Criminal Contempt of Court Procedure: a Protection to the Rights of the Individual

VOL . XXX MARCH 1951 NO . 3

Criminal Contempt of Court Procedure: A Protection to the Rights of the Individual

J. C. MCRUERt Toronto

What I have to say may be prefaced by two quotations, the first from Chambers Encyclopaedia : There is probably no country in which Courts of Law are not furnished with the means of vindicating their authority and preserving their dignity by calling in the aid of the Executive in certain circumstances without the formalities usually attending a trial and sentence. Of .this the simplest instance is where the Judge orders the officers to enforce silence or to clear the court. and the second from Bacon's Abridgment: Every court of -record, as incident to it, may enjoin the people to keep silence, under a pain, and impose reasonable fines, not only *on such as shall be convicted before them of any crime on a formal prosecution, but also on all such as shall be guilty of any contempt in the face of the court, as by giving opprobrious language to the judge, or obstinately refusing to do their duty as officers of the Court and may immediately order them into custody.' . To. these I add two other quotations: A Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are * Based on an address delivered to the Lawyers Club, Toronto, on January 24th, 1952 . t The Hon . J. C. McRuer, Chief. Justice, High Court of Justice, Ontario . ' (7th ed.) Vol . 2, p. 399.

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entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community .2 From the earliest period of our history this authority has been exercised .3 A contempt may be either a criminal contempt or a civil contempt. The difference between contempts criminal and contempts civil seems to be that contempts which tend to bring the admin istration of justice into scorn, or which tend to interfere with the due course of justice, are criminal in their nature, but a contempt in disregarding the orders of a judge of a civil court is not criminal in its nature. It is the obstruction or interference with the fair administration of justice with which the law of criminal contempt is concerned, and it has nothing to do with the personal feelings of the judges; it is not a power to be used for the vindication of the judge as a person,4 and no judge should allow his personal feelings to have any weight in the matter. There is no law which precisely and comprehensively defines contempt of court, nor are there landmarks pointing out the bound- aries in all cases.5 Criminal contempt of court may be defined as any act done or any thing published tending to obstruct, impair or interfere with the fair administration of justice or to bring the court or judge into contempt or lower his authority ; or any act done or writing published tending to obstruct or interfere with the due course of justice or lawful process of the courts. The history of the law of contempt is long and may be passed over briefly. The judicial process in England had its origin in the King as the fountain of justice and even today the judges in Can ada sit as the King's Justices. In theory, a contempt of court was originally regarded as a contempt of the King, but in practice we are much more concerned with the contempt, not as affecting the dignity of the judge, but as it may affect the power and authority of the court as a protection to the rights of the individual . Criminal contempts may be divided into three classes: (1) contempts committed in the face of the court or coram curia; (2) comments on cases pending in the courts ; (3) scandalizing the court, by the publication of scandalous matter of the court itself-6 Inferior courts have power to punish only contempts coram curia. A superior court has the power to punish contempts of inferior courts which do not occur coram curia. In such cases the

2 Oswald's Contempt of Court (3rd ed., 1911) p. 9 (italics added) . a Best J. in Rex v. Dav son (1821), 4 B. & Ald. 329, at p. 340 . 4 McLeod v. St. Aubyn, [18991 A.C. 549, at p. 561. 1 Ibid., at p. 561. 6 Ibid., at p. 561.

1952] Criminal - Contempt of Court Procedure 227- proper, practice is to move in a superior court for an order for committal. Conterhpts committed in the face of 'the court include dem- onstrations in the courtroom by shouting, noisy behaviour, ap- plauding a verdict of a jury or decision of a judge; refusing to give evidence when properly subpoenaed as a witness or to answer relevant questions; refusing to leave the courtroom when ordered to do so or to obey the orders of the court or its officers with respect to a trial which is in progress, whether civil or criminal, or using abusive or disrespectful language to a judge presiding at the trial. The fundamental principle underlying the law on contempt of court is that the administration of justice is carried on as a process of orderly government. It is in the interest of every member of so ciety that the law should be respe9ted. It is unnecessary to say that it can only be properly administered in a dignified and orderly manner. I say with emphasis that the law of contempt of court does not exist for the protection of judges but for the protection of the individual right of every citizen to an independent administration of justice free from influence or intimidation by improper conduct of any sort. The phrase "contempt of court" is somewhat misleading. The mischief concerned consists, not in some attitude towards the court itself, but in conduct tending to prejudice the position of a person having a cause before the court for decision. In other words, what is really in question is nothing attacking the status of the court as a court, but something which may, affect the rights of citizens.? We now pass to the discussion of acts done, words spoken or written, which may tend to interfere with the fair administration of justice. This branch of the subject is more important in a trial by jury than in a trial by a judge without a jury, but it is nevertheless important in all trials, and particularly important in Grim-- inal trials. No judge or juror should be embarrassed in arriving at his decision by an. expression of opinion on the case by anyone. He should not be put in a position where, if he decides in accordance with the opinion expressed or the popular, sentiment existing, it can be said he has been influenced ; nor,should he be put in the position where -it could -be said he was antagonistic to any opinion or popular sentiment. Everyone who has a matter before a court of justice for decision has the right to have the decision of the court

7 Lord Hewart C. J., in Rex v. Daily Mirror; ex parte Smith, [1927] 1 K.B. 845, at p. 847.

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founded on the law as the court conceives it to be and the evidence properly submitted. The simplest example of conduct of the class I am now dealing with is a communication with a juror or a judge before judgment is given about the subject matter of a trial. In my ex perience I have never known this to occur except by anonymous letter or through the newspapers. It may have occurred but if it has it has been without my knowledge. Scandalizing the court itself without external pressure or influence brought to bear directly or indirectly is a contempt. A discussion of the subject as it applies to those contempts which are not committed in the face of the court may be sub- divided into five subdivisions : (a) contempt by the publication of evidence or comments before the case is heard; (b) publication of comments during the trial; (c) publication of comments after trial and before an appeal has been heard ; (d) criticism of the administration of justice; (e) responsibility for contempt ; (f) right of appeal.

Publication of Evidence or Comments before the Case is Heard Proceedings are pending as soon as the warrant or summons is issued in a criminal case and, in a civil case, as soon as the writ is issued. Printing without comment and circulating the brief, plead- ings, petition or evidence on one side only is a contempt, and it is even improper to publish, in reporting a case, a portion of an affidavit not read in court and reflecting on the character of one of the parties, although other parts of the affidavit were read or submitted.,, I emphasize this particularly, applying as it does to civil cases, for it is within one's observation that there are published in headlines allegations contained in a statement of claim or an affidavit which has just been filed in court before there has been any opportunity to reply, casting reflections on the character of a party to'the action.9 It should be apparent to everyone how such a practice, if permitted, allows the courts and the press to be used as a means of blackmail. Any report of proceedings held in camera is contempt." This not infrequently arises where there is a trial on the voir dire as to 8 Duncan v. Sparling (1894), 10 T.L.R. 353. 9 Oswald, op cit., p. 95. 10 In re Martindale, [1894] 3 Ch. 193.

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the admissibility of a,stàtement made by an accused person. Until it has been decided that the statement is admissible and it is admitted at the trial of the accused (not at the preliminary hearing), there should be no publication of any reference to the statement.

Publication of Comments during a Trial Mr. Justice Wills" said that the principle is clear that it is not because the comments may damage the accused person that the court will interfere but on a broader and higher ground, namely, that it is the province of the tribunal before whom the charge is, tried to determine between his guilt or innocence. The fact that the jurors can be trusted not to let their minds be prejudiced is no answer. In Rex v. Parke, the same learned judge said: The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impar- tially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. lz It is difficult, and in fact it may be impossible, to define what is meant by tending to prejudice the fair trial of an accused in an action. Every libel on a person about to be tried is not necessarily a contempt of court. An intention to interfere (either express or implied) with the fair trial is of course conclusive, but where no such intention can be found, nevertheless the publisher- may be held to be in contempt if the article tends to interfere with the fair trial, and this can only be determined after considering all- the relevant circumstances. Even if the article does tend to interfere with the fair trial, the question always arises whether a court should, in the exercise of the jurisdiction it possesses, make any order.1 3 The court is not a school of taste; however deplorable or however disgusting articles may be or be thought to be by men of taste or men of discretion, the matter of contempt does not necessarily arise. The only question is whether they are calculated to prejudice the fair hearing of the cause.14 "Calculated" is not used as "intended" but as "tend" . The subject matter may be something reported as news, edit- 11 Reg. v. Balfour: Re Stead (1895), 11 T.L.R. 492, at p. 493 . iz Rex v. Parke, [1903] 2 K.B. 432, at p. 436 (italics added) . la Reg. v.. Payne, [1896] 1 Q.B. 577. 14 [192512 K.B. 158, at p. 169.

230 THE CANADIAN BAR REVIEW [VOL . XXX orial comment, a drawing or cartoon or even a theatrical exhibi- tion representing a man committing the act of murder." In Rex v. Daily Mirror; ex parte Smith1 6 it was held that it was a contempt of court to publish the photograph of a man charged with attempted murder where there was a question of identifica tion. The facts were as follows. On January 7th, 1927, an attempt was made to shoot a police officer named Dainty. On January 9th, one Edgar William Smith was arrested. On January 10th he was brought before the justices, and it was then stated that another charge might be preferred, this being reported in the press. On January 13th an identification parade was held to enable various persons to see if they could identify the person about whom it was suggested they could give evidence. On that morning there appeared in the Daily Mirror newspaper a photograph of Smith with the caption : "Shot P.C. charge. Edgar William Smith, of Hykeham (Lines.), remanded at Newark on a charge of attempting to murder police constable Dainty, who, it is alleged, was shot by a motorist on a Notts country road. Bail was refused, the deputy chief constable stating that there might be further charges. The hearing is to be resumed today." And on the same morning a similar photograph appeared in the Daily Mail with the caption : "Edgar Wil- liam Smith, who is on remand charged with attempting to murder police constable Dainty whom he is alleged to have shot and wounded near Newark, Nottinghamshire" . None of the witnesses in fact saw either of these photographs before attending the identification parade. On the 27th of January, when Smith was committed for trial on the charge of the attempted murder of Dainty, his counsel stated that no question of identity would be raised on that charge. Rules nisi were obtained against the editors of the Daily Mirror and the Daily Mail to show cause why they should not be committed for contempt of court. I would not attempt to improve on the words of Lord Hewart : 17 The kind of mischief which the publication of the photograph of an accused person may bring about is indicated in these passages . Nobody would excuse a police officer in the conduct of a case if, collecting together all the various persons among whom identifying witnesses might be found, he said: `I have arrested a man, and I am going to put him up for identification by you,' and then showed to those persons a photograph of the suspected person. The unfairness of that course is manifest, because the witness approaches the difficult and it may be the crucial task of identification with his mind prejudiced by the knowledge that this particular person has been arrested and is in the hands of the police. What does a 11, Rex v. Williams and Romney (1824), 2 L.J.K.B. (O.S .) 30. 16 [192711 K.B. 845. 17Ibid ., at p. 849.

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newspaper do when it prints a photograph in these circumstances? It in- vites the whole country to scrutinize the features of the accused who has been arrested. That it does that act not in the course of preparation of the case for the prosecution but merely in the course of the conduct of a money-making business does not excuse in a newspaper that which would be reprehensible in a police officer. In my opinion, in the publication of a photograph no less than in narrative, it is the duty of a newspaper to take card, to avoid publishing that which is calculated to prejudice a fair trial. To approach the matter in a mood of cynical indifference is obviously wrong. There is a duty to take care lest by the publication of matter, whether in the form of a photograph or of printed words, prejudice should be caused to a person gbout to stand his trial. That of course does not mean,'nor am I for a moment suggesting, that a newspaper is not entitled in any circumstances to publish a photograph of a person who is a party to either civil or criminal proceedings . But I am no less clear upon the point that there is a duty to refrain from the publication of the photograph of an accused person where it is apparent to a reasonable man that a question of identity may arise. If in these circumstances a newspaper prints a photograph it is taking a grave risk, which in one sense affects the accused person, and in another sense affects the newspapers . Because this was the first occasion on which the question had arisen on the publication of a photograph, the court, while finding the newspapers guilty of contempt, imposed no penalty but ordered the newspapers to pay the costs of the proceedings. At page 851 Lord Hewart quotes from Rex v. Parke:18 It is possible very effectually to poison the fountain of justice before it begins to flow. It is not possible to do so when the stream has ceased. It is no defence to say that other papers were stating the same thing.l9 The most colourful case of contempt of court I 'know is one that arose during the trial of Horatio Bottomley, the fiery editor of "John Bull" .29 The Attorney General applied ex officio and on behalf of the Director of Public Prosecutions for an order nisi calling on Mr. Bottomley to show cause why a writ of attach- ment should not issue against him for a contempt of court on his part in regard to certain proceedings which were in progress at the Guildhall Police Court. The alleged contempt consisted of an article and a picture in a periodical of which Mr. Bottomley was the editor. Proceedings had been initiated against Mr. Bottomley upon certain charges made against him, that being the chairman of certain companies and particularly a company known as the Joint Stock Trust and Finance Corporation, shares were issued very largely in excess of the authorized number. There were other

Is [190312 K.B . 432, at p. 438. is Reg . v. Parnell (1880), 14 Cox C.C. 474. 20 Rex v. Bottomley, The Times, Dec. 16th, 1908, p. 21.

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charges of fraud in stock exchange transactions. The proceedings had been pending in the Guildhall Police Court since December 1st. One of the witnesses for the prosecution was a Mr. Levie who had been a clerk in Mr. Bottomley's employment and who spoke of certain conversations to which he said Mr. Bottomley and others of the defendants to the proceedings had been parties. After the cross-examination of this witness the article complained of appeared in "John Bull", in the issue dated December 12th. On the first page of the paper there appeared under the heading, "The World, the Flesh, and the Devil", a paragraph expressing thanks to a well-known King's Counsel and other persons for ex- pressions of sympathy and encouragement and stating that they were "apparently desirous of dissociating themselves from the dirty work of which we are the temporary victim" . There was also a picture representing Justice, apparently being besmirched with mud. Underneath were the words "Rex v. Bottomley" and the figure of Justice was depicted as holding a pair of scales, one balance of which was being weighted with mud. On another page under the heading "Open Letters, Postcards and Telegrams" appeared the following : Horace Avery, K.C., Guildhall Congratulations on first witness in the `Rex v. Bottomley' Bull On another page was an article " `Bottomley v. The Crown' : How the Fight is Going. Our Editor a Raging `Favourite' ." The article began as follows : At first sight, dear reader, you will think that I have made a mistake in the title of the case but I really haven't . Of course, in the law books and the other reports it will be called `Rex v. Bottomley,' but that is a misnomer. The position of the parties has already been reversed, and Bottomley has assumed the role of prosecutor - and I have accordingly adopted a new title for the case . The transformation has been as sudden as it was dramatic . But it has been complete. Then there followed a picturesque portrayal of the various persons concerned in the litigation, in which Mr. Bottomley was described as "the most picturesque figure of the group". An account of the proceedings followed and, after describing the opening speech of Mr. Avory, the following passage occurred : It [the opening] was lucid, precise, and unemotional, and when the famous K.C. resumed his seat we all turned again to the principal de- fendant to see what effect the indictment had upon him. He was quietly writing some telegrams - and I hope I am guilty of no very unworthy

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confession when I say that ,I saw - the wording of them - `Nothing in charges; a walk over' -and there is the index of the man's attitude throughout the case. The Attorney General submitted that the article tended first of all to intimidate witnesses who were still to be called in the proceedings and, further, that its appearance in a newspaper lhav ing a large circulation in the City was calculated to have an effect on the mind of persons from whom the jury would be drawn. The court granted a rule nisi and made it returnable on Dec- ember 18th. 21 The motion was heard by Mr. Justice Bingham and Mr. Justice Walton. Mr. Bottomley contended that the opening speech of counsel for the prosecution had been given wide pub- licity, which would tend to influence the minds of jurors against him, and that he was attempting to answer it. He admitted that contained in the article were phrases which, apart from influenc- ing the minds of the jury, 'were capable of being construed as. scandalizing the legal authorities, and for these he apologized: In giving judgment Mr. Justice Bingham followed the judgment of Lord Chief Justice Cockburn in Regina v. Castro22 where he said : It is clear that this Court has always held that comments made on a criminal trial or other proceedings, when pending, is an offence against the administration of justice and a contempt of the authority of this. Court. It can make no difference in principle whether those comments are made in writing or in speeches at public assemblies.- Neither can it make any difference in principle whether they are made with reference to a trial actually commenced and going on, or with reference to a trial which is about to take place: we can have no hesitation in applying to, the one the same rule which we should apply to the other. In view of Mr. Bottomley's apology, a fine of only £300 was imposed.

Comments after the Trial but before an Appeal Not infrequently one finds news comment or editorial comment on a civil or criminal case immediately after the verdict is given. Sometimes it is comment on the sentence, sometimes it is comment on the facts of the case, and sometimes it is comment on the decision. The case is still pending until the time for appeal has passed or until the appeal has been heard and judgment pronounced. This applies particularly in criminal cases, and the language of Mr. Justice Humphreys in Rex v. Davies23 applies with greater force in Canada than in England, because in Canada there is a. wide. 21 The Times, December 19th, 1908, pA. 22 (1873), L.R. 9 .Q.B. 219, at p. 227. 23 [1945] 1 K.B. 435.

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right to grant a new trial in criminal cases while in England that power is a limited one and rarely exercised. He said : I desire to add that newspapers or editors of newspapers who choose to publish comments on the facts of a criminal case other than those facts given in evidence in open court, while the case is still pending - and it is still pending while the time for appealing has not run out - and more particularly if they choose to make such comments in the case of a man who is appealing or is proposing to appeal, do so at their peril. I should have no sympathy with any editor who, perhaps as the result of having some special person in his employment to deal with this class of news, finds himself in the position of having overstepped the line in his paper and of having said things which, in the view of the court dealing with the matter, might prejudice the fair hearing by the Court of Criminal Ap- peal. It is very much better that editors of newspapers should wait until a case is finally over before making any observations they desire to make about it, and I think a criminal case may be said to be finally over when the Court of Criminal Appeal has heard and determined the appeal, if any. After that time they are in no peril of being dealt with for contempt of Court. They are the best judges of whether they are inviting an action for libel and whether they desire it or not, but there is no longer any question of proceedings for contempt .24 Humphreys J. said : There is also the judge to be considered, and, while I am not saying for a moment that any person sitting in a judicial capacity, who may, be it remembered, be a chairman of quarter sessions, who may or may not be a lawyer, or a recorder, or it may be, of course, one of the judges of the King's Bench Division, would be affected by anything he might read, I think it is a fallacy to say or to assume that the presiding judge is a person who cannot be affected by outside information . He is a human being, and while I do not suggest that it is likely that any judge, as the result of information which had been improperly conveyed to him, would give a decision which otherwise he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty .25 In Canada the time for appealing would not be over while an appeal is pending to the Supreme Court of Canada. The principle is that neither judge nor juror ought to be embarrassed by being put in the position of having to decide any case in the light of pressure, or to have put into his mind matters other than those brought forward by proper judicial process.

Criticism of the Administration of Justice It is no contempt to criticize fairly the judgment of a judge after the case is over and the time for appeal has passed. Criticism of 24 Ibid., at p. 444. 15 Ibid., at p. 442.

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this nature should not be such as to scandalize the court or to impute improper motives to the judge. It is . healthy and good for the administration of justice that the work of the judges should be fairly and justly criticized. In fact, it is good for judges that they should be subject to fair, well-informed criticism. Lord Atkin in Ambard v. Attorney-General for Trinidad and Tobago,, states principles that should commend themselves to all fair-minded people : 27 But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising,, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way : the wrong headed are permitted to err therein; provided that members of the public abstain from . imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men . In Regina v. Gray 28 Lord Russell-of Killowen emphasized that judges and 'courts are alike open to criticism and, if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat it- as contempt of court. He went on to say: 21 The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is punished ; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen. However, his Lordship stated that the matter under consideration was not public criticism in the sense he had described, but personal scurrilous abuse of a judge as a judge, and therefore contempt. In this case the editor of the Birmingham Daily Argus wrote an abusive article on the conduct of Mr. Justice Darling in a case in which he had directed that certain evidence of an indecent character should not be published, and warned the press of the danger of punishment that might follow if it was. The editor appeared and apologized for his conduct. Mr. Justice Darling stated that he would have sent him to prison for a considerable period had he not done so. A finê of £500 was imposed. , The line of distinction between what is merely a libel on a,

26 [19361 A.C. 322. 27 Ibid., at p. 335 . 26 [190012 Q.B . 36. 29 Ibid., at p. 40.

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judge in his personal capacity, and actionable by him as such, and what is an attack upon him in his judicial capacity and a contempt of court is a narrow one, and one that can only be drawn in a particular case having regard to all the circumstances. Lord Morris used profoundly wise words in McLeod v. St. Aubyn: The power summarily to commit for contempt of Court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of Court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice.30 Judges ought not to make orders in such cases unless it is clear beyond a reasonable doubt that the act done or the writing complained of is calculated or tends to bring the judge in his official capacity into contempt or to lower his authority, and judges ought not to be overzealous to exercise the power they have to guard their own authority. It should be exercised only when it is clearly necessary to protect the fair administration of justice. In cases where a genuine apology is offered, the punishment, if any, should be light. The careless or over-zealous enforcement of the law of contempt in this particular class of case may tend to bring the courts themselves into contempt. On the other hand, the courts and the judges presiding in the courts are custodians of the personal rights of the litigants before the courts and should be ever vigilant to enforce the law of contempt when the acts complained of tend to interfere with those rights. The court may act on its own motion if a contempt is committed during the course of the trial while the judge is seized of the case. A rule nisi may be issued directing the sheriff to notify the offender to appear or, if necessary, to be brought before the court to show cause why he should not be committed for contempt of court. In any case, any party who has a cause before the court :and has ground for complaint that his rights have been affected .by anything which may be the subject of contempt proceedings may move the court for an order that the offender appear to show cause why he should not be committed for contempt of court. In every case the Attorney General may move where anything has taken place which may tend to interfere with the fair administration of justice. The Attorney General is the King's Attorney Gen- , eral and his responsibility is the same for the enforcement of this branch of the criminal law as any other. Contempt of court is an ,indictable offence and proceedings may be taken byway of indict- 30 [18991 A.C. 549, at p. 561.

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ment, but in every case of which I have any knowledge the-summary power of the judge has been invoked.

Responsibility The law imposing, responsibility for contempt of court is much broader than it is in any, other branch of the"criminal law. In the first place, the ordinary rules of the criminal law apply. Anyone who commits contempt of court or who aids, abets, counsels or procures any person to commit a contempt is guilty of the offence. A corporation, such as a .limited company publishing a newspaper, may be convicted and fined for contempt of court. Individuals who have been parties to the offence may be fined or committed to gaol. But there is in this branch of the criminal law a vicarious or constructive responsibility, which is of particular interest to managers, editors and publishers of newspapers. While the publisher. or .editor of a newspaper cannot be called upon to disclose the name of the person who wrote the offending article, he may be himself convicted and punished even though his first knowledge of the article_ was when it appeared in print. Here are some examples taken from the cases as illustrations of this point. . Rex v. Hammond3l was a case heard by a court consisting of Darling, Avory, and Rowlatt JJ. An affidavit was submitted by the managing director of J. G. Hammond & Co. (Limited) to show that they had done their best to prevent .anything objectionable from appearing in papers they printed ; the matter in the article in question was not even known to the heads of the firm; it .was impossible for them to read everything printed by :the company and they had given instructions to competent persons to draw their attention to anything which might appear to be of a libel- lous. character. Both the company and managing director were fined. In Ex parte Green and Others; In the Matter of Robbins, of the Press Association 32 an application to commit for contempt of court arose out of.what was known as "The Baccarat Scandal". In this case an action had been brought by Sir W. Gordon-Cumming for slander against the manager of the Press Association arising out of the publication and dissemination of a paragraph representing that the defendants in the action had no case and did not intend to -contest the case at the trial. A defence was filed and subse-

31 (1914), 30 T.L.R. 491. 32 (1891), 7 T.L.R. 411.

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quently the following paragraph appeared in the Daily News and other papers: The Baccarat Scandal. - There is every reason to believe that the trial of the action instituted by Sir W. Gordon-Cumming in connexion aeith the baccarat scandal will be a very short affair. The plaintiff is determined to go into court, and will not hear of any retraetation until his case has been laid before a jury and he has, on oath, given an emphatic denial to the charges preferred against him. But, acting in consonance with the opinion of the Royal personage who has been mentioned in connexion with the matter, it is stated in well-informed circles that there will be no cross-examination and no attempt to prove the allegations ; that an apology will be tendered ; and the business of the jury will be to fix such damages as under the circumstances Sir William Gordon-Cumming may think fit to accept as compensation for the injury done to his character and reputation. In giving judgment finding Mr. Robbins, the manager of the association, guilty of contempt, Mr. Justice Cave said : It is obvious also that one of the first duties of the manager would be to take precautions that false news should not get into circulation. It is said that he did not authorize the dissemination of this particular paragraph. If all that is meant by that is that he did not tell the `head of the department' (whatever that may mean) who had the supervision of these para- graphs to send it out, that may be so, but that is not sufficient. After discussing the particular facts, his Lordship went on to say : But it does not follow, because the heads of departments are responsible, that the manager who permits this to go on, and authorizes and requires them to send out all that is brought to them without examination, is not equally responsible. . . . Now Mr. Robbins does not venture to suggest that the `heads of departments' have any authority to stop a single paragraph, or that their instructions are not to print every paragraph sent to them ; and he does not suggest that any one else has any control over them as to what they do under these general directions . Mr. Robbins, in his own affidavit, says that the paragraph was issued from the offices of the association bona fide and in the ordinary course of its business . That being so, the `head of the department' would have no authority to altar or omit any paragraph, and then the manager who gives them that authority and leaves them to publish whatever comes to them, without taking any precautions, is clearly responsible for what is done under these general directions . In this case no penalty was imposed other than ordering Mr. Robbins to pay the costs of the application. The editors, printers and publishers of the London Evening Standard, the Manchester Guardian and the Daily Express were all cited for contempt of court in a case where an accused man was arrested for murder and extensive investigations were con- ducted by newspaper reporters on their own account and the results of these investigations were published after the accused

Criminal19521 , Contempt of Court Procedure 239

had been arrested.33 The language of Lord Chief Justice Hewart is plain: It was urged on behalf of 'one respondent on the previous day that it was part of the duty of a newspaper when a criminal case was pending to elucidate the facts. If he understood that suggestion when clearly expressed it came to something like this; that while the police of the Crim- inal Investigation Department were to pursue their investigations in silence and with all reticence and reserve, being careful to say nothing.to prejudice the trial of the case, whether from the point of view of the prosecution or the point of view of the defence, it had come to be some- how for some reason the duty of newspapers to employ an independent staff of amateur detectives, who would bring to an ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence. They were to conduct their investigation unfettered, to publish to the whole world from time to time the results of these investigations, whether they conceived them to be successful or unsuccess- ful results, and by so doing to perform what was represented as a duty, and, one could not help thinking, to cater for the public appetite for sensational matter. It was not possible for that Court, nor had it any inclination, to suggest to the responsible editors of those newspapers what were the lines on which they ought to proceed. Any such task as that was entirely beyond the province of that or any othei tribunal. Those who had to judge by the results could see what a perilous enterprise this kind of publication was. It was not possible even for the most ingenious mind to anticipate with certainty what were to be the real issues, to say nothing of the more difficult question what was to be the relative importance of different issues in a trial which was about to take place. . . . His Lordship added . . . that nobody-who knew anything of the organi- zation and management of a newspaper office- could be ignorant of the fact that the work of newspapers was very often done in circumstances of great hurry by many different minds not always fully aware of what others might be doing. The result was a composite thing, but there must be central responsibility. It was impossible to say that men occupying responsible positions should be excused because they themselves were not personally aware of what was being done. The practice was really becom- ing prevalent, and it was quite obvious that there were those who thought that publications of .this kind were not only legitimate,, but even com- mendable. In the hope that that day's proceedings would show that in the opinion of that Court that view was entirely wrong, the Court had merely imposed a fine, but if the practice were repeated the Court would_ not again be disposed to adopt the merciful alternative. [Italics added] Because the proceedings were taken against the editor and printers and publishers and because the article was written and published without the knowledge of those before the court, and having regard to all the circumstances, a fine of £1,000, to be paid as Rex v. Editor and Printers and Publishers of the "Evening Standard": ex parte Director of Public Prosecutions; Rex v. Editor and Printer and Pub- lisher of the "Manchester Guardian" : Ex parte same; Rex v. Editor and Printers and Publishers of the "Daily Express": Ex parte same (1924), 40 T.L.R. 833.

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within seven days, was levied against the Evening Standard, but his Lordship pointed out that if the offending article had been published with the knowledge of those before the court he would have without hesitation imposed a penalty of imprisonment. In the case of the Manchester Guardian and the Daily Express fines of £300 each were imposed, as their position was different. In a recent case in England Lord Goddard, the Lord Chief Justice of England, presiding over a Divisional Court, dealt seve- rely with the editor of the Daily Mirror and the corporation.34 In this case one Haigh was in custody on a charge of murder and on March 2nd he was remanded for preliminary hearing. On March 3rd New Scotland Yard had issued a confidential memor- andum to editors of newspapers in the following terms: A report has been published today that New Scotland Yard is investigating a case. . . . The only statement on this matter which has been made to the police under caution is a case which is now sub judice. That statement may be offered in evidence, and any stories which refer to that statement or its contents may be held to prejudice the trial of the accused . Publication of any such statement or references to it would be most improper and would doubtless become a matter for consideration of the Court before whom the accused appears . Following this, in three editions of the Daily Mirror published on the 4th of March there appeared articles, photographs and large type headlines of a character the court described as a dis grace to English journalism and as violating every principle of justice and fair play which it had been the pride of England to extend to the worst of criminals. The published material indicated that the police were investigating a number of other charges with reference to missing persons and at least implied that the accused was charged with other murders, that he had committed others and gave the names of persons it was said he had murdered. A photograph of a person he was said to have murdered with a de- scription of the way in which the crime was committed was published . I have not been able to find the full text of the article but only an account of the contempt proceedings. Mr. Bolam, the editor, in an affidavit stated: he gave express instructions to his staff that, while stories of the missing persons should be published in the newspaper, no reference of any sort should be made to enable a reader to connect anyone with their disappearance ; all copy was to be edited by experienced execu- tives before it was published in the paper; at the time he gave those instructions he believed that, provided no charge had been 34 Rex v. Bolam and The Daily Mirror, The Times, March 22nd, 1949, p. 2.

1952] Criminal Contempt of Court Procedure 241

made against anyone in connection with the missing persons, and provided no person was identified as being responsible for their disappearance, there would be no question of a contempt of court; he now realized he was wrong. His counsel, Sir Valentine Holmes, 'submitted to the court, not by way of justification, but merely to remind the court, that the modern daily, newspaper was produced in circumstances which called for quick decisions : errors of judgment were sometimes made, and a serious one had been made in the present instance. Following the application, the court directed that the proprietors of the newspaper should be brought into court and they were accordingly notified. The Lord Chief Justice referred to the matter in the following language: "In the long history of the present class of case there had never, in the opinion of the Court, been one of such gravity as this, or one of such scandalous and wicked character".35 He said it was of the utmost importance that the court should vindicate the common principles of justice and, in the public interest, see'that condign punishment was meted out to persons guilty of such conduct. In the opinion of the court what had been done was not the result of an error of judgmentsensa=tionalismbut was done as a matter of policy, pandering to for the purpose of increasing the circulation of the newspaper. A fine of £10,000 was levied on the limited company publishing the newspaper and Mr. Bolam, the editor, was imprisoned for three months. In imposing the penalty the Lord Chief Justice said that he would add a word of warning: let the directors be-. ware; they knew now the conduct of which their employees were capable, and the view the court took of the matter. If for the, purpose of increasing the circulation of their paper, they should -again venture to publish such matter as this, the directors themselves might find that the arm of that court was long enough to reach them and to deal with them: individually.

Right of Appeal There is no right of appeal in British countries against a summary judgment and sentence for criminal contempt of court, unless it be by leave to the Judicial Committee of the Privy Council. The summary power to commit for contempt of court is an arbitrary - one and should be exercised, and in Great Britain and Canada has been exercised-in the past, only in the clearest of cases and with the greatest of caution. The fact that it is an arbitrary power

se The Times, March 26th, 1949, p. 3.

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is the reason why there are so few cases on record where it has been exercised, while on the other hand there have been innumer- able instances of punishable contempts allowed to pass unnoticed. Notwithstanding that there is this tradition of extreme caution in the exercise of the power, I do not think it is consistent with modern administration of justice that there should be no right of appeal from any order for committal for contempt made by a superior court judge. He decides the law and the facts in the light of the argument presented to him and his own judgment, and his decision is final. In three cases at least the Judicial Committee of the Privy Council has reviewed the judgment of colonial courts where committal orders were made for criminal contempt and in two cases the order for committal was set aside, but as the law stands in Canada today there is no such right of review. Although the principle that there should be a right of appeal is hard to contro- vert, to define a right of appeal that would not confound the administration of justice is difficult. It is simple to state that there should be a right of appeal in a case where a newspaper has published comment during a trial ; it is another thing to define a right applicable to those cases where a contempt is committed in the face of the court, for example, a witness refusing to answer proper questions put to him. Under our law he may be at once committed to goal and each witness may be made to realize that prompt action will be taken for any failure to answer questions put to him. As a result I have known only one case where a witness has refused to give evidence. If a right of appeal did exist from such an order, is the case to be stopped until the appeal is heard? On the other hand, there is a distinct interference with the administration of justice if the case proceeds in the absence of the evidence the witness is ordered to give. That is only one example, but such examples ought not to deter those interested in the development of the administration of justice from working out some means of appeal so as to cover at least those cases where the contempt is not one committed in the face of the court. If such a right of appeal existed, I think the probable result would be a purification of the administration of justice and a stricter enforcement of the law to preserve the rights of the parties before the court. Good judges exercising an arbitrary authority are more likely to go to extremes in the exercise of caution when their judgments are not subject to review by a court of appeal than when they are. There would also be authoritative judgments of courts of appeal dealing comprehensively with the whole subject,

1952]- - Criminal Contempt of Court Procedure - 243

which would have a more profound public influence than the individual judgments of judges of first instance can have.

Co-operation between the Press and the Courts In conclusion, may I emphasize again that the law of contempt of court is not a law for the protection of judges or to place them in a position of immunity from criticism. It is a law for the protection of the freedom of individuals. Everyone in a well-ordered community is entitled to the protection of a free and independent administration of justice. The laws are made by the people and for the people'. If they are wrong they may be changed by proper legislative process. It is for the judges to interpret and apply the law as in their independent 'judgment they think it should be interpreted and applied. But law cannot be fairly administered and equitably administered or enforced in an atmosphere of dis- order or any preconception of the course that justice ought to take. Courts are composed of judges and jurors alike. They, are human beings. They have the frailty of human nature, but they take oaths of office and they do not take those oaths lightly. Whether their decisions are right or wrong, it is' not in the public interest that they be scandalized or attacked because some- one disagrees with the decision. There is frequently wide room for 'disagreement with judicial decisions and courts and judges frequently widely disagree in their decisions on the same matter; but while one may disagree with a decision it is never in the public interest that disagreement should be expressed in terms of abuse of the judge. When that is done or the course of justice is interfered with by external pressure or comment, a severe blow is struck at the very root of our free way of life. The press, along with the bar and other law enforcement agen- cies, plays a great part in the administration of justice, and it has an opportunity to play a far greater and better part than it now does. It is of utmost importance that the public should know and be interested in what goes on in the courts because the judicial is a vital branch of government and a vital part of the rifle of law under which we live. I feel sure that the members of the public are interested in the administration of justice and that they want a fair, accurate and unbiased account of what has taken place in the courts. It may be that garbled, sensational highlights bearing little resemblance to the true story of what has happened appeal to certain minds, but these are not the minds that direct public opinion. .I think you will agree with me that many well informed people outside the legal profession read the official reports of what

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goes on in Osgoode Hall each day as published in a morning newspaper. You all have seen, and if you have not you should see, the clear, accurate, unaccented reports of what has been done the previous day in the Law Courts, the Judicial Committee and the House of Lords that appear in the London Times. They are so authentic that old files are constantly resorted to by lawyers and others. The paper shortage in England during the war and since has cut the amount of space given to these matters, but it has not extinguished it. Formerly, nearly a whole page was given to report the work of the courts each day. I am in no position to give advice to circulation managers of newspapers, but I feel at least that the informed public is interested in an accurate statement of what has been done in the courts, as distinct from dis- torted highlights, or sometimes lowlights, detached from their con- text, which give little idea of what really happens. It is surely not too much .to ask that the press should endeavour through its col- umns to bring its readers into the courtroom. Wide; accurate pub- licity to the administration of justice is essential to a good administration of justice. On the other hand, sensationalizing the human errors and difficulties of broken lives and broken homes (be these difficulties exposed in criminal or civil proceedings) in competition with low-grade, corrosive literature contributes nothing to the great civilizing influence of the press. Lawyers, judges and members of the press are all partners in the task of law enforcement. It is for lawyers to present their cases on behalf of their clients to the best of their ability consistent with the well-established traditions of the bar ; it is for judges to decide each case according to the law and facts, independently and free from influence or prejudice; it is for the press to enlighten the public on what has been done in this branch of government, fairly and firmly to criticize what has been done where criticism appears to be warranted, but never to attempt to influence the courts of justice or to under- mine the faith of those who live under the protection of the law and the impartial authority of the courts.

That after the said Limitation shall take effect as aforesaid, Judges Com- missions be made Quamdiu se bene gesserint, and their Salaries ascertained and established ; but upon the Address of both Houses of Parliament it may be lawful to remove them. (The Act of Settlemen`, 1701, 12 & 13 William III, c. 2)