “in
alleged cases of misconduct, it is incumbent on the accused judge to defend his
integrity by agreeing to appear before a competent court named by the President
of the Republic”. It was properly
conceded on behalf of the appellant before the Board that some of the comments
were perhaps illjudged. The Board would go further and say that they were
plainly ill-judged but the Board does not think that they prove bad faith on
the part of the appellant.
58. The Board understands that the Supreme Court were somewhat
displeased with the appellant and his willingness to give publicity to the
allegations and not to give publicity to the President’s reply to Mr Hurnam’s
letter, which was dated 11 August 2010.
There is certainly no evidence that the appellant enquired what reply
had been received from the President.
However, there is equally no evidence that the appellant knew that the
President had replied or in what terms.
The reply to Mr Hurnam, perhaps unsurprisingly, simply stated that the
President had considered his representations, but that he found no merit in
them and that he did not intend to proceed further with the matter.
59. In all these circumstances the Board concludes the appellant
was not proved to have acted in bad faith.
He should certainly not have been held to have done so in circumstances in
which, as explained above he did not give oral evidence. It follows that the appeal against conviction
must be allowed.
(5) Sentence
60. In the light of the Board’s conclusions set out above, the
appeal on sentence does not arise. The
Board has however considered it and has reached a clear conclusion. It would have allowed the appeal against
sentence on the simple ground that the appellant should have been afforded an
opportunity to make submissions in mitigation before a conclusion as to the
correct sentence was reached. The
transcript shows that the court proceeded to sentence immediately after
delivering its judgment on the merits.
There were a number of points which could have been advanced on his
behalf in support of the conclusion that a custodial sentence was not
necessary. The experience of this case
shows that the prosecuting authorities should be careful to remind the trial
court of the need to hear and consider submissions that go to possible
mitigation of the sentence before sentence is pronounced.
Conclusion
61. For these reasons the appeal against conviction is allowed. It
appears to the Board that it follows that the respondent should pay the costs
of the appellant both before the Supreme Court and the Board. However, if the
respondent wishes to make submission to the contrary, he should do so in
writing within 21 days of this judgment being handed down.
ANNEX A
Cases on scandalising the
court
In addition to Mauritius
(Ahnee v DPP (supra); Badry v DPP of Mauritius [1983] 2 AC 297), there have
been modern examples of the use of the offence in:
i) Australia e.g. Gallagher v Durack [1983] HCA 2; (1983) 152
C.L.R. 238 (High Court of Australia)*; Re Colina Ex P. Torney [1999] HCA 57;
(1999) 200 C.L.R. 386 (High Court of Australia); Nationwide News Pty Ltd v
Wills (1992) 177 CLR 1; R. v Hoser & Kotabi Pty Ltd [2001] VSC 443
(November 29, 2001); [2003] V.R. 194 (Supreme Court of Appeal of Victoria)*;
Director of Public Prosecutions v Francis and Anor (No 2) [2006] SASC 26*;
Attorney General for the State of Queensland v Colin Lovatt QC [2003] QSC 279*;
Fitzgibbon v Barker (1992) 111 FLR 191*; McGuirk v University of NSW [2009]
NSWSC 1058; Xuarez v Vitela [2012] FamCA 574*; Lackey v Mae [2013] FMCAfam
284*;
ii) Canada e.g. R. v Kopyto (1987) 47 DLR (4th) 213 (Court of
Appeal of Ontario); Nicol, Re (1954) 3 DLR 690*; R v Murphy (1969) 4 (3d) DLR
289*;
iii) Hong Kong e.g. Wong Yeung Ng v The Secretary for Justice
[1999] 2 HKLRD 293 (CA)*; Secretary for Justice v Choy Bing Wing [2011] HKEC
63*;
iv) India e.g. Narmada Bachao Andolan v Union of India (1999) AIR
SC
3345 (Supreme Court of
India);
v) Malaysia e.g. Hiebert v Chandra Sri Ram [1999] 4 MLJ 321
(Court of Appeal of Malaysia)*;
vi) New Zealand e.g. Solicitor-General v Radio Avon Ltd [1978] I
N.Z.L.R. 225 (Court of Appeal of New Zealand)*; Solicitor-General v Smith
[2004] 2 N.l.L.R. 540 (High Court of New Zealand)*; Attorney-General v Blundell
[1942] NZLR 287*; Attorney General v Butler [1953] NZLR 944*;
vii) South Africa e.g. The State v Mamabolo (CCT 44100) [2001]
Z.A.C.C.
17; (2001) 3 S.A. 409 (CC)
(Constitutional Court of South Africa);
viii) Belize e.g. Director of Public Prosecutions v. The Belize Times
Press Ltd and Another (1988) LRC (Const) 579*;
ix) Singapore e.g. Shadrake v Attorney General [2011] S.G.C.A. 26
(Court of Appeal of Singapore)*; Attorney-General v Wain [1991] SLR(R) 85*;
Attorney General v Lingle [1995] 1 SLR 696*; PT Makindo (formerly known as PT
Makindo TBK v Aperchance Co Ltd [2011] SGCA 19; Attorney-General v Hertzberg
[2008] SGHC 218*; Attorney-General v Tan Liang Joo John [2009]
SGHC 41*; You Xin v Public
Prosecutor and Anor [2007] SLR(R) 16; Attorney-
General v Chee Soon Juan
[2006] 2 SLR(R) 650*;
x) Fiji e.g. In re Application by the Attorney General of Fiji
[2009] FJHC 8 (High Court of Fiji)*;
xi) Swaziland e.g. King v Swaziland Independent Publishers [2013]
SZHC
88 (High Court of
Swaziland)*;
xii) Zimbabwe e.g. Re Chinamasa (2001) 2 SA 902 (25) 2 (Zimbabwe
Supreme Court)*.
* indicates that the offence
of contempt by scandalising was successfully invoked.
*
* * *
PRESS
SUMMARY
16 April
2014
Dhooharika (Appellant) v Director of
Public Prosecutions (Respondent) [2014] UKPC 11 On appeal from the Supreme
Court of Mauritius
JUSTICES: Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson
and Lord Hodge
BACKGROUND TO THE APPEAL
This appeal
centres on the existence and scope of a criminal offence known as scandalising
the court.
Mr
Dhooharika was a journalist and the editor-in-chief of a French language weekly
newspaper published in Mauritius called Samedi
Plus. He published a number of articles relating to hearings in chambers
before the Chief Justice in the case of Paradise
Rentals Co Ltd v Barclays Leasing Co Ltd.
The
director of Paradise Rentals was Mr Hurnam, a disbarred barrister. At the first
hearing, the Chief Justice refused leave for Mr Hurnam to represent the
company. 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. He sent copies of the letter to the
Mauritian media and held a press conference criticising the Chief Justice. He
alleged that the Chief Justice had acted wrongfully and beyond his powers by
hearing the case in chambers and that he was biased.
Mr
Dhooharika interviewed Mr Hurnam and published an extensive account of that
interview under the title “Barclays Leasing Scandal”. In one article, he
detailed Mr Hurnam’s allegation that the Chief Justice had made remarks that
were intended to prejudice the issues in the action. Two further articles set
out the grounds on which Mr Hurnam said that he considered the Chief Justice to
be in contempt of court.
Mr Dhooharika
was prosecuted for contempt by way of scandalising the court and convicted by
the Supreme Court of Mauritius. He was sentenced to three months’ imprisonment
and a fine of R300,000.
Mr
Dhooharika was granted permission to appeal against his conviction and sentence
to the Privy Council. The issues for determination are:
•
whether
the offence of scandalising the court still exists in Mauritius;
•
if
so, what are the ingredients of the offence;
•
whether
Mr Dhooharika was given a fair trial;
•
whether
Mr Dhooharika was properly convicted of the offence; and
•
whether
Mr Dhooharika should have been sentenced to an immediate term of imprisonment
having regard to all the circumstances of the case.
JUDGMENT
The Privy
Council unanimously allows Mr Dhooharika’s appeal. Lord Clarke gives the
judgment of the Board.
REASONS FOR THE
The offence
of scandalising the court still exists in Mauritius. In Ahnee v DPP [1999] 2 AC 294 the Board concluded that the offence of
scandalising the court exists to protect the administration of justice and was
reasonably justifiable in a democratic society within the meaning of section 12
of the Constitution of Mauritius. The offence has existed at common law for
very many years and, although it has been much criticised and abolished by
statute in England and Wales, it continues to exist in many parts of the common
law world. It would be inappropriate to depart from the decision in Ahnee and, if the offence is to be
abolished in Mauritius, it should be abolished by statute [32, 38, 41].
The offence
exists solely to protect the administration of justice rather than the feelings
of judges. There must be a real risk of undermining public confidence in the
administration of justice. The relevant mens
rea is related to the creation of that risk. If the prosecution establish
that the defendant either intended to undermine public confidence in the
administration of justice or was subjectively reckless as to whether he did or
not, the offence is committed. It is not easy to see that any other, more
general, state of mind would be sufficient to support a conviction [42, 48, 49].
Mr
Dhooharika did not receive a fair trial. The alleged contemnor is always
entitled to a fair trial and, depending upon the circumstances, he will almost
certainly be entitled to call oral evidence on his behalf, including his own evidence.
In the instant case, Mr Dhooharika was, as a matter of practical fact, deprived
of his right to give evidence on his own behalf. He should have been permitted
to give evidence [50, 53].
Mr
Dhooharika was not properly convicted of the offence. The Board does not agree
that he was acting in bad faith. The various articles and their presentation,
taken as a whole, were not 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. Rather, the thrust of them was that the allegations should
be investigated and that the Chief Justice should put his position before the
tribunal. The editorial expressly conceded that the paper was not equipped to
judge a Chief Justice. Although the comments were plainly ill-judged, the Board
does not think that they prove bad faith on the part of Mr Dhooharika. It
follows that the appeal against conviction must be allowed [54, 57, 59].
In light of
the conclusions above, the appeal on sentence does not arise. However, the
Board would have allowed the appeal against sentence on the simple ground that
Mr Dhooharika should have been afforded an opportunity to make submissions in
mitigation before a conclusion as to the correct sentence was reached [60].
References in
square brackets are to paragraphs in the judgment
NOTE
This
summary is provided to assist in understanding the Committee’s decision. It
does not form part of the reasons for that decision. The full opinion of the
Committee is the only authoritative document. Judgments are public documents
and are available at: http://www.jcpc.uk/decided-cases/index.html
