Legal debate: How sensitive should the Courts be about contempt?

August 12th, 2011

The law on contempt of court has been clarified by the Court of Appeal in the recent Alan Shadrake case, according to the July 2011 issue of Inter Se, a publication of the Singapore Academy of Law. One issue that the court discussed is what test to apply when deciding whether there has been contempt.

The most liberal jurisdictions, such as the United States, use the “clear and present danger” test, which outlaws only the most extreme speech. At the other extreme, judges could apply the “inherent tendency” test, finding someone in contempt even when there is only a remote, fanciful possibility that his words may undermine public confidence in the administration of justice. Until recently, the “inherent tendency” test was used in Singapore.

Writing in Inter Se, justice law clerks Justin Yeo and Calvin Liang note that in the Shadrake case, the Court of Appeal avoided either extreme and instead went for the “real risk” test, whereby “the court concerned must make an objective decision as to whether or not that particular statement would undermine public confidence in the administration of justice, as assessed by the effect of the impugned statement on the average reasonable person.”

Shadrake was judged to have scandalised the court in his book, Once a Jolly Hangman. Although the Court of Appeal dismissed his appeal, it differed from some of the High Court’s findings and clarified the “real risk” test.

Contempt of court is a common law offence, but it is currently being drafted into the statute books. Professor Kevin Tan, interviewed by Inter Se, said that legislation is “a good way to go” and hoped that a “real likelihood” test would be inserted into the Bill: “In other words, the words uttered or written should have a real likelihood of bringing the courts into disrepute or challenging its independence.”

Contempt of court, together with defamation, are the laws that most frequently ensnare the media and other commentators in Singapore.