by Teo Soh Lung

The offence of Scandalising the Court dates back to 1765 in England. However, since 1931, this offence has not been successfully prosecuted in England and Wales. Though such prosecutions were rare in England, it appears to gain some notoriety in former colonies.

In 2008, three people were prosecuted and convicted in the Singapore High Court for wearing t-shirts depicting a kangaroo (?) in a black robe. Apparently, journalists found the picture on the t-shirts interesting and photographed the trio outside the courthouse. A photograph of the men appeared in our national newspapers. They were subsequently prosecuted and jailed.

It remains uncertain if the trio would have faced prosecution had the newspapers not published their photograph!

In 2010 British author, Alan Shadrake, aged 76 was found guilty of contempt of court for 11 of 14 statements in his book about the death penalty “Once a Jolly Hangman”. He was sentenced to six weeks’ imprisonment and fined S$20,000 (in default of which, an additional two weeks’ imprisonment).

Shadrake’s appeal was unsuccessful. He spent eight weeks in prison and was deported from Singapore upon his release.

Five years later, in 2015, a brilliant and cautious blogger, Alex Au of Yawning Bread was prosecuted for two counts of contempt of court and convicted of one. He was fined $8,000. His article “377 wheels come off Supreme Court’s best-laid plans” was held to have implied partiality on the part of Chief Justice Sundaresh Menon in the scheduling of two separate challenges to strike down Section 377A of the Penal Code. The section criminalises sex between men.

Au’s appeal against his conviction failed.

In 2018, five administrators of a Facebook group apologised for a doctored headline which allegedly “impugned the impartiality and integrity of the Court of Appeal” (The Straits Times, 14 Feb 2018). The apology which was posted on their Facebook in both Chinese and English read: “We, as administrators and moderators apologise for scandalising the Court of Appeal by causing the publication of the 2 February 2018 Facebook post …”

In May this year, social worker, Jolovan Wham and John Tan (who was earlier convicted in the Kangaroo t-shirt trial) received summonses for scandalising the judiciary.

Unlike the five Facebook administrators, they were not given an opportunity to apologise. Their cases are set for hearing this month in the High Court.

While the attorney general continues to be vigilant, the country which gave us this 300-year-old law had soon after the Alan Shadrake’s case, taken a very different view on this deferential attitude towards their judiciary. In 2012, the attempted prosecution of Labour MP Peter Hain provoked a lively debate as to whether the offence of scandalising the court was in breach of Article 10 of the European Convention on Human Rights, which protects free expression.”

Peter Hain had criticised Lord Justice Girvan’s handling of a judicial review application in his memoir, describing the judge as “off his rocker”.

A private bill was tabled to abolish the crime of scandalising the court. The move was apparently also a response to the continued prosecution of such offences in England’s former colonies, where the authors said: “Abolition was also important because of the danger these offences still pose to freedom of speech, debate and criticism in countries of the former British Empire”.

The private bill was withdrawn when the UK government appointed the Law Commission to study the bill. The crime of scandalising the court was finally abolished in 2013.

Retaining this 300 year old law and giving it more teeth than ever before, the Singapore government presented the Administration of Justice (Protection) Bill to parliament in 2016. It was passed into law and came into effect on 1 October 2017.

The offence of scandalising the court now carries a hefty fine of not exceeding $100,000 or imprisonment not exceeding 3 years or both.

Mind your words! Enjoy blogging but be careful! The attorney general is eternally vigilant! Listen to Dr Kevin Tan in Function 8’s event “Judging the Judiciary – The Unsaid and the Unsayable” on Saturday, 14 July 2018. There will be a Q & A session moderated by Dr Thum Ping Tjin following the lecture. Register at [email protected].

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