Shadrake Alan v. Attorney-General is a 2011 judgment of the Court of Appeal of Singapore that clarified the law relating to the offence of scandalising the court. Alan Shadrake, the author of the book Once a Jolly Hangman: Singapore Justice in the Dock (2010), was charged with contempt of court by way of scandalising the court. The Prosecution alleged that certain passages in his book asserted that the Singapore judiciary lacks independence, succumbs to political and economic pressure, and takes a person's position in society into account when sentencing; and that it is the method by which Singapore's ruling party, the People's Action Party, stifles political dissent in Singapore.
In the High Court, Justice Quentin Loh made significant changes to the law when he rejected the use of the long-standing "inherent tendency" test that had been applied to establish the actus reus of the offence, and instead adopted a "real risk" test. This allows a court to take into consideration the circumstances surrounding the uttering or publication of the impugned words and to only hold someone liable if that person has created a real risk in the circumstances in which the impugned words were communicated. In addition, he ruled that should an impugned statement be found to have scandalised the court, the only applicable defence to contempt of court would be if the statement amounted to "fair criticism". In doing so, he rejected justification and fair comment as defences. Applying the real risk test, Justice Loh found that 11 out of 14 impugned statements were contemptuous and that the defence of fair criticism did not apply to any of the statements. The High Court thus found Shadrake guilty of the offence of contempt by way of scandalising the court and sentenced him to six weeks' imprisonment and a fine of S$20,000.
Upon appeal, the Court of Appeal, while upholding the use of the real risk test, made several changes to the way the test is to be applied. In addition, the Court clarified that fair criticism is an element that determines whether there is liability, rather than operates as a defence. The Court, when applying its modified test, found that only nine of the 14 statements were contemptuous. It upheld the sentence passed by the High Court.
Both the High Court and Court of Appeal judgments explored the rationale for the law against contempt of court and its relation with freedom of speech, and emphasised the importance of public confidence in the administration of justice which can be impugned by contempt of court.
Facts
In 2010, British investigative journalist Alan Shadrake was charged in Singapore with the offence of scandalising the court, a type of contempt of court. The Attorney-General alleged that he had scandalised the court by attacking its reputation in his 2010 book Once a Jolly Hangman: Singapore Justice in the Dock..
Fourteen statements of varying lengths from the book were purported to have alleged that the Singapore judiciary had succumbed to political and economic pressures when adjudicating matters concerning the death penalty, is biased against the economically and educationally disadvantaged, and is a tool of the ruling People's Action Party to stifle dissent within the political domain in Singapore. ("Shadrake (H.C.)").
Contempt of court by scandalising the court, also known as "scandalizing contempt", may be defined as "[a]ny act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority".R. v. Gray 2 Q.B. 36 at 40, High Court (Queen's Bench) (England & Wales) per Lord Russell, the Lord Chief Justice of England and Wales, cited in Shadrake (H.C.), p. 458, para. 22. The power to punish for contempt of court is vested in the judiciary by virtue of section 7(1) of the Supreme Court of Judicature Act.. ("Shadrake (C.A.)"). While contempt of court is a criminal offence, applications for committal are made under Order 52 of the Rules of Court,. which is a civil procedure.
High Court decision
Issues before the High Court The legal issues that were dealt with by the High Court were the following: (1) the proper test to be applied for determining whether scandalising contempt was made out, and, specifically, whether the "inherent tendency" test or the "real risk" test should be applied to determine liability; (2) the defences available for the offence of scandalising contempt; and (3) the application of the appropriate legal principles to the 14 impugned statements.Shadrake (H.C.), p. 458, para. 21; and p. 475, para. 59.Shadrake (H.C.), pp. 484–504, paras. 78–136.
Holding of the High Court In a judgment dated 3 November 2010, the High Court rejected the long-standing inherent tendency test and instead adopted the real risk test. It stated that the only available defence to scandalising contempt was fair criticism, and explicitly rejected the common law defences of fair comment and justification applicable to the law of defamation.Shadrake (H.C.), pp. 483–484, para. 77. Upon the application of the real risk test, 11 out of the 14 impugned statements were found to be contemptuous.
Rationale for law of contempt of court Justice Quentin Loh revisited the rationale for the law of scandalising the court. He examined cases from other jurisdictions to outline the raison d'être of the offence, including Attorney General v. Times Newspapers Ltd. (1973)Attorney General v. Times Newspapers Ltd. 1 A.C. 273 at 307, House of Lords (UK). by the House of Lords of the United Kingdom, Solicitor-General v. Radio Avon Ltd. (1977)Solicitor-General v. Radio Avon Ltd. 1 N.Z.L.R. 225 at 230, Court of Appeal (NZ). by the Court of Appeal of New Zealand, Gallagher v. Durack (1983). by the High Court of Australia, and Secretary for Justice v. Oriental Press Group Ltd. (1998)Secretary for Justice v. Oriental Press Group Ltd. HKCFI 564, H.K.C. 627 at para. 48, Court of First Instance (Hong Kong). by the Court of First Instance of Hong Kong. These cases identified the protection of public confidence in the administration of justice as the aim of the offence of scandalising contempt.Shadrake (H.C.), pp. 453–456, paras. 7–16.
Justice Loh, referring to Judge of Appeal Andrew Phang Boon Leong's dicta in Pertamina Energy Trading Ltd. v. Karaha Bodas Co. LLC (2007),. also clarified that the aim of the law of contempt of court is not to protect the dignity of judges. Rather, he emphasised the symbiotic relationship between the courts and the public – the public relies on the courts to administer justice, and the courts rely on the public for confidence in them. He hinted that the court's role in maintaining such public confidence was imputed in the common law, holding that "[i]t is ... an axiom of the common law that justice should not only be done, but should manifestly and undoubtedly be seen to be done".Shadrake (H.C.), p. 456, para. 16. The axiom is from R. v. Sussex Justices, ex parte McCarthy 1 K.B. 256 at 259, Divisional Court (England and Wales). He also recognised that a balance must be struck between "ensuring that public confidence does not falter as a result of such attacks" and not "unduly restricting public discussion on the administration of justice".Shadrake (H.C.), p. 457, para. 19.
Rejection of the inherent tendency test The prevailing position in Singapore for liability for scandalising contempt prior to Shadrake was the inherent tendency test. This test required an evaluation of whether the comments made had "the inherent tendency to interfere with the administration of justice",Attorney-General v. Wain 1 S.L.R.(R.) 85 at 101, para. 54, H.C. (Singapore), cited in Shadrake (H.C.), p. 462, para. 33. which had to be proved beyond reasonable doubt. The test, first articulated in Attorney-General v. Wain (1991), was affirmed in Attorney-General v. Hertzberg (2009).. There was no requirement to prove intent on the respondent's part to interfere with the administration of justice under this test. Intent was only a consideration at the sentencing stage..
The inherent tendency test theoretically has a lower threshold than the real risk test, thereby causing persons who are charged with scandalising contempt to be convicted for the offence with greater ease. In Shadrake, Justice Loh identified two problems with the inherent tendency test as it had been set out in Wain. First, the High Court had said that the justification for scandalising contempt was the prevention of interference with the administration of justice as opposed to protecting public confidence in the administration of justice. The former is the concern of sub judice contempt – that is, contempt relating to a case that is currently under consideration by a court – while it is the latter that is concerned with scandalising contempt. Secondly, such a test indicates that the words in the impugned publication or speech are to be looked at alone. This has the effect of ignoring the circumstances surrounding the utterance or publication of the words, and is excessively harsh.Shadrake (H.C.), pp. 462–463, para. 33.
Adoption of the real risk test The High Court examined the law in various Commonwealth jurisdictions, noting that the test used for determining whether a person is guilty of scandalising contempt is the real risk test. Under this test, the threshold for liability is "a real risk, as opposed to a remote possibility".R. v. Duffy, ex parte Nash 2 Q.B. 188 at 200, cited in Times Newspapers, pp. 298–299, and in Shadrake (H.C.), p. 459, para. 25. The Court also noted reservations that the Hong Kong Court of First Instance had brought up in implementing the real risk test. First, the test should be given its ordinary meaning – a real risk does not mean that it is more probable than not to occur, but instead means "a good chance as opposed to a mere possibility". Secondly, the impugned words must relate "to the section of the public whose confidence in the administration of justice must be affected".Secretary of Justice v. Oriental Press Group, para. 55.
Justice Loh recognised that the difference between the inherent tendency and real risk tests is not a matter of semantics. He opined that the inherent tendency formula is contentious because the literal meaning of inherent tendency would "obscure the fact that a contextual analysis is actually required." To unambiguously exclude statements which lack the potential effect of reducing public confidence in the administration of justice, Justice Loh thus adopted the real risk test, thus departing from the inherent tendency test used in earlier Singapore cases.Shadrake (H.C.), p. 471, para. 50; . He also emphasised several aspects of the test:Shadrake (H.C.), pp. 472–473, paras. 51–54.
A real risk is "something more than a de minimis, remote or fanciful risk. It must have substance, but need not be substantial."Shadrake (H.C.), p. 472, para. 51. Thus, a small likelihood would also be considered a real risk. Whether a real risk to confidence in the administration of justice was posed is a question of fact to be determined objectively, taking all the circumstances of the case into consideration. This includes factors such as the person making the statement, the nature of the statement itself, how widely it has been published, and "local conditions" such as the size of Singapore and the multiracial and multi-religious make-up of its populace. Local conditions may also mean that since those who come into contact with the impugned publication or words may not be objective reasonable persons, the court must be open to take reference from such affected groups, instead of the objective reasonable man. In addition, the Court also stated that the fact that judges are the sole arbiters of fact and law must also be taken into account when assessing the impugned statement.