Mr Justice Williams seems to like to use metaphors to reinforce his arguments, but dare I say the he does not always think though the illustrations that he uses. For example, he says,
“Seeking to argue that individual social workers or guardians or judges should be held accountable is equivalent to holding the lookout on the Titanic responsible for its sinking rather than the decision-making of Captain Smith and the owners of the White Star Line”.
In this comparison, is Judge Williams saying that the judge and all the social workers in the Sara Sharif case can be represented as the lookout on a ship? If the entirety of officialdom can be summarised as a lookout, does that mean that the ship’s captain represents the Ursan Sharif, Sara’s father, whose fatal mistreatment of Sara could not have been predicted. Very much the Pontius Pilate approach.
If we must refer to the Titanic, it is better to say that the judge was the captain, failing to act on information available and hitting the homicidal iceberg that was Ursan Sharif.
Another metaphor used by Judge Williams is the lynch mob.
“In 2024, the placing of a name in the public domain opens the door to both (a) the generation on social media of the equivalent of a lynch mob, albeit with limited ability to tie their victim to the nearest tree…”
The faux-witty reference to a tree does not strengthen the point. A lynch mob without a tree, and without in fact even being a mob, is just many cross people sitting at keyboards, and perhaps, in the case of Sara Sharif, with quite a lot to be cross about.
Mr Justice Williams, Louise Tickle and the emperor’s new clothes
Anonymisation of a judge in family proceedings
In the ‘Press v Mr Justice Williams’ (also reported in full as Tickle & ors v Surrey County Council [2024] EWHC 3330 (Fam) (19 December 2024)) the judge (hereafter ‘Williams J’) had been asked by journalists for permission to appeal in relation to their involvement in a very sensitive child and criminal case (all that need be said at this stage). He had decided an issue – in relation to the naming of judges involved in the case – at least not openly, as Joshua Rozenberg explains it.
Williams J says (at [60] of his judgment) that two of the journalists had reported on the case in The Guardian that he had ‘refused permission to appeal’; when in fact he had adjourned a decision. The Court of Appeal has now given permission to appeal without – by definition – having, at that stage, seen the judge’s reasons for his decision. They have set it down for an urgent hearing in mid-January. The journalists are impatient to make a report of the judge’s decision. Williams J (I imagine) wants his Christmas holiday without having to write a judgment.
You report what the judge said (in his judgment cited above) of his views of press reporting of court proceedings – in general and of these proceedings. You include:
[60] … Accurate [of the report of refusal of permission] – no [said the judge]; fair – no; responsible – I would venture to suggest not… Thank goodness that journalists don't have to operate as the courts do and hear both sides before delivering their verdict! Is reporting which only presents one side of the story fair, responsible and accurate? By any ordinary meaning of those words, I would suggest not. What it is very close to is advocacy or campaigning and that is one aspect of reporting but so is sensationalism as well as good investigative reporting….
This case raises all sort of law issues especially about a judge refusing to permit the naming of judicial colleagues, mainly without being asked so to do so; though Williams J should surely not have allowed himself to be bounced into providing reasons by impatient journalists.
Press or judge: who the emperor and who the small child?
Williams J continues his para [60] (above) by likening press reporting to the emperor’s new clothes story ‘which everybody knows’. The important thing about that story, surely, is that the press (Tickle and Co) are in a similar position to the small boy (ie to anyone who really does know the story)? Their importance is that it is they on the public’s behalf be in a position to say what judges (in the position of the naked emperor) are up to:
[60] … To create an assumption that the press reporting will be fair, accurate and responsible is to create the equivalent of the Emperor's New Clothes narrative which everyone knows is false, but no one dare state. Many of the media no doubt will adhere to that standard but regrettably experience of the real world as opposed to some utopian ideal teaches us that some will not - including amongst the mainstream media….
This note is to draw attention to a critical failing – as I see it - of Williams J’s hasty, albeit lengthy, judgment. Louise Tickle is not a person to whom it is easy to say ‘no’. A much-quoted comment from Lord Justice Toulson (later Lord Toulson) on why we should know what judges are up to (namely) R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2013] QB 618:
[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept, but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age-old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse….
‘Shielded justice’ and the anonymous judge
The Guardian News and Media case was hardly cited to Williams J at all; and not on the open justice point. The judge therefore concluded of non-party individuals in family proceedings:
[61] My conclusion on the naming of third parties and judiciary is therefore that there is no presumption that they should be named in shielded justice cases….
And he introduced to family proceedings a new term (for case herd in private: ‘shielded justice’), which the judge defined as
[27] … [Proceedings] in the environment of the family court, not the open justice environment of the criminal and civil courts and that that environment was created by statute which displaced the open justice principles.
I doubt Toulson LJ or the Supreme Court would agree with the suggestion that this ‘shielded environment’ is created by statute; but that is a subject for another day.
A question – perhaps the question – for the Court of Appeal will be to consider: what powers has any court to bowdlerise justice (to deny judges names does not deny justice) by not publishing the names of judges; or is such publicity just a part of the judicial job? And the overriding of such naming of judges: must it no be for a judge to apply for it? Is such anonymity consistent with open justice or is it apt to a ‘shielded court environment.
Much more needs to be said about all this. I plan to say more on my Substack when any appeal judgment is known and in the New Year. In the meantime, I can enjoy a little schadenfreude in relation to a tiff between two publicity-seeking characters on the family law scene: a judge and a journo; and which, in truth, is the naked emperor and which the little boy (or girl).
Many years ago whilst working as a legal adviser in the magistrates' court, I dealt with a case which was reported the following day. I wondered whether I had actually shared the same court room as the journalist such was the nature of the journalist's (inaccurate) article.
I recall Joshua that you resigned as the Telegraph's legal editor in 2007 after, I understand, the news desk "sexed up" a human rights story with false information.
It's odd. Judges' reasoning is usually of a high order. If the default is open justice then there is clearly a requirement for Williams to give reasons specific to this judgement. His historical examples do not support his judgement but instead appear to serve literally as evidence of prejudice.
The urgency of the judgment’s preparation necessarily means it may not be as comprehensive in its account of my reasoning or may not record every matter I would otherwise have wished to record including all of the parties’ helpful submissions. However, the nature of the case and the hearing necessarily led to less fulsome exploration of the issues than might have occurred with more time and I accept that the issues engaged warrant expedition.
This judgment really does seem to be something of a landmark.
The judge does not hold back on his frustrations at the prevailing working environment, making clear quite how much other work he has done that week, and talk of “a political choice” meaning that judges and others cannot be so thorough as the public may expect. There is a valid point to be made that renewed emphasis on open justice is likely to increase judicial workload and no allowance seems to have been made for that. Quite a lot of the online criticism of e.g. transparency orders can be accounted for on the basis that there simply isn’t any time for the judge to devote to that kind of thing when they’ve got plenty on their plate in addressing the case before them.
We then see the judge’s pastoral experience as Family Presiding Judge for the South Eastern Circuit, being acutely conscious of previous incidents and the prevailing climate. It is undoubtedly the case that if the restriction was lifted the reporting would not be in the form that Williams J would want it to be. Indeed, he seems to have got his position in ahead of the journalists, emphasising that he could see no fault in the judgment(s). It is a telling aside, since whether the judgment(s) were correct or not can hardly be a factor in naming the judge. Is the system to name judges whose decisions are at fault but not those who are not? That cannot be right.
The question of how the judge in question’s views are to be known and (if at all) taken into account is one of the most difficult points here. For all anyone knows that judge is more than willing to be named. Joshua’s suggestion that Williams J asks the judge seems itself to be fraught with difficulty. Having a private word with the judge in question is hardly compatible with transparency, but what is there between that and calling the judge in to give evidence and having them cross-examined? It is also going to be difficult for the Court of Appeal to decide when it seems that the arguments before them may well be one-sided. Perhaps they will appoint an amicus curiae?
Finally, and not I think mentioned in the judgment, is the difficult question of undermining the judge’s authority. If they are named, how many disgruntled litigants will be going back trying to reopen their cases on the basis that the decision was made by the “Sharif judge”? How many Facebook groups will be set up by supposed victims of the judge’s previous judgments? How is the judge going to sit there day after day dealing with the most difficult family law cases knowing that their reputation and judgment has been tarnished by association with the Sharif case despite, as Williams J says, them having done nothing wrong?
Here is a tangential thought about the risk to judges and officials. There have been perhaps around 1500 UK members of parliament this century. Three have been the subject of murderous attacks, one of whom survived permanently maimed when his assistant died. An attempted murder has also been recorded, with the victim stabbed several times. The present environment is appears increasingly tense. Imagine the odds of a serious physical attack MPs face today? I have seen a number of ruling where judges talk of protecting officials where their reasoning implicitly excludes those elected. I do not suggest that we should be less open about our politics, but rather that the bar for the protection of judges' and other officials' anonymity should be very high. Loose claims of social media threats to officials extending from media reportage, often today employed by some as a status symbol, should surely be carefully scrutinised before anonymity is granted by a judge?
The question of seeking the views of the judges in question is indeed a difficult one. A judge might take the view that it is better to have taken a decision in good faith that turns out to have been wrong than to be regarded as hiding from the consequences. The judge may positively keen to be named. On the other hand, the judge may have particular concerns relating to a specific case — concerns that are known to that judge alone — which make anonymity desirable. Might it be possible for a judge to send in a simple statement with facing loss-examination?
Thank you, Joshua: I dare to say that Williams,J’s less than measured language in his reasons is the very reverse of helpful in circumstances such as these. Also, to have used language at the very least disparaging towards the two journalists was unwise and disproportionate. True it is that there are many ill informed and intemperate contributions to be found more or less daily in attacks on a judiciary in whom we should all take pride and which we should support, given many other nations where the tenet of the separation of the powers is a sour joke. But, turning up the temperature in this instance - with every respect to this learned judge- seems unhelpful to put it mildly.
Mr Justice Williams seems to like to use metaphors to reinforce his arguments, but dare I say the he does not always think though the illustrations that he uses. For example, he says,
“Seeking to argue that individual social workers or guardians or judges should be held accountable is equivalent to holding the lookout on the Titanic responsible for its sinking rather than the decision-making of Captain Smith and the owners of the White Star Line”.
In this comparison, is Judge Williams saying that the judge and all the social workers in the Sara Sharif case can be represented as the lookout on a ship? If the entirety of officialdom can be summarised as a lookout, does that mean that the ship’s captain represents the Ursan Sharif, Sara’s father, whose fatal mistreatment of Sara could not have been predicted. Very much the Pontius Pilate approach.
If we must refer to the Titanic, it is better to say that the judge was the captain, failing to act on information available and hitting the homicidal iceberg that was Ursan Sharif.
Another metaphor used by Judge Williams is the lynch mob.
“In 2024, the placing of a name in the public domain opens the door to both (a) the generation on social media of the equivalent of a lynch mob, albeit with limited ability to tie their victim to the nearest tree…”
The faux-witty reference to a tree does not strengthen the point. A lynch mob without a tree, and without in fact even being a mob, is just many cross people sitting at keyboards, and perhaps, in the case of Sara Sharif, with quite a lot to be cross about.
Metaphors are best avoided in court rulings, in my view.
Mr Justice Williams, Louise Tickle and the emperor’s new clothes
Anonymisation of a judge in family proceedings
In the ‘Press v Mr Justice Williams’ (also reported in full as Tickle & ors v Surrey County Council [2024] EWHC 3330 (Fam) (19 December 2024)) the judge (hereafter ‘Williams J’) had been asked by journalists for permission to appeal in relation to their involvement in a very sensitive child and criminal case (all that need be said at this stage). He had decided an issue – in relation to the naming of judges involved in the case – at least not openly, as Joshua Rozenberg explains it.
Williams J says (at [60] of his judgment) that two of the journalists had reported on the case in The Guardian that he had ‘refused permission to appeal’; when in fact he had adjourned a decision. The Court of Appeal has now given permission to appeal without – by definition – having, at that stage, seen the judge’s reasons for his decision. They have set it down for an urgent hearing in mid-January. The journalists are impatient to make a report of the judge’s decision. Williams J (I imagine) wants his Christmas holiday without having to write a judgment.
You report what the judge said (in his judgment cited above) of his views of press reporting of court proceedings – in general and of these proceedings. You include:
[60] … Accurate [of the report of refusal of permission] – no [said the judge]; fair – no; responsible – I would venture to suggest not… Thank goodness that journalists don't have to operate as the courts do and hear both sides before delivering their verdict! Is reporting which only presents one side of the story fair, responsible and accurate? By any ordinary meaning of those words, I would suggest not. What it is very close to is advocacy or campaigning and that is one aspect of reporting but so is sensationalism as well as good investigative reporting….
This case raises all sort of law issues especially about a judge refusing to permit the naming of judicial colleagues, mainly without being asked so to do so; though Williams J should surely not have allowed himself to be bounced into providing reasons by impatient journalists.
Press or judge: who the emperor and who the small child?
Williams J continues his para [60] (above) by likening press reporting to the emperor’s new clothes story ‘which everybody knows’. The important thing about that story, surely, is that the press (Tickle and Co) are in a similar position to the small boy (ie to anyone who really does know the story)? Their importance is that it is they on the public’s behalf be in a position to say what judges (in the position of the naked emperor) are up to:
[60] … To create an assumption that the press reporting will be fair, accurate and responsible is to create the equivalent of the Emperor's New Clothes narrative which everyone knows is false, but no one dare state. Many of the media no doubt will adhere to that standard but regrettably experience of the real world as opposed to some utopian ideal teaches us that some will not - including amongst the mainstream media….
This note is to draw attention to a critical failing – as I see it - of Williams J’s hasty, albeit lengthy, judgment. Louise Tickle is not a person to whom it is easy to say ‘no’. A much-quoted comment from Lord Justice Toulson (later Lord Toulson) on why we should know what judges are up to (namely) R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2013] QB 618:
[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept, but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age-old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse….
‘Shielded justice’ and the anonymous judge
The Guardian News and Media case was hardly cited to Williams J at all; and not on the open justice point. The judge therefore concluded of non-party individuals in family proceedings:
[61] My conclusion on the naming of third parties and judiciary is therefore that there is no presumption that they should be named in shielded justice cases….
And he introduced to family proceedings a new term (for case herd in private: ‘shielded justice’), which the judge defined as
[27] … [Proceedings] in the environment of the family court, not the open justice environment of the criminal and civil courts and that that environment was created by statute which displaced the open justice principles.
I doubt Toulson LJ or the Supreme Court would agree with the suggestion that this ‘shielded environment’ is created by statute; but that is a subject for another day.
A question – perhaps the question – for the Court of Appeal will be to consider: what powers has any court to bowdlerise justice (to deny judges names does not deny justice) by not publishing the names of judges; or is such publicity just a part of the judicial job? And the overriding of such naming of judges: must it no be for a judge to apply for it? Is such anonymity consistent with open justice or is it apt to a ‘shielded court environment.
Much more needs to be said about all this. I plan to say more on my Substack when any appeal judgment is known and in the New Year. In the meantime, I can enjoy a little schadenfreude in relation to a tiff between two publicity-seeking characters on the family law scene: a judge and a journo; and which, in truth, is the naked emperor and which the little boy (or girl).
I understand the judge's frustrations.
Many years ago whilst working as a legal adviser in the magistrates' court, I dealt with a case which was reported the following day. I wondered whether I had actually shared the same court room as the journalist such was the nature of the journalist's (inaccurate) article.
I recall Joshua that you resigned as the Telegraph's legal editor in 2007 after, I understand, the news desk "sexed up" a human rights story with false information.
Perfectly true. It was reported here: https://ukhumanrightsblog.com/2015/02/19/joshua-rozenberg-resigned-telegraph-post-after-editors-sexed-up-human-rights-story/#more-25397
But what should the courts do about this?
It is an imperfect situation given the reach of social media and today's societal attitudes.
There is no real answer except for judges to try to apply the law as best they can. On the whole I think they do a very good job.
It's odd. Judges' reasoning is usually of a high order. If the default is open justice then there is clearly a requirement for Williams to give reasons specific to this judgement. His historical examples do not support his judgement but instead appear to serve literally as evidence of prejudice.
Yes indeed. His defence is this:
The urgency of the judgment’s preparation necessarily means it may not be as comprehensive in its account of my reasoning or may not record every matter I would otherwise have wished to record including all of the parties’ helpful submissions. However, the nature of the case and the hearing necessarily led to less fulsome exploration of the issues than might have occurred with more time and I accept that the issues engaged warrant expedition.
This judgment really does seem to be something of a landmark.
The judge does not hold back on his frustrations at the prevailing working environment, making clear quite how much other work he has done that week, and talk of “a political choice” meaning that judges and others cannot be so thorough as the public may expect. There is a valid point to be made that renewed emphasis on open justice is likely to increase judicial workload and no allowance seems to have been made for that. Quite a lot of the online criticism of e.g. transparency orders can be accounted for on the basis that there simply isn’t any time for the judge to devote to that kind of thing when they’ve got plenty on their plate in addressing the case before them.
We then see the judge’s pastoral experience as Family Presiding Judge for the South Eastern Circuit, being acutely conscious of previous incidents and the prevailing climate. It is undoubtedly the case that if the restriction was lifted the reporting would not be in the form that Williams J would want it to be. Indeed, he seems to have got his position in ahead of the journalists, emphasising that he could see no fault in the judgment(s). It is a telling aside, since whether the judgment(s) were correct or not can hardly be a factor in naming the judge. Is the system to name judges whose decisions are at fault but not those who are not? That cannot be right.
The question of how the judge in question’s views are to be known and (if at all) taken into account is one of the most difficult points here. For all anyone knows that judge is more than willing to be named. Joshua’s suggestion that Williams J asks the judge seems itself to be fraught with difficulty. Having a private word with the judge in question is hardly compatible with transparency, but what is there between that and calling the judge in to give evidence and having them cross-examined? It is also going to be difficult for the Court of Appeal to decide when it seems that the arguments before them may well be one-sided. Perhaps they will appoint an amicus curiae?
Finally, and not I think mentioned in the judgment, is the difficult question of undermining the judge’s authority. If they are named, how many disgruntled litigants will be going back trying to reopen their cases on the basis that the decision was made by the “Sharif judge”? How many Facebook groups will be set up by supposed victims of the judge’s previous judgments? How is the judge going to sit there day after day dealing with the most difficult family law cases knowing that their reputation and judgment has been tarnished by association with the Sharif case despite, as Williams J says, them having done nothing wrong?
Here is a tangential thought about the risk to judges and officials. There have been perhaps around 1500 UK members of parliament this century. Three have been the subject of murderous attacks, one of whom survived permanently maimed when his assistant died. An attempted murder has also been recorded, with the victim stabbed several times. The present environment is appears increasingly tense. Imagine the odds of a serious physical attack MPs face today? I have seen a number of ruling where judges talk of protecting officials where their reasoning implicitly excludes those elected. I do not suggest that we should be less open about our politics, but rather that the bar for the protection of judges' and other officials' anonymity should be very high. Loose claims of social media threats to officials extending from media reportage, often today employed by some as a status symbol, should surely be carefully scrutinised before anonymity is granted by a judge?
Many thanks for these very thoughtful comments.
The question of seeking the views of the judges in question is indeed a difficult one. A judge might take the view that it is better to have taken a decision in good faith that turns out to have been wrong than to be regarded as hiding from the consequences. The judge may positively keen to be named. On the other hand, the judge may have particular concerns relating to a specific case — concerns that are known to that judge alone — which make anonymity desirable. Might it be possible for a judge to send in a simple statement with facing loss-examination?
Nicely done Joshua 👏🏻🙂
Thank you. Sorry it was so long.
Thank you, Joshua: I dare to say that Williams,J’s less than measured language in his reasons is the very reverse of helpful in circumstances such as these. Also, to have used language at the very least disparaging towards the two journalists was unwise and disproportionate. True it is that there are many ill informed and intemperate contributions to be found more or less daily in attacks on a judiciary in whom we should all take pride and which we should support, given many other nations where the tenet of the separation of the powers is a sour joke. But, turning up the temperature in this instance - with every respect to this learned judge- seems unhelpful to put it mildly.