Examination of Witnesses (Questions 260
- 279)
WEDNESDAY 21 FEBRUARY 2007
RT HON SIR IGOR JUDGE, MR MIKE WICKSTEED AND MR PETER
FARR
Q260 Chairman:
Do you account to the DCA for your expenditure?
Mr Wicksteed: I do not, I account to the Judicial
Executive Board.
Q261 Chairman:
Do they in turn account to the budget provider, the Department?
Mr Wicksteed: Yes.
Q262 Chairman:
Do you think it would be better if you had your own budget?
Mr Wicksteed: I do not think that is for me
to say, I am afraid.
Q263 Chairman:
When the Supreme Court is set up will that have a parallel organisation
to your own to your knowledge?
Mr Wicksteed: To my knowledge it will have a
press office, certainly, or an information office. How large that
will be I do not know and what its role will be I do not know
either.
Q264 Chairman:
Do you see that that would be likely to be a DCA budget or the
Supreme Court having its own funding and therefore its own budget?
Mr Wicksteed: I suspect that if the Supreme
Court is to be funded separately it will be part of the Supreme
Court budget.
Q265 Chairman:
It will have its own budget for information and press and so on?
Mr Wicksteed: Yes.
Q266 Chairman:
Do you see dangers of you falling over each other's feet?
Mr Wicksteed: No, not at all. There is a colleague
in Scotland who is a press officer for the Scottish judiciary,
they are about to appoint a press officer for the judiciary in
Northern Ireland, we are in contact with them quite regularly
and we would just see the Supreme Court as being another team
to be in contact with.
Q267 Chairman:
You will have to put something in your budget for travel and entertainment
when all you press people get together I imagine.
Mr Wicksteed: I travel on the Tube; it does
not get very expensive.
Q268 Lord Smith of Clifton:
What is the office's strategy for dealing with judgments and sentences
that are likely to be criticised in the newspapers? You said you
were reactive by and large so you only know that it is likely
to be a hot potato issue after the event, so to speak.
Mr Farr: That is not always the case. 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, through 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 try our best 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 because the judgment and the
sentencing remarks will take into account all the preceding weeks
of evidence and the cases on both sides, it will take account
of things like the aggravating factors or the mitigating factors
that the judge has considered in the sentence and also the statutory
framework and any sentencing guidelines. Often if the media are
aware of the full picture they are much more likely to write a
fair and accurate report than if the focus narrows down just on
the X number of years sentence or X number of years minimum tariff.
Mr Wicksteed: In the pack that you will get
after this with the media guides there are a couple of examples
of summaries that we issued on behalf of judges, one last week
and one the week before.
Q269 Lord Smith of Clifton:
That will be very useful, thank you very much. What sort of scanning
operation do you do? Do you have some sort of internal radar which
can tell you or do you rely upon the judges by and large to inform
you that it is going to be a special case?
Mr Farr: It is a combination. Quite often judges
do contact us and let us know in advance; quite often it only
becomes clear on the day and a story can be prompted by, for example,
some relative's reaction to the sentence, the outcry is what makes
it a story and all of a sudden the judge finds that the sentence
he passed is now controversial.
Q270 Lord Smith of Clifton:
Is there a different incidence according to the seniority of the
court? Is there more drama in the Crown Court as opposed to the
Court of Appeal or what?
Mr Farr: That is a difficult one. The Crown
Court certainly has the theatrical elements—the jury and
the packed public gallery—which in a sense the Court of
Appeal does not, but it really can be any court at any time. I
have seen County Courts that have been involved in very controversial
or high profile cases and it can depend on the parties; there
is a whole range of different factors that makes something of
value and interest to the media and to the wider public.
Lord Rowlands: I was going to raise the
Sweeney case and it might appropriately come in here; is that
all right, My Lord Chairman?
Chairman: Yes, please.
Q271 Lord Rowlands:
What about the Sweeney case which was almost one of the first
tests of communication. The Lord Chief Justice was abroad when
the trial judge was criticised; have you devised any contingency
plans since to cover the situation where you had a kind of media
silence and the press reported what it reported?
Sir Igor Judge: Do you mind, My Lord Chairman,
if I start by answering that? Again, a certain number of myths
have arisen about the Sweeney case and let me see if I can address
some of them. The Lord Chief Justice was out of England, but he
was not that far away, he was in Poland. I was speaking to him
on the telephone, I have no doubt his office was speaking to him
on the telephone, he had not disappeared. Second, you never know
when a case is going to suddenly erupt as that one did. It erupted
in fact following an article in The Sunday Times about
over-lenient judges, which was addressed by the press office on
Monday morning and then came this ghastly case, and it certainly
was a ghastly case, on any analysis. By the evening of that day
the television was reporting it and we perfectly well knew that
on Tuesday there would be a lot of newspaper headlines. What of
course you cannot tell with the newspapers is whether today's
headlines are tomorrow's, or forgotten because something else
has overtaken the newspapers' interest. The complication in that
case was that a senior minister commented on the case. That is
really something that we are not used to; we do not expect senior
ministers to comment on judges' sentencing decisions. The Attorney-General
has a role to play, he will decide whether or not the sentence
in his judgment is unduly lenient and will refer it to the court,
but he will not make a speech about it, he will simply say that
he proposes, if he does, to refer it. By Wednesday the story was
still running and there were two problems: one, does a judge,
whether the Lord Chief Justice or me, in effect dealing with this
particular case because it was a criminal case, actually take
a stand and start arguing publicly with a minister of the Crown
about whether or not the minister's intervention was appropriate
and start a whole issue running about the Government and the judiciary
embattled. That, if I may say so, is a topic which the media loves
to explore; I suppose you are all used to them being keen to demonstrate
that you are all embattled in different ways. This was a big current
story. I took the view, and that was my responsibility, that if
a minister was in effect to be addressed it had to be done by
the Lord Chancellor. The second feature of the case, which is
sometimes overlooked, is that if the Attorney had decided to refer
it, which he might have done, or if the defendant, notwithstanding
the press, had decided the sentence was excessive he would have
had a right of appeal; that appeal would almost certainly have
been heard by a constitution consisting of the Lord Chief Justice
or me or a senior judge or, indeed, more than one of us. We could
not comment on the sentencing process if we were likely to be
sitting for all sorts of obvious reasons, and so the right person
to deal with that was the Lord Chancellor. I spoke to the Lord
Chancellor personally on the Wednesday morning—
Q272 Lord Rowlands:
The story had been running for two to three days by that time.
Sir Igor Judge: The sentence is passed on Monday,
the story is running big on Tuesday—that is the main headline—and
it is still running on Wednesday. On Wednesday morning I spoke
to the Lord Chancellor, he told me that he would address the issue
when he was on the television that night—and he did—and
he then addressed it again on the Thursday morning. Looking back
on it, you could say that that combination of circumstances should
have been addressed more quickly, but it was a very unusual situation.
I really do not remember a senior minister commenting in the way
of the comment produced in that case. There was quite an interesting
and difficult decision in relation to Government and judiciary,
and there was, as I say, the second thing which was overlooked,
which is that the Lord Chief Justice really cannot comment.
Q273 Lord Rowlands:
Have you drawn any conclusions about how you would handle the
situation if a situation like this arose again?
Sir Igor Judge: Yes, I would get on to the Lord
Chancellor more quickly than I did, but I would hope that in view
of the intervention, at any rate for a year or two, there will
not be any ministerial comment of that kind. Then people forget
about it and no doubt as things go forward in 10 years time it
will happen again. It was a very, very rare and unusual situation.
Q274 Lord Rowlands:
Should not the Sweeney case in the first place have come up on
the internal radar screen?
Sir Igor Judge: It undoubtedly would have done;
once the story starts to run it would. It was a horrible case
and therefore you could be sure somebody would take an interest
in it. I simply do not know whether Peter remembers whether it
came up on the radar screen.
Mr Farr: We were aware that the sentence was
going to be passed and it was a high profile case, certainly.
The force of the coverage was in the juxtaposition of the media
climate at the time of sentencing is soft and something must be
done about it, and this case arrived bang on cue, unfortunately
for the judge concerned, in the middle of that period.
Q275 Chairman:
It is very good of you to have explained that. I was struck, listening
to it, that you were personally playing the role of crisis manager
of this little media storm and trying to work out what should
be done and who should do it.
Sir Igor Judge: I suppose so, yes.
Q276 Chairman:
It is clearly quite important that as well as an issue that we
have been thinking about, as well as there being a senior judicial
spokesman or spokesperson available, that there is someone saying
"Okay, this is what has to be done." I wonder in that
context whether as well as getting hold of the Lord Chancellor—and
it is easier to look back on these things than to cope at the
time—there should not have been some sort of holding statement
from the JCO saying the judge was simply following the sentencing
guidelines until you could get the Lord Chancellor to do his stuff
within the Government and ask ministers to shut up.
Sir Igor Judge: Looking back on it, maybe, but
I do not think it has ever been thought necessary in the past
for anybody to say the judge was following sentencing guidelines.
Q277 Chairman:
Why? Because the media would know this, would they?
Sir Igor Judge: That is a very interesting question,
because the truth is that you do not know how a case is going
to be reported and the moment somebody speaks up in effect and
says the judge was only following sentencing guidelines, you then
enter what I regard as an extremely difficult world. You have
somebody who is not the judge in the case commenting on the judge's
decision; in my view no judge should comment on any other judge's
decision. The Court of Appeal will if the matter goes to the Court
of Appeal. Who is the spokesman to be, an unqualified member of
the press office, a qualified member of the press office, a lawyer,
but what can he say beyond what the judge has set out in his sentencing
remarks? In that case the sentencing remarks were absolutely plain:
"I start at this, I have to take account of that and I then
have to take account of this". Anybody reading it would know
perfectly well that he had followed the sentencing requirements.
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.
Q278 Chairman:
We have all become very aware of and are sympathetic to the problem,
and you have articulated it in a way we have not heard quite so
clearly, but the problem with the media is that they abhor a vacuum
and into a vacuum they will put whatever is necessary to keep
the story going. I see the problem.
Sir Igor Judge: Do you mind, may I just show
you the sort of thing you are up against? I am now going to show
you two newspaper headlines the morning after the British crime
statistics were published. I use this on a lecture I give on sentencing,
if you will forgive me. You will not know which newspaper it is
but here is the headline in one newspaper: "Lawless UK".
"Serious violence up 15 per cent; sex offences up 7 per cent;
violence with no injury up 24 per cent." Another newspaper:
"Crime—The Truth". "New figures reveal that
crime has fallen 39 per cent. The falling crime rate: vandalism
down 27 per cent, vehicle theft down 51 per cent, all violent
crime including rape down 36 per cent." What was I reading
here—"Serious violence up 15 per cent; sex offences
up 7 per cent; violence with no injury up 24 per cent." The
newspaper editors of those two particular newspapers would get
hold of a sentencing decision by a judge and they might very well
have a completely different angle on the decision. We had an example
of that last week where, sitting with the Lord Chief Justice,
we decided to allow an appeal against sentence on the basis that
this was not a prison case—it was an assault occasioning
actual bodily harm—and it got a lot of headlines. I will
not go into the details of the case but there were very serious
criticisms made of the decision and there were also some favourable
comments; there was no spokesperson who could possibly have said
anything about that case.
Lord Rowlands: You do not need a Judicial
Communications Office.
Q279 Baroness O'Cathain:
I was going to say exactly the same thing.
Sir Igor Judge: If I may, the answer is yes,
but not to act as a spokesman to justify a judicial decision.
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