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Opinions of Sunday, 7 July 2013

Columnist: Asare, Kwaku S.

Scandalizing the Court: Dead Elsewhere but Alive in Ghana

S. Kwaku Asare

Scandalizing the court, as a criminal offence, while very much alive in the Supreme Court of Ghana, is officially dead, in the country of its origin. Its remains are interred as Clause 22 of the Crime and Courts Act 2013, which proclaims that: “Scandalizing the judiciary (also referred to as scandalizing the court or scandalizing judges) is abolished as a form of contempt of court under the common law of England and Wales.

While its exact origins are still shrouded in some mystery, the English case of R v Gray ([1900] 2 QB 36) is generally acknowledged as the leading authority on the offense. In that case, a journalist was found to be in contempt, by scandalizing the court, for describing a judge as an “impudent little man in horsehair, a microcosm of conceit and empty-headedness.”

Lord Russell, the Judge, hearing the case in Gray, described the offence as “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.” Lord Russell also added that “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.”
He also clarified the rational for the offence as helping to maintain confidence in the judiciary. It was felt that subjecting judges to scurrilous abuse or imputation of corrupt motives could undermine confidence in the judiciary, leading to rejection of their orders and instructions from the bench. While the paucity of case law did not provide an opportunity for further detailed definition of the offense, the elements of the offence at common law appeared to be:
a. Scurrilous abuse of a judge or court
b. Or imputation of bias or impartiality against a judge or court
c. Or imputation that a judge is influenced by outside pressures
d. And real risk that public confidence will be shaken

Another important issue that arose in the Gray case, and the subsequent literature on contempt, was whether a judge’s inherent power to summarily punish for contempt in facie curiae extends to strangers. That is, can a judge summarily punish for contempt ex facie curiae (contempt outside the court)? At first, it was assumed so.

However, Sir John Fox, in his celebrated work on the history of contempt, shows conclusively that “contempt out of court by strangers were, like trespass, tried either by jury or in the Star Chamber, although contempt’s in the actual view of the court and by officers were punished summarily (see The History of Contempt of Court: The Form of Trial and the Mode of Punishment 1927). Thus, he concludes that historically the summary procedure applied only to contempt in the face of the court and that other forms of contempt were only triable on indictment, and that “committal” or “attachment” in the earlier indirect contempt cases referred to committal to stand trial and not to imprisonment by way of punishment.

Although scandalizing the court was recognized as a common law offence, it was hardly ever used to successfully prosecute anyone in the UK, with the last successful prosecution dating as far back as 1930. Indeed, as far back as 1899, the Judge, in McLeod v. St. Aubyn ([1899] AC 549, p. 56), wrote "Committals for contempt of court by scandalizing the court itself have become obsolete in this country.... 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."

This suggests that it has always been recognized that the offense of scandalizing the court could be put to bad use, could interfere with free speech, could shield judges from public scrutiny and was, generally, illiberal and not an offence that civilized societies could tolerate. It was left on the books to be applied in the colonies to suppress dissent by the colored people in the colonies.

Justice Mumby summarizes the lack of judicial appetite for punishing for the offence as follows: “that which is lawful if expressed in the temperate or scholarly language of a legal periodical or the broadsheet press does not become unlawful simply because expressed in the more robust, colorful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar ... Moreover, a much more robust view must, in my judgment, be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language. Society has in large part lost its previous habit of deferential respect. Much of what might well, even in the comparatively recent past, have been considered by the judges to be scurrilous abuse of themselves or their brethren has today, as it seems to me, to be recognized as amounting to no more than acceptable if trenchant criticism.” ([2001] 2 FCR 193).

The offence remained dormant on the books until 2012 when the Attorney General for Northern Ireland obtained leave to prosecute an MP for statements in his book, criticizing a judge’s handling of a judicial review application. The prosecution was later discontinued. However, it led to calls to abolish the offence. After a review of the law of contempt of court in general, law of scandalizing the court was finally repealed.

A similar lack of appetite for prosecuting this offence exists in Australia, where it was said that: “There is no more reason why the acts of courts should not be trenchantly criticized than the acts of public institutions, including parliaments. The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.”

Needless to say, the offence has always been a problem in countries with bill of rights that expressly guaranteed the right to free expression. In Canada, a lawyer said of a court decision
“This decision is a mockery of justice. It stinks to high hell. It says that it is okay to break the law and you are immune so long as someone above you said to do it.?Mr. Dowson and I have lost faith in the judicial system to render justice. We’re wondering what is the point of appealing and continuing this charade of the courts in this country, which are warped in favor of protecting the police. The courts and the RCMP are sticking so close together you’d think they were put together with krazy glue.”
It was almost as if the lawyer had crafted the statement to traverse all the elements of the common law offence of scandalizing the court. Yet, he was found not guilty on a charge of scandalizing the court. The court held there must be a showing of a “clear and present” or “imminent” danger to the administration of justice. As a result of their importance the courts are bound to be the subject of comment and criticism. Not all will sweetly reasoned. An unsuccessful litigant may well make comments after the decision is rendered that are not feliciously worded. Some criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.... The courts have functioned well and effectively in difficult times. They are well-regarded in the community because they merit respect. They need not fear criticism nor need to sustain unnecessary barriers to complaints about their decisions or operations.”
In the United States, the power of the courts to punish for scandalizing the court is almost non-existent. The general rule for restricting speech is whether it portends “clear and present danger” to the administration of justice. This means the prosecutor must prove beyond reasonable doubt that the speech could bring about a substantial imminent evil. Of course, it is hard to imagine what that speech could be, allowing all forms of language to be directed at judges, in the cloak of criticisms. Notwithstanding this liberal stand, judges and the judiciary in the United States are among the most respected professionals and institutions in the country, perhaps, largely because of the unfettered scrutiny to which they are subject.
On the other side of the ledger, Ghana’s jurisprudence on scandalizing the court stands in sharp contrast with most of the rest of the world. This is surprising because Ghana has one of the most liberal constitutions, especially as it relates to freedom of speech and the media, in the world.
For instance, a whole chapter of the Constitution is devoted to guaranteeing the freedom and independence of the media. And understandably so, given the country’s history of fighting against the culture of silence, which characterized the military era, and a collective desire and hope to never allow the reemergence of any regime, wherein expressing an opinion, no matter how erroneous or even inflammatory, will be criminalized. The Constitution insists that, “Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications (Article 162 (4)).
Notwithstanding these paper guarantees, four (4) cases show that the Supreme Court of Ghana has little or no difficulty sending journalists to jail, on charges of scandalizing the Court. In Republic v Mensa Bonsu, Ex Parte AG, the then Attorney-General filed a motion on notice in the Supreme Court for an order of committal or attachment of Mensa Bonsu and the Editor of the Free Press and to commit them to prison for contempt of court.
Mensa Bonsu had caused to be published an article in the Free Press accusing Justice Abban of being a liar when the latter attributed a Daily Graphic editorial to Dr. Busia, the former Prime Minister of Ghana. According to Mensa-Bonsu, Justice Abban corrected page 28 of his opinion to conform it to his criticisms, after getting wind of the criticism. Mensa Bonsu’s article was titled “Justice Abban is a liar.” The same publication accused Justice Abban of “political chicanery and bamboozlement,” for lifting an editorial comment of Daily Graphic newspaper and portraying it as a speech made by Dr. Busia. A third publication also stated: “ Justice Abban is accused of doctoring his version of his judgment as a subterfuge to free himself from scandal...Abban puts integrity of the bench on the line...”
Justice Bamford-Addo, writing for a majority of the Supreme Court, held that the publication constituted scurrilous abuse amounting to the contempt of scandalizing the court. Further, once the matter published scandalizes the court, truth is no defence or a justification. In dissent, Adade JSC, said “judges do, like any other group of human beings, make mistakes and should, and indeed, ought to be criticized. He held that in his view, a case of contempt had not been made out.”
The next three cases are related to the recent comments attributed to Sammy Awuku, Stephen Atubiga and Ken Kuranchie. Sammy Awuku had said the Court was selective and hypocritical. Atubiga had said that NDC would not follow any Court order to hand over to NPP. Ken Kuranchie, in an editorial, had agreed with Sammy Awuku.
According to the Court, “Mr. Stephen Atubiga’s utterances were very serious and were intentionally made contemptuously.” With respect to Ken Kuranchie, “we were left in no doubt that he understood those parts of his publication, which impute deliberate selectivity and hypocrisy with regard to our remarks about Daily Guide and Sammy Awuku’s sanction. Ken Kuranchie clearly says that Sammy Awuku was right in describing us as hypocritical and selective, the things Sammy Awuku himself fully retracted and apologized to this court. If this is not defiance of the authority of this court and the due administration of justice, we do not know what else it can be. We have no doubt that the said statements are made with intent by him to defy the authority of this court and the due administration of justice.”
It is unclear how any of these charges, to the extent that they were actually proven, amount to scandalizing the Court. Moreover, it does not appear to be sub judice contempt, which is the common law offence of publishing material that has a tendency to interfere with the administration of justice while proceedings are sub judice (under a judge). Generally, the tendency to prejudice proceedings must be real and definite, for which reason, it is now essentially established that a publication or broadcast will not be regarded as presenting a substantial risk of prejudice by influencing a judge. That is, this offense is more likely to be relevant in a trial by jury. A final possibility is that our Justices created a new common law of contempt by “defying the authority of the Court.”

From the forgoing, it is clear that the threshold needed to scandalize the Supreme Court of Ghana is much lower than the rest of the world. Further, the Supreme Court of Ghana stands alone in its use of a summary trial and punishment for contempt ex facie. Third, scandalizing the court is no longer an offence in England, where we inherited it. Fourth, it appears that scandalizing the court was an offence meant for disciplining the colonies, raising questions as to why we should continue to have it on our books. Fifth, the experience of USA and other countries have shown that allowing robust, even intemperate, criticisms of the court and judges strengthens, not weaken, the administration of justice. Sixth, judges, in Ghana, are not elected and criticisms remain the only vehicle to hold them accountable. It cannot be acceptable for the judges to have the power to imprison citizens for criticisms that the judges do not like. Seventh, there is no empirical evidence that robust debate in the public square is a harbinger of war anymore than dead silence portends peace. Thus, the Supreme Court veiled references to protecting the peace is uncalled for and, in any case, not a proper basis for finding contempt. Finally, the press, like judges, has an important constitutional role to play in the 4th Republic, as it relates to court reporting. That role is not simply about publishing information about trials but also guarding against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. The press cannot play this role if the sword of scandalizing the court remains pointed at them.