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  1. 1. Legal Systems and Courts JMSC 6022 Media Law Associate Prof. Doreen Weisenhaus February 2009
  2. 2. Remember, general sources of law in HK? <ul><li>Constitutional law (Basic Law) </li></ul><ul><li>Common law (judge-made law): Basic Law (Art. 84) says H.K. courts “may refer to common law precedents of other common law jurisdictions.” Before 1997, HK required to follow British law. </li></ul><ul><li>Enacted law : specific local laws passed by Legislative Council (about 100 a year, e.g., Personal Data Ord, BORO, etc.) Initiatives from gov’t, Legco, Law Reform Commission (advisory) </li></ul><ul><li>http:// </li></ul><ul><li>International treaties and conventions (e.g., International Covenant on Civil and Political Rights, 1966) Basic Law (Art. 39) says ICCPR is to be part of HK law., eg. BORO </li></ul>
  3. 3. Legal systems: 2 major ones <ul><li>Civil Law </li></ul><ul><li>Majority of countries (e.g., France, Germany, most of Europe, Latin America and in Asia) </li></ul><ul><li>French, Dutch, Portuguese introduced civil law into their Asian colonies: Vietnam, Cambodia, Laos, Indonesia, Macau </li></ul><ul><li>Others adopted European-style systems w/o being colonies: China, Japan, South Korea, Taiwan, Thailand </li></ul><ul><li>Common Law </li></ul><ul><li>Originally, referred to law “common” to English kingdom, different from church law. </li></ul><ul><li>In Asia, imposed in territories under British rule, dating back to 18 th and 19 th centuries (E.g., HK, Malaysia, Singapore, India, Australia, NZ, Fiji, Brunei) </li></ul><ul><li>Basic Law (Art. 84) says H.K. courts “may refer to common law precedents of other common law jurisdictions.” </li></ul>
  4. 4. More on common law <ul><li>Since 15 th century, reports of judgments handed down by judges established legal principles regulating the relationship between state/citizen and citizen/citizen. Inductive system : legal rule arrived at after considering a number of cases. </li></ul><ul><li>Can refer to legal system, decided cases in its courts or similar cases in other countries. </li></ul><ul><li>Judge-made law, interpretation </li></ul><ul><li>Precedents -- must follow previous cases of higher courts. Why important? </li></ul><ul><li>Now, hundreds of thousands of reported cases </li></ul><ul><li>Remember, precedent throughout common law world, not just one jurisdiction. </li></ul><ul><li>Incremental (not like enacted law) </li></ul><ul><li>Example of judge-made law: NYT v. Sullivan, Cheng v. Tse </li></ul>
  5. 5. Common law can set out values, principles, framework <ul><li>The freedom of speech (or the freedom of expression) is a freedom that is essential to Hong Kong’s civil society. It is constitutionally guaranteed by the Basic Law (Article 27). The right of fair comment is a most important element in the freedom of speech . In a society which greatly values the freedom of speech and safeguards it by a constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach …” – Court of Final Appeal, Cheng v. Tse </li></ul>
  6. 6. Common law can set out values, principles, framework <ul><li>&quot; We need more such serious journalism in this country and defamation law should encourage rather than discourage it.&quot; </li></ul><ul><li>“ These days, the dividing line between governmental and non-governmental organisations is increasingly difficult to draw. The power wielded by the major multi-national corporations is enormous and growing. The freedom to criticise them may be at least as important in a democratic society as the freedom to criticise the government.” </li></ul><ul><li>-- Lady Hale, Jameel v. Wall Street Journal Europe , House of Lords, 2006 </li></ul><ul><li>Also can establish specific tests: e.g., Reynold ’s 10-part test </li></ul>
  7. 7. Contrast, civil code systems <ul><li>Every law is “codified” (written into law). Codification is responsibility of legislatures </li></ul><ul><li>Judge can only apply law to facts of a given case, not allowed to interpret. What if no law? Court can’t act, send back to legislature to codify a law. </li></ul><ul><li>Lack of judicial precedent (binding judicial interpretation of previously existing legal principles) </li></ul><ul><li>Different approach . Legislation as primary source of law (w/ courts basing judgments on code/statute provisions, from which solutions in particular cases are derived. By contrast, in common law, cases are primary source of law, with statutes interpreted narrowly, with incremental changes. </li></ul><ul><li>Convergence? Advantages and disadvantages of both systems </li></ul>
  8. 8. Some hybrids, other influences <ul><li>Hybrids : E.g., Philippines w/ legal system based on Spanish-Anglo-American, combination civil and common law. </li></ul><ul><li>Religious law : Islamic law important in Afghanistan, Bangladesh, Indonesia, Malaysia, etc. Pakistan has a Federal Shariat Court -- “penalty for contempt of Holy Prophet is death and nothing else!” Hindu legal concepts important in Nepal. </li></ul><ul><li>Customary law : local customs (e.g., New Territories re: land succession, Australia Aboriginal “law”) </li></ul>
  9. 9. Enacted law <ul><li>Vast majority made locally, contained in Laws of Hong Kong </li></ul><ul><li>http:// </li></ul><ul><li>Initiatives from government, Legco, Law Reform Commission, community. </li></ul><ul><li>HKSAR responsible for drafting and introducing. Usually, 100 a year. </li></ul><ul><li>Law Reform Commission: advisory body which considers areas of law reform referred to it by Secretary for Justice or Chief Justice. </li></ul><ul><li>International Law: more than 200 international treaties and agreements. </li></ul>
  10. 10. Open justice principle <ul><li>“ Publicity is the very soul of justice” </li></ul><ul><li>What does that mean? </li></ul><ul><li>Administration of justice, including trials, derives legitimacy from being conducted in public. The media can help enforce this principle. </li></ul>
  11. 11. BORO, Article 10 <ul><li>All persons shall be equal before the courts and tribunals…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal… </li></ul><ul><li>The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society , or when the interest of the private lives of the parties so requires , to the extent necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice… </li></ul><ul><li>but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. </li></ul>
  12. 12. Contrast, BORO, Article 16 <ul><li>16(2): Everyone shall have the right to freedom of expression ; this right shall include freedom to seek , receive and impart information of all kinds…. </li></ul><ul><li>16 (3): The exercise of the rights...carries with it special duties and responsibilities. It may therefore be subject to certain restrictions , but these shall only be such as are provided by law and are necessary: </li></ul><ul><li>(a) for respect of the rights or reputations of others </li></ul>
  13. 13. Compare, U.S. 6th Amendment <ul><li>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial , by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. </li></ul>
  14. 14. Physical access v. public info <ul><li>What about information from court cases? </li></ul><ul><li>Libel protection for journalists covering court proceedings </li></ul><ul><li>But some information cannot be used, some temporarily, some permanent . </li></ul><ul><li>(E.g., to protect privacy, fair trial, criminal investigations, more later): </li></ul>
  15. 15. The judiciary <ul><li>Courts and judges </li></ul><ul><li>Responsible for administration of justice </li></ul><ul><li>3d branch of government </li></ul><ul><li>“ Shall exercise judicial power independently, free from any interference”- BL 85 </li></ul><ul><li>Juries: guaranteed BL 86 </li></ul><ul><li> </li></ul>
  16. 16. Hong Kong Courts <ul><li>Magistrates courts: All criminal cases, however serious, begin in front of a magistrate. Usually preliminary hearings heard before a case is transferred to District Court or committed for trial at Court of First Instance. Less serious cases will be tried by the magistrate. </li></ul><ul><li>District Court : civil, monetary claims $50,000-$1 million; some criminal matters but not murder or rape; no jury; maximum 7 years imprisonment </li></ul><ul><li>High Court : Court of First Instance (civil and serious criminal, juries) and Court of Appeal (from CFI, DC, magistrates, tribunals) </li></ul><ul><li>Court of Final Appeal : (highest court, binding on all HK courts) </li></ul>
  17. 17. Court of Final Appeal <ul><li>Permanent and non permanent members (HKCFA Ord. Cap 484) </li></ul><ul><li>Non permanent from local list and other common law jurisdictions (Why significant?) </li></ul><ul><li>Chief Justice Andrew Li Kwok-nang </li></ul><ul><li>Other permanent: Bokhary, Chan, </li></ul><ul><li>Ribeiro </li></ul><ul><li>17 non permanent judges: </li></ul><ul><li>e.g., former CJs, NZ, Aust; others, Brunei, Bermuda, UK, etc </li></ul>
  18. 18. Structure of HK courts
  19. 19. Some terminology* <ul><li>Jurisdiction : having the power or authority </li></ul><ul><li>(e.g., criminal v. civil, original v. appellate) </li></ul><ul><li>Adversarial: lawyers predominant, judge impartial referee (compare “Inquisitorial”) </li></ul><ul><li>Barristers : court specialists, hired through solicitors or gov’t </li></ul><ul><li>Solicitors : more general legal work, give legal advice, draft docs, file registrations, can also represent below CFI </li></ul><ul><li>Adjudication: determining the facts, deciding the appropriate law, applying the law to the facts, reaching a result </li></ul><ul><li>*See glossary of HK Media Law, pp355-360 </li></ul>
  20. 20. Judicial review <ul><li>Challenges to decisions made by government, public bodies </li></ul><ul><li>Might involve asserting human rights under Basic Law or BORO, e.g., right of abode, freedom of expression etc </li></ul><ul><li>As reporter, important to check them, explain implications </li></ul><ul><li>Think about how the judgment might influence lives </li></ul><ul><li>Will any important precedents be set? </li></ul><ul><li>Recent cases: Student challenging Chinese U’s bilingual policy (pending), Ming Pao’s obscenity classification (accepted), HK’s handling of refugees (rejected) Queen’s Pier (rejected), ICAC raids w/o warrants (accepted), squatters in illegal flats protesting gov’t housing policy (rejected) </li></ul><ul><li>New standard : CFA (Nov 2007) revised standards for when the courts should accept a request for judicial review. </li></ul><ul><li>Before : HK courts bound by the test of “potential arguability” </li></ul><ul><li>Now: Stricter standard that only cases shown to be “reasonably arguable” would proceed    </li></ul>
  21. 21. Citizens’ Radio <ul><li>Challenging HK’s licensing regime </li></ul><ul><li>Fundamental issues of broadcasting freedom </li></ul><ul><li>Remember, media freedom protected by Basic Law (Art 27, 39) and Bill of Rights Ordinance Art. 16 (same as ICCPR, Art. 19) but is not absolute </li></ul><ul><li>Permissible restrictions have to be: </li></ul><ul><ul><li>a) for legitimate reasons </li></ul></ul><ul><ul><li>b) provided by law </li></ul></ul><ul><ul><li>c) proportionate measures </li></ul></ul>
  22. 22. Case of Citizens’ Radio important because it: <ul><li>Illustrates how media freedom is protected and restricted in practice </li></ul><ul><li>Challenges existing arrangements not protecting broadcasting freedom </li></ul><ul><li>Facts: </li></ul><ul><li>Launched and operated by political activists </li></ul><ul><li>Licence application in Sept 2005, rejected in Oct 2006. </li></ul><ul><li>Reasons: </li></ul><ul><ul><li>Failed to demonstrate technical feasibility of use of radio spectrum </li></ul></ul><ul><ul><li>Did not show it had management, financial and technical capability to manage a sound broadcasting service </li></ul></ul><ul><ul><li>No need for community broadcasting </li></ul></ul><ul><li>In contrast: </li></ul><ul><ul><li>licence application by Wave Media Lt in Jan 2008 </li></ul></ul><ul><ul><li>funding of 140 million HKD </li></ul></ul><ul><ul><li>granted 12-year licence in July 2008 </li></ul></ul>
  23. 23. About Citizens’ Radio <ul><li>Oct 2005 1 hour FM daily as pirate radio </li></ul><ul><ul><li>unlawful broadcasting rare in HK </li></ul></ul><ul><ul><li>UK and Taiwan: more than 100 </li></ul></ul><ul><li>Political activists adopt high profile. Avowed aims: </li></ul><ul><li>to provide platform for expression of political dissent to counteract self-censorship of commercial broadcasters </li></ul><ul><li>to make up for deficiencies in public access by RTHK, existing public broadcaster </li></ul><ul><li>Results: </li></ul><ul><li>Raids, arrests, prosecutions, despite no specific law banning pirate radio </li></ul><ul><li>charged with establishing or maintaining a means of telecommunications w/o a licence </li></ul><ul><li>To ensure orderly use of radio spectrum, prevent harm caused by unauthorized radio communications </li></ul>
  24. 24. <ul><li>Citizens’ Radio: </li></ul><ul><li>Challenged licensing regime as unconstitutional , contrary to A27 Basic Law/A16 BORO : </li></ul><ul><li>Requirement to obtain licence is disproportionate restriction on freedom of expression and of the press </li></ul><ul><li>Licensing regime lacks clarity and certainty </li></ul><ul><li>No provision to regulate discretion of Chief Executive in Council in award of a broadcasting licence. </li></ul><ul><li>Measures are “arbitrary” and “discriminatory ” (no time processing time limit, no appeal of rejections, no independent body to grant license, high licensing fees) </li></ul><ul><li>Govt’s response: </li></ul><ul><li>limited public resource must be regulated to ensure efficient use </li></ul><ul><li>licensing justified and proportionate restriction on freedom of expression. </li></ul><ul><li>Law is certain and prescribed by law </li></ul><ul><ul><li>published and accessible to public </li></ul></ul><ul><ul><li>applicant may lodge complaints of discriminatory treatment </li></ul></ul><ul><li>May seek judicial review of the licence refusal </li></ul><ul><li>Any abuse of power is overseen by an independent judiciary </li></ul>
  25. 25. What the courts have said: <ul><li>Magistrate (Jan 2008): dismisses charge of unauthorized broadcasting and rules licensing regime unconstitutional : </li></ul><ul><li>Decision to grant a licence rests solely on the “unfettered and unchecked” discretion of Chief Executive in Council </li></ul><ul><li>No statutory appeal </li></ul><ul><li>Chief Executive in Council and Broadcasting Authority not independent of Government </li></ul><ul><li>Lic. regime lacks certainty and is therefore not prescribed by law </li></ul><ul><li>breaches Art 27 + 39 of Basic Law and Art 16(3) of BORO </li></ul><ul><li>Charges based on failure to comply with licensing regime also unconstitutional </li></ul><ul><li>Court of First Instance (Jan 2008): lifts injunction and gives go-ahead for judicial review </li></ul><ul><li>Court of Appeal (Dec 2008): grants government appeal against dismissal of charges for unlicensed broadcasting. H eld that constitutional challenge to licensing regime could not be a defence to a crime, setting aside a magistrate’s decision that ruled the licensing system breached Basic Law. </li></ul><ul><li>Citizens’ Radio appealing to Court of Final Appeal </li></ul>
  26. 26. What is contempt of court? <ul><li>Defined as: Wrongful interference with the administration of justice </li></ul><ul><li>Protect the rights of litigants and the court -- judicial process -- from abuse </li></ul><ul><li>Not to protect the personal dignity of the court </li></ul><ul><li>Can take many forms: media most in trouble by commenting or reporting on current cases, esp. jury trials </li></ul><ul><li>Source of HK law: mostly common law, some statutory restrictions. In U.K., Contempt of Court Act, 1981 </li></ul>
  27. 27. Forms of contempt? <ul><li>1 ) Civil contempt </li></ul><ul><li>2) Criminal contempt </li></ul><ul><li>(Misleading, though, because both can involve jail sentences. That’s why the standard of proof is beyond a reasonable doubt) </li></ul>
  28. 28. Civil Contempt <ul><li>Breach of injunction or non-publication order ( Citizen Radio case or order not to reveal certain info) </li></ul><ul><li>Refusal to obey court order (e.g., order to pay), witness summons or refusal to attend examinations by parties. </li></ul><ul><li>Penalty? Usually a fine but jail is an option </li></ul>
  29. 29. Criminal contempt <ul><li>Contempt in the face of court : disrupting court proceedings, witness refuses to be sworn in (to preserve order in courtroom) </li></ul><ul><li>Interference with due administration of justice in particular case (usually by publication ) - Trying to prevent “trial by media” ( A.G. v. Cheung Kim Hung-- Next Magazine case ) </li></ul><ul><li>Scandalising the court ( Oriental ) </li></ul>
  30. 30. Definition? ( A.G. v. Cheung Kim Hung ) <ul><li>“ Contempt in the present context may be broadly defined as the wrongful interference with the administration of justice. It is limited to what is necessary for the administration of justice and no more…Wrongful interference can take many forms. One of the common forms is the making of comments about current cases. Often this happens in newspapers in making statements and observations about current cases…” </li></ul>
  31. 31. A.G. v. Cheung Kim Hung <ul><li>Facts: Stephen Cheung sues Eastweek for story on worst teaching award. On last day (closing arguments) of libel trial, Next mag. published article, mentioning legal fees of $2.4 million. Jury gives -- $2.4 million! </li></ul><ul><li>Eastweek appealed and one ground of appeal was that jury was unduely interfered with. </li></ul><ul><li>CA referred case to A.G. to decide whether contempt should be brought. One issue still pending was damages. Parties entitled to impartial trial </li></ul><ul><li>2 factors: close timing and striking similarity of amount. C ourt is concerned of RISK of prejudice, not whether jury is ultimately affected </li></ul><ul><li>Courts looks to vulnerability of a jury: IF NOT BEFORE A JURY, then possibly not contempt…. </li></ul><ul><li>Next fined $25,000, its editor $5,000, plus legal costs </li></ul>
  32. 32. Forms of criminal contempt <ul><li>Comment on issues before the court </li></ul><ul><li>Publishing photos of suspect when identification is in issue </li></ul><ul><li>Publication of material not before the court (e.g., interviewing witnesses during trial) </li></ul><ul><li>Publishing material prejudicial to fair trial (witness statements, counsel submission, credibility of witnesses, defendant) </li></ul><ul><li>Interference with juries, witnesses </li></ul><ul><li>Infringement of court reporting restrictions (recording, taking photos, etc) </li></ul><ul><li>Identifying sex crime victims </li></ul><ul><li>Reporting on what took place in jury deliberations </li></ul>
  33. 33. Sub judice period <ul><li>Latin for “under a judge” </li></ul><ul><li>Common law principle: publication is considered likely to prejudice a fair trial if proceedings are said to be “pending or imminent” </li></ul><ul><li>Criminal: usually after arrest, charges or warrant </li></ul><ul><li>Courts worried about vulnerability of juries or whether witnesses might be deterred </li></ul>
  34. 34. Apple Daily 1999 <ul><li>Oct. 5, 1999: “A paedophiliac Vietnamese male is suspected of killing a 5-year-old child.” </li></ul><ul><li>Trial in its 2d day, and prosecutors had not presented any evidence of the accused having committed sex crimes. </li></ul><ul><li>Results: </li></ul><ul><li>jury trial dismissed. 4 months later, new trial resulted in conviction and life sentence. Had previous convictions for sexual molestation. </li></ul><ul><li>separate action to force Apple to reveal reporter denied by court </li></ul><ul><li>Apple fined HK$100,000 for contempt. </li></ul>
  35. 35. Secretary for Justice v. The Sun , 2006 <ul><li>October 2004: 2 women raped; suspect arrested. </li></ul><ul><li>May 4, 2005, trial scheduled to start. </li></ul><ul><li>April 17, 2005 headline, The Sun: “Burning with desire. A Pakistani suspected of raping two English ladies in Tai Mo Shan did buggery to prisoners in cell during detention.” </li></ul><ul><li>April 17, Oriental: “Accused of raping 2 English female tourists. Turning prison into ‘Imperial harem’ </li></ul><ul><li>Trial adjourned to Sept 2005. Defendant pleaded guilty. </li></ul><ul><li>Test: whether the articles likely to interfere with administration of justice. Interference need not be deliberate or intended. </li></ul><ul><li>Sufficient: 1) intention to publish and 2) real risk of prejudice </li></ul><ul><li>Court: not deliberate or malicious, “result of negligence and insufficient supervision” </li></ul><ul><li>Fined HK$500,000 (publishers $200,000 each, editors $50,000 each) </li></ul>
  36. 36. Statutory restrictions <ul><li>To protect privacy: identity of juvenile offenders, victim of sexual offenses, divorces, wardship, mental health </li></ul><ul><li>To protect fair trial: committal proceedings </li></ul><ul><li>To protect criminal investigations: bribery, witness protection </li></ul>
  37. 37. Who is responsible? <ul><li>editor </li></ul><ul><li>publisher </li></ul><ul><li>printer </li></ul><ul><li>reporter </li></ul><ul><li>owner </li></ul>
  38. 38. 2 important points <ul><li>Real risk : The act must pose a serious risk of a real and substantial danger of prejudice to the fair trial </li></ul><ul><li>Factors : jury trial, locality of publication, proximity to trial, intensity of publication, circulation </li></ul><ul><li>Strict liability ; intention to interfere is relevant to sentence only. Need only intent to publish! </li></ul>
  39. 39. Back to A.G. v. Cheung Kim Hung <ul><li>“… the law of contempt is restricted to what is necessary for the attainment of justice. Inherent in the law of contempt is a restriction on the right of freedom of speech. That freedom is a cardinal freedom. It is one which the law is there to uphold. The importance of the freedom of speech cannot be underestimated. Nevertheless, the right of freedom of speech and the due administration of law have synergistic qualities because without one the other cannot truly exist.” </li></ul>
  40. 40. The Sunday Times v. United Kingdom , 1979, ECHR <ul><li>Interference with freedom of expression was not justified under Art. 10 of European Convention of Human Rights which permits such restriction “as are prescribed by law and are necessary in a democratic society for maintaining the authority and impartiality of the judiciary.” Here, the court decided that the restriction was not justified by a “pressing social need” and could not therefore be regarded as necessary. </li></ul>
  41. 41. More on Sunday Times <ul><li>Sunday Times proposed to publish article on marketing of thalidomide, a drug that caused birth defects, despite long-running legal actions of negligence between parents and drug manufacturers. UK courts ruled article could not be published because it prejudged issues in litigation and would be contempt. </li></ul><ul><li>Newspaper applied to ECHR, saying ban was infringement on right to freedom of expression. Court said: matter of public concern, mere fact that litigation in progress did not alter right of media to impart information of public interest. Article was moderate, would not have prejudiced a non-jury trial.. </li></ul><ul><li>UK passed 1981 Contempt of Court Act . </li></ul>
  42. 42. U.S. Comparisons <ul><li>Courtrooms are open to public . Before excluding public from criminal proceeding, court must make specific findings that closure is necessary to protect a compelling governmental interest and limit secrecy only to extent necessary </li></ul><ul><li>Jury privacy : despite secret deliberations, public has right of access to info about jurors and to post-verdict contact. (To explain verdict) But more courts are limiting access over privacy and safety concerns </li></ul><ul><li>Anonymous juries . Increasing use, first began in organized crime cases 15 years ago </li></ul><ul><li>Anonymous victims mostly rejected on 6th amendment right to a fair trial (confront accuser)… (What about HK’s Mr. X??) </li></ul>
  43. 43. More U.S. comparisons... <ul><li>Juvenile courts generally closed to public but high profile crimes involving minors are increasingly open. Eg., youths charged with offenses that would be felonies if committed by adults (At least 10 states). Presumption of openness. (Ok, Ariz., NY) </li></ul><ul><li>Even if revealed contrary to state law, ok if already in public domain or obtained legally </li></ul><ul><li>Civil proceedings , generally open but no constitutional right of access. 1st A applies to civil context ( Richmond Newspapers v. Virginia , 1980) </li></ul><ul><li>Rape victims : general practice not to name but can if in court records ( Cox Broadcasting v. Cohn , 1975) </li></ul>
  44. 44. R ecent US contempt case <ul><li>CIA leak case: Valerie Plame federal criminal case : </li></ul><ul><li>In re: Grand Jury Subpoena, Judith Miller </li></ul><ul><li>Facts: undercover agent Plame id’d in Robert Novack column in 2003, citing 2 unnamed “senior admin. officials”. After column, several reporters including Time published stories. Leak was characterized as a politically motivated attack on Plame’s husband, former ambassador Joseph Wilson who publicly criticized Bush admin for saying Iraq was trying to buy uranium from Niger. </li></ul><ul><li>Special prosecutor subpoenaed a number of journalists. </li></ul><ul><li>Judy Miller didn’t even publish a story! </li></ul><ul><li>NYT, Time magazine held in contempt. US Court of Appeals held that no privilege protects journalists from being compelled to reveal their confidential sources when called to testify before grand juries. US SCt refused to hear case. Time cooperated, Judy Miller served 85 days in jail in 2005 before testifying about her interview w/ Lewis Scooter Libbey, VP Cheney’s Chief of Staff, but said she “couldn’t remember” who told her about Valerie Plame). </li></ul><ul><li>Original source was Richard Armitage, ex-deputy secretary of state! </li></ul><ul><li>Libby convicted in 2007 of obstruction of justice, perjury, lying to prosecutors (Miller testified at his trial). He was sentenced to 30 months, but sentence commuted by Bush </li></ul>
  45. 45. A special kind of contempt case: Scandalising the court <ul><li>Scurrilous abuse of the court </li></ul><ul><li>Abuse not directed to a particular case, but aim at protecting public confidence in due administration of justice </li></ul><ul><li>Criticism is not abuse, but where is line between freedom of expression and undue interference? </li></ul><ul><li>In U.K., last successful prosecution in 1931! </li></ul>
  46. 46. History of scandalising the court <ul><li>1765 UK case, R. v. Almon …pamphlet that said the CJ had acted “officiously, arbitrarily and illegally” </li></ul><ul><li>Some cases in 19 th c., but generally considered obsolete until R. v. Gray, 1900. A journalist found in contempt for describing a judge as “impudent little man in horsehair, a microcosm of conceit and empty-headedness” – Did not relate to current case… </li></ul><ul><li>Cases in 1920s, 1930s (e.g., whether a birth control reformer would receive a fair trial from a Catholic judge.) </li></ul><ul><li>No actual interference with administration has to be proved . In theory, defenses of fair comment, truth. </li></ul><ul><li>Definition: Publication which creates a real risk that the administration of justice will be undermined. </li></ul><ul><li>What is “real risk”? To maintain public confidence in judiciary? </li></ul>
  47. 47. … More history <ul><li>Some comments assumed worse. E.g., corruption or bias (Singapore). More lenient on incompetence. Courts also look to tone, language </li></ul><ul><li>1987, Daily Mirror published upside down photographs of the Lords in Spycatcher case, headline: “YOU FOOLS!” – no prosecution. </li></ul><ul><li>US : concept unconstitutional </li></ul><ul><li>Canada : R v. Kopyto (1987): incompatible with Canadian Charter of Rights and Freedoms. Needs to be “clear, serious and immediate” danger </li></ul><ul><li>NZ : SG v. Radio NZ (1994) “real risk as distinct from a remote possibility that the conduct would undermine public confidence in the administration of justice.” </li></ul><ul><li>UK : During 1981 reforms, amendment to make obsolete rejected. </li></ul>
  48. 48. Wong Yeung Ng v Sec’y for Justice , 1999 <ul><li>Background: After Obscene Articles Tribunal ruled against ODN, courts agreed. Also, OPG sues Apple Daily for copyright infringement; only gets HK$8,001. CA critical of photos of celebs. </li></ul><ul><li>Contempt I: several articles in Dec97-Jan98 against OAT, judges, accusing them of political persecution. </li></ul><ul><li>Contempt II: paparazzi against one of the judges </li></ul><ul><li>Result: $5 million fine and chief editor jailed for 4 months! </li></ul>
  49. 49. Wong Yeung Ng v. Secretary for Justice (Oriental), 1999 <ul><li>“ The constitutional right of free speech as contained in the Basic Law…is not an absolute right. Every civilized community is entitled to protect itself from malicious conduct aimed at undermining the due administration of justice . It is an important aspect of the preservation of the rule of law. Where the contemnor goes way beyond reasoned criticism of the judicial system and acts in bad faith, the guarantee of free speech cannot protect him from punishment.” – PJ Litton </li></ul>
  50. 50. Next week <ul><li>See you in court! </li></ul>