Is the sub-judice rule dead?
An ancient Roman law prevents press discussion of pending court cases. Isn’t that against freedom of speech? Against a free press? Is it a shield, or a sword, by which criticism against judicial idiosyncrasies is silenced? Why should we be bound by it? Is this law dead – or dying? Read on ….
The English judges borrowed the law of sub-judice from the Romans.
It means ‘under the judge’.
Once a legal dispute is handed over to a judge, no one can comment on it. If someone did, he could be punished for contempt. Even the Commonwealth parliaments chose to follow this rule.1 The Parliamentary Sub-Judice Convention and the Media’ (or ‘The Wells of Jusitice, Parliamentary Poison and the Wicked Witch of the Press’ UNSW Vol.19(2) p. 303
Why do courts need contempt of court?
This has to do with power structures, and how the courts view themselves, and their power.
Their perception is born of history, and one word – ‘tradition’.
It brings to mind a song sung by an old friend, and a Shakespearean actor, Vinodhan Sankaran Nair. He could sing the song ‘Tradition’ without missing a single note.[See here]. It was from the 1971 musical comedy-drama, ‘Fiddler on the Roof’, where Topol excels.2 Composed by Jerry Bock, lyrics by Sheldon Harnick, and screenplay by Joseph Stein and based on stories by Sholem Aleichem. Starring Topol, Norma Crane, Leonard Frey, Molly Picon, and Paul Mann. The film centers on the character Tevye, a father of five children, who struggles to preserve his Jewish traditions
What has tradition got to do with courts?
Everything. Tradition gives them power.
How courts – and their unquestionable power – were born
In ancient days, the king was ‘the fountain of justice’.3 ‘By the Constitution, the King is the fountain of every species of Justice, which is administered in the kingdom. The King is to ‘de jure’ distribute justice to all his subjects; and because he cannot do it himself to all persons, he delegates his power to judges who have the custody and guard of the King’s oath and sit in the seat of the King ‘concerning his justice’: R v Almon (1765) WILM 243, 255, 97 Eng.Rep.94,99
He heard legal disputes personally.
For centuries, courts have incarnated a royal, ‘authoritarian’ version of power
Busy with affairs of state, the king eventually delegated his powers to them.
Judges personified the authority of the king.4Schneebaum, Galia and Lavi, Shai, ‘The Riddle of Sub-Judice and the Modern Law of Contempt’, (December 1, 2014). Critical Analysis of Law (2015).
They ‘[sat] in the seat of the King ‘concerning his justice’. 5Ibid, per Wimot J, King’s Bench, in R v Almon (1765) WILM 243, 255, 97 Eng.Rep.94,99 It is obvious to this day.
They sit on an elevated, throne-like bench, and are addressed with a royal honorific. They dress in ancient, elaborate vestments, designed to awe.6David A. Anderson, ‘Democracy and the Demystification of Courts’, cited by Schneenbaum and Lavi at p. 174
They discharge their duties in a ‘court’.
Being thus embodiments of the King, the judges and courts were beyond reproach or attack.7So the concept sub-judice, which is punished by contempt of court – was seen as a legal doctrine that ‘simultaneously celebrates the authority of the courts and punishes those who dare defy it.’ Anderson, p. 174
Can you see the ‘royal’ connection now?
To this day, judges are appointed by the leader of the nation. They are not elected.8Max Weber, ‘Economy and Society: (Guenther Roth and Clause Wittich (1978)
The question is, has the process of their appointment changed after the intervention of democracy? No. Save in the U.S, across the western world and the Commonwealth, there is no public participation in how judges are appointed. Institutionally, they are answerable to no one. There are sparse benefits and many pitfalls in continuing with this royal tradition.
For centuries, the courts have inculcated a ‘traditional, authoritarian’ version of power.9 See, e.g., Robert Paul Wolff, In Defense of Anarchism (1970); Mark E. Warren, Deliberative Democracy and Authority, 90 Am. Pol. Sci. Rev. 46 (1996).
Why was sub-judice born?
The availability of education to the masses from the 16th to the 19th century, the development of the printing press, and the increasing need of society to question its rulers – their combined effect resulted in the sub-judice rule.
The courts developed contempt of court as a shield to protect themselves and to wield it as a weapon.10In 1769, William Blackstone records its use in protecting the King and his judges in his ‘Commentaries on the Laws of England’, Chapter IX, ‘Of Misprisons and condemnations, affecting the King and the Government’, p.125 (1769) By the third century, the English common law recognised the existence of the law of contempt of court.11John C. Fox, ‘The History of Contempt of Court’ (1927).
Free Speech and the Greeks
Around BCE 400 a Greek playwright and satirist, Euripides, recorded a famous statement.
‘This is true liberty, when freeborn men, having to advise the public, may speak freely.’12Suppliant Women (II, 436-441)
More than 1,200 years later, when John Milton opposed the censorship of the press, he relied on Euripides.13Milton, ‘Areopagitica’
The common law tradition of Individual Liberties – a fortuitous misinterpretation
Some historians trace the common law tradition of individual liberties to 1215, to the Magna Carta (The Great Charter).
This view is incorrect.
The Magna Carta did not guarantee individual rights of the commoner.
It gave some freedom to aristocrats.
But this fortuitous misinterpretation had a profound effect on the founding fathers of the United States as they formulated the Declaration of Independence (244 years ago) and the US Constitution in 1787.14 ‘Free Speech and the Magna Carta’, Wright, Robin, The New Yorker, January 14, 2015
‘Open Marketplace of Ideas’
In 1844, John Milton opposed press censorship. In Milton’s time, any criticism against the government or the King was a crime.
He argued that every individual should have unlimited access to other men’s ideas in ‘a free and open encounter’.
When people publicly expressed opposing arguments – argued Milton – good arguments always prevailed.
This became known as the ‘open marketplace of ideas’.
It was not any better in Britain’s American colonies. The first recorded case of an attack against the press in American soil occurred in 1734.
John Peter Zenger, a reporter in the New York Weekly Journal, published a satirical article against William Cosby, an oppressive colonial governor.15In 1734, Cosby quarrelled with the council of the colony. He demanded a higher salary. He did not get it. When courts disagreed with him, he fired the Chief Justice.
In anger, Colby charged him for criminal libel.
The jury acquitted him.16Alison Olson, ‘The Zenger case revisited: Satire, Sedition and Political Debate in Eighteenth-Century America, Early American literature, volume 35.3 (2000), pp.223-245
Stuart Mill advocates Freedom of Expression
Mill argued that there was nothing more important for the well-being of society than the individual’s freedom of expression.
‘If an opinion is silenced’, said Mill, ‘the truth is silenced.’17 1869,‘On Liberty’
We may take a leaf from his book.
‘You cannot be a judge in your own cause’
The courts have long held up the natural justice ideal that ‘no-one should be a judge in his own cause’.18In Latin, ‘Nemo judex in causa sua’ (or ‘nemo judex in sua causa’)
But when it came to any attack on their own authority, the courts descended into the arena of conflict, and were prepared to directly punish detractors.
This did not sit well with libertarians.
These powers of the court seemed to violate the freedom of speech and the liberty of free press.
So the offence of contempt in general, and sub-judice in particular, came under attack.
The courts’ changing justifications for the sub-judice rule
Depending on how you look at it, the justifications that courts gave for the existence of sub-judice soon became a jangle of mismatched reasoning.
We can see how this shape-shifting occurred by how the courts decided the cases that were brought before them.
A soldier’s wife and ‘publications that prejudice the mind of the public’
The first case that tried to explain why sub-judice was necessary was the 1742 case of Roach v. Garvan.19 (1742) 2 Atk. 469; Eng. Rep. 683
A soldier’s wife sued the administrators of her husband’s estate, claiming for certain benefits.
During the trial, two newspapers accused the executors and other witnesses of perjury.
Lord Chancellor Hardwicke ruled the newspaper had ‘prejudiced the mind of the public against persons in the case’.20Schneenbaum & Lavi: ‘The Riddle of Sub-Judice and the Modern Law of Contempt’ How did Hardwicke know that? He could only have been guessing!
He did not explain how the mind of the public had been affected, and why that did – or might – result in injustice.
For more than 200 years, courts quoted him, until his reasoning became canonical. 21Schneenbaum & Lavi: ‘The Riddle of Sub-Judice and the Modern Law of Contempt’, p. 186
‘Obstruction of Justice’
One of the main arguments the judges came up with was that media publications might ‘obstruct justice’.
The question was, who were the targets of such attacks?
According to Hardwicke, it was the mind of the public that was crucial.
If so, what happens in the mind of a judge should be irrelevant.
Did the judges accept that? The answer came in the year 1900.
A Darling is offended
Judge Charles Darling was ‘a notoriously bad judge’.22 Graeme Williams QC, ‘A Short Book of Bad Judges’ 2013, p. 34. He was also loquacious, intemperate, and a bully.
He was both short in stature – and in the law. That would figure prominently.
One Wells was charged before him for publishing obscene material.
Before the trial began, Darling lectured the reporters.
He demanded – but did not order – that the press should not publish the material disclosed at trial.
If they did, he threatened that he would make it ‘his business’ to punish them.
This he was not empowered to do – that was the job for the AG.
Gray was the editor of a newspaper. He wrote a piece referring to Darling J’s warning to the press in this ‘masterpiece of an invective’ the very next day. It was entitled, ‘A Defender of Decency’:
‘His diminutive lordship positively glowed with judicial self-consciousness. No newspaper can exist except on its merits – a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the imprudent little man on horsehair, a microcosm of conceit and empty-headedness… Mr Justice Darling would do well to master the duties of his own profession before undertaking the regulation of another’.
He was convicted of contempt. Gray made a grovelling apology, and was, afterwards, fined.
The Court of Appeal said it was a ‘scurrilous attack on a judge’.23R v. Gray [1900-1903] 56 [Reprint] at 58 Thus the courts had imported ‘scandalising the court’ into their application of the sub-judice rule.
That knee-jerk attitude would change. By this time, the US courts had made great strides in civil liberties.
Publications had to exhibit ‘clear and present danger’
Remember Tom Clancy’s spy story of the same name? It came from an old case.
In 1919, the US Supreme Court had ruled that to pose a threat to the ‘due administration of justice’, an article had to exhibit ‘clear and present danger’.24Schenk v. United States 249 US 47 (1919). [See also C.J. Miller, ‘Contempt of Court’ (3d ed. 2000)]. Miller described the rationale of contempt of court offences as protecting ‘the due administration of justice from wrongful interference’. See also, Ibid – Schneenbaum & Lavi: p.177, para 1
A labour leader threatens the US Secretary of Labour
In 1941, one Harry Bridges was an influential US labour leader.
At that time, a labour case was being heard by a court in Los Angeles.
When he learnt of it, Bridges sent a telegram to the US Secretary of Labour. He threatened that his union would go on strike if the Superior Court made any unfavourable ruling against the union.
This was published in various newspapers.
Bridges and the newspaper editors were convicted for ‘attacking the integrity of the judicial process’.
He complained to the US Supreme Court that his right of free speech25The First Amendment to the U.S. Constitution states: ‘Congress shall make no law … prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; ….’ had been violated. The Supreme Court set aside the conviction.26 Bridges v. California, 314 U.S. 252 (1941)
The Court said the article and telegram had only ‘a negligible effect’ on the case. They were neither ‘serious’ nor ‘substantial’ and posed no danger to the administration of justice.
How far could a person question a court? Ambard in the Caribbean
In 1936, a Caribbean editor questioned why courts had imposed starkly contrasting sentences on two identical crimes, committed under similar circumstances.
Committed for contempt, he appealed to the Privy Council. It acquitted him.27 Ambard v. AG of Trinidad and Tobago.  AC 322, 355 (PC)
Lord Atkin quoted another judge, Lord Morris. In an 1899 case, Morris had accepted that ‘the path to criticism is a public way: the wrong-headed are permitted to err therein.’ 28 McLeod v. St. Aubyn  A. C. 549 29 In 1968, Lord Denning would be similarly lenient to Quintin Hogg,[later Lord High Chancellor] then editor of the Punch Magazine. Hogg had attacked the judges of the Court of Appeal. He asked the judges, especially Denning, ‘to put up or shut up’. Denning refused to cite Hogg for contempt: R v. Metropolitan Police Commissioner ex p. Blackburn [No.2] 2 QB 150 CA
Anyone could criticise a court in good faith. Atkin said that the public could not ‘impute improper motives to judges’.
This ran counter to a 1913 House of Lords case.
A momentous declaration for transparency – in a divorce case!
In Scott v. Scott, Lord Diplock had conceded that judges were subject to transparency.30 Scott v. Scott  AC 417
Lord Diplock in the Scott case acknowledged that to ‘safeguard against judicial arbitrariness or idiosyncrasy’, and ‘maintain the public confidence in the administration of justice’ [the work of the court] ‘cannot be hidden from the public ear and eye’.31 Ibid.
That was a momentous declaration.
Official Secrets, National Interest and Leveller
This line of cases continued until 1979, when two journalists were charged with offences under the Official Secrets Act.
The trial had just begun. The name of a prosecution witness was ‘Colonel B’.
For reasons of national security, the court ordered his full name to be withheld.
The defendants published it as part of their campaign of protest against the OSA.
The men were said to have ‘deliberately flouted the court’s intention’.
‘It is justice that is flouted, not the judge or the court…’
Lord Diplock ruled that in the offence of ‘interference with the due administration of justice’,
‘[It] is justice itself that is flouted by contempt of court, not the individual court or the judge who is attempting to administer it’.32AG v. Leveller Magazine Ltd.,  AC 440, 449,  1 All ER 745, 749 (HL)
This was a departure from the way the courts had previously looked at sub-judice.
Are Publications which influence ‘key participants’ to a case ‘unfair’?
At one point, courts had argued that if a publication influences ‘key participants’ – for example juries, witnesses or even parties – it created risks in ‘the fairness of the judicial process’.33 Michael Chesterman, ‘Contempt: In the Common Law, but Not the Civil Law’, 46 International & Comp. L.Q. 521, 536 (1997) at p.536; also Schneenbaum & Lavi: ‘The Riddle of Sub judice and the Modern Law of Contempt’ p.181, para 1
The Shipwrecked Prodigal Son
Thus, in 1867, a ship-wrecked man turned up in England. He filed a suit, asking to be recognised as an heir to his father’s estate. His mother tearfully affirmed his identity, as did other independent witnesses.
Mostyn, an editor, published an article that the prodigal son’s claims and any evidence which future witnesses may give in his favour, ‘were false, absurd and worthless’.
The court held that he had ‘perverted the course of justice’. He was said to have ‘deterred witnesses from coming forward because they would expose themselves to criticism’. He was found guilty.34Tichborne v. Mostyn , July 18, reported in Daw v. Eley  RPC 116
A Defence lawyer writes to the press
Similarly, in 1961, a company, Messrs. Dow, won a government contract for the manufacture of ammunition cartridges for guns.
It then sued the defendant for infringing its patent. The central issue before the court was whether the plaintiff’s invention was sufficiently ‘novel’. The defendant argued that there was nothing ‘novel’ about the plaintiff’s cartridge.
The newspapers picked it up. A public discussion arose.
The defendant’s solicitor, under an assumed name, wrote to the newspapers.
Participating in the discussions, he stated facts tending to disprove the novelty of the invention.
The court convicted the solicitor for ‘diverting the course of justice and influencing the result of the suit’.
Lord Romilly ruled that, ‘The minds of the public should not be prejudiced before the court delivers its judgement.’ Mostyn was convicted.35Daw v. Eley  RPC 116
This was a regression to Hardwicke’s principle way back in 1742.
However, in some situations, this rule seemed justified.
A Blackmailer’s secret – A Foot in the mouth
In 1975, one Jonie Jones supplied prostitutes to two men, ‘Y’ and ‘Z’. She blackmailed them. She was charged with blackmail. The judge ordered the names of the victims to be referred to only by their initials.
It stood to reason. To publish their names would be to achieve the very result the blackmailer desired.
One Mr. Foot, an editor, got wind of the case, and published the names of the victims. He was committed for contempt.36R v. Socialist Worker Printers and Publishers Ltd & Anor, ex. P. Attorney-General  1 All ER 142
Widgery CJ thought that ‘the due administration of justice had been prejudiced’, because the witnesses had been prejudiced.37For the proposition that a witness could not be punished for speaking the truth, Widgery CJ cited Attorney-General v. Butterworth  3 All ER 326, [ 1 QB 696 in support of his ruling. There, a witness who had spoken with his conscience was thrown out of his union. Denning ruled that a witness cannot be threatened before, and be punished afterwards, for speaking in court with his conscience. The judge thought the doors of justice would be closed if witnesses could be ‘deterred’ in this way, citing Lord Langdale in Littler v. Thomson (1839) 2 Beav 129. He said that the court would always preserve the integrity of the witnesses. Foot’s conduct had been ‘in defiance of the order and in blatant affront to the authority of the court’. Widgery also relied on Moore v. Clerk of Assize, Bristol  1 All ER 58,  1 WLR 1669
Widgery also said that Foot’s conduct had been ‘in defiance of the order and in blatant affront to the authority of the court’.
So, unlike what the House of Lords had religiously declared in the Levellers’ case, the court was still interested in preserving its own authority.
You will note the subtle change of the sub-judice test, yet again.
The sexual abuse of little boys in Canada
Canadian courts were quick to disapprove any notions of ‘protecting judicial authority’.
In Ontario, there was a Catholic religious order. Some members of it were charged with sexually abusing young boys.
While the cases were part-way through a trial, a television station, CBC, broadcast a fictional mini-series. It was entitled, ‘The boys of St Vincent’. It portrayed a fictional account of sexual and physical abuse of children in another state.
The accused, including Dagenais, applied to restrain CBC, and ban the programme. The trial court banned the TV series.
On appeal, the Canadian Supreme Court reversed the ban.38Dagenais v. Canadian Broadcasting Corporation (1994) 120 DLR (4th) 12 It declared that the ban had violated the television station’s entrenched right to freedom of expression.39 Section 2(b) of the Canadian Charter.
Finally, courts say – ‘Trial by Media distorts the course of justice’
By this time the press had become firmly entrenched in the western psyche. Nothing escaped its searching eye. It asked relentless questions of how judges arrived at their decisions.
The courts resented this.
They then came up with the concept of ‘trial by media’ by which they tried to shut down publications, on grounds that ‘it distorted the outcome of a trial’.40Eric Barendt, Freedom of Speech 322 (2d ed. 2005)
A case dealing with high spirits became the focus of this principle.
When is a ‘Sherry’ not a sherry?
A company sold sherry. It used fancy names to market its beverage: e.g. ‘British sherry’, ‘English sherry’, ‘South African sherry’, ‘Cypriot sherry’ or ‘Australian sherry’.
Its competitors challenged its right to label sherry in this way. They argued the word ‘sherry’ meant ‘wine exclusively made from the grapes grown in the district of Jerez, Spain’.
The defendants asked for an order stopping the plaintiff from passing-off its beverage as Jerez wine.
While the trial was underway, a newspaper weighed in. It referred to a previous case, Bollinger,41J. Bollinger v. The Costa Brava Wine Co Ltd  RPC 116 which had ruled that the word ‘Champagne’ referred only to wine produced in the Champagne district of France. The article was written to persuade the court to decide the sherry dispute along the same lines as the previous case.42 Entitled ‘The Truth of Labels’
The company was charged.43Vine Products Ltd & Ors v. Green & Anor  Ch 484, 485 per Buckley J, p. 485 – paragraph D-E
The court threw out the case. The judge ruled that the publication could not have possibly ‘deterred witnesses’.
This was a mighty unusual step in 1966.
This principle would be tested in 1974 in the thalidomide cases.
Should the Press Help Deformed Babies get better compensation?
Distillers were a pharmaceutical company. They marketed a sedative for pregnant women. Those who consumed it gave birth to babies with terrible deformities.
Their parents filed many negligence suits. Distillers offered a small sum as compensation.
The Sunday Times launched a campaign to pressure Distillers to give the unfortunate children a far more generous compensation.
Distillers complained to the AG. The Sunday Times was charged.
The paper and its editor were found guilty. The House of Lords affirmed the sentence.
Lord Cross asked:
‘[Any] publication which prejudges an issue in pending proceedings ought to be forbidden if there is any real risk that it may influence the tribunal. … But why… should a publication be prohibited when there is no such risk?’
He answered that question with an unacceptable response:
‘So gradually the public would… resent the absence of… preliminary discussions in the media of any case which aroused widespread interest. An absolute rule, though it may seem to be unreasonable… is necessary… to prevent a gradual slide towards trial by newspaper or television.’ 44AG v. Times Newspaper Ltd  AC 273
So the court disapproved even preliminary discussions of matters of public interest.
The ensuing public outcry led to an appeal to the European Court.
European Court throws out the House of Lords
Overturning the House of Lords, the European Court of Human Rights ruled that the law of strict liability of contempt was ‘incompatible with the freedom of speech’.45Sunday Times v. United Kingdom, Series A, No. 30, (1979) 2 EHRR 245. (Art 10 ECHR provides the right to freedom of expression and information, subject to certain restrictions that are ‘in accordance with law’ and ‘necessary in a democratic society’).
A television station escapes by the skin of its teeth
There is another side to the Sunday Times case.
The Sunday Times case demonstrates that courts often lose sight of their own rules.
It was a long-held reasoning that to be contemptuous, a publication must ‘create a risk that the course of justice would be interfered with.’
How high must that ‘risk’ be?
It had to be ‘a real, serious risk’. Anything less would not cut it.
And this high standard that had been established as early as 1889,46Hunt v Clarke (1889) 58 L.J.Q.B. 490 some 85 years before the Sunday Times case: and yet the courts still continue to get it wrong.
This was demonstrated in a case related to the Sunday Times case.
A television station had run a program similar to the Sunday Times campaign. It was also charged with contempt.
The case came up before a Divisional Court.
The court threw it out.47Attorney General v. London Weekend Television  1 WLR 202, 209.
The court determined that the spoken words in the TV programme ‘did not have that impact on the viewers’ which its produces had hoped for. The court felt that there was no evidence to that effect.
Why should ‘trial by media’ be a bad thing?
Why ‘trial by media’ is wrong is not clear.48Schneenbaum & Lavi: p.183
By their training, judges are seldom influenced by the media.49 [Eric Barendt, Freedom of Speech (2d ed. 2005) at p. 327]. Lord Denning himself has said that judges are not influenced by public opinion
Public perception seems to be important to the courts
One argument appears to be that if a court’s ruling accords with the public view, the public ‘might’ regard that had capitulated to public opinion.
If a court took an opposing stance, it would be accused of ‘standing out’ against the public. This was said to ‘embarrass the court’.50Michael Chesterman, Contempt: In the Common Law, but Not the Civil Law, 46 International & Comp. L.Q. 521, 536 (1997) at 537
This argument is barmy.
Why should courts criminalise trial by media when Parliament has not?
The other argument is that since ‘trial by media’ is not criminal, why should the courts make it so? 51Gavin Phillipson [‘Trial by the Media: The Betrayal of the First Amendment’s Purpose’, 71 Law & Contemp. Probs. 15 (2008)]. The author argues, ‘[T]he claim is that public confidence in the administration of justice and resort to the courts might seriously decline if it were widely believed that judges were influenced by press campaigns.’ [See also, Barendt, p. 327]
The courts seem to fear that media, especially the current social media, is unregulated.
People say what they like.
A reporter recently lamented that media, when it had nothing useful on a subject, ‘floods the zone with s–t’. i.e. today’s media overwhelms society by misinformation.52Media still a danger- Vox ‘Flood the zone with shit’: How misinformation overwhelmed our society’, Bean Illing, 18 January 2020
If this is true, how would that affect a legally trained mind like that of a judge?
Why is the sub-judice rule under attack?
The proliferation of technology, the rise of the media, and the ubiquitous social media are events that are beyond the control of the courts. In nations where the freedom of speech enjoys constitutional guarantees, the sub-judice rule is near death.
Courts see the media as an existentialist threat
The courts have viewed these events as an existentialist threat to their ancient authority.
For more than a century they have brandished the sub-judice doctrine as an article of protection.53Jürgen Habermas, ‘The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society’ (Thomas Burger trans., 1991) (1962). See also Schneenbaum & Lavi: ‘The Riddle of Sub-Judice and the Modern Law of Contempt’ p.185-189
That protection is incompatible with modern notions of accountable democracy.
Sub-judice is simply the courts’ response – and fear – of the idea of the press moving the area of decision making – the court – into the public arena.
Out in the public, anyone without legal training could make a running commentary.
That fear is supported by this conjecture: There is a chance the proponents of the opposing side may enter the public arena with an opposing view.54See A.T.H. Smith [Reforming the New Zealand Law of Contempt of Court–An Issues/Discussion Paper paras. 3.15-3.21 (Australia), 3.28-3.40 (New Zealand) (2011), at 24] He says “A further possible ground of liability in this context is the so-called ‘prejudgment’ test, the objection here being that if a person couches comment upon a forthcoming trial in a way that asserts views as to the desirability or otherwise of a particular outcome, it might provoke the proponents of the other side to enter the public arena with a different view. The danger is that this might give rise to trial by the media, as opposed to trial by properly constituted courts, on the basis of properly tested evidence.”)
This unspoken fear – which is at the core of sub-judice – is that the courts might lose their relevance.
It is a fear borne out of conjecture.
It is a fear of shadows.
There is slender justification for it.
There are enough other laws to deal with this eventuality.
The ‘Wicked Witch that poisons the Wells of Justice’
So casting the media as the ‘Wicked Witch that poisons the Wells of Justice’55 Vicki Mullen, see supra footnote  is simply the king’s long hand emerging from the fog of ages, and striking at democracy.
This is a battle that the courts cannot win
The courts are running out of new reasons to justify sub-judice.
Meanwhile, sub-judice itself has become complex, vague, and ambiguous.56C.J. Miller, ‘Contempt of Court’ (3rd Ed. 2000). Miller argues that, ‘the law governing what is usually called ‘sub-judice contempt’ is now both complex and, in part, unsatisfactory’. See also A.T.H. Smith, ‘Reforming the law of contempt of court– Issues/Discussion Paper’, paragraphs 3.15–3.21 (Australia), 3.28 – 3.40 (New Zealand) (2011)
Time to put this shape-shifter to sleep
In the West the offence of scandalising the court is dead.
Scholars in New Zealand and Australia have long questioned the role of sub-judice.57Eric Barendt, ‘Freedom of Speech’ (2nd Ed.2005
It is time to put this shape-shifter to sleep.
[The author expresses his gratitude to Mr. Prabhkirat Singh, Mr. GS Saran, Miss KP Kasturi, Mr Kumaresan Thurairaju, Mr. VK Raj, Ms Amuthambigai Tharmarajah and Ms Narkunavathy Sundareson]