In a judgment delivered today in Singapore, Mr Shadrake was found guilty of scandalising the judiciary in eleven of fourteen passages from his book “Once a Jolly Hangman: Singapore in the Dock”, which the Attorney General had listed as contemptuous.
He is to be sentenced next Tuesday and faces a possible prison sentence.
Mr. Shadrake, 75, was arrested on 18th July 2010, whilst in Singapore to promote his book, “Once a Jolly Hangman: Singapore in the Dock”. Mr. Shadrake was charged with contempt of court as a result of allegations he made in his book about the application of the death penalty in Singapore. Mr. Shadrake was accused of impugning the impartiality, integrity and independence of the judiciary by implying that Singapore courts dispense unequal justice and succumb to political and economic pressure and are biased against the poor or less educated. The book also includes interviews with the former chief executioner at Singapore’s Changi Prison, Darshan Singh who he reports has executed about 1,000 prisoners between 1959 to 2006.
The Law of Contempt for “scandalising the court”
The power to punish a person for contempt of court on the ground of “scandalising the court” has been a traditional feature of the law in many common law countries. However, the scope of this contempt is balanced by the fact that “if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court would treat that as a contempt of court”.
Courts in many jurisdictions have stressed that the contempt power is subject to the principle of “fair criticism” of the courts. The contempt of scandalising the court is virtually obsolete in England. In Canada, India and South Africa, the contempt power has been closely restricted on the basis that legitimate criticism of judicial conduct is protected by the right to free expression and tends to strengthen public confidence in the courts.
Up until today’s judgment, the courts in Singapore have held that the state’s small size and the fact that judges decide questions of fact and law has justified the application of a lower threshold for deciding whether a contempt has been committed. As a result, in determining whether a statement or act amounts to contempt, they have asked whether it has “the inherent tendency to interfere with the administration of justice” rather than whether there is a “real risk” of causing such interference (as occurs in other jurisdictions, such as England, Hong Kong and New Zealand). Any allegation of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function could have amounted to contempt of court.
However, in today’s judgment, Loh J. accepted the submissions put forward by the defence that the proper test to be applied in contempt cases should be one of ‘real risk’ rather than the wider and all encompassing test of ‘inherent tendency’ that had been used since 1967.
The Death Penalty Project with the assistance of Barristers from Doughty Street Chambers have been assisting Alan Shadrake’s legal team.
Saul Lehrfreund MBE and Parvais Jabbar, Executive Directors of the Death Penalty Project state:
Today’s decision could result in a custodial sentence being imposed on Alan Shadrake for writing a book which raises disturbing issues about the arbitrary application of the death penalty, in particular, the possible execution of the innocent and discrimination in the use of the death penalty. As the judge indicated in a postscript to his judgment, the death penalty is the ultimate punishment both in its severity and its irreversibility and as such, its application should be closely scrutinised and vigorously debated. The book has drawn important attention to serious issues that require further investigation and may even call for a commission of inquiry into the application of death penalty.
Notes to Editors
1. The Death Penalty Project is an international human rights organisationhoused in the offices of Soho legal firm Simons Muirhead & Burton, providing free legal representation to many individuals still facing the death penalty in the Commonwealth. The organisation receives generous support from the Sigrid Rausing Trust, the Oak Foundation, the UK Foreign & Commonwealth Office, the United Nations Voluntary Fund for Victims of Torture and by a grant from the Foundation of the Open Society Institute. 2. The Death Penalty Project instructed Edward Fitzgerald QC, John Jones and Ben Silverstone from Doughty Street Chambers who have assisted on a pro bono basis in this case. 3. For further information please contact Saul Lehrfreund or Parvais Jabbar, Executive Directors of the Death Penalty Project Ltd at Simons Muirhead & Burton.