Calling time on Scandalising the Court

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. You might commit the offence if you do or publish 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 three-month consultation, the Commission has concluded that the offence of scandalising the court is an infringement of freedom of expression and out of step with social attitudes.

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. Scandalising the court has not been successfully prosecuted since 1931. However, the Commission considers that using it 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.

The Commission also argues that scandalising the court 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.

Professor David Ormerod, the Law Commissioner leading the project, says:

“Scandalising the court amounts to a restriction on freedom of expression. And freedom of expression should not be infringed unless there is a strong and principled reason for doing so. We have found, on the contrary, many strong reasons for removing this restriction. Today, scandalising behaviour occurs very frequently but is never prosecuted. 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.”

Supporting its argument that the offence is no longer required, the Commission points out 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 civil defamation proceedings.

The report, Contempt of Court: Scandalising the Court, is available on the Commission’s website: www.lawcom.gov.uk.

 

Notes for editors
1. The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.
2. For more details, visit www.lawcom.gov.uk
3. For all press queries please contact:
 Phil Hodgson, Head of External Relations 020 3334 0230
 Jackie Samuel 020 3334 0216
Email: communications@lawcommission.gsi.gov.uk