The Wislang Case

IN HER MAJESTY QUEEN ELIZABETH’S PRIVY COUNCIL, LONDON, ENGLAND
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R. v. COMMISSIONER OF POLICE, EX PARTE BLACKBURN

R. v. COMMISSIONER OF POLICE, EX PARTE BLACKBURN (No. 2) [1968] 2 Q.B. 150, 154 (Court of Appeal)

[Hogg was an eminent Q.C. and M.P. at the time of this case. Two years later, as Lord Hailsham, he became Lord Chancellor in the new Conservative Government.]

The full law report of this case --- R v Metropolitan Police Commissioner, ex parte Blackburn (No. 2) --- including the complete statement of Salmon Salmon LJ and the concurring statement of Edmund Davies LJ, has been made available in the Files section of this site.

LORD DENNING M.R.: Some few days ago we had before us an application by Mr. Albert Raymond Blackburn, seeking an order of mandamus against the Commissioner of Police. After that case was reported, Mr. Quintin Hogg wrote an article in "Punch" dated February 14, 1968, under the heading "Political Parley." Mr. Blackburn today moves the court saying that Mr. Quintin Hogg, by this article, has been guilty of contempt. Let me read the salient passages in the article. It starts:

"The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legis­lation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apolo­gise for the expense and trouble they have put the police to? Not a bit of it. Lambaste the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending dies irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts.... The House of Lords over-ruled the Court of Appeal.... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option."

That article is certainly critical of the court. In so far as it referred to the Court of Appeal, it is admittedly erroneous. This court did not in the gaming cases give any decision which was erroneous, nor one which was overruled by the House of Lords. But is the article a contempt of court? This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occa­sion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

So it comes to this: Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the application.

SALMON, L.J.: The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism, even from the criticism of Mr. Quintin Hogg. Their judgments, which can, I think, safely be left to take care of themselves, are often of considerable public importance. It is the inalienable right of everyone to comment fairly on any matter of public importance. This right is one of the pillars of individual liberty-freedom of speed, which our courts have always unfailingly upheld. It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limit of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits.