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Published online by Cambridge University Press: 17 January 2008
On the premise that democratic government is founded, inter alia, on the accountability of public bodies and their officials, as well as on the popular participation in collective decision-making by the governed at all levels of government, there is merit in the proposition that it is improper to curb open debate, especially in matters which are of public interest. In so far as the work of the judiciary in general, and of judges in particular, is in the public domain and thus of public interest, the value of the freedom of expression applies, in principle, with equal force. Freedom of expression in the legal domain and in relation to the work of judges serves a variety of useful purposes in democratic society. Freedom of expression serves to uphold the integrity of the principles of democracy which require that governmental institutions should be transparent and accountable, and in that sense the judicial domain, very much like other branches of government, benefits from a healthy exchange and interaction of opinions. The administration of justice is better served by well-informed participants than by ignorance, and freedom of expression can contribute to a full and rigorous assessment of information in the judicial context Similarly, in modern democratic society, all individuals, but especially legal journalists, lawyers and other officials of the legal establishment, contribute to the architecture of judicial policy through the expression of their opinions. Freedom of expression in this context can also prove to be an instrument of individual and professional self-fulfilment. This is considered crucial in any society which is dependent upon the participation of the people.
1. For the place of these values in a democratic society see Barend van, Niekerk, The Cloistered Virtue. Freedom of Expression and the Administration of Justice in the Western World (1987)Google Scholar, chap.1. On the general principles relating to the value of freedom of expression see Eric, Barendt, Freedom of Speech (1987)Google Scholar and Frederick, Schauer, Free Speech: A Philosophical Enquiry (1982).Google Scholar
2. The supervision of contracting States' compliance with the Convention is presently undertaken by the European Commission of Human Rights (Arts.19–37 of the Convention), the European Court of Human Rights (Arts.38–56) and the Committee of Ministers (Arts.31, 32 and 54), although in practice the Court's responsibilities are the most important (see Art.45). In any case, with the recent adoption of Protocol No.11 to the Convention (text reprinted in (1994) 15 Human Rights L.J. 86 the Court and the Commission are expected to be merged into a single court with the coming into force of the Protocol. On Protocol No.11 see Drzemczweski, A. and Meyer-Ladewig, J., “Principal Characteristics of the New ECHR Control Mechanism as Established by Protocol 11, Signed on 11 May 1994” (1994) 15 Human Rights L.J. 81Google Scholar; Schemers, H. G., “The Eleventh Protocol to the European Convention on Human Rights” (1994) 19 E.L.Rev. 367Google Scholar; Mowbray, A. R., “A New European Court of Human Rights” (1994) Public Law 540.Google Scholar
3. Handyside v. United Kingdom, Eur.Ct.H.R., Ser.A.24 (1976), 1 E.H.R.R. 737Google Scholar; Sunday Times v. United Kingdom (No.1), Eur.Ct.H.R. Ser.A.30 (1979), 2 E.H.R.R. 245Google Scholar; Lingens v. Austria, Eur.Ct.H.R., Ser.A.103 (1986), 8 E.H.R.R. 103Google Scholar; Oberschlick v. Austria, Eur.Ct.H.R., Ser.A.204 (1991); 19 E.H.R.R. 389.Google Scholar
4. Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 1950), text reprinted in Browntie, Basic Documents on Human Rights (1992), p.326.Google Scholar
5. See Lingens v. Austria, supra n.3, Schwabe v. Austria, Eur.ct.H.R., Ser.A.242–B (1993) (politicians)Google Scholar; Thorgeir Thorgeirson v. Iceland, Eur.Ct.H.R., Ser. A.239 (1992), (1994) 18 E.H.R.R. 843 (police)Google Scholar; Castells v. Spain, Eur.ct.H.R., Ser.A.236 (1992), 14 E.H.R.R. 445 (government policy).Google Scholar
6. David, Pannick, Judges (1987), p.105.Google Scholar
7. Eur.Ct.H.R., Ser.A.149 (1989)Google Scholar, (1991) 13 E.H.R.R. 493.Google Scholar
8. Eur.Ct.H.R., Ser.A.313 (1994)Google Scholar, (1996) 21 E.H.R.R. 1.Google Scholar
9. Art.31 of the Vienna Convention on the Law of Treaties provides, inter alia: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” For text see (1969) 8 I.L.M. 679Google Scholar and Brownlie, I., Basic Documents in International Law (1995), p.388.Google Scholar
10. Castells v. Spain, supra n.5, at para.46.
11. Supra nn.3, 5.
12. Barford v. Denmark, supra n.7, at para.33, for a contra conclusion see the dissenting opinion of Judge Gokuklu, idem, pp.501–502.
13. For a contrary view see Anthony Lester, “Freedom of Expression”, in Macdonald, R. St J., Matscher, and Petzold, , The European System for the Protection of Human Rights (1993), pp.465, 477.Google Scholar The general conclusions of other writers on similar issues would seem to support Lord Lester's conclusions. See e.g. Clive, Walker, “Scandalising in the Eighties” (1985) 101 L.Q.R. 359, 382Google Scholar, where he argues that the offence of scandalising a court or judge (an offence that could arise from criticising a court or judge under English law) might be contrary to Art.10(1) of the European Convention on Human Rights and also Pannick, , op. cit. supra n.6, at p.115Google Scholar, who argues that “the offence of scandalising the judiciary does survive as an unjustifiable impediment to the freedom of speech about the judiciary”.
14. Colin, Warbrick, “The European Convention on Human Rights” (1989) 9 Y.E.L. 439, 445.Google Scholar
15. E.g. on the subject of judges' inability to reply to criticism see Lord, Denning in R. v. Commissioner of Police of the Metropolis, ex p. Blackburn (No.2) [1968] 2 Q.B. 150, 155Google Scholar; see also Report of the Committee on Contempt of Court (Phillimore Committee Report) Cmnd 5794 (1974), para.162.Google Scholar For a contrary view, however, see Pannick, , op. cit. supra n.6, at pp.128–133, 177–179Google Scholar; and Walker, , op. cit. supra n.13, esp. at pp.379–380.Google Scholar
16. See Sunday Times (No.1), supra n.3, at para.60.
17. In R. v. Gray [1900] 2 Q.B. 36, 40Google Scholar, Lord Russell of Killowen defined contempt of court: “Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court.” See generally on this subject Phillimore Report, supra n.15, esp. at chaps.1 and 7, and Borrie, G. and Lowe, N., The Law of Contempt (1973)Google Scholar, esp. chap.6. See also the UK Contempt of Court Art 1981. For a discussion of the effect of the 1981 Act on the subject of scandalising the judiciary see Walker, , op. cit. supra n.13.Google Scholar
18. For a review of cases in this field in other, mostly common law Commonwealth jurisdictions see Geoffrey, Robertson and Andrew, Nicol, Media Law (1992), pp.296–299.Google Scholar In other, mostly Continental European countries the protection of judges is usually incorporated in their Civil and Criminal Codes. See also Walker, ibid.
19. For a review of the provisions of the relevant Penal Codes in these countries see van, Niekerk, op. cit. supra n.1, at chap.2.Google Scholar
20. Ibid.
21. Ibid.
22. Ibid.
23. Idem, p.90.
24. The US Supreme Court has held prior restraints on freedom of speech to be unconstitutional and thus illegal: see New York Times Co. v. United States 403 U.S. 713 (1971).Google Scholar
25. In Goodwin v. United Kingdom (1996) 22 E.H.R.R. 123, involving the disclosure of journalistic sources, the Court said (at para.29): “Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement of public interest.”Google Scholar
26. Hauschildt v. Denmark Eur.Ct.H.R., Ser.A.154 (1989), para.46Google Scholar; (1990) 12 E.H.R.R. 266, para.46.Google Scholar
27. Sramek v. Austria, Eur.Ct.H.R., Ser.A.84 (1984), para.42Google Scholar; (1985) 7 E.H.R.R. 351, para.42.Google Scholar
28. A similar sentiment was expressed by Mr Justice Black in the majority opinion in Bridget v. California 314 U.S. 252, 260 (1941) where he indicated that “free speech and fair trials are two of the most cherished policies of our civilisation, and it would be trying to choose between them”.Google Scholar
29. Per Lord, Atkin in Ambard v. Attorney-General of Trinidad and Tobago [1936] A.C. 322, 335.Google Scholar
30. Per Lord Russell of Killowen CJ in R. v. Gray [1900] 2 Q.B. 36, 40—in dealing with a newspaper article which described a judge as an “impudent little man in horse hair, a microcosm of conceit and empty headedness”.Google Scholar
31. See R. v. Western Printing and Publishing Limited (1954) III C.C.C. 122Google Scholar (Newfoundland Sup.Ct.), referred to in Borrie, and Lowe, , op. cit. supra n.17, at pp.163–164Google Scholar; R. v. Wiseman [1969] N.Z.L.R. 55Google Scholar; R. v. Gray, ibid, where Lord Russell pointed out 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 that as contempt of court”. See also R. v. Fletcher, ex p. Kisch (1935) 52 C.L.R. 248Google Scholar and Attorney-General v. Butler [1953] N.Z.L.R. 944.Google Scholar
32. [1968] 2 Q.B. 150, 155.Google Scholar
33. Secretary of State for Defence v. Guardian Newspapers Limited [1985] A.C. 339, 347.Google Scholar
34. Per Lord Hailsham in Badry v. DPP of Mauritius [1982] 3 All E.R. 973. In that case Commonwealth countries were urged not to punish for contempt for scandalising the judiciary except for the most extreme forms of abuse.Google Scholar
35. Attorney-General v. Guardian Newspapers Ltd (No.2) [1990] A.C. 109, [1988] 3 All E.R. 545 (HL).Google Scholar
36. Referred to in Robertson, and Nicol, , op. cit. supra n.18, at p.298.Google Scholar
37. Walker, , op. cit supra n.13, at pp.377–378.Google Scholar See also Pannick, , op. cit. supra n.6, at pp.115–116, where he points out: “The continued existence of the offence [of scandalising the judiciary under English law], and the memory of successful prosecutions, inhibits journalists, who wrongly suspect that they have a legal obligation to speak respectfully and cautiously when discussing the judiciary. In fact, there is little danger of prosecution nowadays for criticising the judiciary, irrespective of the ferocity of the language used, unless one suggests that the court lacks impartiality.”Google Scholar
38. Walker, idem, p.359.
39. Bradley, A. W., “Judges and the Media—The Kilmuir Rules” (1986) P.L. 383, 385.Google Scholar
40. Lord Mackay of Clashfern, The Administration of Justice (1994), pp.25–26.Google Scholar
41. In reply to a parliamentary question on the issue of public statements by judges, the Parliamentary Secretary at the Lord Chancellor's Department (Mr Streeter) reiterated the requirement under the principle of independence of the judiciary “for each judge to decide individually whether to make public statements”. He confirmed that a copy of the Lord Chancellor's advice on the matter had been sent to every judge and new judges would continue to receive the same advice on appointment. In a follow-up question, Mr Gordon Prentice asked if Streeter did not feel the independence of the judiciary would be compromised in circumstances such as when the Chairman of the Conservative Party, Dr Brian Mawhinney, asked members of the public to write to judges and seek to intimidate them for handing down lenient sentences. Streeter replied: “That was a fairly extraordinary outburst. On appointment in 1987, my right hon. and noble friend the Lord Chancellor relaxed the rules to enable judges to speak out on issues of the day. It is important that experienced and senior judges speak out, express their opinions and take a full part in debates in the House of Lords … It is important that members of the public make their views known, if they feel that sentences passed in local communities are not appropriate, by going to see or writing to their Members of Parliament. That is what we call democracy”: HC Hansard, Vol.289, col.1 (3 Feb. 1997). The author is grateful to Janet Tweedale of the Lord Chancellor's Department for drawing his attention to this statement.Google Scholar
42. 314 U.S. 252 (1941).Google Scholar
43. The most serious of the publications appeared in an editorial of the Los Angeles Times, under the headline “Probation for Gorillas?” in which two members of a labour union who had previously been convicted of assaulting a non-union driver closed with the observation: “Judge A. A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes.”
44. Bridges, supra n.42, at p.261Google Scholar, relying on the previous cases of Gidow v. New York 268 U.S. 652 (1925)Google Scholar and Schenck v. United States 249 U.S. 47 (1919).Google Scholar
45. Bridges, idem, p.270. He noted further that to regard such publications as causing substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom or honour: idem, p.273. Other authors have argued, fairly convincingly too, that the security of tenure enjoyed by judges in democratic society already protects them from any potentially harmful effects of public criticism: see Pannick, , op. cit. supra n.6, at p.133Google Scholar and Walker, , op. cit. supra n.13, at p.381.Google Scholar
46. Bridges, idem, p.263.
47. Idem, p.265.
48. 66 S.Ct. 1029, 1048–1049 (1946).Google Scholar
49. 379 U.S. 64 (1964).Google Scholar
50. Idem, p.77. It is important to point out that freedom of expression within the context of the US Constitution is not perceived as an absolute right. On this point see Dennis v. United States 341 U.S. 494 (1951).Google Scholar
51. 47 D.L.R. (4th) 213 (1987).Google Scholar
52. Idem, p.219.
53. Idem, pp.240–241.
54. Idem, pp.238–240, citing as authority the Supreme Court decision in R. v. Oakes 26 D.L.R. (4th) 200 (1986) especially the judgment of Dickson CJC at p.227.Google Scholar
55. Kopyto, idem, p.227. In an earlier paragraph (idem, p.226) the same judge had applied to judges and courts views which are not too dissmilar from those of the European Court of Human Rights when he asserted: “A democracy cnnot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is dependent on constructive criticism. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone tofirethe interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved.”
56. Idem, pp.255–256.
57. Pannick, , op. cit. supra n.6, at p. 128.Google Scholar
58. A similar view has been expressed by idem, p.137.
59. See the practice in Canada and the US and to a lesser extent the UK for a contrary approach.
60. Tucker, , Blackstone's Commentaries (1803), p.297.Google Scholar
