History behind 'scandalising the judiciary'

History behind 'scandalising the judiciary'

The offence of "scandalising the judiciary" is in the news, after the High Court recently gave the Attorney-General's Chambers (AGC) the green light to act against Mr Alex Au (in photo above) for this, over a post he made on his blog Yawning Bread.

Britain, where the offence of scandalising the judiciary originated, recently abolished it as a form of contempt of court. But it remains on the law books of common law countries jurisdictions such as Australia, New Zealand, Hong Kong and Singapore.

Experts emphasise that the offence is not meant to shield judicial decisions from reasoned critique. Neither does is it meant to protect judges' self-esteem. This is clear from the AGC document entitled Understanding Legal Processes: Contempt Of Court.

Rather, it serves "to safeguard the integrity of legal proceedings for the benefit of those seeking recourse before the courts".

A look back at the history of this slightly arcane-sounding offence is interesting.

Historically, it was created in the judgment R. v Almon (1765) to fight off anonymous attacks on the integrity of Lord Mansfield, then the Chief Justice of England. At the time, he was involved in a titanic struggle with another chief justice - and with popular opinion as well.

Though the Almon case is routinely cited to justify why the doctrine is necessary to protect the integrity of and maintain faith in the administration of justice, there is much more to it than meets the eye.

Professor Douglas Hay notes in his recent work, Crown Side Cases In The Court Of King's Bench (Staffordshire Record Society, 2010), that although widely considered the origin of the contempt of "scandalising the judiciary", Almon's pedigree was less than honourable, even if the doctrine it bred has acquired a position of some honour today.

Recall that the Magna Carta Libertatum, or the Great Charter of the Liberties of England, was forced upon King John of England in 1215 by his feudal barons to limit his powers by law.

The Magna Carta began the process that would lead to constitutional law in the Anglophone world. It guaranteed the rights to free speech and trial by a jury of one's peers.

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