Tuesday 22 July 2008

Contempt, concluded

Earlier posts on this blog (see most recently this one) have noted contempt of court proceedings in respect of public comments made by the solicitor Aamer Anwar following the conviction of his client Mohammed Atif Siddique of offences under the Terrorism Act 2000 and 2006. A bench of three judges of the High Court has now decided that no contempt could be said to have been committed. The full opinion is available at this link. A few aspects of the case are worthy of note:

First, the court permitted Liberty to make submissions to the court as a third party given the “very unusual circumstances” of the case (see para 11). It is doubtful that this sets any precedent for third party intervention in criminal cases generally, given that the court appeared to rest its decision on this point on the status of contempt as an offence sui generis. Provision for such interventions more generally might require amendments to the Criminal Procedure Rules (cf Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Public Interest Intervention in Judicial Review) 2000, SSI 2000 No 317).

Second, a curiosity: counsel for Mr Anwar placed some reliance on an opinion “obtained from Professor Donald Nicolson, Professor of Law at the University of Strathclyde with an expertise in professional legal ethics. His conclusion was that no clear professional or common law rules existed to render the respondent’s actions a breach of his ethical responsibilities or duties as an officer of the court” (para 24). (Strathclyde is Mr Anwar’s alma mater, but Professor Nicolson took up his post there after Mr Anwar’s graduation.) The use of such an opinion in a criminal appeal is rare if not unprecedented, and the court makes no further reference to it other than to note counsel’s reliance on it. Counsel could perhaps adopt the terms of an argument made in such an opinion, but it is difficult to see how it could have any status in itself, particularly given that the court had to decide questions of fact to reach a decision – albeit that this could be done by construing the undisputed terms of statements made by Mr Anwar rather than leading evidence.

Third, on the substantive issue, the court rejects counsel’s submission “that there could not be a contempt of court following the conclusion of the particular proceedings in question”, arguing that it is “quite possible to conceive of language which would be of such an extreme nature that it did indeed challenge or affront the authority of the court or the supremacy of the law itself, particularly perhaps where the integrity or honesty of a particular judge, or the court generally, is attacked” (para 37). It might be argued that this particular problem is sufficiently dealt with by the crime of murmuring judges (see this earlier post), of which there is no discussion.

Finally, and despite its conclusion on the possibility of contempt being committed after the conclusion of proceedings, the court goes on to conclude that Mr Anwar’s conduct could not be said to be a contempt of court. It is highly critical of his public statements, describing aspects of the press release which he issued as “a wholly inaccurate statement of the nature of the convictions recorded against the panel” (para 40), characterising aspects of his statements generally as “angry and petulant” (para 44) and concluding that the court “is entitled to expect better of those who practice before it” (para 45). However, having adopted the language of the Lord Justice-General (Emslie) in HM Advocate v Airs 1975 JC 64, describing contempt of court as “conduct that denotes wilful defiance of, or disrespect towards, the court or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself”, the court concludes that this test is not met.

In reaching that conclusion, the court ignores the words “or disrespect towards” (which it quotes at para 44 but omits from its reference to Airs at para 37) without explanation. It would be one thing to find someone in contempt for disrespectful conduct in the courtroom during the course of proceedings, but there are good reasons to think that it should not be possible to commit contempt after the conclusion of proceedings by disrespect alone.

Update (25/7): Thanks to Gerald Gordon for pointing out "murmuring judges" ceased to be a statutory crime as a result of the Statute Law (Repeals) Act 1973 (repealing the Judges Act 1540). In Alexander Robertson (1870) 1 Couper 440, the judges were clear that unfounded allegations of corruption made against a judge were both criminal at common law and under the 1540 Act, but the common law charge was described as one of "slandering" rather than "murmuring" (the latter being the term used in the statute).