Select Committee on Constitution Sixth Report



140.  It is essential that the judiciary should engage effectively with the public in order to maintain confidence in judges and the parts of the justice system for which they are responsible. Before considering how this can best be done, it is sensible to assess how the judiciary are currently perceived by the public.

Public Perceptions

141.  Unfortunately, as Professor Dame Hazel Genn explained, there is "little information … about attitudes to the judiciary in England and Wales" because "there has been no sustained tradition of investment in research" (Q 308). However, on the basis of what limited information there is, she told us that "the public believe or know that the judiciary are not corrupt, that they do not tell lies, that they are independent, the public trusts them to apply the law impartially". And whilst the public also believe that judges are somewhat out-of-touch, Dame Hazel rightly pointed out that "the fact that people say, 'I think they seem a bit out-of-touch, I am not sure that they really know what goes on in the real world' is not inconsistent with saying 'I trust them' and I think they do trust them and what we see from … polls is that by comparison with other institutions they trust the judiciary very much" (Q 306). Moreover, the advent of the Judicial Appointments Commission, bringing greater transparency to the selection of judges and attempting to encourage applicants "from the widest range of backgrounds", should help to increase public confidence in the judiciary still further (Q 327).

142.  However, whilst public confidence in judges appears generally to be holding up, attitudes may be shifting. A panel of legal journalists told us that judges are increasingly seen as "too left-wing, too bleeding liberal, too wet" and "too pro-human rights and too soft". They also pointed to a perception that "the Government tries to get tough and do things to help the public and the judges sabotage it" (Q 95). Frances Gibb, Legal Editor of The Times, added that people are more willing to speak out nowadays because "it is not off limits to attack anyone in authority in the way it might have been 30 years ago" (Q 100).

143.  Similarly, Paul Dacre, editor of the Daily Mail, felt that whilst "the public still have huge faith in the independence and integrity and incorruptibility of the British judiciary", they are becoming "slightly confused" because they see "political judgments being made by judges which fly in the face of what they perceive as national interests" and "an increasingly lenient judiciary, handing down lesser and lesser sentences". In his view, the public "still have great faith in the judiciary but there are worries that it is not reflecting their values and their instincts" (Q 335). To support these claims, Mr Dacre commissioned an ICM poll in advance of his appearance which found that, of the more than 1,000 members of the public questioned, only 18 per cent had faith that the sentences they wanted passed against criminals would be reflected by the courts whilst 75 per cent felt that sentences were too lenient (Q 353).

144.  In some cases, public attitudes towards the judiciary—whether positive or negative—can stem from ignorance of how the justice system works. As Dame Hazel said, "people are [not] taught properly about the justice system, about the judiciary and about the difference between civil and criminal courts at school, it is not something that we are brought up on". As a result, "people grow up in relative ignorance about what the justice system is there for and what it does". Whilst some people will have first hand experience of the justice system, most people draw their knowledge of the judiciary and their opinions from the media, and "the danger with that is, of course, that the reporting in the media and representations on the television are very selective, they are rather haphazard" (Q 308). Indeed, media coverage of the judiciary tends to focus on controversial or damaging stories and cases, because "a story about a judge behaving with outstanding levels of professionalism in court is not going to make news in the same way as a doctor performing an operation absolutely beautifully does not make news" (Q 309).

145.  Given their important role in shaping attitudes towards the judiciary and the justice system, the media have a duty to report proceedings accurately and fairly. However, certain sections of the media might be said to abuse this position of responsibility by attacking individual judges or the judiciary as a whole for carrying out their obligations by implementing the HRA or following sentencing guidelines. For example, the High Court ruled in May 2006 that the nine Afghan nationals who had hijacked an aeroplane should have discretionary leave to remain in the United Kingdom under the HRA. The following day, the Daily Express printed a leader in the following terms: "Using the European Convention on Human Rights as cover, Mr Justice Sullivan made a ruling which many will regard as tantamount to a judicial coup against Parliament … Britain's out-of-touch judges are increasingly using the Human Rights Act as a means of asserting their will over our elected representatives".[74] Similarly, a Daily Mail editorial in 2003 asserted that "Britain's unaccountable and unelected judges are openly, and with increasing arrogance and perversity, usurping the role of Parliament, setting the wishes of the people at nought and pursuing a liberal, politically correct agenda of their own, in their zeal to interpret European legislation".[75] This kind of rhetoric is misleading and wholly inappropriate, showing no regard for the consequences. As Lord Falconer has said, it has "an impact in undermining confidence in the judiciary".[76]

146.  We believe that the media, especially the popular tabloid press, all too often indulge in distorted and irresponsible coverage of the judiciary, treating judges as "fair game". A responsible press should show greater restraint and desist from blaming judges for their interpretation of legislation which has been promulgated by politicians. If the media object to a judgment or sentencing decision, we suggest they focus their efforts on persuading the Government to rectify the legal and policy framework. In order to ensure more responsible reporting, we recommend that the Editors' Code of Practice, which is enforced by the Press Complaints Commission, be regularly updated to reflect these principles.

147.  Furthermore, as discussed in Chapter 2, Ministers can on occasion worsen the situation by making inappropriate comments about judges or their judgments, even though the judges are striving to follow sentencing guidelines and to apply Government legislation. This kind of behaviour by any minister is unacceptable. In addition, Frances Gibb of The Times told us that ministers are all too often "peddling the wrong image" of the HRA (Q 116), a view which echoes the finding of the Joint Committee on Human Rights that ministers are making "unfounded assertions about the Act" and using the Act as "a scapegoat for administrative failings in their departments".[77] This can increase the public pressure on judges charged with interpreting an Act which was introduced by this Government, with the result that, in the words of Paul Dacre, "the perception is that it is the judges' fault" (Q 358).

148.  It will be clear that we believe it is incumbent on the media as well as politicians to exercise restraint when commenting on judges or their judgments. However, this is not to say that the judiciary, particularly with their greater independence from the executive, can merely stand aloof, refusing to engage with the media and the public outside the courtroom. With this in mind, we were disappointed at the reaction of Sir Igor Judge, President of the Queen's Bench Division, who told us that he was "very troubled" about the Judicial Communication Office's (JCO) ambition to enhance public confidence in judicial officeholders, explaining that:

    "enhancing public confidence is a most difficult concept and it is particularly difficult … for judges who actually are not in the business of trying to sell themselves to anyone. If our judgments do not speak for themselves there is nothing that the Communications Office or the press office can do" (Q 235).

149.  Whilst Sir Igor is of course correct that the words of the judge in the courtroom are by far the most important way in which the judiciary interact with the public and the media, Joshua Rozenberg of The Daily Telegraph commented that "the judges have to work for [respect]. I do not think they can assume, as perhaps they used to, that it comes automatically with the role and with the knighthood. That is why public relations is so important and that is why perhaps it is in the judges' interests for them to be doing more in order to retain—and even regain—the public's confidence" (Q 101). We have sympathy with this view. The key question is that posed by Lord Falconer: "how do [the judiciary] connect with, and retain the confidence of the public, without forfeiting either their independence or their very role in deciding cases in accordance with the facts before them"?[78]

The Role of Individual Judges

150.  We now consider the ways in which the judiciary can, do and should communicate with the public and the media. First, to take individual judges and their judgments, the Lord Chief Justice warned us that "it ought to be clear from the judgments in question the process of reasons that has led the judge or judges to reach their conclusions … and it would not be appropriate for those who have given the judgment or, indeed, for me to go beyond that" (Appendix 8, Q 54). Similarly, Lord Lloyd of Berwick, a former Law Lord, told us that "it is highly undesirable that judges should be asked to defend their decisions" (Q 199). Furthermore, Professor Bradley wrote that "even if the judge should wish to correct any misunderstanding of the decision, the judgment itself should have emphasised the factors that explain an unexpected or controversial outcome" (Appendix 4). Paul Dacre agreed that in the case of controversial decisions, the judge should anticipate the "storm" (which, we observe, is often media-driven) and go "out of his way to explain himself" (Q 344). Clearly, then, it is not for individual judges to defend their individual decisions in the media, but they should make every effort to explain the reasoning behind their judgments or sentencing decisions in the clearest possible manner in order to avoid any misunderstanding of the true position by either the media or the public.

151.  Notwithstanding the general rule that judges should not defend their rulings in the press, a number of them in the High Court and Court of Appeal have in recent years drafted media releases to accompany their judgments in particularly high-profile or complex cases. For example, in the case of the profoundly disabled baby Charlotte Wyatt, where the parents appealed against a High Court decision on her treatment in the event of a decline in her condition, a media release provided a summary of the Appeal Court's judgment.[79] This kind of accessible and concise explanation increases the transparency of the decision and is to be commended.

152.  Another issue is judges speaking publicly outside the courtroom on general legal and constitutional matters. Lord Mackay of Clashfern's revocation of the so-called Kilmuir Rules meant that individual judges were given the power to decide for themselves whether or not to do so. It can be very beneficial for individual judges to engage with the public and the media in this manner. As Frances Gibb has written, "if the judiciary wants the public to understand how rulings are reached and the constraints under which they work, they need to speak out—often".[80] The only caveat is that judges should not comment on overtly political matters or in a way that might compromise their reputation for impartiality.

153.  Whilst it is desirable for judges to speak out on judicial matters in the way outlined above, a different question is whether they should co-operate with so-called "human interest" media stories so that the public can find out more about their lives and their activities in the local community. As Clare Dyer of The Guardian told us, "people want to know more about the people they are reading about. They do not see them as remote sphinx type figures as the judge used to be thought of in the past" (Q 115). Professor Dame Hazel Genn noted that "there are things that individual judges do on their own initiative in their local communities, but I think there is scope for them to do more and I hope that they will do more in the future … It is important that somebody has responsibility for projecting positive images of the judiciary" (Q 321). However, Mike Wicksteed, Head of Judicial Communications, felt that this was not a priority for his office since the focus would be on making sure that "the work [the judges] do in court is well and accurately reported". Sir Igor Judge was more vehement in his opposition to the JCO doing this kind of work, answering "no, not ever" (Q 227).

154.  We now turn to the issue of judges giving off-the-record briefings to journalists, a phenomenon which mirrors the spin culture of Westminster and Whitehall and which appears to be on the increase. Clare Dyer told us that she had done "a series of interviews with judges about a very political subject … on conditions of anonymity", and both Joshua Rozenberg and Frances Gibb said that they had also reported comments on these terms (QQ 86, 87). We asked a former Lord Chancellor and a senior judge about this practice, and they both condemned it in the strongest terms. Lord Mackay of Clashfern said that he did not like off-the-record briefings "in any circumstances whatsoever" and added that "if I had something to say that was worth saying I was prepared to say it and stand by it" (Q 171). Similarly, Sir Igor Judge told us that "I think it is unacceptable for judges to be making statements … unattributably" and "if you are going to make any statements of that kind you should be prepared to accept responsibility for them". He concluded, "I think off-the-record briefings … should not happen. That is my very clear view" (Q 298).

155.  Whilst judges should never be asked to justify their decisions outside the courtroom, it is desirable for them to communicate with the public and the media on appropriate issues. We therefore strongly encourage the occasional use of media releases alongside judgments, as for example in the Charlotte Wyatt case. Further, we cannot see any reason why judges should not co-operate with the media on features about their activities outside the courtroom, if they so wish. However, we are strongly of the opinion that whatever the media pressure, judges should not give off-the-record briefings.

The Role of the Lord Chief Justice

156.  We now consider the role of the Lord Chief Justice in representing the judiciary in the media and wider public eye, a role which has assumed a much greater importance in light of the CRA because the Lord Chancellor is no longer charged with representing the judiciary. As the head of one of the three arms of the state, it is important that the Lord Chief Justice—with the help of other judges and the JCO—ensures that the judiciary's viewpoint is properly represented and that its profile is maintained. Not only can this help to increase public understanding of judges and the justice system, it can also help the judiciary to place constructive pressure on the executive over areas where there is disagreement or unease. For example, public statements by the Lord Chief Justice, evidence to our Committee by Lord Justice Thomas and Sir Igor Judge, and evidence by the Lord Chief Justice to the House of Commons Constitutional Affairs Select Committee have all played a valuable role in putting the judiciary's concerns about the MoJ in the public eye.

157.  How then has the Lord Chief Justice interpreted this part of his job thus far? Joshua Rozenberg of The Daily Telegraph was implicitly critical of the Lord Chief Justice, telling us that "it is very significant that [Lord Phillips] has not had a single press conference in more than a year … Lord Phillips has quite deliberately chosen not to [speak to the media], which is all the more significant given his increased responsibilities" (Q 87). He further explained, "I do not think there is any harm in the public knowing a little bit more about the views of the Lord Chief Justice of the day … given that he has this important role as head of the judiciary, a role which we do not really understand. We have no idea how he is exercising that role" (Q 120). Furthermore, Mr Rozenberg has warned that "in treating the media as uniformly hostile, [the Lord Chief Justice] is in danger of bringing about the very breakdown in relations that he has wrongly identified as now existing".[81]

158.  Although the Lord Chief Justice has since held a constructive and informative press conference, any wariness of such occasions on his part is perhaps understandable. As Sir Igor Judge told us, at Lord Phillips' first press conference in October 2005, "the media questioning of him [was] designed to elicit some remarks [which would] enable the story to be 'Lord Chief Justice at odds with' or 'Fury at' … the Government. That is not actually a very happy way for a Lord Chief Justice to be interviewed, and [he] is entitled to take the view that this is not in anybody's interest" (Q 295). In any case, Lord Mackay of Clashfern felt that the Lord Chief Justice should not be distracted from "his principal role of leading the judiciary in judgment" and Lord Lloyd of Berwick was concerned that an excessive administrative burden might be preventing the Lord Chief Justice from sitting as often as he ought (QQ 179, 184).

159.  Aside from press conferences, Lord Phillips has delivered a number of informative and thought-provoking speeches on a range of issues since assuming the role of Lord Chief Justice.[82] Whilst these speeches are of great interest to those involved in matters legal and constitutional, the ensuing press coverage is limited except when the Lord Chief Justice says something controversial. It therefore seems unlikely that his pronouncements are reaching a wide public audience.

160.  It is wholly within the discretion of the Lord Chief Justice to determine how he can most effectively communicate with the media and the public. However, we suggest that he may from time to time need to re-appraise his strategy in light of the new constitutional relationship between the judiciary, the executive and Parliament. We believe that, in these days of greater separation of powers, it is highly desirable for him to ensure that the views of the judiciary are effectively conveyed to the public.

The Role of the Judicial Communications Office

161.  The Judicial Communications Office (JCO), which took over a role formerly carried out by the press office of the DCA, was established in April 2005 by Lord Woolf, then Lord Chief Justice, "to increase the public's confidence in judges … as part of an overall requirement to enhance public confidence in the justice system".[83] The current Lord Chief Justice has explained that the JCO's specific role is to provide "a full press office service with advice and support available 24-hours a day, seven days a week".[84] The office has nine staff including two press officers, although one of those posts is a job share (Q 242). In this section, we consider how the JCO operates and how it might do so more effectively in future.

162.  Mike Wicksteed, Head of Judicial Communications, told us that the JCO had two elements: the media relations element which "tends broadly speaking to be reactive, but there is a proactive element in it", and the internal communications element (Q 213). It is the first of these that concerns us here. The Chief Public Information Officer, Peter Farr, explained the work of the press office as follows:

    "We usually know in advance if there is a particularly controversial case where a judgment is to be handed down; we do not always know on sentencing, though occasionally a judge will contact us in advance and say you ought to be aware that I am passing down a sentence in this case today, either there has been a lot of media interest in it or it is reasonable to assume that there will be media interest in it. Our approach on those occasions is to … ensure that there is something available to be given to the media, either in terms of a judgment or in terms of sentencing remarks. That is the best prospect really for the media being able to report things accurately and in context … Often if the media are aware of the full picture they are much more likely to write a fair and accurate report" (Q 268).

163.  It is undoubtedly helpful for the JCO to provide the media with judgments and sentencing remarks. However, in the absence of any further explanation, this may not be sufficient to ensure that the judiciary are properly represented in the media. For example if, in the Sweeney case (discussed in Chapter 2), the JCO had done more to drive home the message that the judge was simply following sentencing guidelines, newspapers such as The Sun might have moderated their attacks on "the arrogance of judges in their mink-lined towers"[85] and turned their fire on the guidelines in question. As Clare Dyer of The Guardian told us, "there ought to have been somebody in the Judicial Communications Office who could have found out that information and put it out on the day … We would not then have [had] this idea that there were these terribly lenient judges who were just doing it off the top of their heads. The public needs to know that they are acting on guidelines" (Q 89). Similarly, Frances Gibb wrote that during the Sweeney furore "the media clamoured for a response … and none was forthcoming".[86]

164.  Unsurprisingly, a number of witnesses felt that the JCO needed to enhance its media "fire fighting" capabilities. For example, Professor Genn told us that the issue of "fire fighting … needs to be sorted out because ... sometimes there is misreporting because the people reporting it do not understand what is going on". She insisted that "there needs to be a system for correcting misapprehensions" (Q 314). Similarly, Paul Dacre of the Daily Mail told us that "perception is everything and therefore the judges need to address that … They need to get their message across [because] if you do not get the message across, you are losing the perception war" by merely giving "a nuts and bolts background to issues" (QQ 341, 342, 351).

165.  What then, aside from providing copies of judgments and sentencing remarks, might the JCO do to secure more balanced coverage of the judiciary in the media? We have already suggested that issuing media releases alongside controversial judgments is desirable. In addition, there is the option of the Lord Chief Justice speaking to the media, which may on occasion be necessary, but it could be problematic for him to speak about individual cases given his role in the Court of Appeal.

166.  Instead, Joshua Rozenberg suggested that the JCO should "act as the public spokesman for the judges in a way that they currently do not do" by offering "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" (Q 88). Such a spokesman would probably need to be a trained lawyer, something which the JCO currently lacks (Q 243). Alternatively, it was suggested to us that a panel of senior or retired judges could fulfil this spokesman role (QQ 89, 103, 109). Spokesmen of this kind might correct inaccuracies, highlight significant sections in judgments or sentencing remarks, and possibly even explain complex points of law to facilitate more informed media coverage.

167.  There are some possible snags with giving the JCO this type of spokesman role, however. Sir Igor Judge felt that "no judge should comment on any other judge's decision" because it should all be resolved through the formal appeals process. He asked, "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'?" In conclusion, he said that "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" (Q 277).

168.  The Lord Chief Justice, however, seems amenable to a more active JCO: "the Communications Office offers help and information to the media and is increasingly called on to comment on news stories before they get into print, which tends to ensure that the record is straight rather than needs putting straight".[87] His apparent support for a JCO which does more than merely distribute judgments and sentencing remarks is most encouraging.

169.  In addition to "fire fighting", it is important that the JCO (alongside the relevant government departments) should take responsibility for educating the public and building confidence in the judiciary over the longer-term, as Professor Genn said (Q 314). It is particularly important that school pupils should be taught about these issues, and it is encouraging that political, legal and human rights, civil and criminal law and the justice system are statutory elements of the citizenship curriculum. The judiciary already play some role in the teaching of these topics through participating in mock trials, for example, but there is undoubtedly scope for judges and judiciary officials—subject to their workload—to do more to inform and enliven the teaching of this hugely important part of the school curriculum.[88]

170.  No matter how the JCO may develop, it is essential that judges should comprehend its vitally important role and co-operate accordingly. As Frances Gibb has written, the JCO "is not an expensive add-on; it is an essential part of a modern judiciary and must be given the tools to do its job".[89] Specifically, it is important that judges should alert the JCO if there is a possibility of a judgment or sentencing decision being controversial or newsworthy. They should also not shy away from asking the JCO for media training or advice on presentational issues such as how a speech might be portrayed in the media. Sir Igor Judge's statement that he would be "pretty horrified" if the JCO offered him advice on a speech (Q 226) was perhaps symptomatic of the fact that many judges have yet to reconcile themselves to the need for a professional judicial communications capability.

171.  We conclude 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. 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.

74   Leader, 11 May 2006. Back

75   Comment, 20 February 2003. Back

76   Evidence by the Rt. Hon. Lord Falconer of Thoroton and Mr Alex Allan to the Constitutional Affairs Select Committee, 4 July 2006, Q 250. Back

77   Thirty-second Report of Session 2005-06, The Human Rights Act: the DCA and Home Office Reviews (HL Paper 278/HC 1716), p 3. Back

78   See Back

79   See Back

80   Benchmark Number 4 (July 2006), pp 7-8. Back

81   Law page of The Daily Telegraph, 12 October 2006. Back

82   See for example his speech to the Cardiff Business Club on 26 February 2007 and his Judicial Studies Board Annual Lecture on 22 March 2007. Back

83   See Back

84   See Back

85   "The Sun says", 13 June 2006. Back

86   Benchmark Number 4 (July 2006), p 7. Back

87   See Back

88   See also the work of the Public Legal Education and Support (PLEAS) Task Force, which is chaired by Professor Dame Hazel Genn: Back

89   Benchmark Number 4 (July 2006), p 8. Back

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