More from Norman Scarth

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More from Norman Scarth
« on: October 06, 2012, 06:22:31 PM »
Submission to Law Commission on the ?offence? of ?Scandalising the Court?.   (Closing date: 5th October 2012.)

My submissions reach you on the last day because I have been MORE than fully occupied in defending myself against 5 years & 2 years in prison (SUPPOSEDLY for ?Contempt of Court?) which await me if dare set foot in Britain again.   Only yesterday there was a hearing in the Royal Courts of Justice for that very purpose.  That being so makes me well qualified to make submissions to you. 

The first submissions I offer are in the attached document which I submitted to the court as my Defence, & also in .   They need refinement & editing to address the narrow subject of your remit.  This I will do in the very near future.   

I also submit that which is below, but need to say it was drafted when I first heard of your invitation, &, being seriously involved with the PRACTICALITIES of the subject, I have not had time to look at it since.  It may well need revision, but I send it today to ensure I am inside your deadline for submissions.

Yours faithfully,

Norman Scarth.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --

The greatest & most frequent ?Contempt? is that shown by the all too many judges who act in violation of their Judicial Oath, most notably when they have a Litigant In Person before them.  This was admitted by Lord Woolf in his ?ACCESS TO JUSTICE Interim Report?, published in 1995, though he omitted it from his Final Report. 

The Law Commission asks:

1. Consultees are asked whether they agree that the offence of

scandalising the court should not be retained in its current form.202

2. We provisionally propose that the offence of scandalising the court

should be abolished without replacement. Consultees are asked whether

they agree.203

3. If consultees do not agree with our provisional proposal that the offence

be abolished, they are asked whether they consider that the offence of

scandalising the court should be retained or replaced in a modified form,

and if so:

(1) whether this should be done by retaining the offence as a form of

contempt, but modifying it to include defences of truth, public

interest or responsible journalism;

(2) whether a new offence should be created separate from contempt,

and if so how it should be defined;

(3) in either case, what the mode of prosecution and trial for the

offence should be.204


I submit that whether the ?Offence? is abolished, varied or remains unchanged matters not a jot.  It is disturbing, but not in the least surprising that, when people who are in worthwhile (even vital) employment are being sacked because (as we are told), ?the country is hard up?, money can still be found to employ highly paid lawyers on meaningless activities such as this. 

Consultation Paper No 207? is for the Law Commission to justify its existence, deceiving the gullible public into thinking ?something is being done?.  It is a highly remunerative ?job for the boys?, which is not really a job at all.  The question to be debated is not whether people should be sent to prison for daring to criticise a judge, but whether judges who act in violation of their Oath should be sent to prison (see end for ways in which the Commission COULD  justify its existence).. 

In 1936 Lord Chief Justice Hewart told guests at the Lord Mayor of London?s Banquet: ?His Majesty?s Judges are satisfied with the almost universal admiration in which they are held.?

Whether it was true then I know not, but it is certainly NOT true now.   

Or, for that matter, on the same occasion in 1953 when the Lord Mayor told the diners: ?Her Majesty?s judges have a greater understanding of human nature than any other body of men in the world.? But who is to judge the judges? Well, there?s the Court of Appeal, and beyond it the judicial committee of the House of Lords, both of them capable of rapping judicial knuckles and occasionally drawing blood; but they?re just more judges. More fearsomely, there?s public opinion, stoked by a less than obsequious press ? although the press can wound more easily than it can strike. And what if a judge?s indolence or spleen has cost someone their liberty or their job or their home? If the author of the disaster had been anybody else the victim might have expected to be able to sue for compensation: but nobody can sue a judge, however incompetent or even malicious, for anything which he or she has done as a judge. A doctor, an architect, a solicitor ? certainly; a barrister ? well, sometimes; a magistrate, rarely; a judge, never.

In fact (though Abimbola Olowofoyeku has uncharacteristically missed this case) in 1746 the Chief Justice of the Common Pleas gave judgment for ?1000 damages in favour of a Lieutenant Frye against the president of a court martial which had wronged him, and then encouraged Frye to sue the other members. When they protested through the Lords of the Admiralty to the King, the Chief Justice had the whole lot of them arrested for contempt and released them, when they apologised, with the warning: ?Whosoever set themselves up in opposition to the law or think themselves above the law will find themselves mistaken.?

Why should judges not be accountable like others if they do unjustifiable harm to people who have come or been brought before them for justice? Abimbola Olowofoyeku?s intelligent study examines the answers given by the legal systems of Britain, Canada, Nigeria, New Zealand and the United States, with glances at other West European countries, and finds most of them long on rhetoric and short on logic. Of course there are, as he says, good reasons for not allowing every disappointed litigant to have a go at the judge; but there are few good reasons for shielding from ordinary civil liability a judge who has deliberately or recklessly abused his or her office and done compensable harm to an individual. Yet since the early 17th century judges of the higher courts have enjoyed complete civil immunity for unlawful acts done in office, regardless of jurisdiction, motive or circumstance, and judges of the lower courts nowadays benefit from the same protection. The immunity, it is true, applies only to acts done in office; but in office, as King Lear observed, a dog?s obeyed. The very oath of office requires the judge to do justice without fear or favour, affection or ill-will (it used to be ?to do justice indifferently to all men?, but it was realised that this could be misunderstood): why then should the only redress for breach of the oath be the ultimate sanction of dismissal?

The case for immunity from civil proceedings is not predicated on the notion that judges are above the law. They are undoubtedly open to prosecution for criminal corruption in office. No such case exists in the annals of British law, but those of the United States are rich in cases of judges who have joined their customers in jail. (True, Francis Bacon in 1621 had to resign the Lord Chancellorship for taking bribes, but he explained engagingly that this had not meant that he necessarily gave judgment in favour of the donors. And Lord Chancellor Macclesfield was impeached and fined in 1725 for selling offices ? no crime in itself ? that were purchased with suitors? money.) The ground for civil immunity is that such lawsuits would compromise judicial independence, a predicate which attracts understandable suspicion because it comes from the judges themselves. For example:

It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly ... The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges.

This was a judge speaking in 1863. Fifty years earlier another judge had said:

There is something so monstrous in the contrary doctrine that it would poison the very source of justice and introduce a system of servility, utterly inconsistent with the constitutional independence of the judges ? an independence which it has been the work of ages to establish ? and would be utterly inconsistent with the preservation of the rights and liberties of the subject.

With such advocates, who needs critics? Wrapped up in the rhetoric there is some sound policy, but in propounding it such judges have propounded too much. The constitutional independence of the judiciary is one thing, and an important thing; but if there are occasional cases where anger or prejudice or gross neglect distorts judgment, then in those cases the rights and liberties of the subject are equally important. It is only by permitting such allegations to be tried, the argument goes, that it can be known whether there are cases of this kind and, if there are, what redress can be offered.

It is not, of course, the judiciary alone which wants judges to be independent. Any sane society does. The question is: independent of what and of whom? Of the executive, certainly; of the parties to the dispute; of external pressures which may distort judgment; of personal biases: and no doubt of more besides. The Universal Declaration on the Independence of Justice adopted in Montreal in 1983 asserts: ?Judges individually shall be free, and it shall be their duty, to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.? And: ?Judges shall enjoy immunity from suit or harassment for acts and omissions in their official capacity.? Although no doubt the first question for cynics is how many non-lawyers were at the conference which adopted this text, the first passage is of real importance in a world in which many interests, from governments to gangsters, want to and sometimes do influence and intimidate judges. A developed society in which there is no assured recourse to trustworthy courts of law is not civilised. But does the second passage follow from the first?

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