The criminal contempt of scandalising a court may be consigned to history as a result of a Law Commission consultation which opens today.
The offence can currently be committed by publishing something which ridicules the judiciary to such an extent that public confidence in the judiciary or the administration of justice itself is likely to be undermined.
This might include, for example, being extremely offensive towards a member of the judiciary or suggesting that a judge is corrupt or biased.
The Law Commission consultation starting today asks whether the offence is still necessary.
There have been nop successful prosecutions for the offence in England and Wales since 1931.
A recent attempt to in Northern Ireland to prosecute Labour MP Peter Hain for scandalising the court over comments in his autobiography about the handling by a High Court handling of a judicial review case in the Province led to an outcry.
The case was shelved by agreement, with both Mr Hain and Northern Ireland Attorney General John Larkin QC claiming moral victory.
The Law Commission consultation papers says the offence of committing contempt by scandalising a court is ambiguous – many lawyers and judges believe it is obsolescent, while critics also say it is probably incompatible with the right to free speech guaranteed by Article 10 of the European Convention on Human Rights.
The Commission said most of the activities covered by the offence could be dealt with in other ways – for example by using the law of libel or, if the activity was particularly serious, bringing criminal charges for other offences.
Some people had questioned why the judiciary should be offered special protection.
The consultation asks whether the law is necessary in modern society in England and Wales.
The Law Commission, a non-political independent body set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed, says its own view is that it should be abolished.
But it also seeks views on whether abolition might leave gaps in the law – and, if so, whether the offence should be replaced, and, if so, how.
The consultation on scandalising the court, which was to have been part of a larger consultation covering the law of contempt generally which is to be launched in winter this year, was brought forward to feed into the Government's consideration of reform.
The Government promised in July that it would consider abolishing the offence of scandalising the court following an attempt by Lord Pannick QC, Lord Lester QC, Lord Mackay of Clashfern and Lord Bew to introduce an amendment to that effect into the into the Crime and Courts Bill which is currently going through Parliament.
The Government said the results of its review would be available before the Bill's Report stage, expected in late October.
The Law Commission wants responses to the consultation on scandalising the court by October 5.
Lord Pannick – who practices from Blackstone Chambers as David Pannick QC – announced that he would launch his attempt to abolish the offence in an article in the legal section of The Times on May 24, saying that the case against Mr Hain demonstrated the urgent need for reform.
On 2 July, in the debate on the amendment which ended with its withdrawal following the Government's undertaking, he told the House of Lords that the "bizarre episode" had damaged the reputation of the legal system in Northern Ireland and resulted in far more publicity for Mr Hain's book than it would otherwise have received.
He went on: "Whatever the merits or lack of – I take no position on this – in Mr Hain's critical comments, surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence.
"If the Attorney-General for Northern Ireland is going to revive this otherwise moribund branch of the criminal law, Parliament should kill it off before it does any further damage.
"There is simply no justification today for maintaining a criminal offence of being rude about the judiciary – scandalising the judges or, as the Scots call it, murmuring judges.
"We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance.
"A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors.
"I would be surprised to learn that this view was not shared by the vast majority of serving judges.
"The justification often given for retaining this offence is that we need to prevent public confidence in the administration of justice from being undermined.
"The irony is that public confidence in the judiciary is undermined far more by legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored.
"The other argument often presented in favour of this category of criminal offence is that judges cannot answer back. They can and they do. Lord Justice Sedley was the most recent judge to sue for libel, winning an apology in the High Court last year after bringing proceedings in respect of false statements in the Daily Telegraphabouthis conduct of a case.
"I would also recommend the words of wisdom from Lord Justice Simon Brown, now the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in a case in 2000. He said: 'A wry smile is, I think, our usual response, and the more extravagant the allegations the more ludicrous they sound'.
"Since the Attorney-General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep."