Letter of the Law
Fighting Back
By R. A. CLINE AT last people are beginning to fight back. There is a good chance that the creeping growth of that dangerously diffuse and undis- ciplined offence, contempt of court, is being halted.. At any rate on two occasions at the end of last year the signs were encouraging. In the House of Commons the Member for Northamp- ton asked the Speaker to shed some light on the question whether parliamentary lips have to be sealed the moment a matter under discussion in the House becomes the subject of litigation. If this is a rule of our constitution, it is a very bad One; and no longer, serves any useful purpose. It Puts the individual interest of the litigant before the national interest and it does so in order to protect the litigant from a danger which never really threatens him.
What an absurd assumption it is that High Court judges (or indeed judges of lesser rank, for this sub judice rule, if it exists, should not make distinctions of that sort—county court Judges should be in need of at least as much protection as their superiors from outside in- fluence) read Hansard or other political .reports from cover to cover, or if they do, that the9 are in the least influenced by what they read there, or if they are, that they are incapable of remov- ing any prejudice that might have lodged in their minds as a result. After all it is a task which they are called upon to perform in almost every case containing some political or semi-political feature, squabbles between landlord and tenant, charges of trade union chicanery and so on.
Is parliamentary inquiry to be stifled while an Unscrupulous plaintiff toys with his litigation, resorting to all the many devices available for delaying the trial of his claim? Sometimes a Year or two—or even three—can elapse from the issue of the writ which triggers off the litiga- tion to the day when the judgment of the court is at last delivered. And it is not only the un- scrupulous who may reduce Parliament and the press to silence, but also a plaintiff with a bona fide claim. In a recent case the Atomic Energy Authority was involved for over a year in pro- ceedings brought by the personal representatives of a man whose death was alleged to have been caused by atomic radiation. Now the question whether employees of the Authority engaged on similar work might be exposed to radiation risk was clearly one of more than local or individual significance, but neither Parliament nor any other organ of inquiry could discuss the matter so long as proceedings were on foot. The matter was sub judice. Yet the risk that the trial judge would be influenced by the debates was minimal; the risk of anxiety among atomic workers consider- able.
Does the rule exist? The Speaker has promised to find out and the Leader of the House has given his blessing to the investigation. This is all to the good, and a refreshing contrast to that all too ready reverence towards court proceedings which has so frequently enabled Ministers to shelter behind the rule and shroud some vexed question in dignified silence, to be broken only when the matter has become stale and no longer of significance. The judges themselves can hardly be flattered by such an attitude which suggests that they are easily influenced by extrinsic factors and that they do not confine themselves to the evidence before them. In fact the sugges- tion might be characterised as contempt of court.
The second repulse occurred in the Restrictive Practices Court. During last summer the court was called on to rule whether a certain agree- ment governing the supply of newspapers to newsagents was contrary to the public interest and so null and void. The newsagents' Federa- tion backed the agreement and indeed was a party to it. But the honorary treasurer of one of the Federation branches was strongly critical; for him, one of the consequences of the agree- ment was that he had been refused newspaper supplies for nine years and he had without suc- cess waged a campaign to stop periodicals being sold near his shop. So he came to court and warmly advocated the abolition of the agreement. In the outcome the court declared the agreement contrary to the public interest, and that was the end of the case.
But for the honorary treasurer there was an aftermath. His local branch committee felt as strongly about his views as he did about the agreement. So the committee relieved him, or tried to do so, of his post. This decision was taken in the autumn well after the court had disposed of the proceedings and handed down its judgment. But this did not discourage the Attorney-General from contending that al- though there were no proceedings pending, none- theless the committee's decision was contempt of court, being a form of interference with wit- nesses. His argument was that witnesses would be deterred in future cases from giving evidence, fearing the consequences when the case was over and everyone had gone home.
No one would quarrel with the contention that witnesses should be protected while a case is actually proceeding. Every court has and ought to have power to ensure that the maximum evi- dence can be put freely before it. But there must be a limit. In almost every case the parties find that witnesses are reluctant to come forward for fear of the reckoning afterwards, a child sup- porting one of his parents against the other in a divorce dispute, an employee giving evidence of an unsafe system of work in his employer's factory. Is the criminal law of contempt such that it can reach out against the defeated father who orders his son from the home or the defeated employer who lawfully gives his worker notice?
Happily the Restrictive Practices Court re- fused to accept that there was any such rigorous law. The court could not find, in all the centuries during which the courts had dealt with criminal contempt, a case in which conduct adverse to a witness had been found to be a contempt where that conduct occurred after the case was over— though the court conceded that a case might occur where, for example, a powerful organisa- tion took some action which was clearly designed to discourage adverse testimony, not in a parti- cular case, but in general; Mr. Justice Russell gave as an example the case of a company which announced that all employees who sued or gave evidence against it in any proceedings would be instantly dismissed, and he hinted that such behaviour might be contempt, because it in- tended to interfere with the administration of justice.
This decision will be especially welcome to those who feel that if the Attorney-General is going to call for prison sentences (which in effect he did by applying for a writ of attach- ment) for this type of contempt, then the sooner this obscure minefield is charted, the better. No one knows what the position is before proceed- ings have been started, but at least we now know that the end is the end.
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