Speaking for themselves
Why judges shouldn’t explain other judges’ judgments
In a letter to The Times yesterday, a retired High Court judge suggested a way in which the judiciary could defend itself against public criticism.
Sir William Charles, who sat in the Family Division from 1998 to 2013 and then served as vice-president of the Court of Protection until his retirement in 2018, was responding to a leading article criticising Mr Justice Williams. Earlier this month, Williams granted anonymity to other family judges who had dealt with the case of Sara Sharif, some years before the 10-year-old was murdered by her father and stepmother.
Charles said there were good reasons why judges should simply stand by their published judgments and say no more. He may not have been aware that, as I reported on Monday, Williams had taken the opportunity in a judgment published a week ago to complain about coverage in the Daily Mail of a judgment he had delivered in 2018.
On the assumption, though, that serving judges cannot answer back, Charles suggested that:
the identification by the judiciary and the Ministry of Justice of a well-informed person, who could be a serving or retired judge, to publicly explain and comment on the legal principles and their application through the judgments in that case (and in others that raise such serious and emotive issues) would promote transparency and trust in the legal system through fair, accurate and responsible comment and reporting.
It would certainly not be appropriate for the Ministry of Justice to have any involvement in choosing someone to speak on behalf of the judiciary. And Charles is well aware that judges do not always like the length of other judges' sentences.
More to the point, it’s not the first time this idea has been put forward. I suggested something along these lines myself in 2006, giving oral evidence to the House of Lords constitution committee. Legal editors at three national newspapers had been whether there was more that could be done by the judiciary’s communications office.
What they could do, I replied, was
act as the public spokesman for the judges in a way that they currently do not do. Either the lord chief justice or somebody deputising for him could and should speak out. Or, if he thinks that he wants to maintain a low profile for tactical reasons, the judicial communications office could have a public spokesman who is trained, able and authorised to speak on the judges’ behalf without having to refer everything that he or she might say to an individual judge.
In the sense that Sir Bernard Ingham knew Lady Thatcher’s mind, this spokesman would know what the judges were thinking without the need to check each individual comment that he or she might make. This would be a radical departure, but if the judges are going to follow the practice of the present lord chief justice [Lord Phillips of Worth Matravers] and not speak publicly when they are under attack, it might be a good idea to enlarge the role of the judicial communications office beyond the routine of putting out press statements and organising press conferences.
Clare Dyer, Frances Gibb and I were speaking a few months after John Reid, the home secretary, had criticised the minimum term that a sex offender called Craig Sweeney would have to serve before being considered for parole. Although the tariff was entirely in line with current guidelines — the attorney general did not even suggest to the Court of Appeal that it had been unduly lenient — the lord chancellor, Lord Falconer of Thoroton, had been slow to come to the sentencing judge’s defence. The committee was astonished to hear I had been told by a junior press officer in Falconer’s department that it was now for the lord chief justice rather than the lord chancellor to speak out on these matters.
Reporting to parliament in July 2007, the committee concluded that:
the judges should consider making the judicial communications office more active and assertive in its dealings with the media in order to represent the judiciary effectively.
It added:
We suggest that consideration be given to appointing one or more spokesmen with appropriate qualifications and legal experience who would be permitted to speak to the media with the aim of securing coverage which accurately reflects the judgment or sentencing decision.
However, under no circumstances should such spokesmen seek to justify decisions as opposed to explaining them.
That idea was taken up by Phillips. It was reported in 2008 that, in response to “widespread inaccurate media coverage” of Sweeney's sentencing, five judges were being trained to be the first official media spokesmen for the judiciary.
But that was as far as it got. We eventually found out who some of them were but, as far as I know, the spokesmen were never called upon to speak. On reflection, it was never going to work. This is what the committee had been told by Sir Igor Judge, then president of the Queen’s Bench division:
I am troubled about the idea of a spokesman. What happens if the judge's sentence is completely barking? It may be way over the top — seven years for a shoplifter. Do we have a spokesman to say the judge was wrong or do we have a spokesman to say, “well let us try and find some justification?”
Judges cannot have their decisions justified ex post facto; their decisions have to be made in court, every word spoken in court to the people who really matter: in criminal cases the defendant, the victims and the people who were present in court, and if the jury decided that the verdict should be guilty, they too.
We do have to be very careful not to create of our judicial communications office the idea that they are spin doctors; there is going to be unattributable briefing, all the paraphernalia that goes with — I hope I am not being discourteous to anybody — running a government department. We are responsible for what we say in court and people should not have to defend us or criticise us publicly until it goes to a higher court.
He was right, of course. Judges must speak for themselves.
And five judges who will do just that
Belated congratulations to five new members of the part-time judiciary, named before Christmas (and many thanks to the assiduous reader who tipped me off).
They have all been appointed to the panel of chairmen of the Competition Appeal Tribunal, a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy whose function is to hear and decide cases involving competition or economic regulatory issues.
The best known is Dinah Rose KC, who will combine hearings cases at the tribunal with her work as an extremely hands-on president of Magdalen College, Oxford.
I have also written much recently about Margaret Obi, a former deputy High Court judge who sat as an acting judge in the British Indian Ocean Territory and handled the challenge by Tamil asylum-seekers to the UK government with skill and effectiveness.
The other new chairs are
Appointments follow an open competition (and a long wait).