A special Exclusive INTtv.co.uk Irish Court Report on the District Court in Dublin, Ireland
This INLTv.co.uk Irish District Court Report held at the Criminal Court of Justice on the 25th May, 2022 is an INLtv.co.uk exclusive
June Campbells Hearing Before Judge Hughes 25th May 2022
Please note that Irish CCJ District Court Judge John Hughes seems to have falsely advised Miss Campbell that she can appeal his decision to the Irish Circuit Court against his refusal to grant the interim orders for a copy of her DAR Court Recordings and Transcripts that Miss Campbell requested to be made.
Miss Campbell had on a previous occasion lodged an appeal against Interim Orders made by Judge John Hughes, refusing orders asked for by Miss Campbell, only to be told by the Circuit Court Appeal Judge and an Irish DPP Barrister that under Irish Law, there is no appeal against a District Court Judge's refusal to grant interim orders
June Campbell's Hearing before District Court Judge Hughes Wed 25th May 2022
Court Clerk: All Rise
Irish CCJ District Court Judge John Hughes: No Miss Campbell's application
Miss Campbell: Yep
Irish CCJ District Court Judge John Hughes: Miss Campbell, I have read your papers with respect to the matter. You have furnished a declaration of service and you have made a declaration yourself before the court which I have read. I have noted what you have set that out as your grafting affidavit.
Is there anything else you need to add to the application?
Miss Campbell: So just to be clear what I am looking for, is an order for is all DAR audio for hearings sittings in court two on the 20th January 2022 and the 6th of May 2022 before Judge John Hughes, and for any future court hearings in Court Two for this case number 2019/152985, including today's hearing. For the order for DAR Court Transcripts or the court hearing sitting in court Two on the 20th January 2022 presided over by Judge John Hughes, and for any future hearings in court Two related to case number 2019/152985, and for order for all past and future Dar Recordings and typed written transcripts unedited, because I have received edited transcripts from the courts, transcripts heard in court Two for case number 2019/152985. I am looking for an order for those three items,
Irish CCJ District Court Judge John Hughes: That's 2, 3 and 4. Is that it?
Miss Campbell: Sorry?
Irish CCJ District Court Judge John Hughes: Set out in paragraphs 2, 3 and 4 in your affidavit.
Miss Campbell: Its 1,2 and 3. Sorry, 2, 3 and 4. Um 2 yeh.
Irish CCJ District Court Judge John Hughes: Court One, was on the 19th of May before judge Colin Daily.
Miss Campbell: So its 2, 3 and let me see for the order yep 2, 3 and 4.
Irish CCJ District Court Judge John Hughes: 2, 3 and portion of 4
Miss Campbell: Yep. That's correct Yep,.
Irish CCJ District Court Judge John Hughes: Anything further?
Miss Campbell: Not for now.
Irish CCJ District Court Judge John Hughes: Thank you.
Miss Campbell: Is the order granted? Could you confirm that the order is granted for all items, for the Dar Audio, DAR Court Transcripts, past and future and present ... unedited....
Irish CCJ District Court Judge John Hughes: Bear with me now and I will come back to you.
Irish CCJ District Court Judge John Hughes: All right. I have noted that your application and I have noted the contents of your documents, and I have noticed, that notwithstanding that is in the entierity of of the document that is marked JC1, page 4 of 6, that you are limiting your application to paragraph's 2, 3 and part 4. I note also that the grounds for the relief of the assault that you have set out your relief in paragraph 7., that you say that ..." I was the defendant that attended Two on the 20th of January, 2022, that I was clearly confused about the decisions made by Judge Hughes, and that an unidentified Garda Sergeant represented the case, and this unidentified Garda also gave evidence in another court.
Now I have considered your application, and the grounds setting out the application, and that at this juncture I am refusing the application for the Dar, my reasons are that there are insufficient grounds to do so. In the event that you wish to appeal the matter to the Circuit Court, you are free to do so.
Miss Cambell: So judge, I will add to my grounds, and you are aware of the Irish Constitution and the right to a fair trial, so can I ask the court... Has the court deliberately stuff in the trumped-up false malicious charge, where I was blackmailed by Garda Rohan Judge on behalf of the complainant's son John Meaney.... Is the court withholding information maliciously and deliberately and is there something to hide? Is that the reason? And in regards to Constitution, the Irish Constitution which sets out the right to a fair hearing, and the European Convention Article 6 ... to a fair hearing... and also Article 3 in relation to a speedy hearing ... this case has been going on for three and a half years .. and also judge you are aware that this case you have made reference that you have read all parts of my affidavit and application, every single part of it ... and in my application ...
you would have seen in my application that there are two photographs of a hand .. black and white photos of a hand smeared with makeup...implying bruising of the complainant's hand, which constitutes a very serious crime.... you will be aware of that judge ...... you would also be aware that in the book of evidence, .. there is no evidence in this case, so can I ask you judge, is the reason that this court is withholding information because the court has something to hide ...
Irish CCJ District Court Judge John Hughes: Now Miss Cambell, I have made my order. If you which to appeal my order to the Circuit Court you are welcome to do so,
Miss Cambell: So can you clarify your order.
Irish CCJ District Court Judge John Hughes: No, I have clarified it. If you are not happy with my order you are free to appeal my order to the Circuit Court
Miss Cambell: So you're not giving the DAR,
Irish CCJ District Court Judge John Hughes: I have given my order.
If you are not happy with my order you are free
to appeal my order to the Circuit Court
Miss Cambell: So you are refusing all parts of
my application
Irish CCJ District Court Judge John Hughes: Yes, Now Thank You, Next Case
Law professor Diarmuid Phelan, also known as Diarmuid Rossa Phelan (53), with an address at Reedstown, Tacumshane, Ireland
A senior barrister appeared at Wexford District Court on Monday charged with an offence of assault causing harm in County Wexford on a date last year.
Law professor Diarmuid Phelan, also known as Diarmuid Rossa Phelan (53), with an address at Reedstown, Tacumshane, appeared before Judge John Cheatle on a charge of assaulting Kevin McHale at Reedstown, Tacumshane, on August 26, 2021, causing him harm, contrary to Section 3 of the Non-Fatal Offences Against the Person Act, in a case brought by Garda John Coughlan
Sex Worker Hero Who Exposed Some Of The Dirtiest Australian Police
Sixty Minutes Australia
Julian Assange extradition ruling labelled a ‘travesty of justice’
Reporters Without Borders condemned the decision,
which it said will prove historic ‘for all the wrong reasons’
The Honourable Murray Gleeson AC QC - chief justice of the High Court of Australia from 1998 to 2008.
The Honourable Murray Gleeson AC QC - chief justice of the High Court of Australia from 1998 to 2008.
Murray Gleeson Qc and AC, the previous Chief Justice of the High Court of Australia stated as a direction to all magistrates and judges, in a 1999 judicial journal that
" if magistrates and judges think that the law of contempt is to protect them from criticism, then they are ignorant of the law of contempt"
Contempt may be defined as any act which derogates the dignity and authority of courts. Oswald, in his celebrated treatise-‘Contempt of Court’ says that ‘Contempt of Court is so manifold in its aspects that it is difficult to lay down any exact definition of the offence’. The word has been defined in the Chamber’s Twentieth Century Dictionary as scorn, disgrace (law), disregard of the rule, or an offence against the dignity of a court (with, of, for). Thus, any act which significantly derogates the dignity and authority of the court or which tends to impede or frustrate the administration of Justice, may be Contempt of Court.
The object of contempt proceedings is not to protect judges personally from criticism but to protect the public by preserving the authority of the court and the administration of justice from undue attack; however, judges cannot use it to wreck personal vengeance.
Harmonisation between free criticism and the judiciary should be the goal.
Confusion between the personal protection of a libelled judge and the prevention of obstruction of public justice should be avoided.
The press should be given free play within responsible limits, even when the focus of its critical attention is the court.
Judges should not be hyper sensitive, even where distortions and criticism overstep the limits.
Contempt of Courts- Criticism and Suggestions
While studying the history of the Contempt f courts in India, one has to remember that this law originated in pre-independence India, where the British looked to stifle the criticism of the judicial system by the public. Though the Contempt of Court Act, 1952 and 1971 have since repealed many of the stifling provisions of the pre-independence act, some lacunae remain in the law.
The Law of Contempt of Court has to balance the Freedom of right to speech and expression granted to the citizens of India as well as the provisions made to enable the judicial system to function without obstruction of any kind.
Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the people from criticizing the Judges if the latter do not function properly or commit misconduct. The power given is to prevent obstruction of justice.
The Contempt of Court Act and various proceedings have invited criticism of the public for being in violation of the provisions of the Constitution. The main suggestions that have been made in the course of the development of the law are ,in the first place, the correct procedure to punish for offences against the due administration of justice is to punish such offences as ordinary offences through the ordinary procedure – as far as practicable.
No doubt, this would alter the balance of power between the higher judiciary and the lower courts as well as the High Courts and the people.
Secondly, it is not the case, that Indian High Courts even possessed the full plenitude of the power of Courts of Record.
Indian Courts of Record had a much more limited power which both before and after the Constitution could, and can, be disciplined by reasonable restrictions made by the legislature.
Thirdly, there is no impediment to a law being made by the legislature which could cut down the powers of the High Court to punish for contempt as well as in respect of the procedure to be followed.
No doubt, any such law could not leave the judiciary wholly powerless and vulnerable.
But, ‘reasonable restrictions’ can be imposed both on the contempt power as well as on the free speech it seeks to control.
Fourthly, India needs to move away from archaic powers inherited from the common law and try to view the justice system in such a way that those who promise justice agree to deliver what they promise.
It is time that the shadow on the reform of the law of contempt, to the effect that wide ranging reforms cannot be made, is lifted.
The object of contempt proceedings is not to protect judges personally from criticism but to protect the public by preserving the authority of the court and the administration
."..the power of arrest is a power that is given for the purpose of taking into custody suspected wrongdoers in circumstances wheresuch custody is necessary for the proper administration of justice. It is not a power that is to be exercised punitively. The police are not given a power to arrest suspected offenders for the purpose of enabling the police to punish such people, and the exercise of a power of arrest for such a purpose would be a serious abuse of power.
......many criminal proceedings are of a kind that can be commenced either by arrest..or by the much less dramatic procedure of the issue of a summons. Where there is no reasonable apprehension that an accused person will fail to turn up at court to answer the charges, and where the issue of a summons is an available procedure, it would be quite wrong to use the procedure of arrest or warrant - where the purpose of doing so is to display the law operating with its full severity."
Perth's Freemason Legal Elite, Christopher Stevenson who was the third senior partner at Freemason controlled legal firm Mallesons Stephen Jaques is appointed judge of District Court of Western Australia
Author of the series of books called "The Triumph of Truth (Who Is Watching The Watchers?)
The author of series of books called The Triumph of Truth, Stephen Carew-Reid recalls in one of his volumes how he won a hearing against Perth Elite Barrister, Christopher Stevenson, when he was representing Mulson Holdings Pty Ltd as a non-lawyer director, at a special appointment for summary judgement in the Supreme Court of Western Australian being heard before the Honourable Chief Justice David Kingsley Malcolm, AC. Perth Elite Barrister, Christopher Stevenson, who was the third senior partner at Freemason controlled legal firm Mallesons Stephen Jaques, unsuccessfully argued that under the Supreme Court Rules, that Stephen Carew-Reid could not represent Mulson Holdings Pty Ltd, because he was not a qualified solicitor, Stephen Carew-Reid set a world legal precedent which now allows a non-solicitor to represent a company or another person when it is needed in the interests of justice, even though the rules of the court indicated it can not be done. Perth Elite Barrister, Christopher Stevenson, was certainly not happy with the Honourable Chief Justice David Kingsley Malcolm's ruling to allow Stephen Carew-Reid to argue the case being heard before him on behalf of Mulson Holdings Pty Ltd, after laughing at Mr Carew-Reid before the hearing started when Mr Carew-Reid placed his briefcase on the bar table where the defence barrister would normally stand to argue for the defendant/respondent while stating to Mr Carew-Reid in a very authoritative confident voice ..
"Mr Carew-Reid, I do not know why you are standing there at the bar table where the defence barrister should be to represent the defendant/respondent Mulson Holdings Pty Ltd to defend our clients' summary judgement application being heard at this special appointment by the Chief Justice today. Mr Carew-Reid, there is no possibility that the Chief Justice will allow you to speak in this court today on behalf of the Defendant/Respondent Mulson Holdings Pty Ltd, because under the Supreme Court Rules and Guidelines, only a qualified solicitor can be allowed to represent a corporate entity in the Supreme Court of Western Australia..." Mr Carew-Reid respectfully replied... " Well Mr Stevenson, thank you for informing me of this Supreme Court Rule. I think I will wait at the bar table and see what the Chief Justice has to say.... because it would be a severe miscarriage and travesty of justice if His Honour The Chief Justice of the Supreme Court of Western Australia, The Honourable Chief Justice David Kingsley Malcolm, AC, did not allow me as a director of Mulson Holdings Pty Ltd to speak for the company when the company has no solicitor or barrister to speak for the company. I think that the Chief Justice will agree with me, that in the interests of fairness and justice, I should be given leave by the Chief Justice to represent Mulson Holdings Pty Ltd as I am a director of this company because the company has no qualified solicitor or barrister today to represent it. It could never be fairness and justice for the court to deny a defendant/respondent to have someone speak for the company in the court, to defend a serious summary judgement where the plaintiff/respondent is asking the court to award it in excess of $1,000,000 (one million dollars) in damages from the defendant/respondent in summary judgement, thus bypassing having an open full trial where all the evidence and witnesses can be cross-examined." Mr Carew-Reid argued among other things, that as the defence claims that fraud was committed against the defendants/respondents by the plaintiffs/applicants, the court can never grant a summary judgement order in favour of the plaintiff/respondent. The reason for this is that when fraud is claimed, then this is a serious matter, which would in the interests of justice and fairness, to require that all the evidence and witnesses will have to be all cross-examined in full open court. Mr Carew-Reid claimed in the affidavit, as a qualified accountant, that the books of accounts presented by the plaintiffs/applicants to the defendants/respondents of the business sold to them for around $1,000,000 were fraudulent and misleading. Mr Carew-Reid won his argument before the Chief Justice and had the plaintiffs/applicant's summary judgement application dismissed. As a result, eventually, the parties settled out of court and the plaintiff withdrew its $1,000,000 claim against the defendants/respondents.
Stopping Perth Elite Barrister, Christopher Stevenson, who was the third senior partner at Freemason controlled legal firm Mallesons Stephen Jaques, and now a District Court Judge, from helping his clients get away with a cirminal/civil fraud was one of Mr Carew-Reid's milestones in his legally unqualified career.
explains in his series of books that he spent many years suing the Public Trustee for Western Australia and their staff and solicitors to recover damages for a conspiracy to defraud himself and his family. After wearing out many sets of solicitors the Public Trustee for Western Australia appointed Mallesons Stephen Jaques Solicitors, the world's most powerful experienced Freemason controlled solicitors to finally nail Stephen Carew-Reid.
Stephen Carew-Reid had previously issued a criminal contempt of court against Senior Barrister David Lancelot Jones, using a 1888 London Chancery Court Precedent Andrews V Moore, where a High Court Justice ordered that a barrister should be sent to prison for knowingly presenting false and misleading information to the court on behalf of his client. The barrister representing the barrister being charges with criminal contempt of court, argued that even if his client knowingly presenting false and misleading information to the court on behalf of his client, the arm of the law was not long enough to convict him for such criminal contempt. The High Court Justice replied..... " ... I understand that the arm of the law is currently not long enough to convict your client, however, today I am going to stretch the arm of the law and order that your barrister client spend some time in prison for being guilty of a criminal contempt for knowingly presenting false and misleading information to the court on behalf of his client.
Stephen Carew-Reid goes onto explain that when letters and affidavits prepared a senior partner of Mallesons Stephen Jaques Solicitors, that there was falsities and misrepresentations and that there could be no no doubt that the senior partner of Mallesons Stephen Jaques Solicitors well know that such information in his the letters and affidavit he prepared was false and misleading.
Stephen Carew-Reid knew it would be best he forced Mallesons Stephen Jaques Solicitors to resign from representing the Public Trustee for Western Australia and their staff and solicitors, because they were simply to powerful Freemasons to fight.
Thus Stephen Carew-Reid wrote to the senior partner of Mallesons Stephen Jaques Solicitors. to inform him that unless his legal firm Mallesons Stephen Jaques Solicitors resigned from representing the Public Trustee for Western Australia and their staff and solicitors, Stephen Carew-Reid would have no choice to issue a criminal contempt of court against this senior partner of Mallesons Stephen Jaques Solicitors and Mallesons Stephen Jaques Solicitors.
Stephen Carew-Reid stated in his books, that at he last Supreme Court Hearing heard before Justice Anderson, besides that fact that Stephen Carew-Reid was at one end of the bar table representing himself, and senior barrister, Eric S Mayne of Mallesons Stephen Jaques Solicitors was at the other end of the bar table representing the Public Trustee for Western Australia and their staff and solicitors, it was clear in reality there was only two people involved in the case, Red Lodge Freemasons Justice Anderson and senior barrister, Eric S Mayne of Mallesons Stephen Jaques Solicitors.
A week later Mallesons Stephen Jaques Solicitors filed a notice with the Supreme Court of Western Australia withdrawing a solicitors representing the Public Trustee for Western Australia and their staff and solicitors.
As Stephen Carew-Reid explains in his books, his desired result as achieved.
New Partners With Mallesons Stephen & Jaques (Solicitors) board
Julie Ward, Stephen Minns (Glasses) & Peter Stockdale
Partners room - January 04, 1988
Some Pics Of Class Of 1987 - Law Graduates University Sydney.
Pics taken In Martin Place
#
Pix#cs taken of some of the class of 87. they were Law Graduates from the University of Sydney. Pics was taken in Martin Place. Kate Cato, 25, Sly and Weigall, Magdalen Malone, Allen Allen & Hemsley, Louise Howe 24, Allen and Allen & Hemsley, Anthony Anderson, 27, PK Simpson and Co, Jon North, 27, Allen Allen & Hemsley, Robert Rankin, 26, Blake Dawson Waldron, Glenn Dennett, 25, Blake Dawson Waldron, David Brewster, 26,Clayton Utz, Jane Lehmann, 28, Blake Dawson Waldron, Catharine Lumby, 28, Journalist, Herald, Michael Kerr, 24, Price Waterhouse, Arthur Aroney, 24, Price Waterhouse, Rob Mclnnes, 26, Mallesons Stephen Jaques, George Lucarelli, 24, Clayton Utz, Nigel Hill, 24, Clayton Utz. Duncan Miller, 25, Phillips Fox, Austin Sweeney, 34, Clayton Utz, Andrew Ogborne, 24, Blake Dawson Waldron, Kathryn Everett, 23, Freehill Hollingdale & Page, Anthony Willis, 27, Blake Dawson Waldron, Mary Field, 58, GIO, Nuala O'Leary, 26, Abbott Tout Russell Kennedy, Isabel Karpin, 25, Human Rights Commission, Fiona Cameron, 25, Westgarth Middletons, Kylie Nomchong, Turner Freeman, Maria Hunter, 25, Allen Allen & Hemsley, Jane Spring, 25, Australian Tax Office, John Azzi, 24, Deloitte Haskins & Sells. October 05, 1989.
The Honourable David Kingsley Malcolm A.C. Q.C of the Court of Western Australia,
and a former Chief Justice of the Supreme Court of Western Australia
The Law Lord
A Must See Film About How Courts Are Run Behind The Scenes
Julie Ann Wager Appointed the Chief Judge of the District Court
of Western Australia in 2020
If You Leave Me Now - Chicago
New York Times: Former evangelical activist claims he knew of 2014 Supreme Court decision before it was released
By Shawna Mizelle, CNN
https://edition.cnn.com/2022/11/19/politics/2014-supreme-court-decision-leak-hobby-lobby-samuel-alito/index.html Sat November 19, 2022 The Supreme Court of the United States is seen in Washington, DC, on October 6, 2022. CNN —
A former evangelical activist claimed in a letter to the Chief Justice of the United States that he knew about the outcome of a 2014 Supreme Court decision involving contraception and the Affordable Care Act by the court prior to the formal announcement, according to The New York Times. Rev. Rob Schenck wrote in the letter this summer to Chief Justice John Roberts, which was originally obtained by the Times, that he was informed by a wealthy political donor, Gayle Wright, about the verdict of the ruling prior to it coming out. According to the letter dated in June of this year but not sent until the following month, Wright had dinner with Justice Samuel Alito and his wife and spoke of the upcoming ruling at the time. “She suggested that in their table conversation, she might be able to learn the status of the case, something she knew I had an interest in knowing. I received a follow-up message from her notifying me she has indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation,” Schenck wrote, according to the Times.
A source close to Schenck confirmed the letter to CNN. “Mr. Schenck confirms the extensive details and facts he provided regarding these events.” the source told CNN. Schenck said in a statement sent to CNN on Saturday that he was motivated by “truth-telling, which should be at the heart of Christian faith and practice.” “My behind-the-scenes role at the Supreme Court and that of my cohorts are tangential to my purpose in coming forward,” he said. “I think it’s time for the Court, all of the government, and society to examine what we mean by ethics, justice, and accountability. Still, it’s even more critical for those of us who call ourselves Christians to do so.” The 2014 ruling involved the case of Burwell v. Hobby Lobby. A 5-4 court held that closely held family-owned corporations like Hobby Lobby could not be required to pay insurance coverage for certain types of contraception under the Affordable Care Act without violating a federal law aimed at protecting religious freedom. Alito authored the opinion. Alito, in a statement provided to CNN by the Supreme Court on Saturday, called the allegations concerning the dinner conversation “completely false.” “My wife and I became acquainted with the Wrights some years ago because of their strong support for the Supreme Court Historical Society, and since then, we have had a casual and purely social relationship. I never detected any effort on the part of the Wrights to obtain confidential information or to influence anything that I did in either an official or private capacity, and I would have strongly objected if they had done so,” Alito said. Wright vehemently denied Schenck’s claims in an interview with CNN on Saturday.
“This whole thing is unbelievably misconstrued,” she said, adding that Alito would never have discussed a specific case and she would never have asked about one. “Cases are never discussed, everybody knows that,” she said. Wright confirmed to CNN the she and her husband had dined with the Alitos at their home and she remembered falling ill during the dinner and Alito offering to drive her home. It was the only time she had dined at the justice’s home, but she said she has seen him occasionally over the years. She called any allegation that they had discussed the outcome of a case “patently not true.” A source told CNN on Saturday that Schenck never heard back from the court about his letter.
Schenck said in the letter that he was sharing the information now to assist in the ongoing investigation into the leaked draft of the opinion that overturned Roe v. Wade. The Times report said that “Mr. Schenck’s account of the breach has gaps” but that a series of emails and conversations imply he knew the outcome of the case ahead of the public ruling.
“Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak or the recent draft opinion, I thought this previous incident might bear some consideration,” he wrote. The draft opinion in this year’s Dobbs v. Jackson Women’s Health Organization case was written by Alito and appeared to have a five-justice majority to reverse the 1973 Roe v. Wade decision. Politico obtained and reported on the draft opinion in early May, and the leak that rocked the court was the cause for protests around the nation. The official Dobbs ruling overturning Roe came out in late June. The unprecedented investigation into the breach of confidentiality at the nation’s highest court prompted sudden requests for private cell data from law clerks but there has been a lack of transparency about where things currently stand, and the possibility of a previous leak could be damaging to the court for which public trust is already at a record low. Brian Fallon, the executive director of the liberal group Demand Justice, called Saturday for the Senate Judiciary Committee “to investigate the apparent leak.” “The whistleblower in this report, Rev. Rob Schenck, should be called to testify about both the leak and the yearslong lobbying effort he once led to cultivate Alito and other Republican justices,” Fallon said in a statement. Committee Chairman Dick Durbin said the panel “is reviewing these serious allegations, which highlight once again the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules.” The Illinois Democrat called for the passage of a proposal from Sen. Chris Murphy (D-Connecticut) that would require the Supreme Court to adopt a code of ethics for justices. “It is unacceptable that members of the highest court in the land are exempted from the judicial code of ethics when wealthy special interests are spending millions of dollars in dark money to influence the Court’s decisions,” Durbin said in a statement on Saturday. CNN’s Ariane de Vogue and Joan Biskupic contributed to this report.
New District Court Judge Julie Wager, speaking during the virtual farewell
Julie Ann Wager was admitted as a Western Australian legal practitioner in 1986. Julie Ann Wager became the first magistrate appointed to the Drug Court from 2001--2005 and subsequently became a judge of the District Court of Western Australia in 2005.
In May 2020, Ms Wager will become the second woman to be appointed Chief Judge of the District Court of Western Australia, and one of the 12 female District Court judges in the State of Western Australia..
Julie Ann Wager was president of the Criminal Lawyers Association of WA and president of the Children's Court of WA.
Video of Retiring District Court Chief Judge Kevin Sleight Gives
His Farewell Speech in 2020 In WA's First Virtual Ceremony
Due To The COVID-19 Pandemic
Retiring District Court Chief Judge Kevin Sleight Gives
His Farewell Speech in 2020 In WA's First Virtual Ceremony
Due To The COVID-19 Pandemic
Virtual Farewell For Western Australian District Court Chief Justice
If you read my various volumes of the books "The Triumph of Truth (Who Is Watching The Watchers?) one will soon realize and understand that there is a lot of truth behind what this film portrays in the way the courts have been run in Western Australia.
Every person who is involved in the legal, police and political systems or who is interested in how the legal, police, prosecution and political systems are run from behind the scenes, need to watch this important film.
When I watched this film I realized that I had shown actual evidence in my books that shows what this film portrays.
Such as the appointment of Listings Coordinator Clerks in the Magistrates, District, Supreme, Courts in Perth Western Australia. The Listings Coordinator Clerk has a very special job in the courts on behalf of the powerful elite that do their best to control the legal, court, prosecution and political systems in Western Australia.
I sincerely apologize for my critical views in my books and writings of how the legal, police, prosecution and political systems have been run in Western Australia.
However, everything I have stated is in my series of books and other writings is all the truth.
Unless people running the legal, police, prosecution and political systems are prepared to allow themselves to be investigated. as well as these systems to be looked into and investigated. in the way these systems are run, then these serious endemic problems and issues will never to corrected or resolved.
Signed
Author of the series of books called "The Triumph of Truth (Who Is Watching The Watchers?)
Attorney General Jim McGinty today announced the appointment of Perth's Legal Elite Senior Red Lodge Freemaosn
Christopher Stevenson as as a judge to the District Court.
It s rumored that Senior Red Lodge Freemason
Christopher Stevenson is being groomed to become the next Chief Judge of the District Court of Western Australia
New District Court judge
OCTOBER 20, 2009 7:29PM
State Government press release
A LAWYER with extensive experience in dispute resolution has been appointed as a judge of the District Court of Western Australia.
Attorney General Jim McGinty today announced the appointment of Christopher Stevenson to the District Court.
“Mr Stevenson has more than 25 years specialised knowledge and experience as a barrister and solicitor, focusing on dispute resolution in the areas of litigation, arbitration and mediation,” Mr McGinty said.
“He is an advanced accredited mediator and undertakes mediations and arbitrations at the request of legal practitioners, government departments and other organisations in complex commercial, private and public disputes.
“Mr Stevenson joined the law firm of Stone James, now Mallesons Stephen Jaques, becoming a partner and staying with the firm for 21 years before moving to the Independent Bar in 2003.”
Mr Stevenson graduated from the University of Western Australia with a Bachelor of Jurisprudence and a Bachelor of Laws in 1977-78. He also attained a Master of Laws degree from the University of London in 1982.
He has served on the executive of the Western Australian Bar Association 2005 - 07 and as deputy convenor of the Courts Committee of the Law Society 2004 - 07.
He is a legal member of the Building Disputes Tribunal and the Real Estate and Business Agents Supervisory Board, and recently completed a period as a Commissioner with the District Court.
He will take up his new position with the Court on December 3.
State Government press release
New Chief Judge Julie Ann Wager appointed to head WA’s District Court
The District Court of Western Australia was established on 1 April 1970. While the prevailing judicial system of the Supreme Court, the Local Courts and Courts of Petty Sessions had been adequate, the rapid expansion of Western Australia’s population required the establishment of an intermediate system of courts. Another Court was also needed to relieve pressure and avoid a backlog of cases in the other courts, especially the Supreme Court.
The District Court of Western Australia was therefore established with both criminal and civil jurisdiction, to provide a flexible framework to accommodate the needs of Western Australia in the administration of justice.
In 1971 civil trials were temporarily held in the Public Trust building behind St George’s Cathedral. Criminal trials continued to be heard in the Supreme Court. From April 1982 the District Court was relocated to the Central Law Courts at 30 St George’s Terrace allowing both criminal and civil cases to be heard in the one building.
In 1999, due to continued growth in the Court’s caseload, the District Court took possession of four additional criminal courtrooms created in the May Holman Centre adjacent to the Central Law Courts. The District Court was based in Central Law Courts and the May Holman Centre until June 2008 when it relocated to its current, purpose-built court house at 500 Hay Street, Perth.
CHIEF JUDGE KEVIN HAMMOND- was admitted as a barrister and solicitor of the Supreme Court of Western Australia in 1960. He was appointed a judge of the District Court of Western Australia in 1982 and in 1995 was appointed Chief Judge. Educated at Christian Brothers College and the University of Western Australia, graduating in law in 1957.
Two of Western Australia’s most eminent and experienced criminal law experts will guide the establishment of the State’s powerful new corruption watchdog.
Attorney General Jim McGinty today announced the appointments of:
Chief Judge Kevin Hammond as Commissioner of the new Corruption and Crime Commission (CCC). Chief Judge Hammond - who has resigned his judicial commission effective from January 1, 2004 - will lead the fight against corruption, armed with all the powers of a Royal Commissioner.
Criminal lawyer Malcolm McCusker QC as independent Parliamentary Inspector of the CCC. His role is to watch over the activities of the CCC and report to Parliament. He will have unlimited access to all CCC information, including operational matters.
Both appointments are for a period of five years.
Mr McGinty said the CCC would be the toughest anti-corruption agency in the nation - with substantial new powers to investigate alleged corruption by police and public officers, as well as organised crime.
“It was absolutely essential that the people entrusted to lead the fight against corruption through the establishment of the CCC were of the highest possible calibre,” he said.
“This has been achieved.
“Chief Judge Hammond and Mr McCusker between them have more than 80 years’ experience in criminal law. They are a formidably high-powered team who will perform their functions with absolute diligence and integrity.”
The appointments have strong support across the political spectrum with the parliamentary leaders of all of the State’s political parties consulted.
In addition to its new powers to compel witnesses to give evidence, conduct integrity tests and controlled operations and use assumed identities to root out corruption, Mr McGinty said the CCC would have an unprecedented level of accountability.
“Most importantly, it will have the power to hold public hearings - ending the secrecy of the Anti-Corruption Commission (ACC) which it will replace,” he said.
“The veil of secrecy which has shrouded the work of the ACC prevented the public from knowing anything about its activities. There was no ability to even reassure the public that allegations of corruption were being investigated.
“By comparison, the CCC will be open and accountable.
“As well as conducting public hearings similar to those seen at the Police Royal Commission, the Commissioner will be able to confirm investigations publicly, disclose information and comment on outcomes where it is felt to be in the public interest.
“He will also be able to reveal when a matter has been referred on to other authorities for prosecution or disciplinary action.
“Importantly, all the CCC’s activities will be overseen by the independent inspector, who will report to Parliament.”
Mr McGinty said a budget of $21million had been approved for the CCC, more than double that of the old Anti-Corruption Commission.
The work of the CCC would also be assisted by hefty penalties for anyone seeking to hinder its operations - such as giving false testimony, bribery of witnesses, destroying evidence or victimisation of people assisting the commission.
The CCC would formally commence on January 1. There would be a brief overlap with the ACC, the framework of which would be maintained for an interim period to enable the handover of any investigations, the resolution of staff redeployment, and to complete a smooth transition of Commonwealth telephone intercept powers.
CHIEF JUDGE KEVIN HAMMOND - was admitted as a barrister and solicitor of the Supreme Court of Western Australia in 1960. He was appointed a judge of the District Court of Western Australia in 1982 and in 1995 was appointed Chief Judge. Educated at Christian Brothers College and the University of Western Australia, graduating in law in 1957.
MALCOLM JAMES McCUSKER QC - commenced practising law in 1962 and has extensive experience in both civil and criminal matters. In recognition of his role as a barrister, he was appointed Queen’s Counsel in 1982. He headed the special investigation into the Rothwells Bank collapse in 1989 and has been chairman of the Legal Aid Commission of WA since 1983. Educated at Perth Modern School and the University of Western Australia.
"When the police officer arrived, Kevin showed him the body whereupon the police officer turned immediately to him and said “Kevin James Hammond I must caution you that you do not have to say anything but …”.
All were provided with extra facilities for legal practitioners and the court users. These complexes in the main, include facilities for remote and vulnerable witnesses and facilities for mediation and pre-trial conferences. The Government is now finalising the task of resolving the future accommodation of the Supreme Court. The need to expand the number of courtrooms and support infrastructure for the Supreme Court has long been recognised. The last expansion, the construction of an annex in 1987 next to the original 1903 building in Stirling Gardens, has run out of space. For many years, the court has extended its operations into a separate commercial tower on St Georges Terrace. The split of the accommodation across two sites is inefficient for listings and day-to-day operations of the court. A number of the courtrooms in the 1903 Supreme Court building have been retrofitted in unsuitable spaces to address a lack of courtroom facilities as they have arisen in the past. These courtrooms generally present poorly with ad hoc finishes, fixtures and fittings. They lack the sense of order and dignity that is expected on entry to a courtroom. There are currently insufficient mediation suites to accommodate the current move towards settling matters prior to trial. I recognise the need to start planning to improve the lot of the Supreme Court. The task for now is to find a solution that will see the Supreme Court accommodated, preferably at a single site, for the next half century or more. Consultation has begun and a strong business case has already been provided to Treasury. The Government has provided more than $300,000 for more detailed planning for a solution. The quest for adequate and purpose-built facilities – and enough of them – is a major ongoing investment for WA. The Government is on track to achieve them in the coming years. The legal fraternity can be assured that facilities for all parties are improving and continually under review.
Antoinette Kennedy - Chief Judge District Court of Western Australia
Retirement of Kevin James Hammond Kevin James Hammond
was born in 1936 and educated at Sacred Heart Convent and Christian Brothers High School, Highgate and then at the University of Western Australia. He was in the first intake of residents at St Thomas More College. Prior to that he had completed National Service as was the requirement at that time. He completed his articles with Howard Solomon at Morris Crawcour & Solomon in Perth, was employed for a period of time in Perth and then moved to practice in Northam, York and Central Districts. In June 1962 he became a partner at Mayberry Hammond & Co, Northam and remained there until June 1978. It was obvious that Kevin looked on his period of time in Northam with enormous affection. He often referred to himself as “just a country practitioner” and it was clear that while you could take the boy out of the country, you could not take the country out of the boy.
During the time he was a member of this Court his one wish was to have the time off to go to the Northam Cup but he only managed it on one occasion as far as I can recall. During his time in Northam he had been firstly a Committee Member of the Northam Race Club and then President from 1976 to 1978. He subsequently became a joint Patron of the Race Club. Country practice was obviously fascinating even on the occasion when he was almost arrested for murder. He was contacted at his office and advised that there was regrettably a dead body at the farm of a client. He went to the property and sure enough, there was. He arranged for the clients to be legally represented and immediately contacted the police. When the police officer arrived, Kevin showed him the body whereupon the police officer turned immediately to him and said “Kevin James Hammond I must caution you that you do not have to say anything but …”. The period in Northam was not only legally and personally satisfying for Kevin but he had articled clerks who went on either to be successful practitioners or to take up various positions on the Bench, including District Court Judge Peter Nisbet, Supreme Court Registrar Paul Johnson and Magistrate Brian Gluestein. In 1978 Kevin shifted to Perth and joined Lavan & Walsh where he remained until February 1982. Part of the motivation for the return to Perth was the education of the four daughters of himself and his wife, Derryn. Those four daughters are Kate, Sarah, Celia and Rosalind. Kate is a doctor, Sarah a teacher, Celia a lawyer and Rosalind an actress. Derryn, a gentle sophisticated woman, became the English Mistress at Saint Hilda’s. Derryn and Kevin met when they were both members of the University Dramatic Society and have a life-time interest in the arts and theatre. During this period he was a member of the Barristers’ Board, the first Chairman of the Land Valuation Tribunal of WA and a member of the Committee of Inquiry into the Future Organisation of the Legal Profession in Western Australia. Kevin was appointed to the Bench of the District Court on 15 February 1982 and was appointed Chief Judge on 30 January 1995 and remained in that position until 31 December 2003. He was also President of the Crime Prevention Council of Western Australia from 1983 to 1984 and Chair of the Review Committee established in 1996 to review all aspects of remission and parole, which Committee was referred to as the “Hammond Committee”. It was the report of this Committee that led to very substantial amendments to the Sentencing Act. He was further a member of the Working Group on Criminal Trial Procedures established by the Standing Committee of Attorneys General, Melbourne and Sydney in 1999, a member of the Deliberative Forum on Criminal Trial Reform, Melbourne, 2000 and a member of the Advisory Board of the Crime Research Centre (UWA). He was an erudite and lively member of the Court. Most new Judges during that time would attest to the fact that he had an uncanny knack of turning up just when you needed him. Just when a problem in a particular case became too difficult and there was nowhere to turn for assistance, Kevin would turn up with much commonsense and wise advice and was always willing to assist. Kevin has an enormously wide and varied range of friends in whom he takes great interest and about whom he gets great delight. He is also an inveterate attender of funerals, as only a good Irish Catholic of his generation can be. I often joke to him that he will have the biggest funeral in Western Australia not for anything he has achieved but because so many people will owe him an attendance at his funeral. On 1 January 2004 he capped a truly distinguished career of exemplary service to the community by becoming the Commissioner for Crime and Corruption and the results of that have been reported to all of you through the media in the last three years.
The Hon Wayne Martin Chief Justice of Western Australia The State of Justice
The State of Justice
The following is the inaugural Law Week address by the Chief Justice at a ceremonial sitting of the Supreme Court. Law Week provides a valuable opportunity for the legal profession and the courts to better inform the public about the services we provide and the role we play within the community. The legal profession and the courts are the means by which the community obtains access to justice and both have a continuing obligation to do whatever we can to improve that access. It is impossible to overstate the importance of this right to justice. But there remains room for improvement. Access to justice can be improved in many different ways. One important way is the demystification of the law and its processes. Although significant progress is being made in this area, the technical complexity of the law and the stylised form of language which we use in the courts can be the source of confusion and misunderstanding which can in turn lead to a lack of trust and confidence. We lawyers must try harder to use language which is comprehensible to ordinary Western Australians. Even language which appears to us to be innocuous and simple may be confusing. Take, for example, the instance in which a witness was asked by counsel whether their appearance in court was as a result of a subpoena. The witness answered that she would have come to court dressed the way she was anyway. Even attempts to put witnesses at their ease can fall flat – take for example, the Barrister who asked the witness to speak slowly and clearly, and tell what happened to the Judge, to receive the response, “Why – what happened to the Judge?”
Although these examples are lighthearted and mundane, they illustrate a more significant point, which is that continued use of language which reinforces the traditional mystique and aura of the legal profession and the courts can be a source of confusion and therefore unhelpful.
Meet Antoinette Kennedy, the retiring chief judge of the WA District Court. She has strong views on Western Australia's tough law and order approach to crime; deep concerns about mandatory sentencing, anti-hoon laws and new stop-and-search powers. Her critics maintain she's too soft on offenders. But she reckons the politicians need to lift their game and start thinking big picture.
Damien Carrick: Antoinette Kennedy recently stepped down as the chief judge of the WA District Court. She was the state's longest serving judge, and she's also a trailblazer: Antoinette Kennedy was WA's first female judge.
As you're about to hear, she has some strong views about how state governments in WA address crime and sentencing issues.
Antoinette Kennedy: It's becoming an increasing problem. The community has become more frightened of disorder than of tyranny, and the history of the law, and the history of Australia, shows us that in reality there's no reason to be more frightened of disorder than tyranny, and when you frighten people so that they are more frightened of disorder than of tyranny, they're likely to give up the rights that have been fought for since the 13th century, and they're likely to let politicians do whatever they please. And the politicians simply don't realise what they're doing; they're not malicious, they simply do not understand how far they are diverging from the British justice system, and I think the 19th century social commentator Walter Bagehot is reputed to have said something to the effect that the British are famous for inventing wonderful institutions which they themselves don't understand. And we've inherited those institutions and our politicians don't seem to understand them any better than the general community, and they've shown a complete lack of leadership.
Damien Carrick: In what way are they showing a lack of leadership?
Antoinette Kennedy: Well if the media, or any interest group, kicks up a stink, they never try to explain anything, they simply agree, and we now have for example in Western Australia mandatory sentencing legislation where there is a six-month sentence for assault occasioning bodily harm on a police officer. Now you've got to understand that the complaint about that is not simply that it's a six-month mandatory sentence, but that assault occasioning bodily harm means any bodily injury of such a nature as to interfere with health or comfort. And so the example that we've had in Western Australia is if a rose seller hits a policeman on the hand with a rose and a thorn goes into their hand, that is assault occasioning bodily harm. Now under the present legislation you could get six months, or you must get six months jail for that. So it's not only that it's mandatory, it's that it covers very trivial things, and of course the problem with that is that even the Commissioner of Police knows that that's a problem because he's now announced that not everyone will be charged.
Our Commissioner of Police is a very decent, intelligent man, but he's just a man, and we're supposed to have the rule of law, and the law is not supposed to depend upon you encountering a nice policeman, and so it should not be up to him to decide 'I will use this law this time; I won't use it on some other occasion'.
Damien Carrick: Look, I've got to put it to you, I mean these mandatory sentencing laws, I think they were brought in as of September last year, and it's a mandatory six-month jail sentence if you hit a policeman causing bodily harm. I mean these laws came in, as I understand it, as a response to an increase in the number of assaults against people like police and ambos, and the AG has referred to instances of people not going to prison when these sorts of people sustained injuries, such as broken noses or chipped teeth.
Antoinette Kennedy: You would need the particular case, and you would need to know about the particular case. It's very rare for someone to do a serious assault to a police officer in Western Australia and not go to prison. And you just can't look at an individual case without digging down into the actual details to find out why that is the case, and even if that were the case, then they should have made it for something a bit more serious than assault occasioning bodily harm, so that we now have a situation where even the Commissioner of Police knows he's got more power than he wanted, and is saying, 'I'll only use it in certain circumstances, so trust me, I'm a policeman, I'll only use it in certain circumstances', that's simply not acceptable, as decent as our Commissioner of Police is.
Damien Carrick: Who do you fear will be affected by these laws?
Antoinette Kennedy: We all know who'll be affected: Aboriginals and young people. Unless the Commissioner of Police goes on doing what he's doing and not use it.
Damien Carrick: Because so far there have been no convictions.
Antoinette Kennedy: There's been no convictions because they have not taken any action because they know that if the community realise how trivial it can be to get six months jail and cost the community $50,000 to keep someone in jail for six months, there will be an outcry about it. So they are waiting for the perfect case, and so they've being charged with assault, they're not being charged with assault occasioning bodily harm. And in fact in the early stages, a couple of people were charged with assault occasioning bodily harm and it turned out one of them was a person who'd escaped from a mental home, and they were the sort of things that people were going to end up with egg on their face, so they quickly dropped those charges to simple assault from assault occasioning bodily harm.
Damien Carrick: You are also very worried about new stop and search laws in WA that are currently being considered. Now under these laws which have been proposed, what new powers would be given to police?
Antoinette Kennedy: Well it means that they can stop and search anyone they like, anytime they like, without any suspicion or without the person having done anything suspicious. So that if your next-door neighbour's a policeman, if he doesn't like you, as you're going out your front gate he can stop and search you. Now they would say to me, 'Oh that's ridiculous, we wouldn't do that'. Well 'we' shouldn't have the power to do it. And that's all there is to it. Again the Commissioner of Police is saying, 'Look, we'll only use it in certain circumstances', and again, it is in that case since he's such a decent human being, why don't we just say the Commissioner of Police can do whatever he like because we know he's such a nice man, he won't do anything unreasonable.
Damien Carrick: You also have very strong views on WA's anti-hoon laws, which recently entangled an affluent Perth doctor, a Dr Patrick Nugawela. Tell me what are those anti-hoon laws and what happened to Dr Nugawela?
Antoinette Kennedy: I have to say that I haven't taken, until Dr Nugawela's case, I hadn't taken a lot of interest in the hoon laws because they're not dealt with by the District Court, they're dealt with by the Magistrate's Court, and I don't object to the police having the power to seize motor vehicles in certain circumstances. But again, it turned out that it was far too wide. Poor old Dr Nugawela, obviously is a very hard-working doctor and he bought himself a Lamborghini and he put it in to the mechanic for the mechanic to fix it up and according the police, the mechanic was clocked doing some incredible speed which took him well within...
Damien Carrick: 160 ks per hour I think.
Antoinette Kennedy: That's right, within the hoon laws, which entitle them to seize the car. Now the doctor said, 'Well I've done nothing wrong, I didn't know he was going to do that and I certainly didn't give him permission to do that.' The relevant Minister dealt with that very poorly, in my view, because what he tried to do was to play the politics of envy, to more or less say, well look, who cares what happens to somebody who can afford a Lamborghini. Well it turned out a lot of West Australians did, because even though we can't afford a Lamborghini, this was simply not fair. And again, it was a situation which a politician I think learned a lesson, and the lesson was that it is not in every case that people are more frightened of disorder than they are of tyranny, and that was a small example of tyranny against that doctor, and the police had no way of giving him his car back, and if the mechanic hadn't paid the $900 fee, the doctor would have had to pay the $900 fee to get his car back, and the car was impounded I think for 28 days.
Antoinette Kennedy: So you're saying this is an example of laws which are simply draconian and they leave no room for applying a commonsense justice fair outcome?
Antoinette Kennedy: That's right, and no room for looking at individual circumstances. And there always are, I should say, individual circumstances where you need to be able to look at those circumstances and say, 'Is this fair in this case?' It may be fair in 98% of cases, but what about the other 2%? And we are in the business of making sure that all our citizens have justice, and we don't operate on the basis of, 'Bad luck, you got caught, even though you're innocent.'
Damien Carrick: When it comes to law and order issues more generally, and sentencing more generally, do you think that locking people up, does that deter crime? Is it a successful strategy?
Antoinette Kennedy: It is a deterrent. But it's not everything, and that is the difficulty that judges have, that the community put all their eggs in one basket and they think that the prime problem can be solved by heavier and heavier sentences, and they are asking too much of the criminal justice system as an instrument controlling human behaviour. The criminal justice system has a role, but it's not every role, and the story is told of two men downriver, and a body comes down the river and they pull the body out, and then more bodies keep coming down the river and they keep pulling them out, and finally, one of them says to the other, 'You stay here and do what you can and I'll go upstream and see what's happening.' Now as far as judges are concerned we are downstream pulling the bodies out of the river; what in God's name are the rest of you doing upstream?' And the fact is, you're doing nothing, and you're to put all the blame and all the responsibility on to us and it's stupid, quite frankly, stupid.
Damien Carrick: So you're saying that there need to be alternative strategies, strategies up-river, to stem crime. What strategies might they be?
Antoinette Kennedy: The first thing I'd like to say is that I don't think it's a judge's job to start talking about what the other strategies are. What you are really doing is deflecting attention from yourself and what you should be doing. But I'll give you some suggestions. The first thing is I frequently have young lawyers say to me, 'It was inevitable that my client would end up in the criminal justice system.' And when you look at the life and the childhood of that person, you know that that's right, it was inevitable that they would end up in the criminal justice system. If we know it's inevitable, why aren't we doing more about it? In Australia, we simply do not spend enough money on early childhood intervention. You can see people coming, and yet we are doing nothing about that, or very little about it at all. Now to think that you do nothing about that, or very little about it and then that somehow some judge can put that right and stop crime, is well, as I've already said, it's stupid.
Damien Carrick: So why do you think governments have tougher and tougher laws and don't just...
Antoinette Kennedy: Because it's cheap, or it used to be cheaper, now of course the cost of keeping someone in prison is $100,000 a year and people seem to think that that means that they are living in luxury conditions. The Inspector of Custodial Services in Western Australia has got some brilliant photographs of prisons that would show anyone that it is not a holiday camp, it is not luxury. That money, most of it, goes in guarding people.
Damien Carrick: I'm speaking to Antoinette Kennedy, the recently-retired Chief Judge of the WA District Court. Antoinette Kennedy, so far we've been talking about law and order culture and you've been offering your views, your analysis and your criticism of politicians. But presumably there must also be a place to scrutinise and analyse the decisions of judges. Do you believe that the media gives you and other judges a fair go?
Antoinette Kennedy: Not overall. We had a very bad time in Western Australia for a period of time, which is now passed, with our major daily newspaper, and they were only interested in criticising judges and they weren't interested in making sure that the community understood what the situation was. And I understand the problems that the media have, the media obviously, they've got to do things that people are interested in, and it's very immediate, but no-one has ever asked what the community is doing about the crime problem, and there is this constant attempt to put all your eggs in one basket and to think that somehow, judges have the answer to the crime problem and we're flatly refusing to use it. Now I live in this community, I have family and property in this community, of course I care what happens to the community. Of course I care about the victims of crime, it's positively insulting and hurtful to suggest that I am a person who doesn't care about crime, and the victims of crime, and that if I'm not a paedophile myself, I'm a person who supports, encourages and promotes paedophilia, and it's arrant nonsense.
Damien Carrick: Well look let's talk about—as much as you're comfortable—about some of the controversial decisions. I mean like many judges, some of your sentences have attracted huge criticism from the media, and even sometimes from the politicians, and I think it was back in 2006 there was a lot of media coverage of your decision to release a child sex offender back into the community on a two-year suspended sentence. This was the case of Kevin James Lilly. Can you tell me about that case and about your decision-making in that case?
Antoinette Kennedy: Yes, certainly. The first thing I'd say about any case is that what you have to realise is that each side has a right of appeal, and no-one can stop them from that. Within 21 days, they can lodge an appeal and the whole matter can be looked at again by the Court of Appeal. The prosecution and the defence can each lodge an appeal and it will be looked at again by three people. So they make that decision and that, as an aside, is a reason why judges don't defend themselves, and that's the other thing that really irritates judges, and that's why it's so unusual for me to speak out now, because of course judges don't defend themselves, and the media know that, and particularly in Western Australia for a period of time The West Australian used it, that we are soft targets and by that I mean we don't answer criticism, at all, and so the community may well think that we're agreeing with the criticism, or that there is no answer. But that's not so, we simply don't answer because it interferes with people's rights of appeal, and the appeal has to be on the basis of what the judge has said in open court.
Damien Carrick: Well Kevin James Lilly, who was he and why did you reach a decision to give him a two-year suspended sentence?
Antoinette Kennedy: Because he was a person who hadn't been in any trouble before. He was a middle-aged man who'd had a number of life problems and had become an alcoholic, and he had a very nice wife and family, and he did not go out looking for anyone, he sat in his back shed every day and got drunk. And the little girls from down the street used to come to his back shed, and he was very, very drunk, and he used to entertain them, apparently, I mean as horrible as it is, to entertain them, display himself, and mainly there was very minor, very minor, touching. If there had been proper touching, he would have gone to jail, but it was minor touching and he was displaying himself and the little girls, one of them on one occasion said to him, 'You're very naughty', and he said in his drunken state, 'If you don't like it, this is my house, go home.' So he'd regressed, according to the psychologist, so he was like a six-year-old himself.
And so the little girls came to his home, and they came back on a number of occasions. Now no-one's suggesting that this is not serious. That's a given. This is a very serious matter. By the time it came to sentence this man, who'd never been in any trouble before, as far as I can remember, you see I don't keep these things in my head, and so he must have had either a very clean record, or must not have been in trouble for many years, and my recollection is that he'd worked very hard and then given up work for some reason. By the time he came before me, he was stone cold sober and in counselling. Now the idea that we would pay $100,000 to put that man in jail, where at that stage there were no programs. When he was out, he was sober, he had his wife and family's support, and he was in a program ; it simply seemed to me to be inappropriate use of community funds. And I stress, that so far as him touching those children is concerned, it was very, very minor.
Damien Carrick: At the time one of the newspapers, I think it was The Sunday Times in WA said, 'Isn't it time we stopped using alcohol as an excuse? In the case of Kevin James Lilly it's one of the worst excuses imaginable, but it was enough for District Court Judge Antoinette Kennedy.' And the journalist described this as 'the ridiculous justification', and a restraining order preventing Lilly from going within 100 metres of his victims as 'almost farcical'. And I think the Opposition leader at the time, or an Opposition politician at the time, labelled the sentence, 'woefully inadequate', and 'it highlights the enormous gulf between the soft sentences handed out by the court and the punishments demanded by the community for these types of offences.'
Well what do you make of those comments?
Antoinette Kennedy: Well I just think it's ridiculous. The community generally are not talking about offences where there is no touching, and they're not talking about offences where the offender is in his own back garden. He does not go out looking for anyone, he's just sitting there, drunk, that's all he's doing. He's sitting there drunk and the little girls come around so he displays himself to them. Now I gave him a suspended term of imprisonment. I didn't say to him, 'You're a wonderful human being, here's a gold medal,' I gave him a two-year suspended term. That meant that if he didn't do the program that I ordered him to do, he would serve the two years jail. It meant that if he got into any more trouble, he would not only be sentenced for what he did, but he would serve the two years. Now the community's interest was in having him rehabilitated, and not set backward as a term of imprisonment would, and as I say, there were very few programs in the prison. That's improved a bit now, but there were very few programs in the prison at that time.
Now I think it's unrealistic in those circumstances, for the community to pay over $100,000 to warehouse that man for at least 12 months without probably any program in those circumstances. Now some people may disagree, and I know people say, 'We don't care what it costs', well that's OK. If you don't care what it costs, we'll shut down the primary school in your area, and we'll use that money for the jails. Because it's silly to say you don't care what it costs, of course you care what it costs, if it costs you schools and hospital beds, you do care.
Damien Carrick: Standing in the shoes of, say, the family of the victims, or the survivors, I mean they might say, 'Well the touching may well be classed as somehow minor, but that might not mean that the effect on the young people, the children, was minor, and we need as a community to respond to those sorts of crimes, and that's what they are, with a very, very firm hand.'
Antoinette Kennedy: Oh, in Western Australia paedophiles go to jail for very, very long periods of time. No-one should be under any illusion about that. But most of it is not reported, and it's not reported for the simple reason most of it is in the family, and therefore the media can't name and shame the offender.
Damien Carrick: Because they would identify the survivor or the victim?
Antoinette Kennedy: That's right. And so the community is unaware of the real paedophilia problem in the community, which is one of the greatest failings of the media of all time. I'm not asking them to publish every one of those, because I know that would be very boring if they said, 'Today a stepfather, today a father, today whatever, was sentenced to 6, 10, 12 years jail.' But it would be nice if they pointed out that 95% of paedophiles are heterosexual, adult males, who are not priests or schoolteachers. But there is another point I want to make to you about something you said, and about the demands of victims.
The demands of victims are very important, but there is a view abroad that sentencing is simply between the victim and the offender. Now if that were so, all we would need to do is to identify the offender and then say to the victim, 'You can do whatever you like to the offender. As a judge, the offender has done nothing to me, so I'm not particularly angry with him, but he certainly is the offender and you can do whatever you like to him.' And that would be what we would do if sentencing were simply between the victim and the offender. But sentencing is not simply between the victim and the offender, sentencing is between the victim, the offender and the whole community. Now in the end, we must do what is in the interests of the whole community.
Now it's understandable, and if I were a victim, I may want somebody smeared with jam and tied to an ant-heap. I may want them killed, but that is not in the interests of the whole community and I'm not decrying what victims want and how emotional they are and how it's affected their lives, but the reality is the world goes on, and the community goes on and sentencing has to take into account not just the rights of the victim, but the rights of the whole community and the fact that life goes on and you must do what is in the interests of the whole community, and it is rarely in the interests of the whole community that the offender be destroyed, and there are many victims who would want the offender destroyed, and as I say, I understand it, but it just cannot be.
Damien Carrick: The sometimes intense controversy that surrounded some of your sentences, and those of your fellow-judges, prompted the Chief Justice of WA, Wayne Martin, I think it was in December 2006, to give a very direct, a very in-your-face speech where he attacked the media as giving 'a demonstrably false impression that judges are lenient when it comes to sentencing'. But he also gave some statistics around the rate of imprisonment in WA What are the rates of imprisonment in WA?
Antoinette Kennedy: Western Australia has the highest rate of imprisonment of any state in the country. The highest rate of imprisonment. But nothing pleases some people who want to make law and order the issue, and so it cannot possibly be the case that we're not locking up enough people. Per 100,000 of population, we are locking up more people than any other state in the country.
Damien Carrick: Now changing focus, there are now many women at the top of the profession, but that certainly wasn't the case when you started out. I think in your final year of law school you were interviewed, and in an article you said, 'Oh no, there's no discrimination; women are as good as men', but that that really wasn't the case when you said that.
Antoinette Kennedy: It was rubbish. I've been reminded of that on a number of occasions. It was absolute rubbish, but you see I had completed my law degree, and no-one had been rude to me, so I thought in my naiveté, well that must mean there's no discrimination. I mean there were no Supreme Court or District Court judges, no magistrates, no registrars, no masters, no prosecutors, no partners in big firms who were women, and there was a tendency to either pat women on the head or regard them as eccentrics. There have been huge improvements, obviously. But there were huge difficulties.
Damien Carrick: What was your experience like in your early years of practice?
Antoinette Kennedy: No-one's rude to you. You see if they're rude to you, it would be a lot easier to deal with. They're not rude to you, they just don't take any notice of anything you say. And I can remember when I first realised this, I'd been out for about three or four years, and I was appearing before a magistrate, and I said something which to me was perfectly sensible, and my opposition, who was a male, said something that I thought was really stupid, and the magistrate hung on every word he said, and I'm thinking to myself, 'Listen sport, he was a dork at law school, he's still a dork. Why are you listening to him and not me? Why am I being patted on the head?' and it was slowly that I realised that the law has a very male way of thinking, and if you don't think in that way, then you must be wrong, not different, wrong, and that is the problem that women still have, although it's lessening as time goes on. And of course I was the first woman judge in Western Australia and that was not necessarily the most popular thing to be.
Damien Carrick: What was the reaction from other judges and from members of the profession?
Antoinette Kennedy: Well on my own court they weren't too bad actually. When I say—I don't like to go into the details, it's all such a long time ago—the only thing I like to say is really, the judges on my own court were not my major problem, and it came as a bit of a surprise to discover that I was not a male clone, I think, and they really expected that I would just behave like a male in drag. Now unfortunately, women don't behave like men in drag, women are different. It's not that we're better, and as I said I think recently, Chairman Mao said women hold up half the sky. We're not better, but we do have different approach and you need the balance of both men and women. You don't want just men or just women, you need the balance of both.
Damien Carrick: You're stepping down with a sense of accomplishment and a sense of having contributed, but what about— are there things that you wish you could have achieved? What still remains to be done?
Antoinette Kennedy: It's this attitude to sentencing. You know, I do live in this community, I have people that I love in this community, I do want this community to be more crime-free, and I do know that we're going in the wrong direction, and that I thought might improve over the 25 years, but it hasn't improved over the 25 years. And this is not just a matter of my ego, you know, 'judges don't like to be criticised'. This is a matter of really caring about what happens in my community, and really seeing that we're doing the wrong thing, and this is not the answer to the crime problem, just locking people up for longer and longer periods of time. It's got nothing to do with being sympathetic to offenders, or not sympathetic to victims. My concern is for the whole community and that's the thing where we really appear to have gone backward.
Damien Carrick: Chief Judge Antoinette Kennedy, a great pleasure talking to you. It's been a fascinating conversation.
Antoinette Kennedy: Thank you very much.
Damien Carrick: That's the Law Report for this week. Thanks to producer Erica Vowles.
TRANSCRIPT OF PROCEEDINGS AT PERTH ON THURSDAY, 24 FEBRUARY 2011,
AT 4.31 PM
24/2/11 1 (s&c)
MARTIN CJ: The Court sits today to farewell the Honourable Justice Peter Blaxell, who will officially retire from office tomorrow. I would like to particularly welcome today members of his Honour's family, including his wife Stella; his father and stepmother, Donald and Shirley Blaxell; his sons Tim, Sam and John Blaxell; their partners Louise, Rebecca and Elizabeth; his grandson Hamish; and also his Honour's brother Tom Blaxell and his wife Naima. I would also like to welcome Justice Michael Barker of the Federal Court of Australia; Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia; his Honour Judge Peter Martino, Chief Judge of the District Court of Western Australia; Chief Magistrate Steven Heath; Ms Cheryl Gwilliam, Director-General of the Department of the Attorney-General; and many other distinguished guests too numerous to name, including former members of this and other Courts. I would also like to welcome those who will address the Court this afternoon, being the Solicitor-General, Mr Robert Meadows QC, representing the Honourable Christian Porter MLA, Attorney-General of Western Australia, who is unable to join us this afternoon; Dr Christopher Kendall, representing Mr Hylton Quail, President of the Law Society of Western Australia; and Mr Grant Donaldson SC, President of the West Australian Bar Association. Prior to my appointment to the Court, I occasionally heard mutterings from my lawyer colleagues to the effect that ceremonial sittings of the Court for the purpose of welcoming or farewelling a Judge were pleasantly predictable occasions devoted to the utterance of sycophantic platitudes.
As a member of the Court I would obviously brand any such suggestion as heresy, but in case there are any heretics present this afternoon let me assure you that there is nothing sycophantic about the observations I will be making this afternoon on behalf of all of the members of the Court. That is because we are united in the firm view that Justice Peter Blaxell has made an outstanding contribution to the work and to the life of the Court and he will be very sorely missed. My own association with his Honour goes back almost 40 years to 1971, when I was engaged as a clerk during the university vacations by the firm which then practised under the name Lavan and Walsh. His Honour was then a junior solicitor in the firm and Barry Rowland was the senior litigation partner. On one occasion I was asked to assist in the relocation of the firm from its premises in Howard Street, which were about to be demolished, up to new premises at 524 Hay Street. I was tasked particularly with the responsibility of packing up all the books in the firm's library and then unpacking them and re-shelving them in the new library in Hay Street. In the course of that exercise I was able to ascertain the veracity of one of the apocryphal stories which then abounded through the firm which was to the effect that his Honour had written in large print on a wall of the library, obscured by bookshelves, that, and I quote, "Rowland is a fink." The fact that his Honour chose the word "fink" in preference to some more other obvious Anglo-Saxon alternatives was not a prescient reference to a motorcycle gang yet to be formed but a reflection of the gentile side of his Honour's character. Of course my first and abiding impression of his Honour was heavily influenced by his extraordinary laugh, which can be heard across several city blocks and which is utterly irrepressible. After graduation I served my articles at Lavan and Walsh and worked in sufficiently close proximity to his Honour, who was by then a partner in the firm, that earmuffs were occasionally required. It is very pleasing to me, and I'm sure to his Honour, that a number of members of the firm from those days are able to join us this afternoon, including Barry and Jenny Rowland, Ray and Ann Lynch, and Peter and Marlene Michelides. There are many stories which could be told of his Honour's exploits during those halcyon days but unfortunately decorum precludes all of them. His Honour was appointed to the District Court in 1991 and to this Court on 2 February 2005. I was amongst those at the bar table at the ceremonial sitting to mark his Honour's welcome. I have always thought his Honour's observations on that occasion to be probably the most amusing I have ever heard on an occasion such as this. His Honour's correspondence with Chief Judge Kennedy on the subject of the Women Lawyer's Association was highly amusing, although of course ideologically unsound. I was soon to learn how accurate his Honour's description of the former Chief Judge as the Queen Boadicea of the Court was, given his Honour's enthusiasm for battle. I am sure there are high expectations for the levity of the remarks that we will hear from his Honour in a few minutes. One observation his Honour made that morning was, I thought, a particularly telling observation of his approach to the law and to judicial duties when he observed that although he treated his work seriously, he never took himself too seriously. That approach has stood his Honour in good stead, as it would I think any Judge.
I have already mentioned his Honour's outstanding contribution to the work of the Court. That contribution has been perhaps most evident in his work as Judge in charge of the criminal list since 2007, when he replaced Justice Geoffrey Miller in that role. The Court had by then adopted a suggestion made by Justice Miller that we introduce a form of mediation to criminal proceedings which we have styled voluntary criminal case conferencing. Justice Blaxell has enthusiastically embraced and refined that process, which has been a great success. His Honour's capacity for devising new solutions to old problems is perhaps most evident in the creation of the Stirling Gardens Magistrates Court, which was entirely his Honour's idea. Since the appointment of a number of Registrars of this Court as Magistrates, we have been able to manage criminal cases falling within the exclusive jurisdiction of this Court from soon after their inception until trial or other resolution. This has enabled us to provide what we hope is seamless case management before and after committal in which the Magistrates managing the case prior to committal liaise closely with the Judge in charge of the criminal list with a view to identifying the earliest possible dates for case conferencing or trial in the event that the matter is to go to trial. Like voluntary criminal case conferencing, this procedure has been a great success. It has significantly reduced time to trial in our criminal cases, although our ambition is to further reduce that time. Those ambitions are limited by the fact that there are some aspects of pre-trial preparation in the criminal jurisdiction which are beyond our control, such as ensuring the adequacy of prosecutorial disclosure in a timely fashion and the production of forensic expert reports in a timely fashion.
Notwithstanding those constraints, however, under Justice Blaxell's active leadership we have made and are continuing to make significant progress in reducing the time between the laying of a criminal charge and its ultimate disposition. His Honour has also participated actively on the work of a number of the committees of the Court, including the Executive Management Committee, the Criminal Practice Committee, the Indigenous Justice Task Force when it was in operation, and more recently the Strategic Criminal Justice Forum. Each of these committees has benefited enormously from the depth of his Honour's experience and wisdom and will miss his contribution. I also mentioned earlier his Honour's enormous contribution to the life of the Court. His sense of humour is as indefatigable as his laugh and he has made an enormous contribution to the camaraderie and collegiate life of the Court. He and his wife Stella will be missed from many of our social activities, although characteristically they have generously offered to continue to host the Court's annual picnic at their delightfully bucolic orchard in the foothills of Perth. I am sure that one of the attractions of retirement has been the opportunity for his Honour to spend more time in that beautiful environment, and also to resume his Honour's seafaring ways. It only remains for me to again express on behalf of all members of the Court our sincere gratitude for his Honour's outstanding contribution to the life and to the work of the Court, and to wish him good health and happiness in a long and enjoyable retirement. Mr Solicitor? MEADOWS, MR: May it please the court. It's my privilege to appear today on behalf of the Attorney-General, representing the government and the people of the State at this special sitting to mark the retirement of your Honour Justice Peter Blaxell as a member of the Supreme Court. The Attorney-General extends his apologies for his absence today and has asked that I convey to your Honour his personal best wishes for a long and happy retirement. As we have heard, your Honour has spent all of 20 years in judicial office, 14 of those as a Judge of the District Court and six as a member of this Court and now, at a relatively youthful age, you are taking a well-earned retirement. By the way, your Honour, if you get bored or become restless just let me know and I am sure we can find something useful for you to do.
The Chief Justice has traversed your Honour's life and illustrious career on the Bench and I do not propose to go over the same ground, except to say that I adopt what the Chief Justice has had to say on that score, at least the good bits. I had the pleasure of appearing at your Honour's welcome as well and I recall recounting how delighted the former Chief Judge of the District Court, Kevin Hammond, was at your appointment to this Court. He said that you could turn your hand to anything, whether it be in civil or crime, and be relied upon to deal expeditiously and efficiently with whatever you were presented. Another of your Honour's former colleagues at the District Court observed that we were getting a proven package, namely, an experienced trial Judge who was a tried and proved performer and that we could have every confidence that your Honour would continue to discharge your judicial duties with the same skill, diligence and application you had already demonstrated. Both of these observations have been well and truly borne out during your time on this Court, and we are extremely grateful for that. Your Honour's enthusiasm for hard work and willingness to take on whatever was on offer, especially in the criminal area, has made you a significant contributor to the work of the Court. On top of that, the quality of your judicial work has left nothing to be desired. You always ran a good Court and were universally regarded as a pleasure to appear before. While on occasions you could be seen to be a little demanding, and so you should have been, you have remained courteous and polite to counsel at all times and your legendary sense of humour has lightened proceedings whenever required. Your down-to-earth, practical approach to the judicial task is perhaps best exemplified by the way in which you handle the sequel following the High Court decision in the Gypsy Jokers case. In the judgment that you handed down in (2008) WASC 166, you outlined how you had sifted through the redacted material, classified as criminal intelligence by the Commissioner of Police, to determine whether its disclosure could reasonably be expected to prejudice criminal investigations or to enable the discovery of the existence or identity of a confidential source. It was a delicate and difficult task, but the way in which you went about it has been proven to be well justified for it has been specifically approved by the High Court in K-Generation v Liquor Licensing Court by all members of the Court in that case and if anyone wishes to have that borne out, I suggest you read Justice Kirby's remarks at page 84 of that judgment.
Your Honour is now heading to a well-earned retirement which will no doubt involve you going down to the sea in boats. Your Honour's love of boats is well-known. Back in the good old days you very kindly took our keynote speaker for the law summer school for a sail aboard your yacht, which I think was called the Pegasus. Dyson Hayden QC, now Hayden J of the High Court, was the keynote speaker in one year and he joined us, along with his wife, Pamela, one Saturday following the summer school to head out to sea on the good ship Pegasus. As it happened, Mrs Hayden, who had been shopping the previous day, turned up sporting a very smart and rather expensive jacket, aqua in colour and somewhat nautical in style. However, as we headed out from the Fremantle Sailing Club into Gage Roads the Fremantle doctor kicked in and disaster struck. Overboard went the jacket. As anyone who knows anything about boats knows boats, and sailing boats in particular, are not that easy to turn around and return to the exact spot where an incident has occurred. Unfortunately, when we returned to what we thought was the spot, our search proved fruitless and the jacket disappeared. Why do I mention this? I sat next to Mrs Hayden at a dinner just the other day and I have to tell you, your Honour, she has not forgotten. I told her that you were about to retire. She expressed the hope, tongue in cheek, I might say, that you might continue your search for the missing jacket when you go down to the sea. At your welcome I expressed confidence that you would make the transition from the District Court to the Supreme Court with ease and that you would make your mark as a judge of the Supreme Court in the years to come. My confidence was not misplaced. Your Honour, the time has now come for me to formally thank you on behalf of the government and the people of Western Australia for your many years of dedicated service to the state, first as a judge of the District Court and ultimately as a judge of this Court. We wish you all the best for your retirement, which we hope will be an enjoyable and fulfilling one. May it please the court. MARTIN CJ: Thank you, Mr Solicitor. Dr Kendall? KENDALL, DR: May it please the court. It is my very great pleasure today to extend the best wishes and sincere thanks of the Law Society of Western Australia for all that has been done by your Honour Peter Blaxell throughout a much-admired legal career. There are few in this room today who can boast of 41 years' service to the legal profession. Of those, 20 constitute dedicated service to both the Supreme and District Courts of this state. This is an impressive track record and one I dare say will not be soon forgotten. Your Honour, you have long been a dedicated supporter of the Law Society of Western Australia, and for that we are extremely grateful. Notably, your Honour worked as the coordinator for the legal assistance scheme from 1974 to 1975. You also played a pivotal and much-appreciated role in implementing two quite important programs for the society, the DV counsel scheme in the Courts of Petty Sessions and, significantly, the client legal service, a service that ensured much-needed access to legal services and, I might say, justice to those living in the north west of our state. I have not personally had the pleasure of appearing before your Honour. I am well advised, however, that the use of the word "pleasure" in this context is indeed appropriate. In the words of one of my more junior colleagues at the bar, to appear before your Honour was to know that you would be treated with courtesy, respect and degree of kindness that did much to reduce the stresses and anxieties associated with any litigation practice. The atmosphere of civility your Honour created allowed us to focus on what is important, our clients, the articulation of their needs and the role of the law in giving those needs full expression, and we thank you for that. Your Honour, you are described by those who know you as having an infectious laugh, a sense of humour and perspective and a unique ability to put those who appear before you at ease. For those who do so appear, the result has always been a more welcoming forum with which to present those wanting justice and a fair hearing. I'm told that with your Honour at the helm, those appearing before you were better able to focus on simply getting to the point rather than stressing sometimes on the peripheries about issues which, dare I say, are largely irrelevant to those seeking our counsel and those charged with interpreting what we have to say. Again, for that we thank you. Your Honour, I used the word "justice" above. Of course the core of what we do as lawyers is the idea that justice and equality do indeed matter.
The Law Society notes your Honour has long held a commitment to the provision of legal aid to those socially less privileged than many of us here today. Your Honour's early commitment to the Aboriginal Legal Service and the establishment of the Kununurra office of the service is particularly noted; indeed, quite significant. Your Honour, you retire today leaving a rich legacy in your judgments. Your commitment to legal principle, your impartiality, your independence, your vast experience and your wit are all attributes that will be deeply missed. Combine these with our genuine desire to simply do the right to all manor of people, consistent with your judicial oath, and it is fair to say you will indeed be deeply missed. In 2006 the Honourable Justice Margaret McMurdo, president of the Court of Appeal in Queensland, noted in a farewell address to a retiring colleague that the gospel according to Matthew advises those who judge to take care. It reads: For with the judgment you make you will be judged, and the measure you give will be the measure you get. There is much truth in this, your Honour. That being so, I want to wish you and Mrs Blaxell all the best, and might I say that you can indeed look forward to your just measure, a long and happy retirement. On behalf of the Law Society of Western Australia I wish you and Mrs Blaxell all the very best in the years that lie ahead. May it please the court.
MARTIN CJ: Thank you, Dr Kendall. Mr Donaldson?
DONALDSON SC, MR:
May it please the court. It is my sombre duty to appear on behalf of the Bar at this special sitting of the Court. This sombreness derives from the fact that this will be the last occasion upon which a member of the Bar will address your Honour Justice Blaxell; that is, unless you slipped something in tomorrow, your Honour. It is well to record as a matter of pride for the Bar that your Honour was a member of the Bar for some years. In that time your Honour appeared in all jurisdictions, but you had a large and prominent practice in crime and in mining law matters. I regret that I can't regale with recollections of your Honour as an advocate but in any event, any forlorn reflection upon your Honour's early career would simply divert proper attention from your Honour's greatest contribution to the community in the form of service on this Court and on the District Court. That said, I will, if I might, so as to exemplify your Honour's capacity both as a Judge and as a practitioner, recount a recent appearance of mine before your Honour. Opposing me was Dharmananda K. I of course was for an innocent victim; Dharmananda was representing some shameful claim jumper in a dispute involving some mining tenements of some value. The matter involved consideration of a number of state agreements which in terms incorporated provisions of the Mining Act 1904, which was of course repealed over time by the Mining Act 1978. Not since the mid-1980s have practitioners had to consider in detail the provisions of the Mining Act 1904. With what appeared to be no preparation, your Honour not only exhibited a complete mastery of the difficult provisions of the Mining Act 1904 but also the course of relevant amendments to that act over time and the purpose of each amendment. More memorable was your Honour's account of the practice that was followed at the times relevant to the dispute by the mining wardens, and in particular your recounting of the particular relevant practices from the 1960s of the mining warden of the particular mineral field relevant to the dispute. This lesson was delivered in your Honour's un-presupposing manner, without the slightest hint of superiority but with the simple, unadorned purpose of assisting and illuminating. I was mesmerised by this tour de force and embarrassed by the incompleteness of my understanding. Dharmananda, conversely, was offended by your Honour's impertinence.
It is likely that only Justice Wickham has brought to this Court a comparable depth and intensity of understanding of the mining law regime and practice in this state, but your Honour retained this knowledge over a long period of service on the District Court, where application of this knowledge in the discharge of your duties day to day was not foremost, exemplified a unique completeness and thoroughness of understanding and a mind of clarity and organisation. Your Honour, I had understood, was appointed to this Court on 1 February 2005, although the Chief Justice has reminded us that it must have been the 2nd, and your Honour's appointment followed a well-trod path in this jurisdiction of appointments from the District Court. It is instructive to recall that in being so appointed, your Honour in this respect followed Justices Pigeon, Heenan, Jones and White and that your Honour has been followed by Justices Jenkins, Mazza, Chaney and Pritchard.
To those who harbour some doubts about the practice of so-called judicial promotion, this catalogue ought, with respect, assuage concern. I know that your Honour looks back to your service on the District Court with fondness and, I trust, with great pride. The burden borne by the Judges of that Court is unrelenting.
The strain upon Judges presiding over a seemingly endless parade of criminal trials, many back to back, many of difficulty and complexity, is hard to imagine and largely unappreciated by the community, yet this burden was borne by your Honour for all of your years on the District Court uncomplainingly. As a Judge of the District Court and as a Judge of the trial division of this Court, your Honour went about your task unobtrusively and cheerfully. I suspect that all who have appeared before your Honour have been graced with that famous and much-envied smile; if it could be bottled and sold, your Honour would be a trillionaire. And it can be said that every accused person, every litigant, every witness and every counsel who came to your Honour's Court was treated with fairness, with politeness, with understanding and with dignity and respect.
That this can be stated assuredly and without the possibility of contradiction after your Honour's long years of judicial service is, with respect, an extraordinary achievement.
To this judicial service in the hearing and determination of cases must of course be added your Honour's great contribution in this Court in the role of what has come to be known in the profession as the High Sheriff of Stirling Gardens, a role which of course your Honour commenced. The Stirling Gardens model has been a stunning success and is a model of management of criminal trials that has attracted wide interest. Though no doubt a deal of its success and prominence derives from its system and from the involvement of senior members of the profession such as the Honourable Kevin Hammond, the Honourable Hal Jackson and the great Ron Cannon, those who seek to replicate the Stirling Gardens experiment will learn that its success in this jurisdiction has been due in significant part to the role in that system which your Honour has played. Acknowledgment of your Honour's role as the High Sheriff of Stirling Gardens brings to mind that in the United Kingdom it has been the practice from time immemorial that High Sheriffdoms take effect in the month of March after a process of appointment the details of which extend back to the reign of Elizabeth the First.
This process involves the Monarch's assent to appointment being signified by a prick from a silver bodkin to the parchment of the instrument of appointment rather than by simple signature. This practice has attracted the nomenclature of pricking or skewering. Although it may be that in some respects your Honour as High Sheriff of Stirling Gardens is irreplaceable, no doubt your successor is looking forward to being skewered in due course. At one point I had thought that your Honour's retirement to take effect in late February had been planned having regard to the skewering of your Honour's successor to take effect in March. I noticed recently, however, that your Honour was appointed as a Judge of the District Court in February 1991, a Judge of this Court in February 2005, and of course your Honour retires in February 2011.
I have no idea what it is that your Honour gets up to over the Christmas vacation but obviously it's something. Yet these recounted dates are more notable than the simple coincidence of the month of February. These dates attest that your Honour has served as a Judge in Western Australia for over 20 years. Indeed, the period is 20 years and 13 days including today. Of the Judges who have sat on the District or Supreme Courts of this State, this is a period of service exceeded by only seven Judges, and of the Judges currently serving in Western Australia this period of judicial service is exceeded only by Justice Murray, and then by less than a year.
In modern terms it is an extraordinary judicial service and a period of service that we are unlikely often to see again in this country. For that service the profession is, and the community ought to be, grateful and thankful. Although those of us in the practising profession are not supposed to know such things, we all know that your Honour has been a most popular colleague amongst the Judges of this Court and of the District Court - no doubt again the smile and the laugh - though in one respect your Honour will not, I have been told, be missed. Your Honour's reputation for unreliability as an aquatic chauffeur to the annual Judges' Christmas function has extended beyond the Court. It is rumoured that the Honourable Nigel Clarke, dressed no doubt as Kamahl, is still waiting from 1995 to be collected by your Honour from the Barrack Street Jetty. It is further rumoured that the voyage navigated by your Honour from the Barrack Street Jetty to Fremantle for the 1997 Judges' Christmas function concluded some hours after the putative and abandoned lunch was to have finished. That these blemishes were minor, however, simply confirms that the length and the distinction of your Honour's judicial service brings with it the undoubted right to what the Bar hopes will be the unburdening that will accompany retirement from this Court and more time for your Honour and your Honour's scaly crew to sail, or perhaps to learn to sail.
Please be assured that your Honour goes into judicial retirement with the Bar's admiration and gratitude and with our sense of pride that one of our former members has served the community as a Judge for so long with such distinction and with such generosity of spirit. May it please the court.
MARTIN CJ: Thank you, Mr Donaldson. Justice Blaxell?
BLAXELL J: Chief Justice, Mr Meadows, Dr Kendall, Mr Donaldson, thank you so much for your very kind and gracious remarks. I came along armed with a pad and a pen thinking I would have to make a lot of notes of things I would have to refute, but there is not a single one. I have only made one note, and that is that it really took me by surprise that there ever was an occasion when Mr Donaldson was embarrassed.
Unless there is a conga line of Mareva injunction applicants outside the Court when it opens its doors tomorrow, this is the last time that I will be sitting as a Judge. Although I still have some sentencing to do over the next few months, I am only deemed to be a Judge for that purpose and I will be doing it without pay. I could have remained in my present position for another five years but I decided 18 months ago that I should retire upon reaching the milestone of my 20th anniversary as a Judge, when I would also be 65 years of age. The reason for that decision is that there are other things in life that my wife and I want to do which are inconsistent with me remaining on the Bench. At our age there can be no guarantee that in five years' time we will be of good health and we wish to pursue those other things while we are still physically capable of doing so. When I think back over my time in the law I have a kaleidoscope of memories which all seem to merge together.
There have been many thousands of interactions with colleagues, counsel, clients, litigants and witnesses, most of which I have forgotten, but I do experience an overwhelming feeling that it has been all thoroughly worthwhile. I am so glad that in my final months of secondary schooling I made a last-minute decision to change my choice of university studies from engineering to law. When I entered university in 1963 I was a relatively callow youth, only 17 years of age, with little experience in life. Consequently my time at university played a big part in shaping the person that I am today. The friends I made then turned out to be lifelong friends and I am very pleased that so many of them are here today.
I went on to spend six years with the firm of Lavan and Walsh, including two years as an articled clerk, earning an average of $15 per week. It was $10 per week the first year and $20 per week the second year. My principal was John Lavan, who was later to become Sir John and a Senior Puisne Judge of this Court. I was always very grateful to him and to the other members of the firm who became my mentors and gave me a solid start in the law. Two of those mentors were Barry Rowland and Ray Lynch, who not only taught me legal skills but also taught me some boating skills, including how to clean the barnacles off the bottoms of their yachts.
I am sure that there were many times when they got their $15 worth out of me. While at Lavan and Walsh I became actively involved with the Legal Aid Committee of the Law Society and, as Dr Kendall has mentioned, for a short period I also worked full-time for the Law Society implementing a duty counsel scheme in the Magistrates Courts as well as a flying legal service to the North-West.
There were four other staff working for Legal Aid at that time and it's interesting to reflect that that was the organisation which looked after everything that the Legal Aid Commission does today, and there were only four staff who did that. One of those staff, Loris Wood, has since passed away, but I was surprised and gratified to learn recently that the other three staff members from 35 years ago wanted to be here today and I thank Anne, Suzanne and Mary for coming along. Also here today are many of my friends and former colleagues from my times at the Bar and then the District Court. As most people know, time is a precious commodity for any barrister or Judge and I was always grateful that so many of my former colleagues were willing to make themselves available for wise counsel and sound advice. The people who assisted me in this way are far too numerous to mention but they did include some former colleagues who are no longer with us.
In this regard I particularly acknowledge John ('Pincher') Martin, Terry Franklyn, Brian Singleton, Henry Wallwork and Paul Healy. I am so pleased that Nano Healy is able to be here today. Paul was an exceptional man who was always totally rock solid and reliable. He was also the centre of gravity of the District Court and he is very much missed.
I often turned to him for advice and he would typically urge me to be staunch in whatever it was that I proposed to do. I greatly enjoyed my 14 years at the District Court. It was a very collegiate Court and Chief Judge Kevin Hammond liked to boast that he was the managing partner of the best firm in town. What is not so well known is that the Judges of that Court occasionally made awards amongst themselves in recognition of outstanding achievements. During my time at the District Court I managed to accumulate three such awards and as today is my last day as a Judge I thought it was about time I brought my awards out of the cupboard and put them on public display.
So I would ask my associate to produce these awards. The first one - and you can see it's a very handsome trophy that went with the award, but this was the Chief Judge's Special Award and the engraved plaque on it states, "P.D. Blaxell, still leading the field." I can't remember in what respect I was leading the field but I was very grateful to Chief Judge Kevin Hammond for the presentation of that trophy.
MARTIN CJ: I will mark that as exhibit A.
BLAXELL J: The next one perhaps is not so prestigious because it was the H.J. Wisbey Hospital Handpass Award. The previous winner in 1996 was Judge Muller and in 1997 I was the winner. I can't quite recall why I won it but I think it was something to do with a very big, complex file which I had the management of and I was to be the trial Judge but for some reason I had to recuse myself at the last moment. I don't know why. MARTIN CJ: Exhibit B. BLAXELL J: The next award is the most treasured one. Former Chief Justice David Malcolm had a hand in this because it was the Chief Justice's Gender Awareness Award and in 1997 I was presented with that for "impeccable awareness". I have a feeling that Gail Archer SC also had a hand in that because she used to say my directions to the jury were always impeccable. In any event, I was well credentialed in that area and I was ahead of the field, as you would all realise, so much so that a few years later Chief Judge Kennedy, who was very concerned about the recalcitrant attitudes of a particular senior Judge of the District Court, appointed me to mentor him in matters of gender awareness.
I did put a big effort in and we did make some progress, but I think former Chief Judge Kennedy would agree that in the end the results were somewhat mixed. I see her nodding her head. There were not many of these awards conferred but I do recall a particular one given to his Honour John Barlow which I am sure still has pride of place on his mantelpiece. It was to mark his transfer from the District Court to the Family Court and he was presented with the Judas Iscariot award in recognition of his loyalty to his colleagues.
While reflecting on these awards that I received so long ago, it occurred to me that it would be most beneficial if this court was to adopt a similar system. Chief Justice, in the coming months I expect to have some spare time and I am quite prepared to volunteer my services in order to implement such a system. I have already given some thought as to who would be worthy recipients of the awards. Starting with your Honour the Chief Justice, it seems to me that you deserve the Regalia Craft Award for the preservation of the longstanding traditions of the judiciary.
The Honourable Justice McLure, the President of the Court of Appeal, I think should be awarded the Mahatma Gandhi Award for tolerance and patience with counsel. To the Honourable Justice Heenan, I think he should receive the Sir Isaac Pitman shorthand award for judgment writing; to the Honourable Justice Hall, I think the Gucci Handbags Award for leading the fashion in judicial accoutrements. My final suggestion is Mr Justice Ken Martin. I think he should receive the John Worsfold Award for championing lost causes.
The reason for that is that he insists on displaying in his chambers a framed Eagles football jumper in a very prominent position, and he did so throughout the last football season. I think in the end it became quite embarrassing for him. Chief Justice, I know that you also have a framed Eagles football jumper, but you have had the discretion to place yours in a dark corner of an inside corridor which is little used, where it's not really seen by anybody, so you have obviously shown a lot more sense than your namesake.
When I came to this Bench six years ago there had been few District Court judges who previously had made that transition. It was a fairly rare event and I thought that I should provide at least one of my District Court colleagues with a suitable memento of the occasion. Accordingly, I sent off one of my freshly-printed compliment slips to him, and it was a very handsome compliment slip embossed with the words, "With compliments of the Hon Justice Blaxell" and I endorsed the following note on it: Dear Wis, I am conferring on you the great honour of being the first to receive one of my new compliments slips. Signed, Peter Blaxell.
I thought he would frame that and put it on his shelf in his chambers; alternatively, put it on his desk, where it would have made a very appropriate conversation piece. However, I received it back very promptly the same day with a very rude note on the back, which I am not going to read out - it would be inappropriate - but it said, "Dear Hon Blaxell," and it went on to suggest other uses the paper in my compliments slips could be put to. It also suggested that there was more need for such use of paper in that way by members of the Supreme Court and it ended up saying because of misuse of Ministry property, I was the subject of a complaint to the Commissioner for Corruption and Crime. I have greatly enjoyed my six years on the Supreme Court Bench.
It has been a very pleasant and satisfying experience with a wide variety of work, which at times has had an unexpected quality about it. For five of those six years I was Judge in Charge of the criminal list, and during that time the Court implemented some significant procedural changes. Those changes would not have occurred without the enthusiastic collaboration of the Chief Justice, and the hard work of many others, including Principal Registrar Keith Chapman and his fellow Magistrates, the DPP team in the Stirling Gardens Magistrates Court and, notably, Sandy De Maio and Joanne Andretich, as well as the staff of this court, including Sam Truglio and my associate, David Watson. Furthermore, the changes required the input and cooperation of the Legal Aid agencies as well as the profession generally.
Accordingly, there are many people who can collectively claim ownership of the improvements and efficiencies that have been achieved. It has also been very pleasing to see the growth in the system of voluntary case conferencing initiated by my predecessor, Justice Geoffrey Miller. Criminal mediation has significantly reduced the numbers and lengths of criminal trials and the good work of our mediators Ron Cannon, Kevin Hammond and Hal Jackson has been critical to achieving that success. In my opinion, with appropriate legislative changes there is no reason why there cannot be further significant improvements to the process of criminal litigation. The Stirling Gardens Magistrates Court has worked very well, but it is really only a compromise for what could be the best working model. Historically, there were good reasons why indictable charges had to progress from a Magistrates Court to a superior court. However, those reasons no longer apply and the time has surely come when all indictable charges should commence in the jurisdiction where they are ultimately dealt with.
During my time on the bench it has been my privilege to work under five different Chief Judicial Officers. The first of them, Chief Judge Desmond Heenan, is no longer with us. However, three of the other four, Chief Judges Kevin Hammond, Antoinette Kennedy and our present Chief Justice are all here today. Unfortunately, David Malcolm was a last-minute apology. Having been a first-hand witness to the ways in which each of them ran their courts, I can vouch for the fact that the citizens of this state have been very fortunate to have had such people at the upper levels of the judiciary. Despite those Chief Judicial Officers having their differing styles of Court governance, they each succeeded in implementing necessary changes and in guiding bodies of individuals who were not always prone to think as one.
In this regard a Court as an institution has a very unique structure because a Chief Judge or a Chief Justice is merely the first among equals. The members of the Court are independent of each other and they have no say in who their future fellow members will be. Most of them are former barristers and it is no secret that barristers are not always lacking in ego and that they sometimes have personal idiosyncrasies. It is inevitable that any Bench will have a wide variety of personalities and points of view and on some issues it is no easy task to get a consensus. More than one Chief Judge or Chief Justice has been heard to say that the task of getting Judges to agree is very much like herding cats, yet each of the Chief Judicial Officers I served under successfully accomplished that task.
The present Chief Justice in particular has had to deal with a number of controversial issues but they were all dealt with fairly and in a way which has ensured that we remain a very happy Court. This is in no small part due to his Honour's outstanding leadership abilities and his implementation of a very open and transparent system of court governance. It is the best system of court governance that I have ever seen and it is the main reason why we have no still currents running deep in this Court. We have also been fortunate to have some particularly good appointments to this Bench in recent times and I predict that this Court will continue to grow from strength to strength over the coming years. That is perhaps especially so now that I am leaving. Before I conclude I need to thank a number of people for the support they have given me. Firstly, I thank all of my colleagues on this Bench for their wise counsel, good advice and camaraderie over the past six years.
They will be glad to know that I am retaining their direct phone numbers and I trust that they will not mind the occasional call to take advantage of their better knowledge on some matters. In that regard I expect there will be times when on my boat at Rottnest when I will need good advice on which bottle of wine I should select to drink with my fresh-caught lobster. I may well canvass a number of views on that subject each time.
I also thank all of the staff of the Court who work very hard behind the scenes to keep the wheels of justice turning. They are led by Robert Christie, who in my humble opinion, having seen him operate in both the District and Supreme Courts, is undoubtedly the best court administrator in the state. We are also very fortunate to have the state's best listings manager, Sam Truglio.
All of the staff are very obliging and willing to go that extra little distance to get a job done properly. We have a remarkable number of dedicated and diligent people on our staff. I also thank all of my personal staff who have worked for me over the past 20 years. I have had three long-term associates during that period, namely, Don Reece, Geoffrey Escott and David Watson. They and my other associates, and particularly those who have worked under me for shorter periods in recent months, have all rendered excellent service. I also thank David Watson for his very proactive assistance in my management of the criminal list. I have been fortunate to have had some excellent orderlies, and I particularly thank John Foster for his services. Furthermore, I have been lucky to have some very obliging secretaries, including June Page, who has been my mainstay in this regard over the past year. Turning now to the members of my family,
I thank my parents for a loving upbringing and for the opportunities that they provided to me when I was young. Regrettably, my mother died 12 years ago, but my father is now 92 years of age and he is still going strong. However, the person to whom I owe the most is my wife. We decided to marry two weeks and two days after we first met and I consider that I was a very lucky man on the day I met Stella. When the invitations went out, most of my friends and relatives had not even met her. Considering those circumstances, our marriage has been a remarkably successful partnership and I have no doubt it will endure to the end. Throughout our nearly 40 years together we have been willing to make sacrifices for each other, but I freely acknowledge that most of those sacrifices have been made by her. In that regard it was very soon after we married that we produced three marvellous sons all in the space of 30 months, so we had three babies in nappies. Someone had to stay home to change the nappies and we faced a difficult decision because Stella was at the start of her career as a medical practitioner and I was a newly-fledged barrister. In the end it was Stella who stayed home while I became the sole breadwinner. I cannot now recall how it was that we reached that decision but I am absolutely sure that at the time I had at the forefront of my mind the need for gender equity and equal opportunity. But no matter how the decision was made, I am hugely indebted to Stella for the sacrifices that she made to her career in order that I could pursue my own.
I am, of course, very proud of my three sons, their partners, as well as my four grandchildren. One of the great benefits of my retirement is that I will now be able to spend much more time with my grandchildren, including a fifth one who is soon to arrive. So, Hamish, you may find from time to time that I am waiting at the school gate at the end of the day. I am also blessed with the make-up of my extended family and I thank all of them for their support over the years. Finally, I thank each and every one of you who have come along today to honour me with your presence. After we have adjourned I hope that you will all be able to spare some time and come to the foyer to have a drink or two with me. Thank you.
MARTIN CJ: Thank you, Justice Blaxell. The Court will now adjourn.
AT 5.19 PM THE MATTER WAS ADJOURNED ACCORDINGLY
New Chief Judge Julie Ann Wager appointed to head WA’s District Court
The District Court of Western Australia was established on 1 April 1970. While the prevailing judicial system of the Supreme Court, the Local Courts and Courts of Petty Sessions had been adequate, the rapid expansion of Western Australia’s population required the establishment of an intermediate system of courts. Another Court was also needed to relieve pressure and avoid a backlog of cases in the other courts, especially the Supreme Court.
The District Court of Western Australia was therefore established with both criminal and civil jurisdiction, to provide a flexible framework to accommodate the needs of Western Australia in the administration of justice.
In 1971 civil trials were temporarily held in the Public Trust building behind St George’s Cathedral. Criminal trials continued to be heard in the Supreme Court. From April 1982 the District Court was relocated to the Central Law Courts at 30 St George’s Terrace allowing both criminal and civil cases to be heard in the one building.
In 1999, due to continued growth in the Court’s caseload, the District Court took possession of four additional criminal courtrooms created in the May Holman Centre adjacent to the Central Law Courts. The District Court was based in Central Law Courts and the May Holman Centre until June 2008 when it relocated to its current, purpose-built court house at 500 Hay Street, Perth.
Her Honour Judge Julie Wager appointed new Chief Judge of WA District Court
Judge Wager will replace Chief Judge Kevin Sleight who retires on May 1
District Court Judge Hylton Quail appointed new President of the Children's Court of Western Australia, replacing Judge Wager
Attorney General John Quigley is pleased to announce the appointment of Her Honour Judge Julie Wager as the new Chief Judge of the District Court of Western Australia.
Her Honour - a past president of the Criminal Lawyers Association of WA - replaces Chief Judge Kevin Sleight who retires on May 1. Mr Quigley paid tribute to Chief Judge Sleight's longstanding and exemplary service to the Court.
Mr Quigley said Judge Wager's extensive experience as a judicial officer, coupled with her renowned compassion and empathy, made her an excellent choice for the role.
Judge Wager was a criminal lawyer for 14 years before being appointed as the inaugural Magistrate of the WA Drug Court in 2000. She was appointed to the District Court in 2005 and has been President of the Children's Court since March 2018.
Her Honour becomes the second woman to be appointed Chief Judge of the WA District Court and is one of 12 female District Court judges in the State.
Mr Quigley said Judge Wager is highly respected within Western Australia's legal circles and has a reputation for fairness.
He is also pleased to announce the appointment of District Court Judge, His Honour Hylton Quail, as the new President of the Children's Court of Western Australia.
Comments attributed to Attorney General John Quigley:
"I am delighted to announce the appointment of Judge Wager to the role of WA's Chief Judge of the District Court. Her Honour was a formidable advocate at law and has been an outstanding Magistrate, Judge and President of the Children's Court.
"Judge Wager is a respected member of the WA legal profession and brings to her new role 15 years' experience on the bench, coupled with a wealth of knowledge, empathy and compassion from her years as a criminal lawyer.
"Judge Wager's outstanding legal skills are complemented by her empathy and compassion.
"I would like to extend my appreciation to retiring Chief Judge Kevin Sleight and to acknowledge his significant contribution to the administration of justice in WA since his appointment to the bench in 2005.
"His Honour oversaw the updating of a number of practice directions for the Court and held a number of educative roles, particularly in the area of making proceedings less challenging for child witnesses. I thank His Honour, on behalf of the WA Government.
"Judge Quail brings nearly 30 years of experience to the Children's Court and a demonstrated commitment to the administration of criminal law in Western Australia.
"His Honour has presided over the Children's Court in the past as the Acting President when the President has been on leave and has a good knowledge of the jurisdiction, practices and procedures of the Court. His Honour will take up his new position on March 15, 2020 for a term of two years."
Attorney General's office - 6552 6800
50 years of justice at the District Court of Western Australia
The legal community marked 50 years of the District Court of Western Australia on Saturday night with a gala dinner organised by the Law Society of WA.
The legal community has recognised the eminent role of the District Court of Western Australia with a celebration of its 50th anniversary.
A gala dinner hosted by the Law Society of Western Australia to mark the milestone had been postponed for a year because of the COVID-19 pandemic.
District Court Chief Judge Julie Wager spoke on behalf of the Court at the February 27 event, also attended by her immediate predecessor, Judge Kevin Sleight.
Since its founding in 1970 with four judges in response to a growing population, the District Court has played a crucial role in the State's justice system.
Now with 32 judges, the court conducts hundreds of trials each year across the breadth of Western Australia.
"It's occupied that middle range section of the criminal world, shall we say, between the Supreme Court and the Magistrates' Court and that has been growing like nothing else," former Chief Judge Kevin Hammond says in a video commemorating the anniversary.
"It's where the majority of work lies – and the District Court has concentrated on that area," he says.
Another former Chief Judge, Antoinette Kennedy, became the State's first woman judge when she joined the District Court in 1985.
"It was seven years before another woman was appointed, and then more women were appointed, and it simply changes the atmosphere," Her Honour says.
It was during her term as Chief Judge that the District Court building was planned and constructed, opening in 2008.
"The struggle to get the building, then to get it called the District Court was a substantial struggle."
Judges interviewed agreed that one constant in the Court's history has been the quality of the personnel.
"The Court is a very collegiate one and I'm very fortunate that so many very wise and experienced judges have been so willing to assist and listen and share their knowledge," Judge Kate Glancy says.
Her Honour Judge Kennedy says: "It wasn't our job to be popular, it was our job to do justice according to law. And I believe the calibre of people we attracted did that."
His Honour Auxiliary Judge Bruce James Hamilton Goetze Associate telephone: (08) 9425 2292 Facsimile: (08) 9425 2159 Email: associate.judge.goetze@justice.wa.gov.au
Location of the District Court Registrars
Level 1, District Court Building 500 Hay Street, PERTH WA 6000 Telephone: (08) 9425 2793 Facsimile: (08) 9425 2268
Chief Judge 30 January 1995 Resigned 01 January 2004
His Honour George Travers Sadleir
30 August 1982
Retired 30 April 1999
His Honour John Samuel
14 February 1983
Deceased 28 March 1986
His Honour Nigel Henry Clarke
02 April 1984
Retired 31 March 1998
Her Honour Antoinette Kennedy AO
15 March 1985
Chief Judge 01 January 2004 Retired 01 July 2010
His Honour Paul James Healy
18 March 1985
Deceased 22 August 2008
His Honour Henry Hall Jackson
21 April 1986
Appointed President Children's Court October 1989 to 1993 Retired 04 August 2006
His Honour Robert Denis Keall
28 May 1986
Retired 31 May 1994
His Honour Kerry White
05 June 1987
Appointed Supreme Court 17 May 1988
His Honour Robert John Viol
11 January 1988
Retired 05 March 2004
His Honour John Gerard Barlow
08 February 1988
Appointed Family Court 09 February 1998 Retired Family Court 11 February 2005
His Honour Peter John Williams
17 May 1988
Retired 16 February 2007
His Honour David Dennison Charters
11 July 1988
Chairman Worker's Compensation Board Retired 11 August 2001
His Honour Peter Donald Blaxell
11 February 1991
Appointed Supreme Court 01 February 2005 Retired 25 November 2011
His Honour Lawrence Alton Jackson
13 July 1992
Retired 06 February 2004
His Honour Michael Gerald Muller
28 July 1993
President Children's Court 1994 Retired 23 November 2007
Her Honour Mary Ann Yeats AM
28 July 1993
President Children's Court 1995 Retired 05 August 2011
His Honour Michael Denis Finbar O'Sullivan QC
01 June 1994
Retired 09 April 2009
Her Honour Valerie Jean French
16 November 1994
Retired 23 February 2009
His Honour Roger Anthony Macknay QC
16 November 1994
President Children's Court 1999 - 2001 Retired 23 February 2009
His Honour Allan David Fenbury
30 January 1995
President Children's Court 1996-1998 Retired 12 February 2016
His Honour Henry John Wisbey
18 March 1996
Retired 31 May 2013
Her Honour Shauna Marie Deane QC
13 February 1998
Retired 14 February 2014
His Honour Peter Maurice Nisbet QC
08 June 1998
Retired 20 June 2008
His Honour William George Groves
11 January 1999
Retired 11 January 2011
Her Honour Catherine Joan O'Brien
03 May 1999
Appointed President Children's Court 1 January 2002 to 12 March 2004 Retired 21 May 2010
His Honour Peter Dominic Martino
9 November 2000
Chief Judge 01 July 2010 Appointed Supreme Court 20 April 2015 Retired 27 April 2018
Her Honour Carolyn Frances Jenkins
03 September 2001
Appointed Supreme Court 03 February 2004
His Honour Denis John Reynolds
09 February 2004
Appointed President Children's Court 15 March 2004 Retired 15 March 2018
His Honour Philip Richard Eaton
09 February 2004
Retired 11 February 2018
Her Honour Jane Crisford SC
09 February 2004
Appointed Family Court 24 October 2006 Retired 6 March 2016
His Honour Robert Anthony Mazza
9 February 2004
Appointed Supreme Court 08 March 2010
His Honour John Anthony Chaney SC
23 April 2004
Appointed Supreme Court & President of SAT 23 February 2009
Her Honour Judith Elsa Eckert
01 January 2005
Retired 03 May 2011
His Honour Kevin Frederick Sleight
10 January 2005
Appointed Chief Judge 2015 Retired 01 May 2020
His Honour Philip Pierre McCann
28 January 2005
Retired 31 December 2018
His Honour Judge Bruce James Hamilton Goetze
17 July 2006
Retired 29 October 2020
His Honour Richard Ellis Keen
05 February 2007
Retired 23 March 2016
Her Honour Anette Margret Schoombee
26 November 2007
Retired 31 December 2017
His Honour Stephen George Scott
01 July 2008
Retired 31 December 2019
Her Honour Judge Felicity Clare Earls Davis
16 February 2009
Retired 18 September 2020
His Honour Patrick Brian O'Neal
20 April 2009
Retired 31 January 2020
His Honour Judge Simon Elliot Stone
04 May 2009
Retired 27 November 2020
Her Honour Janine Pritchard
18 June 2009
Appointed Supreme Court 15 June 2010
His Honour Anthony Samuel Derrick SC
01 June 2010
Appointed Supreme Court 06 March 2018
His Honour Judge Ronald Edward Birmingham QC
23 June 2010
Retired 05 March 2021
Her Honour Judge Audrey Gillian Braddock SC
11 January 2011
Retired 11 January 2021
His Honour Jeremy Clive Curthoys
08 August 2011
Appointed Supreme Court & President of SAT 10 February 2014
His Honour Robert Enos Cock QC
26 March 2012
Retired 25 March 2018
His Honour Judge Simon Dieter Freitag SC
15 December 2020
Resigned 05 March 2021
John Paul II demonstrated his conciliatory position with Freemasonry
Karol Wojtyla Beatified?
... Karol Wojtyla Beatified? never!
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John Paul II demonstrated his conciliatory position with Freemasonry when, in 1983, he announced the “New Code of Canon Law”. The old Code of
Canon 2335 states:
«Those who give their name or associate with a Masonic sect or other associations of the same nature, who conspire against the Church or against legitimate authority, incur ipso facto excommunication reserved to the Apostolic See.»
This was amended with the new Canon 1374 that states: «He who gives his name to an association that conspires against the Church, must be punished with a just penalty: the promoter or leader of such an association shall be punished by interdict.» As one can see, the “New Canon” 1374 no longer mentions Freemasonry. One is no longer prohibited to collaborate at Masonic lodges, nor is it necessary to preserve the “ipso facto” excommunication, because today, the Freemasons are seen solely as public sinners. Moreover, John Paul II gave permission to be able to give the sacraments to Masons, without them first doing the abjuration.
For example: the former Grand Master of the Grand Lodge of France, Richard Dupuy, received the religious funeral rites. The former Grand Master of the Grand
Orient of France had the religious burial rites in the parish of St. Francis de Sales, in Paris. In Soweto, at the Episcopal Conference of South Africa, in 1996, John Paul II even permitted Bill Clinton to receive Communion! Unfortunately, Bill Clinton comes from the Masonic elitist society “The Order” of Oxford where the Illuminati train members to reach high political positions. These “facts” clearly show that the position of the Church of Rome, against Freemasonry, has changed, and that John Paul II has distanced himself from his predecessors (with the exception of Paul VI). But then, what is the point of condemning abortion, euthanasia, and contraception, if one “dialogues” with the same Freemasonry that is forcing these practices into society around the world? This is a “dialogue” which alludes to a false human dignity and which is based on the breakdown of principles! One is permitted, however, to ask some questions about John Paul II: How can one explain his intellectual formation and his persistent adherence to Masonic ideas? In what manner was the occultist and Masonic thinking drilled into the young Wojtyla at the Rhapsodic Theater of Krakow?
Another indication of John Paul II’s membership to Masonry stems from the fact that he contributed to the imple“Chiesa viva” *** September 2010Vatican, April 18, 1983. John Paul II received, in audience, representatives of the Trilateral Commission, one of the key institutions
of the Order of the Illuminati of Bavaria, for the World Government and the implementation of the Antichrist.
mentation of Freemasonry with his meetings, documents and writings. One of these was his defense of the secular state, so dear to Masonry.
Indeed, while St. Pius X, on February 11, 1906 wrote: «To separate the State from the Church is an absolutely
false thesis, a pernicious error.» John Paul II, on February 11, 2005, said: «The principle of secularism, if properly understood, belongs to the social doctrine of the Church. It highlights the necessity of a proper separa-
tion of powers.»
On April 18, 1983, John Paul II gave an audience to the Trilateral Commission and was photographed surrounded by its members (knowing that this commission was openly preparing for the World Government that would become the kingdom of the Antichrist and Satan!)
Vatican, March 22, 1984. John Paul II receives, in audience, the Top Representatives of the High Jewish Masonry of B’nai B’rith.“Strong with hope.” The altar of Zamosciu, during John Paul II’s visit to Poland June 22, 1999. We dare say that the architectural form
of a pyramid, with the “all-seeing eye” at the summit, is Masonically inspired. The pyramid is indeed the symbol of the Bavarian Illuminati, who are at the top of all the Masonic Lodges of the world which have as their supreme aim of deviating the Catholic Religion to demolish it and make it enter in the Masonic universal religion to implement the Masonic World Government. Their plan was to have their
own Pope in order to make the Revolution in the Catholic Church from the top down.
The Trilateral Commission was headed by Zbigniew Brzezinski and David Rockefeller. At the hearing, there was criticism for any slowness with which one favored the move towards the “New World Order.”
Many books, that document the institutions that govern the occult world, reported that the Trilateral Commission is a very important institution of the Order of the Illuminati of Bavaria. This Order represents the top of Freemasonry
worldwide.
On March 22, 1984, John Paul II held an audience for a Delegation of B’nai B’rith (the Masonic sect of the Jewish Talmud) which depicts Christ as a devil and works to destroy the Catholic Church and the Christian religion!
It is a known fact that John Paul II and the Masons of High Jewish Masonry of B’nai B’rith had routine and
consistent contact.
This is not surprising when you consider that, before him, Paul VI gained his election as Pope thanks to two members of the Masonry of B’nai B’rith, who were present
The pyramid on the back of the note of $ 1, with the “all-seeing eye” of Lucifer, at the summit.
Below: some symbols that represent the “all-seeing eye” of Freemasonry, or rather, the Eye of Lucifer. The pyramid and all the symbolism surrounding the $ 1 bill symbolizes the Order of the Illuminati of Bavaria founded by Adam Weishaupt, showing clearly the pater-
nity of monetary control exercised over the U.S. currency.
The levels of the pyramid are 13 (symbol of Lucifer), while the bricks shown in the 13 levels are 72 (number symbolizing the 72 names of
the Kabalistic god, Lucifer). in the Vatican Halls. After hearing of the election of Card. Giusepe Siri to the Papacy, they threatened the persecution of Catholics worldwide.
On November 21, 1982, during John Paul II’s trip to Palermo, the “Giornale di Sicilia” reported that «JohnPaul II was welcomed by members of the Masonic Commission of “Piazza del Gesu”, among them was the Mason, Joseph Manfalarinella, the Sovereign Grand Master and Great Commentator. The white papal car was driven by Angelo Siin, of Cosa Nostra.»
The book “The Merchants of the Vatican,” at bottom of page 70, in relation to the trip of Pope John Paul II in Sicily, states: «treated as if he were a “brother,” the Masons of Trinacria had welcomed the pontiff with the “triple embrace” of that Masonic organization.»
Certainly, noting the evident principles that have profoundly marked his ministry, from the time he was bishop and archbishop in Krakow, one can say that John Paul II
was a Mason. These principles are religious freedom, ec-“Chiesa viva” *** September 2010umenism and collegiality, which echo those of the Ma-
sonic trilogy propaganda of the French Revolution: “Freedom, Equality, and Brotherhood.” He always hoped that
the Catholic Church would recognize these three principles. After his election to the Papacy, his ideals were realized, point by point, knowing well of the affinity that existed between his ideal and the Masonic motto: “Liberté, Egalité, Fraternité.” His thinking was always imbued with that philosophy. Evidence of this is seen in his “Discussions on Man,” delivered on the speaker’s platform of the UN and UNESCO. For example, he stated:
«You, together, are a great power: the power of minds and consciences... Make up your mind to give proof to a
most noble solidarity with humanity, one that is founded on the Dignity of the “human person.” Build peace
starting at the base: the respect for all human rights, those related to both the material and economic nature,
and, as well as those related to the inner and spiritual na ture of man’s existence in this world. May this inspire wisdom.»
On the occasion of the beatification of the Martyrs of Avril, [April] John Paul II, as always, supported and de-
fended the principles of the French Revolution, stating that «this historical movement (the French Revolution)
was inspired by religious sentiments (freedom, equali ty, brotherhood) and from a desire for necessary reforms ...»
We can’t believe that John Paul II did not know that «the French Revolution claimed more than 300,000 victims, 3,000 of which were noble,» and that its «Terror was preceded by a fever of Satanism: alchemists everywhere, magnetizing, necromancers. The nobles had become corrupt initiating the rituals which evoked Satan, and villages, as well as cities were abandoned to all the practices of the occult sciences. There is no doubt there was a relationship between cause and effect of this invasion of Satanism and the nameless horrors that
were the culmination. The revolutionary character of cruelty proved that one can’t give any other explanation than the action of Satan, the murderer, as Our Lord called him.»
Moreover, having seen him preaching constantly on “human rights,” some have noted his significant reticence on
the inescapable “rights of God” - which should have been preached, concurrently and with greater force!
At this point, it should be noted that the satanic Order of the Illuminati of Bavaria was the workshop and the dri-
ving force of the French Revolution.
The three words:
“Freedom, Equality, Brotherhood,”
in their meaning of Freedom of Conscience, Collegiality and Ecumenism,
are nothing more than the three key ideas and the three levels of the “Masonic priesthood,” established as the second set of 11 degrees of the Ancient and Accepted Scottish Rite of Freemasonry.
But it was precisely these Masonic principles that allowed John Paul II to open the doors to the “godless” and to the
declared enemies of our Lord, treating them all with the utmost respect.
We wonder if John Paul II knew that the Masonic slogan “liberty, equality, fraternity” was the trio with which the Satanic Order of the Illuminati had planned to disrupt the world.
Didn’t the Pope know the spectacle the French Revolution showed tothe world: «One Hundred and thirty eight bishops and archbishops, sixty-four thousand Priests and Vicars, were sentenced to abandon their homes, their parishes, or take the oath of perjury and apostasy. All the clergy, all religious of both sexes, the private wealth of the Church evicted from their properties. The temples of the Lord were turned into large prisons for His ministers. Three hundred of His priests were massacred in one day, in one city. All other pastors, faithful to their God, were killed or driven away from their homeland, forced to wander through many dangers, some taking refuge in for-
eign nations?»
“Chiesa viva” *** September 2010
It is enough to recall some incidents, the inter-religious meeting in Assisi in 1986. John Paul II did not allow the statue of Our Lady of Fatima to enter the Basilica of Assisi, and he did this to avoid “offending” the guests of that first inter-religious Conference, but then he agreed to put a statue of Buddha on the altar above the Tabernacle where the Blessed Sacrament was present!
This was an opening, in Assisi, which he then extended to all these false founders of human religions: Jews (de-
clared enemies of our Lord), Muslims (first anti-Trinitari an heresy), Buddhists, Bahai, Hindus, Zoroasti, Sikhs, Shiva, the Animists, Indians, Voodoo, etc... It was, there- fore, an opening that was in full accordance with the Masonic principles to unite all religions under the Masonic direction, subsequently putting our Holy Religion on the same level with all other false religions.
For these incorrect principles, John Paul II even argued that the Holy Spirit is “somehow” present in each of
those false religions, forgetting that the Holy Spirit is one of the Three Persons of the Holy Trinity. For this, he con-
fused, deliberately (?), the “natural religious feeling” of man with the divine presence of the Holy Spirit in the
souls of the baptized found in the Christian religion.
Again, among his incorrect principles, John Paul IImaintained that there are “three monotheistic religions,” although this assumption is a hoax (See Don Villa: “Christians, Muslims and Jews have the same God? No!” Editrice Civiltà , Brescia - Via G. Galilei, 121).
These principles and ideals promoted by John Paul II, were acknowledged by the Freemasons.
In 1986, the Masonic Grand Lodge of France, enthusiastically hailed John Paul II, at the “prayer meeting in Assisi” with this textual statement: «The Masons of the French National Grand Lodge wholeheartedly wishes to join the ecumenical prayer on October 27th in Assisi that will unite all the leaders of all religions in favor of world peace.»
The Grand Master of the Masonic Grand Orient of Italy awarded the national “Masonic Prize,” the “Galileo Galilei,” to John Paul II, (who obviously rejected it, but this doesn’t alter the significant value of the event), claiming that the ideals promoted by that Pope and those of Freemasonry were the same.
At the death of the Lebanese President, John Paul II said:
«Jerusalem, City of God, could also become the city of men.» The term “City of Man” is almost mandatory for
the Illuminati, when they speak of “world government” and “global dictatorship.”
Jan van Helsing’s book: “The Secret Oganizations and Their Power in the Twentieth Century,” published in
1995, in Germany, on page 70 states:
«Pope John Paul II, otherwise known as Karol Wojtyla Katz, is an “Illuminati,” a member of the Rotary Clan.
He, during World War II, collaborated with Germany, with I.G. Farben, in the production of gas for the gas cham-
bers. At the end of the war, for fear of being called to account for his cooperation in war crimes in Poland, he took
refuge under the protection of the Catholic Church. He remained there, and later had an evolution comparable to
that of Eisenhower.
Later, he became the head of the “Opus Dei Secret Lodge”, and he was Governor of the Rochefeller Clan.
John Paul II, of Jewish blood, is pseudo-ruler of the “New World Church ...”
His mission was to:
Assisi, October 1986. John Paul II with all the representatives of false religions, at an inter-religious prayer meeting.
It was on this occasion that the Pope would not allow the statue of Our Lady of Fatima to entered the Basilica of Assisi, so as not “to offend” the guests, but instead agree to put a statue of Buddha on the altar, above the tabernacle in which the Blessed Sacrament was present!
“Chiesa viva” *** September 2010
– Subjugate the Catholic Church to the Jewish religion;
– Recognize the “secular guilt” of Catholicism toward the Jewish people;
– Recognize the participation of the Christian Religion to the Holocaust;
– Weaken the Orthodox Church by proposing “the union of Christian beliefs” to the Orthodox.»
Pierre Mariel, in his book: “The Occult Power That Dominates the World,” on page 7, writes that the Rotary
Club was founded on February 23, 1905, in Chicago, by a high-ranking Mason, the Attorney Paul Harris and also
three other Masons like him. It is the best known and oldest of the clubs that serve as a provision for the initiated.
Omero Ranelletti, in the “Rotary and the Catholic Church,” reports that in 1981 John Paul II received the insignia of “Paul Harris Fellow” from the hands of the International President of the Rotary Club and is now among the Italian Rotarians that also include 5 cardinals, 10 archbishops, 19 bishops and many prelates.
On November 4, 1986, at the ceremony to celebrate the 40th anniversary of UNESCO, there was a giant photo of
Pope John Paul II, situated in a place of honor, next to the author of “Integral Humanism,” Jacques Maritain
and the Socialist Mason and President of Senegal, Leopold Sedar Senghor.
It is worth remembering that in the UNESCO booklet, on it’s aims and philosophy, it is written: «UNESCO will
have to eliminate any beliefs exclusively or primarily based on the hereafter, and must be founded on “a glob-
al humanism” that must be scientific. To this end it is es- sential for UNESCO to adopt an evolutionary ap-
proach.»
In Henryk Pajak’s book, “Nowotwory Watykanu,” in the chapter: “You’ve Elected Me,” the author writes that
in the last days of 2002 and early 2003, Canadian TV broadcasted a documentary series on Pope John Paul II.
On one tape, there were two sequences, which detailed the bewildering papal election of Cardinal Karol Wojtyla.
In the first sequence, the camera cuts to General Woichiech Jaruzelski who said in Polish: «Brezhnev
told me: “That’s your Brzezinski!.. It was your Brzenzinski who chose Wojtyla as Pope!”»
Then, in the second sequence, Zbigniew Brzezinski appears on the screen, and speaks of the Pope as a world po-
litical authority. Then, suddenly, he adds: «The Pope told me: “You’ve elected (chosen) me, then you must come
to see me.”» Now if this statement is true, it does not need any further comments!
Again, it should be noted that Zbigniew Brzezinski, of Polish origin, was the theoretician and architect of the Tri-
lateral Commission, whose members went en masse into the Carter administration. Brzezinski was the “guru”
and the educator of Carter and whose authority preserved the Foreign Affairs and National Security.
Brzezinski was also a member of the CFR, the Bilderberg Group, the Atlantic Institute, the Aspen Institute,
Zbigniew Brzezinski, an ideologue of the Trilateral Commission and belonged to different global Institutions. According to statements made by W. Jaruzelski and by the same Brzezinski, he would be the man who chose Karol Wojtyla’s as the new Pope. the IISS of London, etc ... and, for these prestigious positions, he was one of the leading men to develop the plan of the “World Government” of the Illuminati of Bavaria.
In the book by David A. Yallop, “Habemus Papam,” on the election of John Paul II, on page. 36, we read: «... Oc-
tober 15, 1978, a long and very bitter struggle began between the supporters of Benelli and the faction of Siri.
At the end of the first day, after four consultations, no agreement had been reached. The next day ... Giovanni
Benelli ... had just nine votes from the majority but did not get any more. At lunch on the second day, thanks to strong
pressure by Franz König and John Krol, Karol Wojtyla was presented as a compromise candidate. At the eighth
vote, the Church elected the first non-Italian Pope after 450 years.»
It is important to remember that Karol Wojtyla, when he visited Italy, usually stopped in Vienna at Card. Franz
König’s. Card. König, Archbishop of Vienna, was a Mason and “had two civil cases in which his member-
ship in Freemasonry was acknowledged.” The official historian of Freemasonry, Prof. Aldo Mola indicated that
König belonged to Freemasonry, based on information obtained at the highest level.
JOHN PAUL II (ANTI) “COMMUNIST”?
After 1945, while persecution raged in Poland, Karol Wojtyla was among the Jews and Communists of high rank. Why? Perhaps because he was of Jewish descent? (His mother, in fact, was of Jewish origin). Or perhaps, because he was a priest that was considered Progressive, close to the Znak and Pax
movements, crypto-communists, and disciple of the existentialists, Max Scheler and Hussert, admirer of the pantheistic Mason and apostate Teilhard de Chardin and anthropologist Rudolf Steiner?
The writer David A. Yallop, in his book: “Habemus Papam”, in his first chapter, describes in great detail the omissions and silences of Karol Wojtyla against Communism.
Yallop writes: «In 1941, Yad-wiga Lewaj, the woman who for nearly two years gave French lessons to Karol Wojtyla, became his trusted friend. Aware of his need to find a job, she put in a good word for him with Henryk Kulakowski, a member of the cultural circle that she frequented. In addition to his love for the arts, he was President of the Polish division of the Solvay Empire and could give a job to Wojtyla … Paul VI with Card. Wojtyla, in 1974.
Paul VI, in 1954, was driven from Rome by Pius XII because of the secretly dealings with the secret services of the USSR unbeknownst to the Pope. Paul VI became the pope who opened to the Communist world, starting with what became known as the Ostpolitik of the Vatican.
Working at Solvay involved a number of advantages. In some ways, the factory was like a village unto itself, with residential buildings, with an ever-present medical doctor, a canteen, a shop and a gym. In addition to the pay and fringe benefit of good vodka, employees were always assured that they would survive the war unscathed.»
«It was during these war years at Solvay, that the idea of a vocation manifested itself for the first time, in Karol Wojtyla.
Eventually, the Archbishop of Krakow, Archbishop Sapieha created a secret seminary and moved Wojtyla and many other young people to safety at his residence.»
On November 1, 1946, Arch- bishop Sapieha ordained Wojtyla to the Priesthood. In 1951, Archbishop Sapieha died, and Archbishop Eugeniusz Baziaktook his place and looked after Wojtyla.
«At that time, the repression of the Catholic Church by the Communists was very strict everywhere. The Communists
tried to introduce into many diocese vicars, who in reality were members of the secret police. Any bishop who did
not obtain their consent was forcibly removed or arrested and jailed.
“Chiesa viva” *** September 2010munist government of Poland. The confidentiality of the confessional was violated regularly, with a shocking betrayal of trust.
The informant who was most appreciated by the secret police was Father Wladyslaw Kulcycki ... The Polish secret
police discovered that he was involved in a passionate love affair and blackmailed him - forcing him to become a
spy. He was one of several priests who not only regularly drew up reports on Karol Wojtyla, but also on many
other members of the clergy.»
Archbishop of Krakow, Card. Adam Stefan Sapieha, consecrated priest Karol Wojtyla. Indeed, Wojtyla was a very progressive Prelate and favorable to the coexistence with communism.
Why did Cardinal Sapieha send Wojtyla to France to spend time as a “worker priest?”
The young Karol interrupted his holidays on the lakes, where he enjoyed fishing in a canoe with students, to receive the appointment of auxiliary bishop from Archbishop Baziak, in 1958.
In November 1952, Archbishop Baziak was arrested with his Auxiliary Bishop Stanislaw. This arrest was an ac-
tion that deeply shook the Catholic community of Krakow. Karol Wojtyla made no statement, either privately or in public. Two days after the arrests, he went on a skiing vacation in the mountains.»
Two weeks later, Archbishop Wyszynski was made Cardinal. After denouncing the arrest of Archbishop Baziak
from the pulpit, the archbishop was refused an exit visa, preventing him to go abroad.
«Wojtyla never became involved at all in the struggle for survival and for fundamental freedoms of the Church. The arrests and detentions did not incite a protest in him.»
«In the ‘50s, in the face of Communism, Karol Wojtyla, was again withdrawn. He remained silent even when his
professor and longtime friend, Father Kurowski, was arrested. In his writings and his sermons, Karol Wojtyla never openly attacked Communism; he did not think he had to.»
«At the age of 38 years (1958) Wojtyla was nominated auxiliary bishop. (But this provoked) attack within the Polish Catholic hierarchy can be seen in the reports of Sluze Bezpieczenstwa-SB - the secret police. The regime
was kept well informed. There were more than 1,000 priests who served as spies and informers for the Com-
“Chiesa viva” *** September 2010
«Archbishop Baziak died on June 15, 1962, but his suc- cessor was not announced until January 9, 1964. This de-
lay was due to the intransigence of two individuals: the Primate of Poland, Cardinal Wyszynski, and Number
two in the Communist regime, Zenon Kliszko, President of the Polish Parliament and the main ideologue of the
Communist Party. Card. Wyszynski did not want to further promote Wojtyla, since he viewed him as little
more than an overly ambitious man who was very busy establishing relationships and informal contacts. In particular, the Primate was worried about the overbearing attitude that Wojtyla, as auxiliary bishop, had toward other members of the Archdiocese of Krakow. Wyszynski and his opponent Kliszko, however, agreed on one aspect of Wojtyla’s character and personality: politically, he did not exist.»
Now, as the election of a Bishop in Poland must have the approval of Zenon Kliszko, the Primate was to submit to
Rome a series of names for approval of the Pope, and later these names were then submitted to the Polish Communist
government.
Card. Wyszynski delivered the first list of names that had to be passed by Rome, then, passed by, Kliszko. After two
months, the three names were rejected. A second attempt had the same result.
Then, Zenon Kliszko had a meeting with the representative of a small Catholic party of opposition, Prof. Stanislaw Stomma, to whom he asked who, in his opinion, would be the best candidate for Bishop of Krakow. Stomma replied: “Wojtyla is the best, indeed the only choice.” And Kliszko, beaming, replied: “So far I have vetoed seven names. I’m waiting for Wojtyla and will continue to veto until I will have him.” «Why Wojtyla? Kliszko judged him a man willing to compromise. It was largely based on the series of reviews - information received from the best spy of the regime, worming into the beating heart of the Archdiocese of Cracow.»
It was early 1964 and it was the pontificate of Pope Paul VI. «Kliszko’s channel of dialogue worked wonderfully: he received an additional list of candidates that included the name of Wojtyla. On March 8, 1964, Karol Wojtyla was installed in the Archdiocese of Cracow.»
In May 1967, Paul VI announced the Consistory and Karol Wojtyla was among the names chosen. The news was greeted with surprise in Poland. It was the first time that Poland had two Cardinals. Why?
The two radically anti-communist Cardinals of Eastern Europe, Mindszenti and Sljpij, were punished by Paul VI for not wanting to open the door to Communism, but was it possible to treat Card. Wyszynski in the same way, when he was so loved by all Polish people? Wasn’t it better to create another Cardinal a bit more sensitive to his Ostpolitik, and gradually isolate the other irreducible anti Communist? Two months later, Card. Casaroli delivered another very positive report on Wojtyla to Paul VI. Paul VI received Wojtyla in private audience. Later, from 1973 to 1975, Pope Paul VI received Wojtyla 11 times in private audience. This had never happened to any foreign Cardinal!
«Card. Wojtyla was in the good graces of the Communists, in fact, very much so, due to the following topics: – He was advanced in the church hierarchy with no anti Communist history;
– Wojtyla was a character who so far had never engaged in any openly hostile activity against the State;
– Wojtyla had a cautious attitude toward anything heroic;
– Previously, he highly praised the virtues of peaceful coexistence with Communism, sympathizing with the efforts of Paul VI on Ostpolitik, that is, good relations with the Communist bloc.
Then, the Communists favored Wojtyla and recommended that he receive all necessary support and was treated with extreme kindness.» Whilst Card. Wyszynski couldn’t leave his diocese, as he could not get authorization from the Polish Communist government, Card. Wojtyla was free to travel to any country without any difficulty.
A beaming Brzezinski, accompanied by the Canadian Senator, Stanislaw Haidasz, leaves the diplomatic reception at the Vatican with the new Pope John Paul II.
David A. Yallop in his book “Habemus Papam” devotes in the appendix, a chapter to “Polish Revolution” of 1980-81 and shows how, in this tragic moment for Poland,
When Wojtyla would become Pope with the name John Paul II, what would become of the Vatican Ostpolitik policy?
In one of his first speeches, John Paul II said: «I accept with gratitude the special congratulations and best wishes, full of warmth and kindness, sent to me by the highest authorities of the People’s Republic of Poland. On this occasion of selecting a son of Poland to the throne of St. Peter, I identify with all my heart with my beloved Poland, the homeland of all Poles. I sincerely hope that Poland will continue to grow spiritually and materially, in peace, justice and respect for mankind.»
Ostpolitik, therefore, would continue at a good pace!
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«TRUTH WILL MAKE YOU FREE» (Jo. 8, 32)
YEAR XL - N° 430 SEPTEMBER 2010
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I manoscritti, anche se non pubblicati, non vengono restituiti Ogni Autore scrive sotto la sua personale responsabilità
Karol Wojtyla Beatified? ...
never! The Apostolate of Our Lady of Good Success 1288 Summit Ave Suite 107 - Oconomowoc, WI. 53066 - phone 262-567-0920- www.ourladyofgoodsuccess.comIntroduction
Fr. Luigi Villa Ph. T
Who is Karol Wojtyla, or Pope John Paul II? I believe one could say he was the ultimate “headliner” of the century, breaking all records of popularity.
It was this trait that was certainly the most evident during his papacy. With a huge crowd at every step, he was showered with hosannas and hallelujahs.
These exaggerations seem to me to be a misuse of adoration, as if he were a superstar, supergod, Ayatollah, etc. ...
Thus, he couldn’t do anything but evoke wonder as a Pope, in whatever situation he was in, be it as he spoke or observed, laid his hand on someone, greeted the people as a leader, wore his cassock, skied skill-crowds from every continent, and exchanging the usual religious solitude of old with his personal participation in the everyday life of man.
Of course, this is only one aspect of his papacy. However, as written by Gianni Baget Bozzo, «This mass spectacle does
not benefit anyone or anything. The constant travels, the multiplicity of speeches, seem to cover a substantial
stagnation, and the Pope is increasingly seen as the author of a gradual restoration with a human face.»
John Paul II, newly elected Pope.
So you might say he was a “seducer,” but certainly not in the same meaning as was Christ!
Many only praised Wojtyla.
However many others disfully down mountains, indeed, one could even say on slippery slopes; wearing his mountaineering hat while climbing mountains and singing profane songs. He was a complex and poetic Pope, said to have had a melodramatic style and theatrical tendencies. However, he was always swimming against the current with his unrelenting aversion to conform to the traditionally accepted behavior of a man of the cloth. It was with this behavior that he destroyed the magnificence of Papal general audiences, withhis singing and dancing, even in public, mingling with tanced themselves from his actions, that were veiled in shadows, so as to leave one perplexed, such as his inabili ty to distinguish between what is a Dogma of Faith and what is, instead, a historical contingency. He is a Pope whose beatification was challenged; a Pope who, according to Hans Küng, is the most contradictory of the twentieth century, a Pope whose inter-faith “Dialogue” permit ted him to enter a mosque and persuaded him to open the door to other religions, a Pope who brought together Jews and Catholics and even went to witness the prayer of for- “Chiesa viva” *** September 2010giveness at the “Wailing Wall,”
etc. ...
Because of this, many saw him as a “reformer,” a “restorer,” not seeing that, instead, Wojtyla, little by little, was betraying the Catholic tradition, following the advice of heathen collaborators trade-marked as modernists and progressives.
And here he excommunicated the Traditional Archbishop Lefebvre, heedless of what Saint Paul said: «If even an Angel impose another Gospel other than that which He preached, it should not be obeyed.» However, why weren’t the more shameless and unscrupulous ecclesiastical rebels against Christ who wrote and approved heretical Catechisms ever
punished or excommunicated?
Why did he leave the Chairs of Catholic universities and seminaries, to theologians who denied the Divinity of Christ,
who muddled Holy Scripture, who denied the virginity of The Blessed Virgin Mary and who taught many other heresies?
Why did he sign Concordats that no longer protect the Church, the Catholic religion, Christian values? - Concordats
that put all religions on an equal footing so as to allow countries to be called “atheist” states?
And what of his “heresy of Assisi,” that “community prayer,” represented by all false religions, thus removing the Primacy of the Catholic Church, the Apostolic, Roman, Mother and Teacher of all souls and endangering the missionaries in their evangelization of the people, who today cannot, for all intents and purposes, defend the Catholic religion because it was put on the same level with the other religions that were recog nized as having the same values
of faith?
severe with them, or did not even converse with them? Maybe Jesus did not say «Whoever is not with
Me is against Me?»
John Paul II at the “Wailing Wall,” placing a sheet of paper with a prayer of forgiveness for past wrongs of
the Church against the Jews in a crack in the Wall.
At the meeting of inter-religious prayer in Assisi in 1986, John Paul II prevented the statue of Our Lady of Fatima to
enter the Basilica so as not to “offend” other religions, and allowed a statue of Buddha to be placed on the tabernacle
containing Our Lord Jesus Christ.
And was it not perhaps also a grievous concern that he visited the “Synagogue” and the “Lutheran church?” Are not the Jews still determined to NOT recognize Jesus Christ as God and Messiah? Maybe they are no longer persecuting the Church of Christ? Perhaps Jesus was not always “Chiesa viva” *** September 2010
...
His papacy was long and so contradictory that, knowing this, we gave our attention to a diverse number of “cases”
that exposes, in all truth, the other Wojtyla.
There was also serious error in giving permission to the various Bishops to administer Communion in the hand, thus allowing a serious desecration of the Holy Eucharist, and also stripping away the due respect given to the Holy Eucharist, this respect that many popes had tried to increase over all of the past centuries of Church!
After this outline of John Paul II, Pope and man, and on the principles of his pontificate, it must be admitted that he, on his death, has left a legacy to the Roman Catholic Church: a Church certainly much changed from that with which he had been entrusted with on October 16, 1978.
Clearly, then, John Paul II wasopposed to the “past” Tradition of the Church, and the work done by his predecessors.
In other words, he worked in reverse to turn the permanence of the papal throne into a mobile home, travelling from one end of the world to other. It becomes necessary to ask oneself, therefore, whether it is possible to imagine a “different” Wojtyla, that is one who was not constantly center stage in the media,
hailed by crowds from America, Africa, Asia, old Europe and from his home country, Poland
itself. From any place on earth, all were able to see him, up close, through the powerful zoom of satellite TV, the gestures of his hands, the hardness in his eyes, his tense face, his rare and elusive smile, the tremor of Parkinson’s disease, the patient and his convalescence at the window of the hospital, the grand gestures, ecumenical, inter-religious, and pacifistic in nature, the “meaculpa” of March 12, 2000, or the visit to the “Wailing Wall,” etc.His Holiness John Paul II
– Biography Pre-Pontificate –
The little Karol Wojtyla with his mother, Emilia and father, Karol.
THE FAMILY
His father, Karol Wojtyla, the son of Maciej, master tailor, and Anna, was born July 18, 1879 at Lipnik near the
town of Bielsko Biala. A tailor by profession, he became a non-commissioned officer in the Austrian army in 1900,
and then lieutenant in the Polish army until his retirement in 1927.
His mother Emilia Kaczorowska, daughter of Felix who was an artisan and Mary Anne, was born March 26, 1884.
His brother Edmund, born August 27, 1906 in Krakow; was a doctor in a hospital in Bielsko Powszechny.
KAROL JOZEF WOJTYLA
1920 (May 18) Born in Wadowice (Krakow), Poland. (June 20) Baptized by the military chaplain, Fr Franciszek Zak. He lived with his parents in Wadowice, at Rynek 2 (now Via Koscielna 7, ext. 4).
1926 (September 15) Attended the elementary school,
and then the prep school “Marcin Wadowita.”
Throughout his studies he achieved top grades.
1929 (April 13) The death of his mother.
1930 (June) Admitted to the State Secondary School,
“Marcin Wadowita.”
1932 (December 5) The death of his brother, Edmund.
1933 (June 14) Finished High school.
1934 (1934-1938) His first theatrical performances in
Wadowice. During school, he was president of the Society of Mary. This same period marks his first pilgrimage to Czestochowa. 1935 (September) Participated in the military training exercises at Hermanice.
“Chiesa viva” *** September 2010(December 14) Was accepted into the Society of Mary.
1938 (May) Received the Sacrament of Confirmation.
(May 14) Final exam.
(June 22) Applied for admission to the Faculty of Philosophy (Polish course) of the Jagellonian University in Krakow.
(Summer) Moved, with his father, to Kraków (Via Tyniecka 10).
(Academic Year 1938-39) While studying at the University, he joined “Studio 38,” a theater group founded by Tadeusz Kudliñski.
1939 (February 6) Entered the Student Society at the Jag-
ellonian University (Eucharistic and charitable division).
(July) The social formation of the Legion at the Uni-
versity Ozomla at Sadowa Wiszna, for Polish and Ukrainian students.
(September 1) World War II broke out.
(November 2) Enrolled in the second year course for Literature and Philosophy.
1940 (February) Met Jan Tyranowski, a tailor, and a man of deep spirituality, who was educated at the Carmelite School. He introduced Wojtyla to the writ-
ings of John of the Cross and Teresa of Avila. This period marks the beginning of the underground the-
ater directed by Tadeusz Kudliñski.
(November 1) Was employed as a carpenter in the
The young Karol with his friend Hania: a quasi-engagement.
stone quarries in Zakrzówek, near Krakow, thus escaping deportation and forced labor in the German Third Reich.
1941 (February 18) The death of his father.
(August) Welcomed home the family of Mieczyslaw Kotlarczyk, founder of the Theater of the Living Word (Rapsodyczny).
(November 1) First theatrical play of Król Duch (Royal spirits), Juliusz Slowacki.
1941 (February 18) Began working as a carpenter in a quarry, thanks to the solicitude of his trusted friend and French teacher, Jadwiga Lawaj, who, in turn, was a friend of Henryk Kulakowski, President of the Polish division of the Solvay empire.
1942 (Spring) Was transferred from the quarry to the Solvay factory and was provided with, apart from salary, residential housing equipped with a doctor, library, and gym plus the guarantee to ride out the war
unscathed.
(October) Began to attend clandestine classes of the Faculty of Theology of the Jagellonian University as a seminarian of the Archdiocese of Krakow.
Karol Wojtyla 18 years old.
The first performances date from 1934-38. From 1940, Karol was a part of the underground theater of Tadeusz Kudliñski.
“Chiesa viva” *** September 2010
1943 (March) Played the leading role for the premiere of “Samuel Zborowski” by Juliusz Slowacki. It was his
last appearance on the stage (these “underground”
performances took place in the homes of his group of friends).
5Actress Ginka and Karol as young actors. In Jerusalem, John Paul II
had a poignant meeting with her and with her Jewish friend, Jerzy
Kluger, his former rival in friendship for Ginka Beer.
The young actress, Halina, who recited with the young Karol.
(Academic year 1943-44) Marked the second year of theological studies. Continued his work at Solvay.
1944 (February 29-March 12) Was hit by car, and hospitalized for his injuries.
(August) Archbishop Adam Stefan Sapieha trans-
ferred him, along with other clandestine seminarians
(illegal), to the Palace of the Archbishop. He re-
mained there until the end of the war and continued
with his studies. During this time he discontinued
contact with Solvay.
(November 9) He received the tonsure.
(December 17) Took the first two minor holy orders.
1945 (January 18) The Red Army liberated Krakow from the Nazis.
(Academic Year 1944-1945) Marked his third year of studies in the Theological Faculty of the Jagiellonian University.
(April 9) Was elected vice-president of the student body “Bratnia Pomoc” (Fraternal Aid) of the Jagiellonian University and retained this post until May 1946.
(Academic Year 1945-1946) Fourth year of theological studies.
(December 12) Took the other two minor holy orders.
Karol Wojtyla became a priest in 1946.
“Chiesa viva” *** September 2010
1946 (October 13) Became a subdeacon.
(October 20) Became a deacon.
(November 1) Was ordained a priest. As in previous occasions, he received Holy Orders from the handsn of Archbishop Metropolitan Adam Sapieha in his private chapel.
(November 2) Celebrated the Poor Souls in the crypt of St. Leonard in Wawel.
(November 15) Continued his studies in Rome.
(November 26) He enrolled at the Angelicum.
(November 15-end December) Stayed at the Pallot-
tines in Via Pettinari, Rome.
(Last December) Together with Don Starowieyski,
he stayed at the Pontifical Belgian College in Vian Quirinale 26.
1947 (July 3) Passed the exam to earn him a Diploma in Theology.
(Summer) Again with Fr. Starowieyski, he took a
trip to France, Belgium and Holland. Near Charleroi he carried out pastoral work among the Polish work-
ers.1948 (June 14) Took the admission examination for his Ph.D. Cardinal Sapieha sent him to Rome to continue his studies at the Angelicum. But there was, at that time, as Rector of the university, the great theologian and writer Father Garrigou-Lagrange,who was a giant on Thomism. Wojtyla, not being a member of that teaching, was following the philosophy that he wanted, that of existentialism, the modern type of Kant. Therefore, his dissertation,
“Faith according to St. John of the Cross,” was criticized and rejected by Lagrange, because it supported the ideas of the Modernists who claimed that Faith is based on personal experience. For this, Wojtyla was not accepted for the doctorate and he had to return to the University of Krakow, where there he was accepted.
1950 He started his publications.
1951 (September 1, up to 1953) Archbishop Baziak put him on leave so that he could prepare himself for the qualifying exam to become a university professor.
Up to this point he had only provided pastoral care for university students (in St. Florian) and for Health employees.
Zakopane, April 1953. Father Karol (center) after skiing with friends. Their passion was skiing at night with full moon.
1953 (From October) Taught “Catholic Social Ethics” for the Theological Faculty at the Jagellonian University.
(December 1) Had his interview for professorship qualification.
(December 3) Conference of professorship qualification, with given approval of the thesis “Evaluation of the possibility to build Christian ethics using, as a foundation, the system created by Max Scheler.”
Father Karol with a group of university students, in 1951.
1954 After the faculty of theology at the Jagellonian University had been abolished, a theological faculty was
organized at the seminary of Krakow, where he continued teaching, also teaching at the Catholic University of Lublin as a lecturer.
Father Karol at Romanko, July 1953, with his boys and girls.
Park Oikow. Father Karol shared his tent and his kayak trips with his students.
“Chiesa viva” *** September 2010
7On July 4, 1958, Father Karol was appointed Auxiliary Bishop of Krakow by Archbishop Monsignor E. Baziak, his great defender. Karol teacher, vicar and writer.
1956 (From December 1) Became the official substitute professor and employee of the Catholic University of Lublin.
1957 (November 15) The Central Commission of Qualification approved his appointment as a free lecturer.
1958 (July 4) Appointed Auxiliary Bishop of Archbishop of Krakow, Mons. Eugeniusz Baziak.
(September 28) Ordained Bishop in the Cathedral of Wavel.
1960 (January) Karol Wojtyla’s dissertation for his teaching qualification was published by the Society of
Sciences (Towarzyst Wojtyla Naukowe) at the Catholic University of Lublin: “Evaluation of the possibility to build Christian ethics using, as a foundation, the system created by Max Scheler.”
(During the year) First edition of “Love and Responsibility” (ed. by TNKUL).
1962 (April 15) Was co-opted in the Episcopal Commission for Education.
(July 16) After the death of Baziak he was elected Vicar of the Chapter. 8
Msgr. Baziak died, June 15, 1962, after nearly two years of clashes between Card. Wyszynski, and the President of the Polish Parliament, Zenon Kliszko, the main ideologue of the Communist Party. Card. Wyszynski did not want Wojtyla as Archbishop of Krakow.
However, in January 1964, under Pope Paul VI, Wojtyla was elected Archbishop of Krakow. After vetoing seven other names, Zenon Kliszko, had made it clear that he only approved of Wojtyla as Archbishop of Krakow.
“Chiesa viva” *** September 2010The picnics and sporting life of Father Karol (like this) would
continue even as Archbishop and Cardinal of Krakow.
(October 5) Participated in the work of Vatican II, the First Session (October 11 to December 8).
1963 (October 6 to December 4) Participated in the work
of the Second Session of Vatican II.
(December 5-15) Made a pilgrimage to the Holy Land with some bishops of different nationalities that were present at the Council.
(December 30) Was appointed Archbishop of Krakow with the approval of Communist ideologist and President of the Polish Parliament, Zenon Kliszko.
1964 (January 13) Date of the papal seal that appointed him Archbishop of Krakow.
(March 8) Officially established in the Wavel Cathedral.
(September 10) Third Session of Vatican II (14 September-21 November). At the conclusion of this session he made a pilgrimage to the Holy Land, remaining there two weeks.
While Card. Wyszynsky could not get away from his diocese, because the communist government would not grant him permission, Archbishop Wojtyla had full freedom to travel abroad without restriction. This was the common policy of encouraging Wojtyla and destroying the old Cardinal Wyszynski for his anti-communism.
After a hike, Archbishop Wojtyla rests in shorts and a red scarf on his head.
Archbishop Karol, in shorts and T-shirt, during a picnic with women and child.
“Chiesa viva” *** September 2010
The former Bishop of Krakow, Karol Wojtyla allows himself a moment of relaxation on a canoe along the Skawa River. Since then, he often ignored strict protocol, as well as when he became Pope.
Card.
Wojtyla in shorts and T-shirts, accompanied by a young woman with child and family, near Krakow.
1965 (January 31 to April 6) He participated in the work on the thirteenth draft of “Gaudium et spes” on the Church in the contemporary world (January 31st to February 6th in Ariccia, February 8th to 13th in Rome, and again in Rome from March 29th to April 6th).
(September 14 to December 8) Fourth session and conclusion of the Vatican II Council.
(November 18) Letter of Reconciliation of the Pol-ish Bishops to the German bishops, containing the famous words:“We forgive and ask forgiveness.”
1966 (December 29) The establishment of the Polish Episcopal Commission for the Apostolate of the Laity, of which Archbishop Wojtyla became president.
(During the year) Attended numerous celebrations of the Millennium of Poland.
1967 (April 13 to 20) Attended the first meeting of the Council for the Laity.
(May 29) Paul VI announced the Consistory. Among those elected for cardinal is the name of Karol Wojtyla.
(June 21) He left for the Consistory.
(June 28) Paul VI presented Card. Wojtyla in the Sistine Chapel with the Title of “St. Cesareo in Palatio.”
(September 29 to October 29) First General Assembly of the Synod of Bishops. Cardinal Wojtyla
did not go as a sign of solidarity with the Primate, who was not granted a passport.
(October 29) Solemnly received the frame of the effigy of the Black Madonna of Czestochowa in the Archdiocese of Krakow. The sacred image was not there, but was blocked by the authorities in Czêstochowa.
1968 (February 18) Took authority of the titular Church of St. Cesareo in Palatio, Rome. (September 25) Visited “Ad Limina.”
(December 15) This date concluded the “pilgrimage” of the Virgin Mary to the Archdiocese of
Krakow. Cardinal Wojtyla attended the correspond-ing ceremonies in 120 parishes.
1969 (January 10) He was registered as a resident in the Archbishopric at number 3, Franciszkanska Street.
Until that moment he had continued to live in the old housing at number 22, Kanonicza Street.
(February 28) During a visit to the parish of Corpus
Christi, he met with the Jewish Community and vis-
ited the Synagogue of Kazimierz, in the district of
Krakow.
(March 15) Marked the approval of the Statute of
the Episcopal Conference. Cardinal Wojtyla was Vice President of the Conference.
The Archbishop of Krakow, Karol Wojtyla at a party of young people in costume. From his intense gaze, looking to his left, the photographer does not seem to attract the attention of the Archbishop.
The Archbishop of Krakow, Karol Wojtyla at a Christmas party.
“Chiesa viva” *** September 2010(During the year) Made some pastoral visits to var-
ious nations in Europe.
On June 26, 1967. Paul VI makes Archbishop Wojtyla a Cardinal. Poland, for the first time, has two cardinals. Why? The two radically anti-communist cardinals of Eastern Europe, Mindszenty and Sljpij,
were punished for their intransigence. However was it possible to treat Card.
Wyszynski in the same way, when he was so loved by all the people? Was it not better to create another cardinal a bit more sensitive to his Ostpolitik?
(October 12-18) After returning from North America, he participated in the first extraordinary General Assembly of the Synod of Bishops, as a member ofpontifical nomination.
(December) The Theological Society of Poland (PTT) of Krakow publishes “Person and Action” (Osoba y czyn).
1970 (April 5) Consecration of Auxiliary Bishops Stanis-
law Smolenski and Albin Malysiak.
(May 27-June 2) Pilgrimage to Rome by Polish priests formerly imprisoned at Dachau.
(May 29) He celebrated the Mass in St. Peter with the Polish priests on the 50th anniversary of the
priesthood of Paul VI.
(May 30) He participated for the Mass of Paul VI and in the audience held for the celebration of the 50th anniversary of the priesthood of the Pope.
1971 (January 8) Summoned the Preparatory Commission of the Synod for the Archdiocese of Krakow.
(Spring) Processed and published, in the diocesan bulletin, “Notifications,” the project for the sum-
mons of a Diocesan Synod.
(September 27) Left for the Second General Assembly of the Synod of Bishops (September 30 to No-
vember 6).
(October 5) Was elected to the Council of the General Secretariat for the Synod of Bishops.
Card. Karol Wojtyla after a fishing expedition during a summer trip together with his friends of the Srodowisco group.
(October 17) Participated in the beatification of Father Maximilian Kolbe.
1972 (May 8) Opening of the Synod of the Archdiocese
of Krakow.
(During the year) He published “On the basis of renewal. Study of the implementation of Vatican II,”
edited by PTT.
Between 1973 and 1975, Card. Wojtyla was received 11 times in private audiences by Pope Paul VI, which had never happened before to a foreign Cardinal!
“Chiesa viva” *** September 2010
1973 (March 2-9) Participated in the Eucharistic Congress in Australia. Also stopped in Manila (Philip-
pines) and New Guinea.
111976 (March 7-13 Preached the exercises at the Vatican, in the presence of Paul VI (these meditations are
then published in the volume “Sign of Contradic- tion”). He was back in Krakow on March 16.
(March 27) Attended a conference at the Gregorian
University in Rome where he gave a lecture on the phenomenology of action.
(April 1) Gave two reports to the Cultural Encounters of the Angelicum in Rome.
(July 23 to September 5) Made a pastoral and academic visit to the United States and Canada.
(September 8) Rome, Genoa: Report to Congress of
Philosophy “Theory-Praxis: a Human and Christian Theme.”
October 1978. Cardinal Wojtyla and Card. Wyszynski (left) just before the conclave to elect a successor to John Paul I.
(May) Took a trip to Belgium.
(June 30) First meeting of Expert Commission of the Diocesan Synod, chaired by Cardinal Wojtyla.
(September 26 to October 5) Visited “Ad Limina.”
(October 5) Audience with Paul VI.
(November) Traveled in France (Paris, Chamonix, Annecy).
1974 (April 17-25) Participated, in Italy, in the Congress held for the VII Centenary of St. Thomas, and there, on April 23, gave a report.
(June 28) Participated, in Rome, in the anniversary celebrations of the coronation of Paul VI and the consecration of Bishop Andrzej Maria Deskur.
(September 27 to October 26) Third General Assembly of the Synod of Bishops. Cardinal Wojtyla was
spokesperson for a doctrinal section.
(November 1-3) Visited San Giovanni Rotondo. He had already been there for the first time during his
years of study and he had met Padre Pio.
1975 (February 8-9) As a Cardinal he summoned, in Krakow, the First National Assembly of doctors and theologians.
(February 27) Gave a report (“Participation or Alienation?”) at the International Seminary of Phenomenology in Fribourg.
(March 3-8) First meeting of new Council of the General Secretariat of the Synod of Bishops.
(May 8) IV General Assembly of the Synod of Kraków.
(September 19) Left for a trip abroad to the German Democratic Republic.
(December 1) At the invitation of Cardinal Colombo, gave a lecture at the Ambrosiana in Milan on the
theme: “The rights of the human person in light of the recent Synod of Bishops.”
(November 22) In Rome, Cardinal Wojtyla chaired the Polish delegation at the International Congress of
Catholic universities and ecclesiastical faculties for the preparation of the new apostolic constitution for
ecclesiastical studies.
1977 (7-15 March) Took part in (and even presided over, given the absence of Cardinal Seper) the tasks of the third meeting of the Council of the General Secretariat of the Synod of Bishops.
(March 18) At the University of the Sacred Heart of Milan held the conference “The problem of forming
of culture through the human praxis (human practice).”
(June 23) Received the honorary doctorate from the Palidoro, Rome. Card. Karol Wojtyla immortalized by the photographer a few weeks before the conclave, as he leaves the water.
“Chiesa viva” *** September 2010
Johannes Gutenberg University of Mainz. (July 1) Attended a conference at the “Centre du Dialogue” in Paris, at Osny, near Paris, where he chaired the Meeting of Catholic Poles.
(September 30 to October 29) IV Ordinary General Assembly of the Synod of Bishops. On October 24 he was elected to the Council of the General Secretariat of the Synod. 1978 (March 12 to 17) Worked with the Congregation for
Catholic Education. At the same time he assisted in the ceremony of conferring the “pallium” to Archbishop Tomálek.
(May 16-19) Council meeting of the General Secretariat of the Synod of Bishops.
(June 21) Milan: reports “Marriage and Love” to the Congress IFSC (International Centre for Family Studies) organized to mark the 10th anniversary of Humanae Vitae.
(August 11-12) Attended the funeral of Paul VI.
(August 25) Marked the beginning of the conclave.
(August 26) Pope John Paul I was elected. (Albino Luciani).
(August 30) John Paul I received in audience the
Cardinals, and also Cardinal Wojtyla in private audience. On September 3, participated in the inaugura-
tion of the pontificate of John Paul I.
(September 19-25) Travelled in the Federal Republic of Germany with Primate Stefan Wyszynski and
Bishops Strobe and Rubin.
(October 3-4) Left for the funeral of Pope John Paul I and attended the funeral.
(October 14) The conclave began.
(October 16, 1978 - approximately 17.15) Cardinal Karol Wojtyla was elected Pope is the 263rd
successor of Peter.
THE POPE WHO HAS COME FROM THE EAST
“Chiesa viva” *** September 2010
HIS INTERNATIONAL
TRAVELS
Paul VI, unlike previous modern day popes, opened the door to travel beyond the borders of Italy with his visit to the Holy Land during the Second Vatican Council. The last Pope, before Paul VI, that been out of Italy was Pius VII (1800-1823), taken away by Napoleon Bonaparte, in forced exile, to Fontainebleau in June 1812.
John Paul II, during his pontificate, had made 247 trips, of which 104 were international and 143 were made in Italy, covering a total of about 1,164,000 km, and a total of 543 days abroad. How many billions of dollars have been spent by the Vatican for these trips, and for what purposes and with what results?
Object of Law of Contempt
Info: 5375 words (22 pages) Essay Published: 3rd Jun 2019
Early man was free to act in any manner he liked and his will to do an act depended upon the strength of his limbs strengthened by the use of his arms which he developed day by day. The society was formed by our first ancestors to bring peace without which no development is possible. If a man is in constant fear of losing his limb, life or livelihood, the creative spirit in him remains dormant.
Therefore it was agreed that individual liberties be curtailed to some extent and disputes between warring groups be settled by an independent agency. This agency came to be known as the king. It was for the king to decide disputes arising between men who chose him to be the king. The King formulated certain guidelines which were termed laws. Every one in the society was expected to act in such a manner as not to come in conflict with these laws. In those times, the flouting of the authority of a ruler or King or the disrespect was never tolerated and such acts were visited with barbarous and sometimes inhuman punishments. [1]
As the society expanded, disputes increased in number. It was not possible for the king to personally to settle all the disputes. He therefore, appointed persons to perform his duties. This is how courts came into existence. Most of the disputes were settled by the courts on the basis of guidelines, given by the king. Still the king retained his right to hear any dispute himself.
In this way the decision given by the court was the decision given by the king himself. If the king’s authority could not be questioned, the courts authority could not be questioned too. If the king could not be abused or scandalized, so the courts could not be abused and scandalized. Just as the proceedings before the king could not be prejudiced, so the proceedings before the Court could not be prejudiced or obstructed.
If any one interfered in the administration of justice was liable to be punished. It is the genesis of the law of contempt of court. King’s word was Law.
As an area of law, contempt of court is endlessly fascinating and has been aptly described as the Proteus of the legal world, assuming an almost infinite diversity of forms. Its central concern is to protect the administration of justice in criminal and civil cases, addressing, for example, the perennial conflict between the requirements of a fair and unprejudiced trial and those of freedom of expression. It is also concerned to protect witnesses from being victimised and courts being subjected to destructive criticism in the press, or disruptive conduct during their proceedings. Similarly, it provides the ultimate sanction to secure the enforcement of court orders, including orders which call on journalists to reveal their confidential sources of information. A further major clash of interests is between the demands of open justice and the numerous restrictions on reporting which now exist, for example to confer anonymity on children and on complainants in sexual cases, the hearing of cases in camera or in private, and orders postponing the reporting of trials.
WHAT IS CONTEMPT?
Contempt may be defined as any act which derogates the dignity and authority of courts. Oswald, in his celebrated treatise-‘Contempt of Court’ says that ‘Contempt of Court is so manifold in its aspects that it is difficult to lay down any exact definition of the offence’. The word has been defined in the Chamber’s Twentieth Century Dictionary as scorn, disgrace (law), disregard of the rule, or an offence against the dignity of a court (with, of, for). Thus, any act which significantly derogates the dignity and authority of the court or which tends to impede or frustrate the administration of Justice, may be Contempt of Court.
Purpose and object of law of contempt
The purpose of the law of contempt is to protect the machinery of justice [2] and the interests of the public. It provides a mechanism to prevent interference in the course of justice and to maintain the authority of the law, but it is a weapon that must be used sparingly. The object of contempt proceedings is not to protect judges personally from criticism but to protect the public by preserving the authority of the court and the administration of justice from undue attack; however, judges cannot use it to wreck personal vengeance. In the case of contempt which is not committed in the face of the court, which may be described as constructive contempt, and which depends upon the interference of an intention to obstruct the course of justice, guidelines for the exercise of the jurisdiction to commit for contempt have been laid down as follows:
Economical use of jurisdiction is desirable.
Harmonisation between free criticism and the judiciary should be the goal.
Confusion between the personal protection of a libelled judge and the prevention of obstruction of public justice should be avoided.
The press should be given free play within responsible limits, even when the focus of its critical attention is the court.
Judges should not be hyper sensitive, even where distortions and criticism overstep the limits.
If, after taking into account all these considerations, the court finds contempt of court beyond condonable limits, then the strong arm of the law must be used in the name of public interest and public justice. [3]
History of the act
English authors trace the history or the origin of the law of contempt of court to kingship and sovereignty as the judges administering justice derived the authority from the King and sat in the courts to administer justice in King’s name. Thus disgrace or disregard of the rule of law or offence against the dignity of a court or a judge commonly known as Contempt of Court was considered an insult to the King himself.
From the year 1250 onwards, the rolls and year books contain references to contempt of court [4] . These usually relate to some disturbance or hostile reaction in or near the court affecting its business, or to some violent or insulting reaction to service of the court’s process.
It appears to have been recognized at an early stage that contempt could consist merely of words. It was contempt to insult a judge in open court or in the presence of his fellow judges as they were going to hold pleas or abuse of judiciary, even publication of out of court of matter scandalizing the court was contempt. In 1344 John de Northampton, an attorney, confessed that he had written a letter to one of the King’s Council reflecting in the judges of the King’s Bench. It was adjudged by that Court that the letter was a scandal upon the court and John was committed to the Marshal before sureties were found for his good behavior. [5]
It was seen that such misconduct must be summarily punished by courts because without this power of punishment they could not perform, and the kingdom would stand still if ‘justice’ was not immediate. Sometimes barbarous punishments were awarded.
In 1631, a person after he had thrown a stone was convicted for a felony threw a brickbat at Chief Justice Richardson which narrowly missed him. He was indicted, his hand which had thrown the stone was cut-off and he was immediately hanged in the presence of court.
In 1634, a similar occurrence took place. Here the offender James Williamson had thrown a stone on the judges in the Bench. His right hand was cut off by way of punishment and the hand was then fixed at the entrance of the gate of the court where it remained for a number of years. [6] Such was the barbarous punishment for defying or disrespecting the King.
Writ of attachment became ordinary procedure besides compelling performance
In the seventeenth century an important development in the law of contempt took place in the Court of Chancery. The writ of attachment began to be used not merely in the case of those flagrant abuses of the administration of justice which the common law courts were not to punish, but also to compel performance as between parties in a particular suit. The writ of attachment and its summary process became part of ordinary procedure of the Court. This development led eventually to the uneasy assimilation of the procedural means of dealing with the two forms of misconduct which came to be called criminal and civil contempt. While the following treatment is categorized in accordance with the terminology, it should be remembered that in the seventeenth and eighteenth centuries the distinction was not made as clearly as it was from the nineteenth century. [7]
It was in the eighteenth century that the press and pamphleteers flourished, and it was in that period that it became clearly established that contempt could be committed by publishing matter calculated to interfere with the due administration of justice. It developed in three stages. First, there are examples of persons being punished for speaking disrespectfully of the court on service of process. Then the stage was reached where matter scandalising the court constituted contempt whenever published matter calculated to prejudice the fair trail of a pending case. [8]
Lord Hardwicke recognized that scandalizing the court was an identifiable category of contempt. [9]
The indictment of eight leaders of radical, pacifist, and anti-war groups for conspiring to and traveling inter-state intending to incite a riot at the Democratic National Convention in Chicago in the summer of 1968 led to the country’s most notorious and celebrated series of contempt cases. In the case of ‘Black Panther’ leader Bobby Seale, his lawyer could not appear for the trial because of major surgery, and attorney William Kwestler assumed Seale’s defence. Both Seale and Kwestler soon protested the arrangement, but the judge insisted they maintain it, and the trial proceeded. Seale persistently claimed that he wanted either his chosen lawyer or the right to handle his own case whenever the trial touched him personally. Eventually, provoked by the defendant’s constant protestations and criticisms, judge Julius Hoffman had Seale gagged and bound to his chair. He finally severed him from the main case altogether and found him in Contempt of Court. Judge Hoffman charged Seale with contempt based on his disrespect to the court for being ‘contumacious’ and disruptive, for misbehavior to his presence. He adjudicated the contempt and sentenced Seale allowing Seale to represent himself at this point incidentally to four years in prison.
It was the longest contempt sentence in the records of the Anglo-American law. After Seale was served and the trial concluded Judge Hoffman also served each of the defendants and both of the defense lawyers to four years sentences for series of disorderly conduct, insulting behavior in the immediate vicinity of the court, or acts of violence which interrupt its proceedings, interference with property in the custody of law, misconduct of the officer’s of the court etc.
Yet for a long time, the law on the subject remained in a confused state. Different Judges describe contempt of court in different ways. For the first time it was Wilmot, J., who pronounced the law on the subject with precision. [10]
In the case of R. v Almon [11] , the facts were that one John Almon a book seller, published a libel on Lord Mansfield, the Chief Justice. An attachment of the warrant of John Almon was obtained but in the warrant of attachment by mistake, instead of writing R v Almon; R v Wilkes was written. Mr. Justice Wilmot urged Sergeant Glyn to accept the amendment, but he as a man of honour, did not agree. The mistake was fatal and the proceedings were dropped. Justice Wilmot could not deliver the judgment which he had written out but it came to light when his son published it in the year 1802.
The judgment reads-
“The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not to fine and imprison for contempt to court, acted in the fact of it. [12] And the issue of attachments by the Supreme Courts of Justice in Westminster Hall, for contempt out of court, stands upon the same immemorial usage, as supports the whole fabric of the common law; it is as much the lex terrae, and within the exception of Magna Carta, as the issuing of any other legal process whatsoever.
The first attempt at a comprehensive legislature relating to contempt of courts in India was the Contempt of Courts Act, 1926. It introduced the concept of limiting the punishment which could be awarded in contempt cases.
‘The act did not contain any provision with regard to the powers of contempt of courts of judicial commissioner’s courts It was equally silent with regard to the powers of contempt of courts of judicial commissioners. It was obvious that the courts in other areas also required a like protection, The Act also did not deal with the extra territorial jurisdiction of the High Courts in matters of contempt. [13]
Contempt of Court in Indian context
Contempt by ‘scandalizing’ the Court owes its origin to the medieval ages in Britain, when the courts were considered representatives of the monarch and were called King’s Courts or Queen’s Courts. Thus, any imputation against the courts was considered an imputation against the sovereign and therefore punishable. The United States has a more liberal dispensation, where only something that presents a clear and present danger to the administration of justice is considered contempt. Although the British origin of contempt law in India has absolutely no relevance today, the judiciary has continued this jurisdiction and gone on to declare that even truth cannot be a valid defense against a charge of contempt.
It is also contended that if the courts are not able to punish scandalous allegations leveled against judges, public confidence in courts will evaporate. This view suggests that the only basis of public confidence in courts is the power to stifle criticism by using the power of contempt.
Obviously, this is an absurd view, since if this were correct, there should be no public confidence in any other institution or individual, for the simple reason that no one other than judges has the power of contempt [14]
Contempt of Courts Act 1926 :-
The law relating to Contempt of Court has developed over the centuries as a means whereby the courts may act to prevent or punish a conduct which tends to obstruct, prejudice or abuse the administration of Justice, either in relation to a particular case or generally.
The rules embodied in the law of contempt of court are intended to uphold and ensure the effective administration of justice. As Lord Simon said in A-G v. Times Newspapers Ltd., they are the means by which the law vindicates the public interest in due administration of justice. The law does not exist, as the phrase ‘contempt of court’ might misleadingly suggest, to protect the personal dignity of the judiciary, nor does it exist to protect private rights of the parties or the litigants. Lord President Clyde commented in Johnson v. Grant :
‘The phrase ‘contempt of court’ does not in the least describe the true nature of the class of offence with which we are here concerned. The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of the Court which is offended – a petty and misleading view of the issues involved – it is the fundamental supremacy of the law which is challenged.’
. The present day conception of contempt of court is derived from the English Law. In India, the codified law on this subject was first enacted in 1926 as Act No. 12 of 1926. Though the Act could be regarded as a step in the right direction, yet it suffered from certain limitations. The Act imposed specific limits as to the punishment which could be awarded in contempt cases. The intention, no doubt, was to make these limits applicable, irrespective of whether the contempt was that of a High Court itself or of a Court-subordinate to it. The Act, however, did not contain any provision with regard to contempt of courts, subordinate to courts other than High Courts, that is, the Courts subordinate to chief courts and Judicial Commissioners’ courts. It was equally silent with regard to powers of contempt of court of Judicial Commissioners. The Act also did not deal with the extra-territorial jurisdiction of High Courts in matters of contempt.
In recent years, the Law of Contempt has been liberalized in both U.K. and the U.S.A. In U.K. the statute has been amended on the recommendation of the Phillimore Committee to provide for truth as a defence to a charge of contempt by scandalizing. In the U.S.A., the courts have evolved a more liberal standard of ‘clear and present danger’. to the administration of justice. Recently, the New York Times characterized the judgment of the U.S. Supreme Court on the recounting of Florida votes in the recent Presidential elections as ‘corrupt’ and one, which ‘stole the election’. But no action was initiated for contempt because there was no clear and present danger to the administration of Justice.
In India, the law on contempt has been codified since 1926. The contempt of courts act 1926 was repealed by the Act of 1952. The scope of the said act having required considerable widening, the act of 1971 was brought into existence, which is mainly based on the recommendations of the Sanyal Committee. The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the committee made took note of the importance given to freedom of speech in the constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice. [15]
Contempt of Courts Act, 1952
The 1926 Act was repealed and replaced by the Contempt of Courts Act, 1952(the 1952 Act). It explicitly gave the definition of ‘High Court’ to include the courts of the judicial commissioner which had been excluded from the purview of the 1926 Act. It also gave the power to the High Court to inquire into and try a contempt of itself or of any court subordinate to it, irrespective of whether the contempt of itself or of any court subordinate to it, irrespective of whether the contempt was alleged to have been committed within or outside the local limits of its jurisdiction and irrespective of whether the person alleged to be guilty of the contempt was outside such limits. [16]
After achievement of independence, the Contempt of Courts Act of 1952 was enacted in India. The Act repealed and replaced the 1926 Act. The Act of 1952 made two important changes, by defining the expression ‘High Court’ to include Courts of Judicial Commissioners, making it clear that those courts had power to punish contempt of Subordinate Courts also. Secondly, the Act made it clear that the High Courts (including the Court of Judicial Commissioners) would have jurisdiction to inquire into and try a contempt of itself or of any court Subordinate to it, irrespective of whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and irrespective of whether the person alleged to be guilty of the contempt is within or outside such limits. But this Act also did not give any definite or clear definition of the term ‘contempt’. This omission on the part of the legislative body was deliberate and the reason behind it was to maintain the elastic character of the law, to enable it to cover a wide field for its application by the courts.
It has been well said that the law of contempt is of ancient origin, yet of fundamental contemporary importance. Traditionally, contempt is classified as being either criminal or civil. They all share the common characteristic of constituting interference with the due administration of justice, either in a particular case, or more generally as a continuing process.
One aspect of contempt deserves special mention, which ultimately restricts the constitutional freedom of free speech. The preservation of free speech is also of the highest importance in a democracy. The needs of fair administration of justice have to be reconciled with the citizens freedom of speech and expression.
The pre-independence law of contempt was derived from the English Law which, however, was coloured by the ancient institution of Monarchy and the courts being the Royal Courts of Justice. After the advent of the Constitution, the prevalent law of contempt was increasingly perceived as an anachronism.
The reflection of the new liberty of the citizens found its reflection in a Constitution Bench judgment in B. R. Reddy vs. State of Madras reported in AIR 1952 SC 149. The public dissatisfaction with the rule that truth is not a defence to a charge of contempt attracted the attention of the Judges. Of course, the facts of the case were rather gross. The accused was the publisher and the Managing Editor of a newspaper. In an Article he had attacked the integrity of a City Magistrate, who was described as a bribe taker and being in the habit of harassing litigants in various ways. He was said to have a broker through whom he negotiated the bribes. Even some specific instances were cited. However, when charged with contempt, he made no attempt, either to establish the truth of what he had stated or even to show that he had made the statement after due care and caution. He admitted that he had acted on pure hearsay.
5.5. Mr. Justice Mukherjee had this to say –
‘If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defense at all in a proceeding for contempt.’
It is obvious that the Constitution Bench did assume that truth was a complete defence, though mere belief in truth was not expressly accepted as a defence. The court did not decide this because the facts disclosed absence of good faith.
It is true that later decisions have stuck to the traditional pre-constitution view. Eminent text book writers like Mr. Seervai have criticised these later judgments as erroneous and per incuriam.
It must be borne in mind, however, that a powerful judgment of the High Court of Australia had ruled decades ago that truth and bona fide belief in truth are doubtless valid defences to a charge of contempt. This view of the law taken by the highest courts in Australia has worked well and no damage has been caused to the administration of justice in that country.
Contempt of Courts Act, 1971
On 1st April, 1960, Sri Bibhuti Bhushan Das Gupta introduced in the Lok Sabha a bill to consolidate and amend the law relating to Contempt of Courts Act. The government after examining the bill realized the need to reform the existing Act, and set up a special committee for scrutinizing the Act. The Sanyal committee submitted its report on the 28th of February, 1963. The contempt of courts Act, 1971 is mainly based on the recommendations of the Sanyal Committee. [17] The committee was set up in 1961 under the chairmanship of Late Shri H.N. Sanyal, the then additional solicitor general. The committee made a comprehensive study of the law and the problems relating to contempt of courts in the light of the position obtaining in our own country and various countries. The recommendations took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice.
Sanyal Committee went into almost every aspect and examined various judgments of the High Courts and the Supreme Court and also of Foreign Courts, on the Subject. The recommendations which the Committee made, took due note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and the interests of administration of justice. The recommendations of that Committee were generally accepted by Government, after considering the views expressed on those recommendations by the State Governments, Union Territory Administrations, the Supreme Court, the High Courts and the Judicial Commissioners. Based on those recommendations, Government brought the Contempt of Courts Bill to replace and repeal the Act of 1952. The Objects and Reasons of the Bill read as under :-
‘It is generally felt that the existing law relating to Contempt of Courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinized by a special committee. The Contempt of Courts Act, 1971 (70 of 1971) is the product of the Report of that Committee.’
The Act of 1971 effected significant changes in procedure as well as in application of the enactment. ‘Contempt of Court’ has been segregated into ‘Civil’ and ‘Criminal’ contempt with their respective definitions, which the old Act did not contain. Though the old Act could not be held ineffective in the absence of the definition of the term ‘Contempt’, this Act modified the definition of ‘Contempt’ to a considerable extent.
Instances of publishing and distributing any matter, interfering or tending to interfere with or obstructing or tending to obstruct the course of justice during pendency of the proceedings, if there are reasonable grounds for believing that the proceedings were pending; fair and accurate reporting of a judicial proceedings; fair criticism on merits of any case which has been heard and finally decided, complaint or statement made in good faith against the presiding officer; fair and accurate report of judicial proceedings held in chambers or in camera, have been excluded from the definition. [18]
Contempt of Courts- Criticism and Suggestions
While studying the history of the Contempt f courts in India, one has to remember that this law originated in pre-independence India, where the British looked to stifle the criticism of the judicial system by the public. Though the Contempt of Court Act, 1952 and 1971 have since repealed many of the stifling provisions of the pre-independence act, some lacunae remain in the law.
The Law of Contempt of Court has to balance the Freedom of right to speech and expression granted to the citizens of India as well as the provisions made to enable the judicial system to function without obstruction of any kind.
Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the people from criticizing the Judges if the latter do not function properly or commit misconduct. The power given is to prevent obstruction of justice.
The Contempt of Court Act and various proceedings have invited criticism of the public for being in violation of the provisions of the Constitution. The main suggestions that have been made in the course of the development of the law are ,in the first place, the correct procedure to punish for offences against the due administration of justice is to punish such offences as ordinary offences through the ordinary procedure – as far as practicable. No doubt, this would alter the balance of power between the higher judiciary and the lower courts as well as the High Courts and the people. Secondly, it is not the case, that Indian High Courts even possessed the full plenitude of the power of Courts of Record. Indian Courts of Record had a much more limited power which both before and after the Constitution could, and can, be disciplined by reasonable restrictions made by the legislature. Thirdly, there is no impediment to a law being made by the legislature which could cut down the powers of the High Court to punish for contempt as well as in respect of the procedure to be followed. No doubt, any such law could not leave the judiciary wholly powerless and vulnerable. But, ‘reasonable restrictions’ can be imposed both on the contempt power as well as on the free speech it seeks to control. Fourthly, India needs to move away from archaic powers inherited from the common law and try to view the justice system in such a way that those who promise justice agree to deliver what they promise. It is time that the shadow on the reform of the law of contempt, to the effect that wide ranging reforms cannot be made, is lifted.
One of the main problems with the law of Contempt of Court was that it did not allow truth to be a defence. Due to this, constructive criticism as well as real revelation of corruption in the judidciary could also be held to be contempt of court.
In this connection reference may be made to the recent amendment to the Contempt of Courts Act (the contempt of Courts Amendment Act, 2006)
Law Commission Consultation Paper No 209 CONTEMPT OF COURT Summary for non-specialists
1. This document is a summary of our consultation paper on contempt of court. It is designed for people who have limited knowledge or experience of the law. We explain how the law works currently, the problems with the law, and how the law could be changed, and have used fictional examples throughout this summary to illustrate our discussion.
2. If you would like to find out more about this project, there is further information on our website including the full consultation paper with the questions for consultees. We cannot provide as much detail in this summary as we do in the consultation paper, nor all of the references to sources that we have used for our information and arguments. The website also hosts a number of appendices dealing with the background to the Contempt of Court Act 1981, human rights and contempt of court, the law on contempt in other countries, the results of some survey work, information about when a court can deal with a contempt in its face, a list of different types of contempt, and our impact assessments which look at the cost of the current problems and the cost of changing the law. All of these documents are available at http://lawcommission.justice.gov.uk/consultations/contempt.htm.
WHAT IS CONTEMPT OF COURT
3. Contempt of court is the area of law which deals with behaviour which might affect court proceedings. It takes many different forms, ranging from disrupting court hearings to disobeying court orders to publishing prejudicial information which might make the trial unfair. If someone commits a contempt of court, they can be punished, although the procedures for deciding whether they are guilty and for punishing them are currently different from those used for normal crimes.
THE NEED FOR REFORM
4. There have been various high profile cases recently, some while we were working on this project, which have shown why the law might need to be changed.
These cases have included:
(1) a juror who was found to have researched the defendant on the internet;
(2) the first prosecution for contempt where the publication was exclusively on the internet: a photograph of a defendant holding a gun was shown on a website during his trial;
(3) contempt proceedings for the vilification of Chris Jefferies in some publications during the investigation into the murder of Joanna Yeates in Bristol; and
(4) prosecutions for contempt against some media organisations whose publications during the trial of Levi Bellfield led to part of the case against him collapsing.
5. Some of these cases show that the new media – Twitter, internet blogs, and so on – pose a challenge to the current law on contempt of court, which dates from a time before the internet was so widely used.
The cases also show that there still need to be limits on media reporting in order to protect the justice system and the right to a fair trial.
SCOPE OF THE PROJECT
6. The law which deals with contempt of court is huge. Some of the specialist textbooks on it are over 1,500 pages long. There are also many different types of contempt (in Appendix F, on our website, we have summarised the main ones). It was therefore not possible for us to suggest ways to change the whole of the law of contempt. So, we have focussed this consultation paper on certain pressing practical problems with the law which our research of the law and meetings with stakeholders helped to identify.
7. Preliminary meetings at the earliest stages of the project were held with groups who had expertise in the law of contempt, including those working in government, the judiciary, the legal system and the media. In particular, we have consulted informally with: the Attorney General’s Office; the Crown Prosecution Service; the Department of Culture Media and Sport; the Home Office; the Ministry of Justice; HM Courts and Tribunals Service; District Judges (Magistrates’ Courts); Crown Court Judges and Recorders; High Court Judges; the Senior Judiciary; the Criminal Procedure Rules Committee secretariat and the Civil Procedure Rules Committee secretariat; the Criminal Cases Review Commission; the Judicial College; the Office of the Lord Chief Justice; academics; journalists; and lawyers, including those working independently and in-house lawyers working for the main newspapers and television news broadcasters.
8. In addition, we undertook some brief surveys of District Judges in the magistrates’ courts and of Crown Court Judges and Recorders. These surveys are at Appendix D on our website.
THE PROBLEMS WE ADDRESS
9. This summary is divided up in a way which is similar to our consultation paper. The first section looks at the law on contempt by publication. The main problem examined in this part is how to balance the right of an accused person to a fair trial by an independent and unbiased court, with the publisher’s right to freedom of expression. We also consider whether the procedure for prosecuting contempt by publication needs changing.
10. Some people have concerns about the impact of new technology on the law of contempt by publication. The rise of social media and so-called citizen journalism on the internet means that there is the potential for “everyone to be a publisher”. In the next section, we examine how some aspects of the law and procedure may need to be changed to meet the way in which the media has changed. It is also important that the law is “future-proof” so it can meet any problems created by the new technology of the future.
11. The following section looks at the problem of jurors who look for information about the case that they are trying beyond the evidence presented in court. It also looks at the problem of jurors who reveal what was said during their deliberations about the verdict in the case. Both of these forms of misbehaviour by jurors are contempts of court. Here, the law needs to balance protecting the system of justice, the right to a fair trial, and the rights of jurors.
12. The final section of this summary looks at contempts in the face of the court committed in the Crown Court or in the magistrates’ courts. The procedure for dealing with these contempts has recently changed. Our main aim is to find out whether there are areas of the law which are still uncertain or unfair and to find ways of changing that to make the law clear, fair and practical.
RESPONDING TO THIS CONSULTATION
13. As we have explained, the full consultation paper, including the questions for consultees, is available on our website. This consultation closes on 28 February 2013. You can provide responses to our questions online at https://consult.justice.gov.uk/law-commission/contempt, by email to This email address is being protected from spambots. You need JavaScript enabled to view it. and by post to Criminal Law Team, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ.
CONTEMPT BY PUBLICATION INTRODUCTION 14. Contempt by publication is needed to protect the system of justice, including the right to a fair trial. This is because, in a criminal case, the jury should reach its verdict based only on the evidence which has been heard in court. Any information which the jury discovers from outside the courtroom will not have been examined by the parties and the judge. This could mean that this information which a juror relies on is mistaken or untrue. 15. On the other hand, it is also important that the law protects the right to freedom of expression and it is especially important that the public knows what happens in court in order to have confidence that the system works properly. 16. The law on contempt by publication is based on the need to protect the jury from finding out information that they should not take into account when deciding on their verdict. But the law should only do this in so far as it needs to protect a fair trial and it should not go beyond what is needed to protect that trial. 17. There are two ways of committing a contempt by publication. One is known as “strict liability” contempt, and is covered by the Contempt of Court Act 1981. This contempt is committed when a publication occurs when a case is “active” and that publication creates a substantial risk of serious prejudice or impediment to that case. The contempt occurs even if the publisher did not know that this risk would be created (that is, the publisher was not intending to prejudice the case). 18. The other form of contempt by publication is covered by the common law (that is, judge-made law). Under this law, it is a contempt to publish information with the deliberate aim of impeding or prejudicing a case even if the case is not active. 19. We explore below how the law works and what some of these terms mean. “ACTIVE” CASES 20. Contempt by publication under the Contempt of Court Act 1981 can be committed only if the case which appears in or is related to the publication is active at the time of publication. In general, criminal cases are active from the point the suspect is arrested or a warrant for arrest is issued, whichever happens first (there are some other things which trigger the active period but it is rare for them to apply). 21. Criminal cases stop being active when the accused person is found not guilty or is sentenced (or by any other decision which ends the case, for example, if the prosecution decide not to continue with the case). If an arrest warrant is issued but no-one is arrested, the active period ends one year from the issue of the warrant. 22. For example, the police are looking for Mr Smith, who has been accused of kidnapping. They want the public’s help in finding him. “TV News” reports on the police search, including the fact that Mr Smith has 6 been convicted before of another kidnapping. If there is a trial the judge may decide that it is unfair for the jury to know about Mr Smith’s previous conviction. So, the publication of this fact creates a substantial risk of serious prejudice. Mr Smith is arrested on Tuesday. If “TV News” reported this on Monday, there would be no contempt – the case is not “active”. If “TV News” reported on Wednesday, there could be a contempt – the case was “active” when the report was published. 23. There is a defence to contempt known as “innocent publication”. This means that if the publisher does not know or suspect that a case is active, they do not commit a contempt. Finding out whether a case is active is therefore crucial. 24. It can be difficult for media organisations to find out whether a person has been arrested or an arrest warrant issued. Police forces do not all adopt the same approach to revealing the names of people arrested. It is obviously important for the media to know if someone has been arrested so they do not commit a contempt. 25. This raises the question of whether the active period should not start at arrest. Some people argue that it should start later in the criminal process, such as only when a person is charged. However, that could increase the risk of serious prejudice to the case. This is because the media would be able to publish prejudicial things in the period between arrest and charge. 26. We do not think that the law should be changed so that the active period starts at the point of charge. We think that the current period should be kept (which in practice will usually mean that the active period will start at the point of arrest or the issue of an arrest warrant). 27. However, we propose that the Association of Chief Police Officers could encourage police forces to be more consistent when deciding whether to release information about arrestees following a request from the media. Generally, the names of arrestees should be released. But there would need to be protections in place for where names need to be withheld, for example, where the arrested person is a child. 28. So, using our example from above, late on Tuesday evening, “TV News” calls the police force which has been looking for Mr Smith. “TV News” has heard a rumour that he has been arrested and asks the police whether this is true. The police use their new guidance on naming arrestees. They consider things such as whether Mr Smith is an adult (he is), whether their investigation might be damaged by naming him (it won’t, in this case) or whether the victim might be identified by naming him (they won’t, in this case). The police decide that it is safe to name him, and they confirm to “TV News” that Mr Smith has been arrested. “TV News” now knows that if it reports Mr Smith’s previous conviction on Wednesday, it could be in contempt because it knows that the case is “active”. 29. Some people think that it might not be necessary for the active period to last until after sentence. They suggest that the active period could end when verdicts have 7 been reached in respect of all the charges. A convicted person will be sentenced by the judge/magistrates (not by the jury) so the risk of serious prejudice might be lower because a judge or magistrate could be less likely to be influenced by publicity. Many publishers already treat the final verdict as the end of the active period. 30. On the other hand, this does not mean that a judge or magistrate can never be influenced by publicity. Some people might worry that if the active period were moved to end at verdict, judges and magistrates would be more likely to be influenced and would pass a different sentence as a result. We ask consultees whether the active period should end at the final verdict in the case instead of at sentence. SUBSTANTIAL RISK OF SERIOUS PREJUDICE OR IMPEDIMENT 31. It is hard to know how much judges and juries are influenced by what they read in the press and see on television. There is very little research about this in England and Wales. There has been some research done abroad but there is no clear answer. 32. The courts have taken different views, although they seem to agree that jurors (who are members of the public) are more likely to be influenced than judges, who are trained professionals. Other people in the proceedings may also be influenced by prejudicial publications, for example, witnesses or the defendant. 33. For strict liability contempt under the Contempt of Court Act 1981, publication is forbidden where a case is active and the publication “creates a substantial risk that the course of justice … will be seriously impeded or prejudiced” in a particular case. The key point is that the risk must be substantial and the prejudice or impediment must be serious. 34. Prejudice here means something which might make the judge or jury biased to the prosecution or the defence. Impediment means creating an obstruction to the course of justice, for example, by publishing information which would stop witnesses coming forward to give evidence. Prejudice and impediment are not the same thing, although sometimes they overlap. There has not been much case law on what “impeding” means. 35. There are no hard and fast rules about what can and cannot be published once the case is active. It will depend on the facts of the case. So, for example, publishing a photograph of a defendant before he or she is tried will only be a contempt where the defendant is likely to argue that there has been a case of mistaken identity. If a witness saw a photograph of the accused person in the newspaper, this might affect their memory of who or what they actually saw when the alleged crime occurred. 36. The court will look at the publication and try to assess whether a potential juror in the case would be likely to see it and whether they would be likely to remember what they saw at the time of the trial. 37. Because contempt of court has serious consequences and can lead to a publisher being imprisoned, the prosecution must prove beyond reasonable doubt that the publisher is guilty. 8 38. As we have explained, the test involves two questions: whether the level of risk is substantial; and whether the level of prejudice or impediment that will arise is serious. Some people say that this test should be changed. They argue that the test should be one of any prejudice or impediment, not just where it is serious. Some people also say that substantial risk is too low, and the test should be likely risk. This is because any prejudice to a fair trial should be prevented but a publisher should be able to predict with greater certainty whether the prejudice or impediment will in fact come about (that is, how likely it is). We therefore ask consultees whether the current test involves the right standards or whether it should be changed. 39. We also think that the legal meanings of the words “prejudice” and “impede”, and how the two words are similar or different to each other are unclear. There is a risk that the media could be disadvantaged by confusion between the two tests. We therefore ask whether the law would be clearer if the test were split into two – that would mean there would be one test for publications which might prejudice cases and another for publications that might impede cases. 40. When assessing whether a publication creates a substantial risk of serious prejudice or impediment to a trial, the court must look at the impact that the particular publication would have. It cannot look at all of the articles and news reports which are published about a particular case and consider them all together. This would be unfair to the individual publisher as they could be found guilty of contempt based on the reports produced by other publishers. This may also breach the publisher’s right to freedom of expression. 41. If a lot of publicity surrounds a case, and it might influence the jury to be biased against the accused, he or she can ask the judge to dismiss the case. This is known as an abuse of process application. The judge will only agree to do this if the accused person cannot have a fair trial because of the publicity. 42. Some people have suggested that the test for contempt should be the same as the test a judge applies when deciding whether publicity amounts to an abuse of process. These two tests are different because they occur in different contexts. The abuse of process test has to take into account all of the publicity about a case. It must look at how the publicity as a whole might affect the fairness of the trial. We therefore think it would be unfair to the accused person if a publisher could publish anything so long as it did not create an unfair trial. 43. On the other hand, the contempt test, as we have explained, only looks at individual publications. It would be unfair to find a publisher guilty for creating a “trial by media” if their individual publication was not at fault. This could breach the media’s right to freedom of expression. Because of this, we think that the two tests should remain separate. INTENTIONAL CONTEMPT BY PUBLICATION 44. There is a different type of contempt which is part of the common law (judgemade law) and not part of the Contempt of Court Act 1981. This is a contempt which deliberately interferes with the course of justice. These contempts are very rare. 9 45. This type of contempt could apply to private communications – for example, if someone wrote a letter to a person who was going to be a witness in a case, and the letter explained why all of the things the witness saw were wrong, to try to change that witnesses’ evidence, this would be an intentional contempt. This type of contempt does not require the case to be active – so it could apply before someone has been arrested. 46. For example, in one case, a newspaper published a series of articles about a doctor, suggesting that he was guilty of rape. It also highlighted that it was paying to have him prosecuted. The court said that the paper was deliberating trying to get him convicted. The publications were unfair because if he was tried the jury should decide whether he was guilty based on the evidence in court, not what they read in the newspaper. 47. Some parts of the law which deal with intentional contempt are unclear. Because of this, we ask consultees whether legislation should be introduced to make the law clearer. PROCEDURE 48. Strict liability contempt can only be prosecuted the Attorney General or by the court itself, although that is unusual. A prosecution for common law intentional contempt can be brought by anyone. 49. Most prosecutors have a prosecution policy – a list of factors which they consider before deciding whether it is in the public interest to prosecute a case. For example, if the victim of a crime is especially vulnerable, this might be a factor which would suggest that a case should be prosecuted. On the other hand, if the accused person has made up for their crime, this might suggest they should not be prosecuted. For example, if the accused person was a child who stole something of low value but later returned it and apologised, it might not be in the public interest to prosecute them. 50. The Attorney General does not have a public prosecution policy for contempt cases. Some people think this means that different Attorneys General might make different decisions so the decisions would be inconsistent. This might make it hard for the media to know when they will be prosecuted. This also means that the public may not be able to understand the decision-making process so there is a lack of transparency. We ask consultees whether the factors considered by the Attorney General when deciding whether to prosecute should be published. This would strengthen the media’s right to freedom of expression because it would help them predict what will happen if they publish something. 51. Cases of contempt by publication are normally heard in the Divisional Court. This is a court which sits at the Royal Courts of Justice in London and consists of two judges: usually one from the High Court and one from the Court of Appeal. These contempt cases are conducted using the rules of procedure for civil cases, not the rules for criminal cases. But, the person accused of the contempt is still entitled to a fair trial. It is unclear whether they can get legal aid to help pay for their lawyer. 10 52. As we have said, this procedure is different from the one used for normal criminal offences. Some of the more serious criminal offences are tried “on indictment”, that is, by a judge and jury. We suggest that contempt by publication should be treated as a normal criminal offence. This would mean that the normal criminal investigation and trial processes would apply. 53. Since contempt can be punished by a prison sentence it seems sensible to treat it like other criminal offences. Another good reason for doing so is that historically, those facing contempt prosecutions would be newspapers and television broadcasters. With the new media and the internet, prosecutions might be against individuals, and the normal criminal trial process would be better suited to dealing with these cases. 54. Using trial on indictment would mean that the normal criminal procedure would apply. This would include the police powers of arrest, of detaining someone at a police station, of investigating the case, and of charging someone with contempt. It would also mean that the normal rules about whether a person is on bail or held in custody to wait for their trial would apply. The prosecution and defence would have to prepare the case like any other criminal trial. The criminal rules of evidence would also apply. Legal aid would be available. This change would ensure that the publisher’s right to liberty and right to a fair trail would be fully protected. 55. For example, Jo Bloggs is a blogger. She writes a blog in her spare time about things which interest her. Jo has heard about a case involving a defendant who is on trial for a serious theft. Jo has been told by a friend that this defendant has previous convictions for a serious assault. The jury has not been told about these previous convictions because they are for assault and so are not relevant to the trial for theft. However, Jo does not know about the law on contempt. She posts a blog which provides details about the assault convictions. If someone searches for the defendant’s name on the internet, the blog is easily found. Under the current law, Jo would be tried by two senior judges using a procedure not designed for prosecuting crimes. She might not be able to pay for her own lawyer, so would have to represent herself in court. There would not be a charge sheet telling Jo exactly what she is accused of doing. It is not clear what would happen about bail. Under our proposed change, Jo could be prosecuted in the criminal courts. The police would investigate the contempt, and Jo would have rights which would be protected, for example, if she were arrested she could speak to a lawyer at the police station. Jo could get bail. Jo could also get legal aid to help pay for her lawyer if she could not afford to pay for one herself. The case would use the normal criminal procedure and rules of evidence. 11 56. Our proposed change would be very different from the current system for dealing with contempt by publication. It would, however, also create some inconsistency because some other forms of contempt by publication dealing with reporting restrictions would still be dealt with by the Divisional Court (we discuss these forms of contempt below). 57. We ask consultees whether intentional contempt and strict liability contempt should be tried using a normal criminal procedure. 58. The easiest way to make this change would be to use trial by jury in the normal way that it used for other crimes. However, there might be worries that jurors would not understand or accept restrictions on media coverage. This is especially so if the coverage is about those accused or convicted of infamous offences. After all, jurors are also people who buy newspapers and watch the television news. They might not have any sympathy for the right to a fair trial of an accused person whose case has been prejudicially reported in the media. This is particularly so if the reporting says that the accused person has convictions for committing other crimes. 59. It is important that everyone’s right to a fair trial is protected, even if they have committed crime before. An alternative to trial by jury would be to introduce trial by judge alone, but using the trial on indictment procedure. This would have the same procedural benefits as a jury trial – in relation to arrest, investigations, bail and so on – but the trial would take place in front of a judge alone without a jury. We describe this as a trial “as if on indictment”. 60. There are arguments against such a trial. It would be a new and unique procedure. On the other hand, trial by judge alone could be quicker and cheaper than with a jury. We ask consultees whether strict liability contempt and intentional contempt should be tried by a judge and jury in the usual way or whether they should be tried “as if on indictment” by a judge alone. REPORTING RESTRICTIONS 61. Under the Contempt of Court Act 1981, a “fair and accurate” report of what has happened in court is allowed and cannot be a contempt, provided the hearing was in public, and the report was published around the same time as the hearing took place. So, for example, if the television news at 10pm describes what the witnesses in a murder trial said in open court that day, this will not be a contempt. After all, it is important for the public to know what is happening in the legal system. 62. However, a judge has the power to make an order which restricts the reporting of some things said in court where publication would result in a “substantial risk of prejudice” to justice in that case or in another case. These orders are known as section 4(2) orders 63. So, for example, if a person is facing two separate trials for different offences, an order might be made preventing reporting on the first trial. This will stop the jury in the second trial from knowing about the first trial, because if the jury knew that the accused had faced other charges, they might be biased against the accused. 12 64. These orders can only restrict reporting for a limited period of time. An order can only be made if it would remove the substantial risk of prejudice and there is no other way of doing so. To decide whether to make the order, the court must consider how to balance the right to a fair trial with the right to freedom of expression. 65. When considering making a section 4(2) order, the judge will hear from journalists who may be affected by it, and the media can appeal against the judge’s order. 66. Breach of a section 4(2) order is a contempt. However, the exact nature of that contempt is unclear. For example, it is not clear whether the breach needs to be deliberate or whether it might be contempt even if the publisher did not know the order existed or did not mean to prejudice the system of justice. Proceedings for breach of a section 4(2) order are normally brought by the Attorney General in the Divisional Court (again, a civil court with two senior judges). 67. Media representatives complained that it can be difficult to discover whether a section 4(2) order has been made, and if so, what it says. This is because there is no formal system for informing the media about these orders. Individual orders tend to be posted in paper form on the door of the court in which the trial is taking place. This system might in some cases conflict with the right to freedom of expression. The media need to know what they can report about a trial. 68. In Scotland, there is a more efficient system to tell the media about orders of this kind. Copies of orders are emailed to the High Court of Justiciary where the case is entered onto an online list (for example, an entry would read: HMA v John Smith, Sherriff Court, Glasgow, 3 August 2012). If the media want to see what any order says, they can telephone the court or sign up to an email list. When the order has expired, the entry can be removed from the list on the website. You can see the list here: http://www.scotcourts.gov.uk/current-business/courtnotices/contempt-of-court-orders. 69. We propose a similar system for England and Wales to cover section 4(2) orders made in criminal cases. There could also be an email distribution list for orders which the media could sign up to. It is unlikely that this system would be difficult or expensive to operate.
70. So, for example, Mrs Taylor is a journalist at “The UK Newspaper”. On Tuesday morning, she goes to court and watches the witnesses give evidence in a murder trial. She has to go to a meeting in the afternoon, so she leaves court at lunchtime. When she gets back to the office later, Mrs Taylor writes a report of the morning’s evidence. The Editor says it can be published in Wednesday’s paper, but only if Mrs Taylor is sure that there is no order banning the reporting. If she cannot be sure the Editor won’t publish it. After all, the Editor does not want to be prosecuted for contempt. Mrs Taylor was not in court in the afternoon when the order could have been made. It is after 5pm so she cannot ring the court to find out because it is closed. 13 Under the current system, Mrs Taylor cannot be sure that there is no order. She is frustrated, because she wants the Editor to publish the report as she thinks it is important that the public find out what happened at the trial. Under our proposal, Mrs Taylor looks on the court website to see whether the case is listed. She finds that the murder trial is not mentioned. The UK Newspaper’s lawyers have signed up to the email list to be sent details about any order. The lawyers check their email inbox. They find no email about the murder trial. Mrs Taylor can be confident that no order was made and can tell the Editor to publish the report. The Editor can be confident she will not be found guilty of contempt.
71. The system will, of course, involve letting people on the email distribution list know the very information that the judge has ordered cannot be publicised. We do not think that this is a problem: the section 4(2) order, describing what is not to be reported, is made in open court anyway (the jury would not be there but members of the public could be).
72. In addition, the aim of the order is not to prevent the public as a whole from knowing the information, but to prevent a current or future jury from finding out the information. For this reason, the names of cases in which section 4(2) orders have been made are often stuck on notice boards in the court building. If necessary, there are different orders which a judge can make to ensure that information remains confidential from the public as a whole.
73. There is another power under the Contempt of Court Act 1981 which allows a court to give directions prohibiting publication, known as a section 11 order. Section 11 orders can last forever. For example, a section 11 order can be used to grant anonymity to a blackmail victim. That guarantee of permanent confidentiality means that blackmail victims are not deterred from reporting offences against them. The media can appeal if an order is made.
74. Breach of a section 11 order is a contempt where the breach deliberately prejudiced or obstructed the administration of justice. Again, breaches of these orders are prosecuted by the Attorney General in the Divisional Court. SENTENCING
75. The maximum punishment for all types of contempt is two years in prison or an unlimited fine. Community sentences, such as unpaid work, are not available.
76. Additionally, a “third party costs order” can be made which requires a publisher to pay the costs incurred if the proceedings were prejudiced or impeded by the contempt. So, for example, this would cover the cost of a retrial if a contempt led to a jury being discharged.
77. There are no reports of this order being made in the case of a contempt by publication. This may be because it is unclear whether the Divisional Court can make this order once it has found the publisher guilty of contempt.
78. Punishment can be imposed on both the journalist and the media organisation (for example, the newspaper as a whole can be fined), although it is rare for the individual journalist to be punished. No-one has been sent to prison for contempt by publication for over 60 years. The usual sentence is a fine and the court will calculate it by looking at things such as the seriousness of the contempt and the resources of the publisher.
79. Because the courts may have to deal with contempts by publication committed using the modern media, it might become more common for individuals who are not employed as journalists to be prosecuted. It is important that the courts have the correct powers to deal with all types of publisher. It seems unnecessarily limited for the courts to have powers only to fine or imprison in these cases. A community sentence should also be an option.
80. We ask consultees about whether the maximum sentence of two years’ imprisonment is still suitable for strict liability contempt, since some argue that this penalty is too harsh, especially as the publisher’s right to freedom of expression will be relevant. By comparison, breaches of other types of reporting restriction (such as the ban of identifying a person under 18 who is charged with a crime) are punished only by a fine.
81. We also ask consultees about whether the maximum sentence remains appropriate for intentional contempt under the common law and breach of section 4(2) and section 11 orders. To commit any of these types of contempt, it seems that the publisher needs to have deliberately interfered with the system of justice. This could mean that the sentencing options should include prison for the most serious cases. We also ask whether a community sentence should be an option.
82. The fines which can be imposed on media organisations – such as newspapers or television broadcasters – are determined by the court when they find the organisation guilty of contempt. Some people think that the fines imposed are too low, especially by comparison to the compensation that is paid in libel or privacy cases which can be much higher. On the other hand, some people argue that the traditional print media is struggling economically at present, and therefore a fine would have much more impact.
83. The current sentencing power may need changing to reflect differences in the resources of different media organisations. It is important that all publishers see the fines as a deterrent from committing contempt. We ask whether the courts should have the power to impose fines which are set at a percentage of the turnover of the media organisation. If this change were introduced, the Sentencing Council could provide advice to judges on how this would work. 84. If contempt by publication were still tried in the Divisional Court (not by a jury or by a judge alone “as if on indictment”) we think that the Divisional Court should have the power to impose third party costs orders. As we explained above, this would mean that the publisher would have to pay for any costs wasted in the case that was prejudiced or obstructed by the publication. So, if the jury in a criminal trial was discharged because of prejudicial publicity and there had to be a retrial, the publisher should pay for the cost of the trial, if they were guilty of contempt.
PUBLICATIONS, PUBLISHERS AND THE NEW MEDIA INTRODUCTION 85. The creation of the internet has brought about a huge change in the way in which people communicate. Enormous volumes of material can now be stored, communicated and redistributed to a mass audience. This creates problems for the law of contempt. Historically, newspapers would fade from memory to become “tomorrow’s chip paper”. Now, information on the internet is potentially available forever once it has been posted, and can be found by anyone using a simple search. 86. More and more people are using the internet. 84% of adults in the UK have used the internet at some time whilst 80% of UK households have internet access. There are estimated to be over 30 million UK Facebook users while Twitter has 10 million active UK users.1 This situation is very different from in 1981 when the Contempt of Court Act was passed. 87. There have not (yet) been many contempt cases involving publications on the internet, so the law on the issue is sometimes unclear. This issue will become more important in the future and the law needs to be able to deal with online publications. PUBLICATION 88. Under the Contempt of Court Act 1981, strict liability contempt by publication (discussed above) only applies to publications. The Act defines publication to include speech, writing, programmes (and other similar broadcasts) and any other form of communication. These publications must be “addressed to the public at large or any section of the public”. 89. The term “speech” seems to have an obvious meaning. In one case, the courts found that a play at a theatre was a publication under the law of contempt. “Speech” would also include things said on YouTube films. 90. “Writing” has been defined in law as “reproducing words in a visible form”. Case law from a different area of criminal law concluded that something on the internet can be described as “written” as what was on the computer screen was “in writing”. A court that had to decide the issue in a contempt case would reach the same conclusion. 91. The legal definitions on what amounts to a programme are complex and technical, but it seems clear that these definitions would cover television and radio. Some forms of internet service would also be programmes under the law – for example, the BBC’s iPlayer service. 92. The meaning of “communication” is very wide indeed. We are confident that it would cover almost all of the new media, for example, the following would be 16 forms of communication: Facebook postings, tweets, Flickr photographs, videos on YouTube, and words, videos, music or pictures on any other website. 93. Our view is that the definition of publication under the Contempt of Court Act 1981 does not need to be changed as it already includes new technology. ADDRESSED TO THE PUBLIC 94. To constitute a strict liability contempt, the publication must be addressed to the public at large or any section of it. There is no clear rule on what this means, but a court would examine how many people the publication was addressed to, who those people were and why the publication was aimed at them. A private communication which is only sent to one person (for example, an email from one person to another) could not be a publication addressed to the public.
95. Case law from a different area of criminal law held that posting material on a website which was available to anyone who visited the site was publication to the public. The court concluded that it was irrelevant that only one person had actually seen the publication – what mattered was that anyone could have seen it.
96. It is not clear whether the courts would treat social networking sites, such as Facebook and Twitter, as publications to the public or a section of the public – it might depend on whether the users have turned on their privacy settings so their posting or tweet can only be viewed by a limited number of people.
97. We ask consultees whether the fact that the law does not define a “section of the public” could be a problem in practice.
WHO IS RESPONSIBLE FOR A PUBLICATION?
98. The Contempt of Court Act 1981 does define who or what is a “publisher”. There are, clearly, many ways that a person can be involved with a publication: it can be authored, edited, approved, changed, emailed and so on. A publication will normally be communicated by complex means which themselves need to be created, managed and maintained. For example, someone needs to maintain the cabling which establishes the internet connection which makes it possible to email. This raises interesting questions about who should be considered to be a publisher for the law on contempt of court.
99. This digital world is very different from the one which existed in 1981 when there was only radio, television (with no on-demand service) and print newspapers. One important difference is that it is more likely that contempt of court laws will apply to communications by individual people (say, on Twitter), rather than media organisations (such as a newspaper). Not only are professional journalists publishers under the law, but so is any person who writes a blog or tweets to a section of the public. Another major difference is that an online publication is available for the public to read for far longer than a printed copy would be.
Sources: Office of National Statistics, Internet Access Quarterly Update, (Aug 2012); Ofcom, Communications Market Report (Jul 2012) at 4.2.1; http://www.internetworldstats.com/europa.htm; @TwitterUK, 15 May 2012.
100. The use of the internet to publish information makes it more likely that the courts will have to address the issue of who should be treated in law as a publisher. Merely sending an email involves many different people/companies – for example, the person who wrote the email and clicked the send button, the company which provides that person’s email service (for example, Gmail or Hotmail), the company which provides the internet connection (for example, Virgin Media or Talktalk), the company which owns the server on which the email is stored (which may be abroad), the company which provides the internet connection for the person who receives the email and the company which provides their email service, and so on. 101. There are also the people and companies needed in order for a person to be able to post on their blog, update their Facebook status or to tweet. 102. The question about who is a publisher could create problems for the law of contempt. For example, if something appears on the internet revealing seriously prejudicial information about a trial, who should be held responsible under the law? The answer could be: (1) the author or user who wrote the words; (2) the author’s broadband provider; (3) the providers that stores the content (for example, a social networking site); (4) the company which provides the web address; (5) the company that allows other people to find the material (for example, a search engine); or (6) someone else? 103. Those listed at points (2) to (5) (and other similar organisations) are known as “intermediaries”.
104. It is obvious that an author, speaker, or tweeter is a publisher under contempt law. However, it is more difficult to say that the intermediaries are also publishers.
105. Part of the reason for this problem is that contempt law requires intention to
publish – so the publication must be deliberate. But, it is not clear whether this means that the publisher must have deliberately posted those particular words.
106. If intermediaries were treated as publishers, they might have certain defences. For example, as we have explained above, there is a defence if the publisher takes reasonable care but “does not know and has no reason to suspect” that there is an “active” case (see above at paragraph 23). Intermediaries would often not be aware that cases were active. 107. There are other defences under EU law for intermediaries who carry or store information to be sent between computers. However, these defences will not apply if the intermediary has been asked to remove the information (for example, by a court order) and the intermediary has not done so. The defence will also not apply in some cases where the intermediary knows that the publication is illegal.
108. In practice, we think that intermediaries are unlikely to be publishers in the law of contempt.
THE TIME OF PUBLICATION
109. Strict liability contempt can only be committed if the case was active “at the time of the publication”. The problem is, it is not clear what this means.
110. Consider this example: The police are investigating a murder. “The UK Newspaper” finds out that the victim’s friend, Mr Jones, has a previous conviction for manslaughter. On Monday, they publish the story with the headline: “Murdered girl’s pal has killed before”. The story is also on their website. At this point, there are no active proceedings. On Wednesday, Mr Jones is arrested by police on suspicion of the murder. The story is still on the website and proceedings are now active. Although “The UK Newspaper” is no longer on sale in the shops, anyone can still read the story on the website and find out about Mr Jones’ previous convictions. “The UK Newspaper” might be prosecuted for contempt. But were proceedings active “at the time of publication”?
111. There are two possible meanings of “time of publication”. (1) It could mean that publication is a continuing event that begins with the first appearance of the report and carries on. So, for example, as long as a publication is available to the public (for example, the webpage is still on the internet) this still counts. Under this meaning, “The UK Newspaper” would be guilty of contempt. (2) Or it could mean that the case needs to be active only when the report was first published – in our example this would only be on the Monday when the webpage went live. Under this meaning, “The UK Newspaper” would not be guilty of contempt, because the proceedings were not active at the time of publication.
112. The interpretation of the time of publication is clearly significant in many cases. Consider this further example: Mr Brown is convicted of rape and sentenced to 4 years in prison. There is lots of coverage about the case in the media, and lots of articles on the internet, because Mr Brown is quite famous. The case is not active at this point because it has finished. Mr Brown serves his sentence and is released. A few months later, he is arrested for a serious theft and is sent for trial by jury. All of the internet articles about his previous conviction are still available for anyone who searches for them. Are the publishers of these internet articles in contempt? This again depends on whether the “time of publication” is continuing so that it includes the point at which the theft case became active.
113. There is no doubt that the new media has made such scenarios more likely: in 1981, finding old news reports required a trip to the library or a newspaper archive. Now, anyone, anywhere in the world, with a computer or smartphone can find the information within seconds.
114. This issue is important because the law needs to protect Mr Brown’s right to a fair trial, and also ensure that he is presumed innocent until proved guilty. However, the law also needs to be fair to the publisher. If publication is a continuing act, the publisher might be guilty of contempt, even though the new case became active through no fault of the publisher. There was nothing the publisher could do to control whether or when the new case became active. Yet, the publisher could have committed a contempt because of it. 115. There is little case-law in England and Wales on this concept of time of publication. However, there is a Scottish case which held that publication is a continuing act under the law. This would mean that the publishers in Mr Brown’s and Mr Jones’ cases could be in contempt. 116. For various reasons, the law in this area needs clarification. We have particular concerns that under the present law, following the Scottish case, publishers might need to continually monitor their internet archives to ensure that they do not include old publications which relate to people who are now subject to new, active, cases. If the publishers do not do this monitoring, they might be guilty of contempt. 117. We think this is too onerous an obligation for publishers – especially as some of the media have huge internet archives (for example, the BBC). This monitoring responsibility might breach the publisher’s right to freedom of expression. We therefore ask consultees whether the law needs to be changed so that publication is not a continuing act. 118. However, if that proposal is accepted, further change would be necessary in order to prevent old news articles from causing prejudice to new criminal trials. The law needs to protect the right to a fair trial, and prevent juries from being prejudiced against either the prosecution or the defence by old publicity. 119. The need for this is obvious from cases such as Harwood, the police officer who was tried and acquitted of the manslaughter of Ian Tomlinson at the G20 protests. Before Harwood’s criminal case became active, various articles were published (including on the internet) which accused Harwood of previous misconduct, including allegations of violence. When these articles were first published, the media was justified in publishing them – there was an important public interest in knowing about the behaviour of police officers. However, once Harwood was arrested and the criminal case became active, there was a significant risk that these allegations would cause him prejudice. They were allegations that the jury was not allowed to know about because there was a risk it would rely on that prejudicial information in reaching its verdict. It was right that Harwood was presumed innocent until proven guilty. 120. Unless the courts have the power to restrict access to historic reports on the internet, such as in the Harwood case, there is a risk that criminal cases will be prejudiced or impeded by these publications. 121. Whilst in the Harwood case, the risk was to prejudicing the defence in the trial, there could also be a risk to the prosecution. For example, a person could publish material on the internet (before they are arrested for an offence) explaining why they are innocent. Some of this information might be wrong, or untrue, or not used in court for other reasons. Unless the court can make the person remove 20 the material, it is possible a juror will see it and believe it. This would be unfair to the prosecution. A new power to remove reports from the internet 122. Our proposal to resolve this problem is to create a new form of contempt of court. We propose that if a case becomes active, and an old report (that is, first published before the case became active) is still available, the judge should be able to order this report to be removed temporarily from the internet.
123. The judge would only have this power where the publication creates a substantial risk that the course of justice will be impeded or prejudiced (the same as the test for strict liability contempt, which we explained above). The judge would also have to specify for how long the report would need to be removed. For example, the order could be made the first time an accused person appears in the Crown Court, and could last until the jury has reached a verdict (this would usually take a few months).
124. The judge will need to assess how likely it is that a juror will find or see the old publication, and what impact the publication would have on the juror. The judge will also need to assess whether other people might be affected by the old publication being accessible, for example, witnesses might be put off coming forward.
125. These orders ought to be rarely imposed because there will not often be a substantial risk of serious prejudice. (An order similar to this was made by the judge in the Harwood case).
126. For example, an order might be something like this: It is ordered that “The UK Newspaper” shall remove from their website the following articles relating to the case of R v Williams: (1) “Williams convicted of rape”, available at www.theuknewspaper.co.uk/williams-convicted-of-rapemarch-2009. (2) “Williams attacked before, say cops”, available at www.theuknewspaper.co.uk/williams-attacked-before-march2009. These articles shall be removed from today for a period of 3 months, until the trial is over.
127. If, in that example, “The UK Newspaper” does not comply with the order, this should be a contempt of court, unless there is a good reason why they did not do so.
128. The advantage of this proposal is that it means that a publisher will only commit this form of contempt if they are subject to a specific court order. That means the media will not have the obligation to monitor their web archives, and will have an obligation to remove only the identified articles for only a short period of time. This protects the media’s right to freedom of expression.
129. Most of these orders would be made against the publisher in the normal sense of that word – the author of the blog, or the newspaper or television broadcaster themselves. 130. However, in some cases the order may need to be made against other organisations. For example, what if the author of a blog cannot be identified or lives abroad? In these cases, the judge should have the power to order anyone who has enough control over the publication to remove it temporarily. 131. So for example, the judge could order internet service providers to disable access to a particular webpage. Or, the judge could order search engines to remove a particular webpage from their search results, so that no-one can find it for the duration of the trial. 132. The courts will decide whether someone has enough control that the order should be made against them. That may depend on whether the person or company is based in the UK: the courts cannot make orders against people abroad. What happens if the order is breached?
133. If one of these new orders is made against a person or company, and that person fails to comply with it (without good reason) this would be a contempt. We ask consultees whether such a case should be prosecuted in the Divisional Court (this is a court with two senior judges, where contempts by breach of section 4(2) or section 11 orders are currently tried) or tried by judge and jury like other criminal cases, or by a judge alone but with the procedure normally used in criminal cases (we explained above that we call this a trial “as if on indictment”). 134. The maximum sentence for any type of contempt of court is two years in prison or an unlimited fine. We ask consultees whether this is the right maximum sentence for the new contempt of court for breach of this order. We also ask whether community sentences, such as unpaid work, should be available.
PLACE OF PUBLICATION
135. The criminal law of England and Wales normally only applies in England and Wales, although there are some exceptions to this. However, with crimes that involve the internet, it can be difficult to say where they occurred. Under the current law if the crime was completed here or if the crime was “substantially” undertaken here, then it will come within the criminal law of England and Wales. 136. How does this work with contempt? For example, Ms Wilson lives in Brighton. At her home, she uploads a blog post. There is a serious robbery trial in London and the blog post relates to that trial. Because of what the post says, it amounts to a contempt. Ms Wilson’s blog is hosted on a server in California. It can be read by people in England and Wales, but also those in France, Canada and New Zealand. Where has the contempt occurred?
137. In Ms Wilson’s case, the answer might be straight-forward: the crime has been committed substantially in England and Wales because that is where she uploaded her blog post and that is where the case was taking place that could be prejudiced.
138. But, it is easy to think of more difficult cases: Mr Johnson lives in New York and is a journalist for “The US Newspaper”. “The US Newspaper” is mainly read by Americans, but sometimes people overseas read it too. It also has a website. An American tourist has been abducted in Bristol, England, and a man is on trial there for the abduction. Mr Johnson uploads an article to The US Newspaper’s website about the trial. Because of what the article says, it creates a substantial risk of serious prejudice and so amounts to a contempt. Mr Johnson’s article is hosted on a server in California. It can be read by people in America, but also by people in England and Wales, including in Bristol. Where has the contempt occurred?
139. The courts have not yet had to deal with an alleged contempt of this kind, so there is no clear answer. However, it is likely that the courts will have to consider this in the future. It is important to protect the process of justice in England and Wales and the rights of people being tried here, but the law also needs to be fair to publishers. For example, it could seem harsh to prosecute a foreign newspaper with only an office in London for their journalists, when the newspaper’s target audience is readers in the foreign country, not people in England and Wales.
140. We therefore ask consultees whether there needs to be a definition of place of publication in statute law and if so, what it should be.
JUROR CONTEMPT INTRODUCTION 141. Recent cases have highlighted concerns about misbehaviour by jurors during criminal trials. We focus in this chapter on two particular types of misbehaviour: (1) Jurors who try to find out information about the case outside of court, for example, by searching for the defendant’s name on the internet (this is currently a contempt of court under the common law, that is, judge-made law); and (2) Jurors who reveal information from their deliberations (this is currently a contempt of court under section 8 of the Contempt of Court Act 1981 so we call this “section 8 contempt”).
142. Although jurors have probably been committing various forms of misconduct for as long as there have been juries (which is since at least the 12th century), the internet has changed the situation. Because of the new media, it is now easier for jurors to find out information about the case that they were trying, and to share their deliberations with other people.
JURY INSTRUCTIONS
143. In England and Wales, jurors are randomly selected members of the public who are on the electoral register. When a person receives their jury summons, they also get a booklet from the court service called Your Guide to Jury Service. This explains that during the trial jurors must not “discuss the evidence with anyone outside your jury either face to face, over the telephone or over the internet via social networking sites such as Facebook, Twitter or Myspace”. It also says that if a juror is “unsure or uneasy about anything”, they can write a note to the judge.
144. In general, on arrival at court on the first day of jury service the jurors will be shown a video (you can see the video at http://www.youtube.com/watch?v=JP7slp-X9Pc&feature=relmfu). This provides a brief description of the court process and the role of jurors. The video explains that “it is vital” that jurors “are not influenced by any outside factors” so they must not discuss the case with family or friends. Jurors are also told explicitly not “to post details about any aspect of … jury service”, including their deliberations, on social networking sites or to reveal their deliberations to anyone.
145. Jurors are warned that they “may also be in contempt of court” if they “use the internet to research details about any cases” they “hear, along with any other cases listed for trial at the court”. The video also tells jurors that they should raise any concerns with court staff.
146. Aside from the video, court staff also themselves give the jurors a warning. They say: The judge will tell you that you DO NOT discuss the evidence with anyone outside of your jury either face to face, over the telephone or over the internet via social networking sites such as Facebook, Twitter, or Myspace. If you do this, you risk disclosing information, which is confidential to the jury. Each juror owes a duty of confidentiality to the other jurors, to the parties and to the court. Jurors can only discuss the evidence when all 12 jurors are in the jury deliberating room at the conclusion of the evidence in the trial.
147. Different courts have different systems for dealing with jurors’ electronic devices that can connect to the internet, for example, mobile phones, laptops, iPads, iPods, Kindles, and so on. 148. In some courts, jurors are permitted to keep these devices with them in the area where they have lunch and sit during breaks in the trial. However, the devices must be switched off in court, and are removed when jurors are reaching a verdict in the case in the jury room. In other courts, jurors’ devices are removed from them for the whole time that they are at court. And in other courts, jurors can keep their devices even when reaching a verdict in the jury room. 149. When a juror is picked to sit on a trial, he or she takes an oath, speaking that oath out loud in the court room, in front of the other jurors, the judge, lawyers and the defendant. The juror’s oath is that they swear to “faithfully try the defendant and give a true verdict according to the evidence”.
150. After the oath, the judge should also give jurors the following warnings.
(1) Jurors should not discuss the case with anyone (including family and friends) whether face to face, or over the telephone, or over the internet (including on Facebook or Twitter).
(2) If jurors do talk to other people they would be breaching confidentiality. They might also listen to someone else’s views about the case and let it affect their own opinion, even without realising it.
(3) Jurors should reach their decision based on what they hear in court, and should not take into account any publicity. After all, the publicity is only the publisher’s view of events.
(4) Jurors should not seek information about the case from outside the court, for example, by searching on the internet or visiting the crime scene. The prosecution or the defence would not be able to say anything to the jury about that information so doing this would be unfair. For example, the prosecution might want to show the jury that the information from the internet is a lie. They cannot do that if the jury has looked at it in secret.
(5) Jurors should speak to the court staff if they have any concerns about the case. If they find out that another juror has misbehaved, they should also tell the staff.
(6) If a juror does any of the things they have been told not to do, it will be a contempt of court and they could go to prison.
(7) After the case is over, jurors can tell other people about the case, but can never reveal their deliberations – that is, the discussions they had with the other jurors about the verdict in the case and why they reached it.
151. Despite these warnings, research and case law suggests that jurors may still not be getting the message. This might be because the warnings are not clear, or jurors do not agree with them. We propose further safeguards which could be adopted to try to prevent this misbehaviour and we explain them below after examining the problems in more detail.
JURORS SEEKING INFORMATION
152. Jurors who look for information about the case that they are trying may be guilty of contempt of court. The law on this comes from the case of Dallas. While she was a juror, Dallas undertook internet research into the case. She discovered that the defendant had previously been tried for rape (but found not guilty). Dallas told her fellow jurors what she had found and they told the judge. There had to be a retrial with a new jury. 153. Dallas was prosecuted before the Divisional Court (that is, a court with two senior judges and no jury). The Lord Chief Justice found that Dallas was in contempt of court because the judge had warned her not to undertake this research. Dallas knew she had been ordered not to do this but, she “deliberately disobeyed the order”. This caused prejudice to the trial because this information might have been used by the jury in reaching their verdict. There was also prejudice because there had to be a retrial which meant, for example, that the victim had to give evidence again. A retrial wasted time and cost public money. Dallas was sentenced to six months in prison. 154. Some people have concerns about this type of case. For example, they think that the procedure used in this type of case (before the Divisional Court) might not properly protect the accused person’s rights as the procedure is very different from trial by jury, which is used to try other serious crimes. 155. Some people also think that the law in this area is not clear enough, particularly since it is founded mainly on the Dallas case. It is unclear, for example, what would happen if a juror did not understand the judge’s warning, or if a juror looked up the defence barrister on the internet, but not the defendant. It is also unclear what would happen if a juror accidentally found information about the case on the internet (for example, while searching for something else). We make proposals to clarify the law. 156. There are many reasons why jurors might try to find information about the case from outside the courtroom. For example, jurors may: (1) Try to find out as much about the case as possible because they are worried that they might reach the “wrong” verdict; (2) Want to be “good jurors” which they might mistakenly think means knowing everything about the case (even things which, for legal reasons, cannot be included in the evidence heard in court);
(3) Want to fill in the gaps in the evidence or try to find information to make clear bits of evidence which are unclear; (4) Not understand the judge’s instructions on what the law is, for example, the law on murder. They may think that if they look this up, it will help them understand it; (5) Not understand why doing their own research is banned and so think that it is a rule without good reason; (6) Not understand the judge’s warnings or not be able to work out what it means in practice. If a judge says “don’t research the case on the internet” what does this mean? Is searching for the name of the judge allowed? What about the name of the defence lawyer? What about using online maps to view the crime scene? (7) Just be curious or even mischievous. 157. Before the internet, jurors trying to find out about the case would have been less of a problem. For example, It is 1980. Mr Davies is a juror trying a case involving a fight in a park. A member of the public thinks she saw what happened. Mr Davies wants to visit the crime scene. He wants to know whether the witness could have got a good look at the crime from where she was standing. However, getting there is inconvenient. Mr Davies travels to the park after court. It is not on his usual way home but takes a bus journey of 40 minutes each way, and he has to travel after court has finished at 4.30pm. It is dark when Mr Davies gets home. Also, he is worried that someone might have seen him in the park or on the bus. If someone saw him, they could tell the judge. 158. Compare that to the situation today: Mr Davies goes home after court. There is no-one else at home. He makes a cup of tea and turns his computer on. He opens up Google and searches under maps for the name of the park. Within seconds, he has the park showing on the map. Mr Davies selects the street view. He views the photographs of the park taken from different angles, trying to work out where the witness was standing and where the fight took place. Mr Davies thinks the witness could not have got a good view. After all, there are no street lights that he can see nearby and there are bushes which he thinks would have blocked the view. Mr Davies thinks the witness must be mistaken. It has taken him only minutes to look for himself and see this. How will the judge find out that this is what Mr Davies has done? How will the prosecution be able to explain that Mr Davies might be wrong, and the witness could have got a good view, if they don’t know that Mr Davies has done this? 159. It is easy to think of other examples where it would have been difficult to find the information out before the internet was widely used – newspaper reports of an accused person’s previous convictions are a good example. To get copies of old newspapers would have needed a trip to the national newspaper archive at the British Library at Colindale. Today, an internet search engine will produce huge numbers of results in seconds. As we have explained above, internet access and use is widespread in the UK today. Because of this, it is much harder to keep information from the jury. 160. It is difficult to know how big this problem is as there has been limited research. One study by Professor Cheryl Thomas in 2010 found that in high profile cases up to 12% of jurors who were asked admitted that they had looked for information on the internet about the case they were trying. This might only be the minimum number of jurors, because some jurors might not have wanted to admit their behaviour if they thought they were wrong to do it. Almost half of jurors who were asked said they would not know what to do “if something improper occurred during jury deliberations”.1 161. We also have some evidence that the Court of Appeal is ordering more investigations into cases of juror misbehaviour (these investigations are done by the Criminal Cases Review Commission). Between 1998 and 2005, the Court only asked for four investigations. From 2006 until mid-2012, there were at least 27 investigations ordered. 162. There may also be many other cases where the juror’s misbehaviour is never discovered. 163. The issue of jurors undertaking their own research is a problem for two reasons. First, the public and the defendant have a right to know what information the jury used to reach their verdict. The court and the lawyers also need to know this. This is important so that the public can have confidence in the system of trial by jury. 164. Secondly, both the prosecution and the defence need to have a chance to dispute the evidence in the case. They might want to show that certain information is wrong, or mistaken or is a lie or that the accused has a good reason for it. They cannot do this if they do not know what information the jury is using. Without these two principles, there cannot be a fair trial. After all, justice must be done but justice must also be seen to be done. 165. Sometimes, the information which a juror finds might be trivial. However, in other cases it might be important, and the jury might be influenced by it in reaching their verdict. As we all know (and recent examples have highlighted), the internet is full of rumour and gossip. Proposed reforms 166. There is no single simple solution to this problem. The reforms we propose, above at paragraphs 122 to 132, in removing access to some websites will help prevent jurors from finding things that they should not. However, it is clearly not possible to remove everything from the internet about a case that might be found by jurors. For example, it would not be possible or sensible to remove all maps of the place where the crime occurred from the internet.
1 Are Juries Fair? (Ministry of Justice Research Series 1/10, Feb 2010) p 43 and p 39.
167. One way of trying to persuade jurors not to look up information on the internet about the case that they are trying and to emphasise how important it is not to do so would be to make that behaviour a specific crime. This would help to make the law in this area clearer. It would also send an important message to jurors. Some Australian states have created crimes such as this. 168. However, there are concerns that a new crime might make jurors less likely to admit to doing these things because they would be worried about being prosecuted. A juror who thinks that another juror has done something wrong might also be reluctant to report them. This could be a problem because the aim of the new crime is to protect the trial process. If the courts are never told that something has gone wrong, they will never know that the trial was not fair. JURORS DISCLOSING INFORMATION 169. Section 8 of the Contempt of Court Act 1981 makes it a contempt to obtain or to reveal any “statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations”. There are some exceptions to this which mean that revealing deliberations to a court will not be a contempt in certain circumstances. 170. The law on this type of contempt is unclear, but the law applies to people who pass on the information. So, if juror Mr Green tells journalist Miss Thompson about the jury’s deliberations, and Miss Thompson publishes a newspaper article about them, both Mr Green and Miss Thompson have committed the contempt. The contempt is not limited to jurors. 171. Some people have argued that because section 8 is so wide in its application it might breach human rights law, particularly because there is no defence for a juror revealing information in order to uncover a miscarriage of justice. The courts have found that because the juror can reveal the information to the court itself, section 8 complies with human rights law. The European Court of Human Rights, in a case where the juror argued that the conviction for contempt breached the right to freedom of expression, rejected that argument. But, the Court implied that it might have decided the case differently if it had involved a conviction for doing research about juries or if the juror had been trying to expose a miscarriage of justice. 172. The maximum punishment for contempt under section 8 is a fine or up to two years in prison. In a recent case, a juror (Fraill) and one of the accused in the trial (Sewart) discussed the jury’s deliberations on Facebook. Fraill was sentenced to eight months in prison, whilst Sewart was sentenced to a suspended prison sentence. The difference in sentence was because of the different circumstances of Sewart and Fraill (for example, Sewart had a very young child). 173. Many people argue that section 8 should be amended. Some argue that it is too wide because it even prohibits revealing the jury’s deliberations anonymously – they think that if neither the juror nor the case they were involved in could be identified there would be no problem. Some also argue that section 8 breaches the right to freedom of expression, especially where the juror is trying to reveal a miscarriage of justice.
174. Others have argued that there is an important public interest in knowing what is going on in the jury system so the public can be confident that it operates effectively and fairly. By discovering how the system works it would be possible to improve the system. Openness and accountability are important values and should be applied to the jury system. 175. There is also a public interest in research into the system of trial by jury. Some academics argue that section 8 makes jury research “impossible”,2 because the questions which can be asked without breaching section 8 are so limited. 176. On the other hand, others argue that section 8 should remain. They say that jurors must feel that they can express their views, without fear that other people might make fun of them or threaten them. Jury secrecy helps protect jurors from these reactions. 177. There is also the need to protect the principle that the jury’s verdict is final. If the jury’s deliberations were not secret, the issues discussed could be reopened by the media after the case. The privacy of jurors also needs to be protected (for example, to stop the media from trying to contact them). In the US it is common for jurors to give press interviews to explain why they have reached their verdict. This often seems to be a media circus, with reporters camped outside the court or tracking down jurors, trying to unpick the verdict and why it was reached. Many people would be very concerned about this happening in the England and Wales. 178. Jurors also seem to support the restrictions placed on them by section 8: one study found that 82% of jurors felt it was correct that “jurors should not be allowed to speak about what happens in the deliberating room”.3 179. There may be worries that section 8 is being breached more often than it used to be. The internet and social media may make it easier for friends, families and others to speak with jurors to find out information about their jury service. Likewise, it is easier for jurors to contact other people in the trial (such as the defendant) and communicate with them. Proposed reforms 180. We consider that it may not be sufficiently clear to jurors at present that they can reveal their deliberations to a court but to no-one else and that it might be necessary to protect well-meaning jurors who reveal information to someone who is not a court official. We also think this could prevent miscarriages of justice because jurors would be more likely to tell someone if they had concerns about what had happened on their case. The juror would be less worried about telling the wrong person by mistake, and committing a contempt in error.
2 H Fenwick and G Phillipson, Media Freedom under the Human Rights Act (2006) p 228. 3 Are Juries Fair? (Ministry of Justice Research Series 1/10, Feb 2010) p 39.
181. On the other hand it would not be a good thing to encourage many jurors to make inappropriate revelations about anything related to their case. But we also need to protect jurors and make sure that the courts can discover if a wrongful conviction has occurred. We therefore ask consultees whether it should be a defence to a breach of section 8 if the jury’s deliberations were revealed only to the police or the Criminal Cases Review Commission. This defence would only apply where the juror genuinely believed that the revelation was necessary to uncover a miscarriage of justice. 182. For example, Ms Evans is a juror in a serious assault trial. The defendant, Mr Walker, says it is a case of self-defence – he was attacked first. The jury finds Mr Walker guilty. The jurors become friendly over the course of the trial and they keep in touch. A few weeks after the case, another juror tells Ms Evans that he knew the victim of the assault and there was no way it could have been self-defence as he is sure the victim would never start a fight with anyone. That is why he tried to persuade the other jurors to find Mr Walker guilty. Ms Evans thinks this is pretty unfair – after all, the judge asked at the start of the trial whether the jurors knew anyone in the case and nobody said anything. Also, what if the other juror is wrong and the victim did start the fight – that juror wasn’t there to witness it, was he? Ms Evans thinks she should tell someone about what she now knows, but she is not sure who. She decides that the best thing to do is go to the local police station and explain the problem to them. After all, the police are responsible for law and order, so they must be able to help. Under the current law, Ms Evans will commit a contempt of court under section 8 if she tells the police what has happened. She could go to prison for this. The only way she could not commit a contempt would be to tell a court – presumably in her case the Crown Court where the trial happened. Under our proposal, Ms Evans would not be in contempt for telling the police, or for telling the Criminal Cases Review Commission. 183. In 2005, the Department for Constitutional Affairs asked for views about whether section 8 should be changed to allow academic research into jury deliberations.4 A majority of people who responded thought that some form of research should be allowed. However, they also thought that there would need to controls on any research. For example, they thought that the research would need the agreement of the Lord Chief Justice. The jurors involved would need to agree to be part of the research and would be guaranteed anonymity. There should also be a code of conduct for researchers. A majority of people who responded thought that researchers should not be allowed access to the jury deliberating room itself.
184. The Department replied that more research into juries should be done, but that it needed to be clear that there were research questions which cannot be answered because of section 8. In our consultation paper, we ask whether section 8 unnecessarily prevents research. If so, we ask whether section 8 should be amended, and what safeguards would be needed if it was.
4 Department for Constitutional Affairs, Jury Research and Impropriety: Response to Consultation CP 04/05 (2005).
PROCEDURE 185. As with some other forms of contempt, the Attorney General can prosecute a juror who does research about their case or who breaches section 8. These cases are normally prosecuted in the Divisional Court (that is, trial by two senior judges and no jury). Because of this, the normal criminal procedure and rules are not used. However, measures are in place to try to protect the juror’s right to a fair trial. It is not clear whether jurors who are tried like this can get legal aid (that is, help to pay for their lawyer if they cannot afford one). 186. We think that it is strange that these contempts are treated differently from other similar crimes. We also think the current procedure might not properly protect the juror’s right to a fair trial. For example, the current procedure may not allow the juror to know properly the case against them, because there is no charge sheet. It is also not clear whether the law on bail applies to these cases, which could mean that the juror’s right to liberty is breached. 187. We propose that the law here could be changed so that breaches of section 8 could be tried like ordinary crimes in the Crown Court. If our proposal, to make jurors researching the case that they are trying a crime, is adopted, this crime could also be tried like an ordinary crime. The Attorney General would still be responsible for prosecuting in such cases but one of the advantages of this change would be that the normal criminal rules of evidence and procedure would apply. So, the usual police powers of arrest, detention at the police station, investigation and charge would apply. There could be legal aid. The law on bail would also apply. 188. The advantage of changing the procedure like this would be that jurors accused of committing contempt would benefit from rules and procedures which fully protect their right to a fair trial and their right to liberty. On the other hand, this would be a major change from the current procedure, and could make cases more complicated. We ask consultees whether they agree with these changes. 189. However, it may not be appropriate to have a jury trial for these contempts. For example, if jurors themselves do not understand or accept that they are not allowed to undertake research about the case that they are trying, they may be unwilling to convict other jurors for doing this. On the other hand, this concern might be misplaced given that, as mentioned previously, jurors are very supportive of section 8. An alternative to trial by jury would be to use the normal criminal procedure and rules of evidence, but to have the trial with a judge alone, not a jury. Again, we call this a trial “as if on indictment”. 190. This would be a new and unique procedure because no other crimes like this are automatically tried without a jury (some are tried by magistrates only but this is a different procedure). Trial by judge alone could be quicker and cheaper than with a jury. We ask consultees whether they think these juror contempts should be tried by a judge alone (as if on indictment), or by a judge and jury. 191. The maximum punishment for breach of section 8 is a fine or two years in prison. It is odd that the courts cannot sentence someone to community sentence, such as unpaid work. Some people might consider that a prison sentence of up to two years would be regarded as harsh for breach of section 8. This is especially so because the court would have to consider the juror’s right to freedom of 32 expression when deciding on sentence and make sure that the sentence was reasonable. On the other hand, the consequences of committing this contempt could be serious for the public’s confidence in the system of trial by jury. We ask consultees about what the appropriate punishment is for breach of section 8 and would be for the new offence of juror research (if it is adopted). PREVENTATIVE MEASURES 192. We also think that there are other practical steps which could be taken to discourage jurors from misconduct during their jury service. We think that the following should be considered: (1) There should be more teaching in schools about the role and importance of jury service. (2) All jurors should be told clearly, specifically, repeatedly and consistently that they must not undertake research about any matters related to the trial or reveal their deliberations in breach of section 8. Jurors should also be told the reason for this. (3) All jurors should be told that they could go to prison if they do these things. They should also be told how to report misbehaviour by other jurors. (4) These warnings should be in the booklet sent to jurors before they start jury service, in the jury video, in the speech done by court staff, on posters around the court building and on conduct cards which jurors should carry with them to use as a reminder.5 (5) These warnings should be repeated in the instructions given by judges in court. The warning should include examples and be up to date with new technology. Jurors should be reminded about the warning at the end of the every day of the trial. 193. At present, jurors take an oath which we have described above. We consider that the oath should be changed, so that the wording makes clear that the juror is agreeing to the limits imposed by section 8 and that he or she will not conduct research about the case. We ask whether the oath should also be written down, and jurors should sign the oath after they have spoken it out loud. 194. Some people have discussed with us concerns about jurors using internetenabled devices at court. On the one hand, some people thought that preventing jurors from having these devices at court at all times could be an important symbolic change. It would show jurors that they can only consider the evidence they hear in court. It would also reduce the opportunities for jurors to search for information related to their trial or inappropriately to contact friends, family or other people in the case. 195. On the other hand, concerns were raised that removing these devices could be frustrating for jurors. This is particularly because they may spend periods of the 5 This was also suggested by Professor Cheryl Thomas in Are Juries Fair? (Ministry of Justice Research Series 1/10, Feb 2010) p 50. 33 day waiting around whilst other matters are dealt with in court. Jurors who care for other people, such as children or an elderly relative, might also be worried about being out of touch. Removing and returning the devices could also be timeconsuming for court staff. 196. If these devices were removed, this would not stop jurors from accessing the internet or speaking to friends and family at home in the evening and at weekends. We therefore do not think that all internet-enabled devices should automatically be removed from all jurors for the whole day at court. 197. We conclude, however, that sometimes the devices should be removed for short periods. At the moment, it is unclear that court staff or judges have the power to order jurors to hand in their devices. We think that judges should have this power.
198. The standard practice ought to be to prevent jurors having access to these devices in the jury room whilst they are deliberating. It is at this time that jurors are away from the trial judge and may be most tempted to undertake research on the internet in order to fill in gaps in their knowledge.
199. We also think that there may be other circumstances, although they will be rare, where the judge thinks devices should be removed from jurors, not just when they are deliberating. We consider it is best if judges are left to decide when this might be.
200. It is important that jurors can tell someone if they are worried about how another juror has behaved. At the moment, jurors might not know who to tell or might feel intimidated about telling someone, because the group of 12 jurors is usually kept together at all times. Jurors might also be pressured not to tell anyone. We ask whether steps should be taken to make it easier for a juror to tell someone. There could, for example, be drop boxes into which jurors can places notes for the trial judge. These boxes could be put in areas where jurors can access them without their 11 colleagues being around.
201. We also ask consultees whether other preventive measures should be used to try to stop jurors’ misbehaviour, and if so, what those measures should be.
CONTEMPT IN THE FACE OF THE COURT INTRODUCTION 202. Contempt in the face of the court concerns misbehaviour, usually in the courtroom itself, that disrupts or shows disrespect towards the court or challenges the authority of the court. However, there is no precise legal definition of contempt in the face of the court. 203. Examples of contempts in the face of the court include: (1) assaulting anyone in court; (2) insulting the judge in court; (3) throwing a dead rat at the court clerk (a live rat would also count!);1
(4) wearing offensive clothing or not wearing any clothing at all in court; (5) refusing to answer a question when ordered to do so by the judge; and (6) creating a disturbance elsewhere (such as in the corridor outside the courtroom) so that the court hearing is disturbed. 204. There is a lack of clarity about some areas of the law. The behaviour must be deliberate, but it is not clear whether the person accused of the contempt must also have intended to disrupt the court proceedings. For example, they might do something deliberately, but not realise that doing it would disrupt the court. It is not clear whether that would be a contempt. 205. Anyone can be found to have committed a contempt of court. This includes witnesses (for example, if they ignore a witness summons or refuse to answer questions), jurors (for example, if a juror sends someone else to do jury service for them, this will be a contempt), and lawyers (although it is important to protect the accused person’s rights and therefore their lawyer cannot be punished except in extreme circumstances). 206. Our consultation paper only looks at what happens in relation to contempt in the face of the Crown Court and the magistrates’ courts, not in other courts. 207. The court’s response to behaviour which seems to be a contempt will depend on the circumstances in which it occurs. A minor disruption can, of course, be ignored. If it cannot be ignored, the court may simply ask the person to apologise and take no further action. Judges may warn a person not to carry on with their behaviour. A person disrupting a case may be removed from the courtroom, even if that person is the accused.
A Draycott, “Contempt of Magistrates’ Courts” (1983) 147 Justice of the Peace 531, 533.
208. Some kinds of behaviour will amount to ordinary crimes as well as to a contempt of court, for example, if someone hits the judge, this could also be an assault. The court can decide whether to ask that the person be prosecuted for the assault in the normal way or to treat it as a contempt. If the court treats it as a contempt, the court can deal with it itself or can ask the Attorney General to prosecute it as a contempt in the Divisional Court (that is, a court sitting with two senior judges and no jury). The immediate enquiry procedure for dealing with contempt 209. If the court decides to deal with the alleged contempt, and the person accused of committing it admits it, then they can be dealt with by the judge/magistrates straight away. 210. However, if that person does not admit it then there has to be an “enquiry”. This has the same purpose as a trial – to find out whether someone has done what they are accused of – but is called an “enquiry” rather than a trial when it is for contempt in the face of the court. The enquiry happens before the magistrates (in the magistrates’ court) or before the judge without a jury (in the Crown court). 211. Whatever the court decides to do about the contempt, the procedure must protect the right of the person accused to a fair trial. If there is an enquiry, the person’s guilt must be proved beyond reasonable doubt. 212. There is an immediate enquiry procedure – literally holding the hearing there and then to decide whether the person is guilty. This process is rarely adopted these days because the court needs to explain to the person accused of the contempt what they are said to have done and the accused person may want to find and speak to a lawyer. The court also needs to allow the person time to think about their behaviour and to apologise. The immediate enquiry will therefore be a last resort. Usually, the enquiry will be postponed until the accused person has had time to prepare for the enquiry (although in the magistrates’ court the enquiry must take place on the same day as the contempt). 213. It is important that the procedure used by the court to deal with a contempt in its face protects the right to a fair trial. The right to a fair trial requires that: (1) A person accused of contempt be told quickly and in detail what they are accused of doing. (2) The accused person has enough time to prepare their defence, and facilities to do so – for example, access to a lawyer and legal aid to help pay for the lawyer if the person cannot afford it themselves. (3) The trial must be fair and the judge or magistrates must be independent and unbiased. The trial must be within “a reasonable time” so the case cannot drag on for years.
214. So, the risk with the immediate enquiry procedure is that the judge could be the victim of the contempt (if, for example, the contempt involved insulting the judge), the main witness, the prosecutor and the judge of the case, all at once, which would be unfair.
CONTEMPT IN THE FACE OF THE CROWN COURT
215. In the Crown Court, the judge can deal with contempts in the face of his or her court. These are contempts under the common law (that is, judge-made law).
216. It is hard to tell how big a problem contempt in the face of the court is. We carried out a survey of 100 Crown Court judges. 43 responded and those responses referred to only 8 cases of contempt in the face of the Crown Court that had been dealt with in the previous year (see Appendix D on our website). We ask consultees whether they think this is an accurate representation of how frequently cases of contempt in the face of the court come up. 217. It seems to be generally assumed that a judge has the power to order someone who she or he thinks has committed a contempt to be kept in custody. However, that person might have the right to be released on bail whilst waiting for the enquiry to occur. The court should presume a person has the right to liberty and we think that there must be a right to apply for bail. We think that a person can only be denied bail (and therefore kept in custody) if one of the conditions in the Bail Act 1976 applies (for example, if there is a risk the person might flee and not return). 218. The law dealing with the rules of evidence for cases of contempt in the face of the court is also unclear. One aspect of this is hearsay evidence. Normally, the court can only hear evidence from a witness who appears in court in person. Hearsay occurs when evidence is produced in court which is not from the witness who experienced it first-hand. Hearsay rules prevent the court from hearing this evidence, unless certain circumstances apply. It is unclear whether these hearsay rules apply to cases of contempt in the face of the court, although they probably do. 219. The maximum sentence for contempt in the face of the Crown Court is two years in prison or a fine. The court cannot sentence the person to do community sentence, such as unpaid work. 220. A person who has been found guilty of contempt in the face of the Crown Court can appeal against that finding, and/or against the sentence imposed. CONTEMPT IN THE FACE OF THE MAGISTRATES’ COURTS 221. The powers of magistrates’ courts to deal with contempt are contained in section 12 of the Contempt of Court Act 1981. Section 12 allows the magistrates to prosecute for contempt anyone who deliberately insults anyone at the court, who deliberately interrupts the proceedings or who misbehaves in court. This section does not include the power to deal with anyone who threatens another person at court. 222. The magistrates’ court can sentence a person who has committed a contempt to prison for up to one month or to a fine. 223. Again, it is hard to know the scale of the problem of contempt in the face of the court. We carried out a survey of 145 judges who sit in the magistrates’ court. 52 replied and 31 of them said that they had dealt with at least one instance of contempt in the face of the court in the last year (see Appendix D on our website). We ask consultees whether they think this is an accurate estimate of how frequently cases of contempt in the face of the court arise. 224. The procedure for dealing with contempt in the magistrates’ court is very similar to that in the Crown Court. However, the magistrates cannot postpone the case beyond the day that the contempt occurred so, for example, they would not be able to delay the hearing until the next day or the next week. 225. As with the position of the Crown Court, it is not clear whether an accused person has a right to bail. A person can be held in custody by the magistrates’ court but not beyond the end of the day (that is, not overnight). Under human rights law, in order to keep someone in custody, and remove their right to liberty, there must be a procedure in place which is set by the law. If the bail position is unclear, it may be that the law does not comply with this requirement. 226. A person who is found guilty of contempt in the face of the magistrates’ court can appeal against the finding of contempt and/or against the sentence.
MAIN PROBLEMS
227. In summary, the main problems with the law in this area are as follows:
(1) It is unclear what behaviour will count as a contempt in the face of the court. For example, it is unclear whether the contempt always has to be deliberate.
(2) It is odd that section 12 does not include powers to deal with a person threatening anyone in the courtroom as a contempt in the face of the court, given that it does include powers to deal with insults and interruptions.
(3) Contempt in the face of the court is dealt with differently by different courts. So, there is inconsistency – for example, section 12 only applies in the magistrates’ court, not in the Crown Court, where the common law applies.
(4) Some forms of contempt are also ordinary crimes (for example, assaulting someone in the courtroom would be both the crime of assault and a contempt). Prosecuting this as an ordinary crime might be better as it would involve using the normal criminal procedure. This would properly protect the accused person’s rights. That said, letting the court deal with the case itself can be quicker and more flexible and shows the court’s authority.
(5) It is unclear how the right to liberty is protected and what the law on bail is for someone accused of contempt.
(6) In the magistrates’ courts there is no power to postpone the contempt hearing beyond that same court day.
(7) It is not clear which rules of evidence apply to a contempt hearing.
(8) The sentence is limited to prison or a fine with no community sentence, such as unpaid work, available. It is unclear whether the magistrates can impose a suspended prison sentence.
(9) Under the current law if there is a risk that the trial might not seem fair, the court should postpone the hearing, and let another judge or panel of magistrates hear the case. The fact that the magistrates cannot postpone a case beyond the end of the day therefore presents a problem if there is no other panel available that same day to deal with the contempt.
PROVISIONAL PROPOSALS FOR REFORM
228. We ask consultees about 3 different options for changing the law in this area:
(1) Leave the law as it is;
(2) Create a new power for dealing with contempt in the face of the Crown Court that is similar to the section 12 power in the magistrates’ court. This would make the law more consistent.
(3) Abolish the current rules relating to how contempt in the face is dealt with in both the Crown Court and the magistrates’ courts and have one new power for both courts which is clearer than section 12 currently is. This would also make the law consistent. We propose that this new law would give the courts the power to deal with deliberate threats or insults to people in the court or nearby, and misconduct in the court or nearby, committed with the aim that a court case will or might be disrupted.
Crown Court
229. We also think that if a person accused of contempt is held in custody by the court, it should be clear that they have certain rights. These rights would be similar to if someone was arrested by the police and taken to the police station. So, the person would be able to tell a member of the family or a friend that they are in custody (this might be particularly important if, for example, the person in custody has children that need looking after). We also think that the law could be clearer that the person has the right to speak to a lawyer.
230. Under the current law, the person in custody who has been accused of the contempt has to be brought back to court to review the case on the “next business day”. But when there are weekends and bank holidays, the next business day for the court could be three or four or even five days away. This is too long for a person to be in custody without the court thinking again about the case and whether the person should have bail. After all, at this stage, the person has only been accused of the contempt. They have not been tried or found guilty. The person might be innocent – for example, it could be a case of mistaken identity.
231. Because of this, the person’s detention should be reviewed at the end of the day when they were first held in custody. The right to bail should apply, under the Bail Act 1976, in the same way as it does for ordinary criminal offences. This would mean that the person would be granted conditional or unconditional bail, unless one of reasons under the Bail Act allowed them to be kept in custody (for example, the court thinks that the person would carry on disobeying the court or disrupting the court proceedings).
232. The maximum penalty in the Crown Court under the current law is two years’ in prison. The maximum penalty in the magistrates’ courts is one month in prison. This is a significant difference. We doubt that many cases would be so bad that they deserve two years in prison. So, we ask consultees whether the maximum sentence should be reduced.
233. We also ask consultees whether the law should say clearly that the normal criminal hearsay rules apply to contempt in the face of the court. We also ask whether some other criminal rules and procedures (for example, other rules about evidence) should be applied to an enquiry for a contempt in the face of the court.
234. The need for some of these reforms is clear from the following example, Mr White is due to be sentenced on Friday for committing a crime. His mother, Mrs White, goes to court with him. Mr White’s lawyer thinks he will probably get a community sentence of unpaid work as he has not committed a crime before but Mrs White is very worried that her son will be sent to prison. Mr White has a young daughter, Jane, who Mrs White will have to look after if he is sent to prison. Mrs White spends hours at court waiting for the case to start, and by the time it does she is even more anxious than before. The judge sentences Mr White to six months in prison. Mr and Mrs White are both very distressed – they worry about what will happen to Mr White in prison and how Jane will cope without him. In the heat of the moment, Mrs White stands up in court and shouts abuse at the judge. The judge tells Mrs White to go outside and calm down. Mrs White leave the room The next case in the courtroom starts but Mrs White comes back – she is still very distressed and starts shouting abuse at the judge and the lawyers this time. The judge orders Mrs White to be taken into custody. She is taken by one of the custody officers down to the cells where she is locked in. Mrs White has never been in trouble before. She is terribly worried about Jane. She does not know when she will be released and she was planning to collect Jane from school at 4pm. There is no-one to look after Jane over the weekend. She does not know whether she will be entitled to bail or what will happen next. Under the current law, the court reviews Mrs White’s detention the next business day, which is Monday. She spends the weekend in prison. Mrs White would not have the right to make a phone call to find out about Jane, although the custody officer might allow her to make a call. Under our proposed reform, when Mrs White is taken into custody on Friday, the law would say that she has the right to a phone call. Mrs White’s sister is called and arrangements are made for her to pick up Jane from school and care for her for the weekend. The law would also be clear that Mrs White has the right to speak to a lawyer and the custody officer calls one, who comes to the cells and speaks in 40 private to Mrs White. She explains what happened and the lawyer gives her advice. At 4.30pm on Friday, Mrs White is brought back into court before a different judge because the other judge was the victim of the contempt and it would be unfair for him to be the judge in Mrs White’s case. Mrs White’s lawyer applies for bail, explaining to the court that Mrs White has never been in trouble before and that she will agree to live at her address so that the police can check on her if needs be. The court agrees to bail Mrs White, on the condition that she comes back to court the week after to deal with the contempt. Mrs White is freed from court at 6pm. Magistrates’ courts
235. Unlike the Crown Court, the magistrates’ courts do not currently have power to impose a suspended prison sentence – that is, a sentence where the person does not go to prison unless they commit another crime in future. We think that the magistrates’ court should have this power.
236. Under the current law, magistrates cannot postpone a case of contempt beyond the end of that court day. This causes obvious problems. For example, what if, 10 minutes before the court day is due to finish, someone throws something at the magistrates and hits them? The court will either have to try to case instantly, there and then, or the court will have to let the person go.
237. So, the magistrates should be allowed to postpone the case to another day (and another court). This could be important where the case might need to be tried by a different panel of magistrates or a judge in order to make the hearing fair. If the magistrates had this power, they might also have to review the position of someone in custody, or they might have to release that person on bail. 238. We also ask consultees whether there should be more detailed instructions to courts about when to pass the case to a different court.
238. We also ask consultees whether there should be more detailed instructions to courts about when to pass the case to a different court.
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