Select Committee on Constitution Minutes of Evidence


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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