the parties concerned in a pending case, or by creating prejudice against such persons before their cause is heard.
The locus classicus on the subject of contempt by attacks on judges is a judgment prepared by Sir Eardley-Wilmot in the case of an application for an attachment against J. Almon in 1765, for publishing a pamphlet libelling the court of king’s bench. The judgment was not Invectives against judges. actually delivered as the case was settled, but has long been accepted as correctly stating the law. Sir Eardley-Wilmot said that the offence of libelling judges in their judicial capacity is the most proper case for an attachment, for the “arraignment of the justice of the judges is arraigning the king’s justice; it is an impeachment of his wisdom and goodness in the choice of his judges; and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open and uninterrupted current which it has for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.” Again, “the constitution has provided very apt and proper remedies for correcting and rectifying the involuntary mistakes of judges, and for punishing and removing them for any perversion of justice. But if their authority is to be trampled on by pamphleteers and news-writers, and the people are to be told that the power given to the judges for their protection is prostituted to their destruction, the court may retain its power some little time, but I am sure it will eventually lose all its authority.”
The object of the discipline enforced by the court by proceedings for contempt of court is not now, if it ever was, to vindicate the personal dignity of the judges or to protect them from insult as individuals, but to vindicate the dignity and authority of the court itself and to prevent acts tending to obstruct the due course of justice. The question whether a personal invective against judges should be dealt with brevi manu by the court attacked, or by proceedings at the instance of the attorney-general by information or indictment for a libel on the administration of justice or on the judge attacked, or should be dealt with by a civil action for damages, depends on the nature and occasion of the attack on the judge.
There has at times been a disposition by judges in colonial courts to use the process of the court to punish criticisms on their acts by counsel or parties or even outsiders, which the privy council has been prone to discourage. For instance in a Nova Scotia case a barrister was suspended from practice for writing to the chief justice of the province a letter relating to a case in which the barrister was suitor. The privy council while considering the letter technically a contempt, held the punishment inappropriate. In Macleod v. St Aubyn (1899, A.C. 549) it was said that proceedings for scandalizing the court itself were obsolete in England. But in 1900 the king’s bench division, following the Almon case, summarily punished a scurrilous personal attack on a judge of assize with reference to his remarks in a concluded ease, published immediately after the conclusion of the case (R. v. Gray, 1900, 2 Q.B. 36). The same measure may be meted out to those who publish invectives against judges or juries with the object of creating suspicion or contempt as to the administration of justice. But the existence of this power does not militate against the right of the press to publish full reports of trials and judgments or to make with fairness, good faith, candour and decency, comments and criticisms on what passed at the trial and on the correctness of the verdict or the judgment. To impute corruption is said to go beyond the limits of fair criticism. Shortt (Law relating to Works of Literature) states the law to be that the temperate and respectful discussion of judicial determination is not prohibited, but mere invective and abuse, and still more the imputation of false, corrupt and dishonest motives is punishable. In an information granted in 1788 against the corporation of Yarmouth for having entered upon their books an order “stating that the assembly were sensible that Mr W. (against whom an action had been brought for malicious prosecution, and a verdict for £3000 returned, which the court refused to disturb) was actuated by motives of public justice, of preserving the rights of the corporation to their admiralty jurisdiction, and of supporting the honour and credit of the chief magistrate,” Mr Justice Butler said, “The judge and jury who tried the case, confirmed by the court of common pleas, have said that instead of his having been actuated by motives of public justice, or by any motives which should influence the actions of an honest man, he had been actuated by malice. These opinions are not reconcilable; if the one be right the other must be wrong. It is therefore a direct insinuation that the court had judged wrong in all they have done in this case, and is therefore clearly a libel on the administration of justice.”
The exact limits of the power to punish for contempt of court in respect of statements or comments on the action of judges and juries, or with reference to pending proceedings, have been the subject of some controversy, owing to the difficulty of reconciling the claims of the press to liberty and of the public to free discussion of the proceedings of courts of justice with the claims of the judges to due respect and of the parties to litigation that their causes should not be prejudiced before trial by outside interference. As the law now stands it is permissible to publish contemporaneous reports of the proceedings in cases pending in any court (Law of Libel Amendment Act 1888, s. 3), unless the proceedings have taken place in private (in camera), or the court has in the interests of justice prohibited any report until the case is concluded, a course now rarely, if ever, adopted. But it is not permissible to make any comments on a pending case calculated to interfere with the due course of justice in the case, nor to publish statements about the cause or the parties calculated to have that effect. This rule applies even when the case has been tried and the jury has disagreed if a second trial is in prospect. Applications are frequently made to commit proprietors and editors who comment too freely or who undertake the task of trying in their newspapers a pending case. The courts are now slow to move unless satisfied that the statements or comments may seriously affect the course of justice, e.g. by reaching the jurors who have to try the case.
The difference between pending and decided cases has been frequently recognized by the courts. What would be a fair comment in a decided case may tend to influence the mind of the judge or the jury in a case waiting to be heard, and will accordingly be punished as a contempt. In Tichborne v. Mostyn the publisher of a newspaper was held to have committed a contempt by printing in his paper extracts from affidavits in a pending suit, with comments upon them. In the case of R. v. Castro it was held that after a true bill has been found, and the indictment removed into the court of queen’s bench, and a day fixed for trial, the case was pending; and it was a contempt of court to address public meetings, alleging that the defendant was not guilty, that there was a conspiracy against the defendant, and that he could not have a fair trial; and the court ordered the parties to answer for their contempt. In the case of the Moat Farm murder (1903) the high court punished as contempt a series of articles published in a newspaper while the preliminary inquiry was proceeding and before the case went to a jury (R. v. Parker, 1903, 2 K.B. 432). The like course was followed in 1905 in the case of statements made in a Welsh newspaper about a woman awaiting trial for attempted murder (R. v. Davies, 1906, 1 K.B. 32); and in the case of the Weekly Dispatch in 1902 (R. v. Tibbits and Windust, 1 K.B. 77), two journalists were tried on indictment, and held to have been rightly convicted, for conspiring to prevent the course of justice by publishing matter calculated to interfere with the fair trial of persons who were under accusation.
“In the superior courts the power of committing for contempt is inherent in their constitution, has been coeval with their original institution and has been always exercised” (Oswald, On Contempt, 3). The high court in which these courts are merged is the only court which has Courts having jurisdiction. a general jurisdiction to deal summarily with all forms of contempt. Each division of that court deals with
