In contempt of contempt
Tom Harper
Contempt is only one device by means of Which the law is used to constrain the individual's right to say what he wants to say, orally or in writing, about the things that trouble him. There are also official secrets and defamation. But whereas the law relating to them, or at any rate a very large part of it, has been laid down by Parliament in statutory form, the law relating to contempt of court owes its existence entirely to the Judges. As has also been shown in the case, for example, of conspiracy, obscenity and blasphemy, law that is wholly judge-made tends to suffer from a number of serious defects, of which uncertainty is the most serious.
To the extent that they are defined at all, the scope and limits of such law are defined in the light of what happen to be the prevailing judicial attitudes at the time (attitudes which may by no means coincide With those of society generally) and by reference to the disparate circumstances of such cases as happen to come before them for decision. It is from the inevitably haphazard and unstructured body of judicial pronouncements which result that anything passing for legal principle has to be distilled. Where the relevant law stands today is often uncertain in the extreme. How it will develop tomorrow, and indeed Whether it will develop at all — however urgent the need for it to do so may be — is anyone's guess. And of course where particular changes in judge-made law do emerge, they are not — unlike changes in the law enacted by Parliament — subjected to Public debate and scrutiny beforehand. The scrutiny and debate that often follow in their wake have much of the futility of shutting the doors of empty stables.
The consequences of these deficiencies in Judge-made law were clearly reflected in the report of the Phillimore Committee on Contempt of court, which was published in 1974 (Cmnd. 5794). Most significantly of all, that committee concluded that the ,uncertainties' in the existing law which aliPeded and restricted reasonable freedom of speech' — not just freedom, but reasonable freedom — should be 'amended and clarified', but specifically that it should be 'amended and clarified by statute'. On Protecting the interests of reasonable freedom of speech, they pointed out that under the law as the judges have shaped it, anyone Who, in commenting on the subject-matter of a particular case, strayed across the largely unidentifiable boundary between What was and what was not permitted could not then plead that his comment was not Intended to prejudice the course of justice — even if that were shown to be so. The corn
mittee therefore recommended that under the new statutory definition of contempt they proposed, it should be a defence to a charge of contempt that published comment 'formed part of a legitimate discussion on matters of general public interest and that it only incidentally and unintentionally created a risk of serious prejudice' — as opposed to mere prejudice under the existing law — 'to particular proceedings, and in any event, only if such proceedings had 'started' (to put a stop to 'gagging writs') and had 'not yet been finally settled or concluded'.
The committee found it necessary to emphasise that, in defining the acceptable scope of contempt, a balance had to be struck between safeguarding the fair administration of justice from prejudice and not restricting 'reasonable freedom of speech'. Their recommendations for reform would not of course have been needed at all had they found that such a balance existed, and it is questionable whether they went far enough. However, since they reported in 1974, the law of contempt has been developed, at the hands of the judges, in a number of decisions that have further distorted that balance, to the detriment of free speech. The Colonel B case is a case in point.
In that case, the Queen's Bench Divisional Court rejected the argument that the defendants — The Leveller, Peace News and the National Union of Journalists — could not be guilty of contempt of court for disclosing Colonel B's identity, contrary to a direction of the court, unless there was evidence that its disclosure 'in some way interfered with the course of justice' in the proceedings under the Official Secrets Act in which the colonel had appeared as a witness. There was no such evidence. There was indeed considerable uncertainty about whether there had been any court order against disclosure at all — least of all against disclosure after the proceedings concerned had ended — as opposed to the court's consent to a prosecution request that the witness should be referred to in court by his rank and initial only.
But where the courts do make such an order, it is surely essential, to prevent the power to do so from becoming an arbitrary and capricious threat to 'reasonable freedom of speech', to prove that its exercise in the particular case is necessary to protect the administration of justice from prejudice. And only where that is established should contravention of such an order be capable of amounting to contempt, with the consequence of a large fine or even imprisonment to follow. Rejecting that approach, the Lord Chief Justice declared that 'the public has an interest in having the courts protected from such treatment'. But why do the courts need protecting from 'treatment' that is not likely in any event to obstruct them in the fair and impartial administration of justice?
The Government have done nothing to implement Phillimore, but in March of this year they published a green paper (Cmnd. 7145) with the curious object of promoting 'informed parliamentary and public discussion' on reform of the law of contempt — curious because, of course, that is precisely what Phillimore had been doing since it first appeared four years previously. The real purpose of the green paper was undoubtedly to throw cold water on a number of Phillimore's proposals and to suggest that in relaxing the shackles of the law of contempt in favour of 'reasonable freedom of speech' the committee had gone 'too far'. The question which remains is how far it is necessary to go to redress the balance distorted by the courts in judgments like that in the Colonel B case, where it was suggested that the threat of contempt to 'reasonable freedom of speech' was not limited even to the extent of having to prove any actual prejudice to the administration of justice.
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