Dhooharika v DPP
| Jurisdiction | UK Non-devolved |
| Judge | Lord Clarke |
| Judgment Date | 16 April 2014 |
| Neutral Citation | [2014] UKPC 11 |
| Date | 16 April 2014 |
| Docket Number | Appeal No 0058 of 2012 |
| Court | Privy Council |
[2014] UKPC 11
Privy Council
Lady Hale
Lord Kerr
Lord Clarke
Lord Wilson
Lord Hodge
Appeal No 0058 of 2012
Appellant
Geoffrey Robertson QC Anya Proops Roshi Bhadain
(Instructed by HowardKennedyFsi LLP)
Respondent
Geoffrey Cox QC Rashid Ahmine Faisal Saifee
(Instructed by Royds Solicitor)
Intervener (Commonwealth Lawyers' Association)
James Guthrie QC Sarah Crowther
(Instructed by Charles Russell LLP)
Heard on 10 and 11 February 2014
This appeal centres on the existence and scope of a criminal offence known as scandalising the court or, in Scotland, murmuring judges. It originated as a common law offence in England and Wales but the last successful prosecution was R v Colsey, The Times, May 9, 1931. It was abolished, as from 25 June 2013, by section 33 of the Crime and Courts Act 2013, which provides:
"33(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.
(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court".
The offence has, however, been acknowledged in recent years as still existing in a number of Commonwealth countries and, indeed, in Mauritius. The first question for decision in this appeal, as formulated in the Statement of Facts and Issues, is whether the offence still exists in Mauritius in the light of section 12 of the Constitution of Mauritius. If it does, the second question is what are the ingredients of the offence, the third question is whether the court refused to allow the appellant to give evidence and, if so, whether his trial was unfair as a result and the fourth question, which relates to the third, is whether the appellant was properly convicted of the offence. Finally, the fifth question is whether the appellant should have been sentenced to an immediate term of imprisonment having regard to all the circumstances of the case, including, in particular, the failure to invite the appellant to make submissions in mitigation.
The appellant is, or was in 2011, a journalist and the editor-in-chief of a French language weekly newspaper published in Mauritius called Samedi Plus. On 17 October 2011, the appellant and Contact Press Ltd, which is the owner and publisher of Samedi Plus, were convicted by the Supreme Court (Matadeen SPJ and Caunhye J) of contempt by way of "scandalising the court" and sentenced to three months' imprisonment and a fine of R300,000 respectively. Only the appellant sought leave to appeal to the Board. On 10 May 2012 the Supreme Court (Matadeen SPJ and Angoh J) refused special leave to appeal to the Board but the Board subsequently granted leave, whereafter the Supreme Court stayed execution of the sentence pending the decision of the Board.
The prosecution arose out of the publication of Samedi Plus on Saturday 14 August 2010 in which several pages were given over to allegations against the Chief Justice of Mauritius at that time, Bernard Sik Yuen. It was said that they amounted to the crime of scandalising the court, which is a form of contempt of court.
The publications complained of arose out of hearings before the Chief Justice in the case of Paradise Rentals Co Ltd v Barclays Leasing Co Ltd ("the Paradise Rentals action"), in which Paradise Rentals, a car hire company, was being sued by Barclays Leasing, which claimed the return of many vehicles it had leased to Paradise Rentals. Hamuth J had ordered that the cars be seized. Hearings took place in chambers before the Chief Justice, on 5, 19, 26 and 30 July 2010. At the first hearing, on 5 July, the Chief Justice refused leave for Mr Dev Hurnam, who was a disbarred barrister and a director of Paradise Rentals, to represent the company. On 27 July, Mr Hurnam wrote a letter to the President of Mauritius complaining about the Chief Justice's actions and requesting him to set up a tribunal to investigate the Chief Justice's conduct. Mr Hurnam sent copies of the letter to the Mauritian media and held a press conference criticising the Chief Justice. On 11 August the President replied saying that he found no merit in Mr Hurnam's complaints. He thus refused to set up a tribunal. On 13 August Mr Hurnam lodged a motion seeking to have the Chief Justice committed for contempt. He spoke to several organs of the media, alleging, inter alia, that the Chief Justice had acted wrongfully and beyond his powers by hearing the case in chambers and that he was biased. Mr Hurnam gave a long and live national radio interview on Radio One making these allegations. No action was taken against the radio broadcaster in respect of the interview.
The Board notes that Mr Hurnam is well known both to the courts and to the public in Mauritius. He had been struck off the roll of barristers in 2008 when the Board restored his conviction for conspiring to hinder a police investigation: DPP v Hurnam [2007] UKPC 24. He is a former member of the National Assembly.
The appellant also interviewed Mr Hurnam and on 14 August 2010 Samedi Plus published an extensive account of that interview under the title "Barclays Leasing Scandal". On the front page it published a photograph of the Chief Justice beside a headline which declared "Dev Hurnam réclame la prison pour le chef juge". Underneath it was said "Il réclame un ordre judiciaire 'Committing Bernard Sik Yuen to jail' pour outrage à la cour" and "'Yuen doit se retirer comme chef juge', soutient Dev Hurnam."
On pages 4–5 of the newspaper, under the same headline, there was an article written by the appellant reporting that Mr Hurnam had lodged a motion in the Supreme Court for the committal of the Chief Justice for contempt of court. That article purported to set out some of the history of the proceedings in the Paradise Rentals action. It detailed Mr Hurnam's allegation that the Chief Justice had made remarks in chambers that were intended to prejudge the issues in the action. It reported the allegation thus. "Il accuse Bernard Sik Yuen d'avoir influencé la conduite d'un litigant". The article added that Mr Hurnam was also asking the Supreme Court to set aside a ruling of the Chief Justice refusing him leave, as its director and authorised representative, to appear to represent Paradise Rentals in the action. The article further asserted that Mr Hurnam was seeking a declaration that the Chief Justice had influenced "other jurisdictions" of the Supreme Court, which were to hear two related appeals.
The grounds on which Mr Hurnam said that he considered the Chief Justice to be in contempt of court were further set out in two more articles in the same edition. The first was a piece appearing on page 5 under the headline: "Le Chef Juge aurait agi en 'excess' de sa jurisdiction". It was reported that at the hearing on 26 July 2010 counsel for Barclays Leasing had complained that, as of that date, 46 cars had not been returned to Barclays Leasing pursuant to an existing order of the court and that since 5 July no vehicle had been returned. He had sought clarification from the attorney, Mr Moutia, who was by then appearing on behalf of Paradise Rentals. Mr Moutia had responded that he did not have any instructions in the matter. The Chief Justice enquired of Mr Moutia who was instructing him, to which the latter responded that, apart from Mr Hurnam, he was not aware who was instructing him. There was then reported an exchange between Mr Moutia and the Chief Justice in which the latter had directed that, at the next hearing, there should be produced a duly certified statement from the Registrar of Companies identifying all of the directors of Paradise Rentals and that the directors should appear before him. The Chief Justice was reported as observing:
"let it be made clear that I am not granting any injunction prayed for by the applicant which would hamper any judicial process pending before any jurisdiction for the moment. So all other jurisdictions have got free hands. That is clear."
Mr Hurnam took objection to those remarks.
In an interview with the appellant summarised on page 18 of the same edition of Samedi Plus, Mr Hurnam was reported as having made the following comments in response to various questions he was asked: (i) that the Chief Justice had committed "multiple abuses and non-respect for constitutional rights"; (ii) that there was a case for contempt based on the manner in which the Chief Justice handled the Paradise Rentals case and on the statements he made in court quoted above; (iii) that by making the statements, he had committed a contempt of court because, in Mr Hurnam's opinion, he "influenced subsequent decisions which would be taken by the competent courts"; (iv) that the Chief Justice had demonstrated partiality to Barclays Leasing and that in consequence Mr Hurnam was asking the President to constitute a tribunal to investigate the Chief Justice's "misbehaviour" and, in the meantime, had requested the removal of the Chief Justice; (v) that the investigation should examine the "abuse of authority by the Chief Justice while he was conducting chambers business", that he had "demonstrated his complete partiality in the record (of that hearing)", that he had "sent a bad signal to other jurisdictions where other cases are pending and that, even though the Chief Justice had no jurisdiction, he put himself in the position of the Supreme Court"; (vi) that "the Chief Justice had held on to the case instead of taking the normal course of transferring it to the Master and Registrar and, in doing...
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