Report No. 200

(6) Imputation of innocence:

The authors refer to decisions which show that direct imputations of the accused's innocence can be considered as contempt as was done in R v. Castro Onslow's and Whelley's case (1873) L.R 9 Q.B 219 where the claimant to succession to property was awaiting a trial on charges of perjury and forgery and a public meeting was held and two M.Ps who were present alleged that the accused was not guilty but was the victim of a conspiracy. Both MPs were held guilty of contempt by Cockburn CJ. This reminds us of the famous statement in Ambard v. AG of Trinidad and Tobago (1936) A.C. 322 of Lord Atkin in the context of criticism of Judges:

"The path of criticism is a public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and are not acting in malice or attempting to impair the administration of justice they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men".

The border line between fair criticism and contempt may be thin. The path of criticism is a public way and the wrong headed are permitted to err therein but may yet take the risk of contempt. In Australia in DPP v. Wran: 1986 (7) NSWLR 616 (NSW CA), the premier of NSW was held to be in contempt for saying, in response to a journalist's question, that he believed in the innocence of a High Court Judge who had been convicted of charges concerning the perversion of the course of justice when he said that a retrial could result in a different verdict. The Premier and the newspaper were held guilty of contempt.