2. Reviling or Threatening Judicial Functionaries

di pubblica funzione. Questa nel suo generico significato comprende l’esercizio di qualsiasi volontà attribuita dalla legge al fine di provvedere ai pubblici interessi. Quindi per poter decidere se una persona appartenga alla categoria di pubblico ufficiale, conviene esaminare colla scorta delle leggi speciali che ne istituiscono la carica e ne regolano le attribuzioni, se una data persona abbia direttamente il compito di dare provvedimenti per la esecuzione del mandato pubblico che la legge le affida. Pertanto colui che non per autorità propria ma per un incarico avuto da un pubblico uffiziale compie qualche atto proprio delle attribuzione di costui o lo aiuta nel disimpegno delle sue attribuzioni non per questo può essere considerato come pubblico ufficiale. Esso, come subalterno, cioè impiegato, formante classe di quelli che per legge non hanno alcuna autorità’, rientra nella categoria che la legge designa di quelli individui incaricati di un pubblico servizio. I pubblici ufficiali sono rappresentanti dell’autorità e nella loro persona e’ offesa l’autorità stessa, ma tali, non sono le persone legittimamente incaricati di un pubblico servizio il di cui incarico piuttosto che essere pubblica funzione ne e’ una dipendenza” .

This explanation will serve to distinguish this crime from that contemplated in Sections 94 and 95.

2. Reviling or Threatening Judicial Functionaries

The second crime dealt with under this sub-Title is that contemplated in Section 92 which lays down as follows:

“Whosoever reviles or threatens a Judge, or the Attorney General, or a Magistrate or a Juror in the execution or on account of the execution of his functions, or with intent to intimidate or unlawfully influence him in the execution of such functions, shall be punished with imprisonment from one to three months and with a fine (multa)” .

The elements of this crime are:

i. A revilement or threat

ii. Against a Judge, or the Attorney-General73 or a Magistrate or a Juror

73 See the Attorney-General and Crown Counsel (Constitution of Office) Ordinance (Chapter 140)

iii. In the actual execution of his functions or on account of his having executed such functions; or with intent to intimidate or unlawfully influence him in the execution of such functions.

Let us consider each of the elements in some detail.

i. Revilement or threat: Any insult or threat is sufficient to constitute this first Ingredient of this crime. Insults generally are dealt with in Section 265 and Section 353(i)(e) of the Criminal Code; whence it appears that they may consist in words spoken or written, gestures, drawings, or other means calculated to destroy or lessen the reputation of the person against whom they are addressed or uttered or used, or to hurt the feelings of or give offence to such person. The insult may be specific or may consist in vague expressions or indeterminate reproaches or words or acts merely indecent or offensive. Likewise, threats are generally dealt with in Sections 262 and 263 and Section 353(i)(e) of the Criminal Code. But as we have already said, any insult or threat, whatever its gravity or form, and whatever the means used, is sufficient to constitute the material element of this crime in its simple form.

The law however aggravates the punishment where the specific purpose of the offender in uttering the insult is to destroy or lessen the reputation of the functionary against whom it is directed. So, also the law increases the punishment where the threat is of a crime; and if the threat is made by means of a writing whether anonymous or signed in one’s own or in a fictitious name, the ordinary punishment for such threat (Section 262) is increased by one degree. And in both cases the

Court may require the offender to enter into a recognizance or give security with or without surety as provided in Sections 395, 396 and 397 of the Criminal Code.

This crime is distinguishable from the simple contempt of Court dealt with in Sections 987 et. seq. of the Code of Organization and Civil Procedure, which are applied to the Courts of Criminal Jurisdiction by Section 681 of the Criminal Code. These contempt consist, broadly speaking, in words or gestures which show disrespect to the dignity or authority of the Bench or disturb the good order of the transaction of judicial business. They are not direct attacks against the person of the Judge or Magistrate or his honour or feelings. Even so the border-line between these contempt and the crime under discussion may not, in a particular case, be clearly marked. However, Section 987 of the said Code of Organization and Civil

Procedure lays down that where the act of contempt of Court amounts to an offence under the Criminal Code, the matter is dealt with under this Code.

In English Law slanderous words spoken to a Judge or Magistrate in the execution of his office, or a personal attack upon a Judge or a Magistrate with reference to something said or done by him in the course of a case tried before him may constitute that kind of contempt known as “scandalizing the Court itself”74 .

ii. The victim of this crime cannot be except one of the judicial functionaries expressly mentioned and not any other public officer. The purpose of the law in creating this special offence is to afford a special guarantee so that the administration of justice proceeds freely and undisturbed and without suffering any indignity.

iii. The crime under reference subsists where the insult or threat is directed against any of the said judicial functionaries either in the actual execution of their respective functions (fin officio) or on account of their having executed such functions (propter officium) or with intent to intimidate them or unlawfully influence them in the execution of such function. Where the insult or threat is uttered or made against the judicial functionary while in the actual exercise of his functions, it is taught that the outrage need not necessarily have any connection whatever with such functions. In this case, especially, the law aims at safeguarding the undisturbed and dignified exercise of the public function and consequently also to protect the person while discharging such function. If, therefore, an individual in order to take revenge for an offence received from a Judge or a Magistrate or other judicial functionary as a private citizen, insults him in the act of exercising his functions, that individual is guilty of the crime under discussion although his purpose was merely to insult the

Judge or Magistrate or other judicial functionary in his private capacity75 .

“Quando l’oltraggio si verifica noi corso delle funzioni, il motivo che lo determina e’ indifferente; la leggo vede soltanto il turbamento, l’inguria fatta all’esercizio delle funzioni, l’insulto che degrada la loro dignità; avesse pure guest’inguria una causa

74 Archbold, op. cit., pg. 1250 75 Roberti, op. cit., Vol. V, para. 375

determinante estranea alle funzioni, il turbamento all’esercizio di esse sussisterebbe sempre”76 .

On the contrary where the outrage is committed on account of the Judge or Magistrate or other judicial functionary having executed his judicial functions, the cause or occasion of the outrage must be an act done in the discharge of such functions. In other words, a nexus must be proved between the outrage and the execution of an act of the office, such a nexus as shows that the outrage was caused or occasioned by the execution of that act.

Our law, improving on the models on which these provisions were originally framed, does not restrict their application to the case of insults or threats on the Judges and Magistrates and other judicial functionaries in the actual exercise of their public duty or on account of such duty being exercised. On the suggestion of Andrew Jameson, the application of these provisions was extended to the case in which the insult or threat is used with intent to intimidate those public officers or unduly to influence them, irrespective of the time when used: “Such offences”, wrote Jameson, “may be committed to intimidate a Judge or a Magistrate from performing a certain duty, as well as by way of revenge after it is performed. It is to be presumed that “threats” at least are more likely to be used before, than after the performance of a specific function which the offender wishes to obstruct or prevent. The due discharge of these important functions may be as effectually obstructed by means of such offences when committed before the functions are exercised as after that event. Should a malicious litigant threaten bodily harm to a Judge on his way to Court, this offence would not fall under the provision (as it stood in the Project) because it is neither committed in the exercise of the duty nor on account of it. The article ought to be worded so as to prevent any undue influencing of a public functionary by means of threats or violence, irrespective of the period when used, provided the intent is proved.” The article was worded as suggested, that is as it now reads.

The question was long debated whether it is of the essence of this crime that the insult or threat should be uttered or made in the presence of the Judge, Magistrate or other judicial functionary. In the Italian Code of 1889, the matter was placed beyond doubt by making such presence an essential element of the crime, by express words in the

76 Chaveau et Helie, Vol. II, p. I, para. 960

definition which the law itself gave (Art. 194). Indeed, according to Maino77, even before the enactment of that Code, the Courts held that “le ingiurie o minaccio dirette a un funzionario assente, o fattegli pervenire per lettera, non assumono carattere di oltraggio”. In the French and Neapolitan Code no express mention of such presence as an essential ingredient of the crime was made. Nor is any such express mention made in our Code.

Roberti, commenting on the Neapolitan Code, was of the view that “niente importa [...] che il funzionario sia o non sia presente all'oltraggio, che senta o non senta le parole ingiuriose, che vegga o no i gesti oltraggianti.” And he quotes in support Carnot and also judgments of the French Court of Cassation78. Chaveau et Helie, although conceding that the presence of the functionary is not invariably an essential element of the crime, require that the insult or threat (the outrage) he directly addressed to the victim so that it is necessary that the defendant shall have either addressed the words or writing directly to the functionary, that is to his face or, if he has made use of a third party, that he shall have the intention that the insult or threat shall reach the functionary and shall have done this in such circumstances as make it sure that the threat or insult shall in fact reach the functionary. These writers also require when the insult or threat is uttered or made against the functionary in the act of the execution of his duties, that such functionary shall have heard or noticed the threat or insult. "Delle parole sfuggite a bassa voce, un gesto scorto appena non possono costituire il reato, perchè non raggiungono direttamente il magistrato"79 .

Our Courts have followed this latter doctrine. In re "The Police vs. George Ellul"80 , Harding J. quoting Chaveau et Helie held that for the application of Section 92 the presence of the Judge or Magistrate or other judicial functionary is necessary so that the insult shall have been hurled to his face, and that he shall have heard the words or noticed the fact constituting the outrage. The same principle was also affirmed in re

77 Vol. II, para. 1021 78 Vol. V, para. 376 79 Vol. II, cap. xxxiv, para. 967, 968, para 973 80 Criminal Appeal, 30th September, 1944