Examination of Witnesses (Questions 280
- 299)
WEDNESDAY 21 FEBRUARY 2007
RT HON SIR IGOR JUDGE, MR MIKE WICKSTEED AND MR PETER
FARR
Q280 Lord Goodlad:
Could just ask Sir Igor to go back to his very interesting comment
that in retrospect after there had been a ministerial comment
on a sentencing decision he might have acted a few hours earlier
to prompt the Lord Chancellor to intervene. Do you think, Sir
Igor, that the Lord Chancellor might intervene without having
to be prompted by you; as a corollary do you think the Lord Chancellor
perhaps should not intervene unless prompted by you?
Sir Igor Judge: The answer to the specific question
is I am quite sure he intended to intervene on the Wednesday by
the time I rang, so I would not myself claim any credit for prompting
him, but there was a discussion in which he made clear he had
decided to speak that evening. As a second point, we have to be
very careful about the constitutional position here. The Lord
Chancellor is a member of the Government whose role has changed
rather dramatically; he is no longer head of the judiciary but
he has his constitutional obligations in relation to judicial
independence. There is a judgment to be made on each of these
occasions and if the judgment may not be a judgment—speaking
personally, and purely personally—that I think is right,
I feel perfectly entitled to ring him up and make my comments,
but in the end of course the decision that he makes is for him
not for me. I am not sure that is an answer to your question,
but if I have not answered it, would you like me to add a comment?
Q281 Lord Goodlad:
The main question was should he or should he not have acted after
a minister had commented on a sentencing decision without having
to be prompted by you?
Sir Igor Judge: As I say, I would not want to
leave the impression that I am saying he was prompted by me, because
on the Wednesday he told me that he had already decided what he
was going to do. I did not say "Will you do something this
evening on Question Time?"
Q282 Lord Morris of Aberavon:
My Lord Chairman, on that issue of delay, was not his first comment
to defend the minister's right to raise the matter publicly with
the Attorney-General and it was thereafter that he defended the
judge?
Sir Igor Judge: Your memory is better than mine,
I had forgotten that.
Chairman: These are difficult areas and
I have a number of my colleagues who would like to come in. Lord
Lyell.
Q283 Lord Lyell of Markyate:
Sir Igor, we are focusing on the heart of this matter at the moment,
and if I just ask the question in a very straightforward way—it
will probably make it more difficult to answer—what is your
understanding of the respective roles of the Lord Chief Justice
and the Lord Chancellor in publicly defending judicial independence?
Sir Igor Judge: As the Lord Chief Justice is
head of the judiciary I would have thought it would absolutely
follow that one of his major obligations was to defend judicial
independence. The Lord Chancellor has a statutory obligation to
do so and, again, I would have thought this was an elementary
part of the obligations of the Lord Chancellor of the day. As
to where one goes if they are not talking from the same hymn sheet,
I would expect the Lord Chief Justice of the day to do whatever
he thought was right, irrespective of the view of the Lord Chancellor,
because he is head of the judiciary and must represent the judiciary.
Q284 Lord Lyell of Markyate:
If we go back to the origins of this and Lord Irvine and Mr Blunkett—because
there were a number of preceding cases before the change in the
constitutional position—would you not agree that the constitutional
position remains that the Lord Chancellor has a very strong duty
to protect judicial independence, that he should be ready to stand
up for that as soon as it appears to be called into question and
that ministers should recognise that they have a duty. Of course
they are entitled to make balanced comment, but they should exercise
significant restraint in the way that they do it.
Sir Igor Judge: Yes, and yes, to both halves
of that. The Lord Chancellor continues, notwithstanding the changes
in the constitutional arrangements, to have his or her own independent
obligation to defend judicial independence; I have no doubt about
that. The same applies to the second; ministers undoubtedly should
be careful. For example, if a minister finds there is an adverse
judgment against his department in the administrative court, commenting
on the judge seems to me to be completely unacceptable, but of
course the minister is allowed to say "We disagree with the
judge's position and we intend to appeal". There is no reason
why he should say he accepts a decision if he does not, but criticism
of his judging seems to me to be inappropriate.
Q285 Lord Lyell of Markyate:
Sir Igor, that is very valuable. You have the press office and
Mr Wicksteed and Mr Farr are here. It is obviously important to
a Lord Chancellor or a Lord Chief Justice to be thoroughly acquainted
with the facts; if I can turn to your colleagues, to what extent
is there close communication between the press offices of the
Judicial Communications Office and the Department of Constitutional
Affairs so that the Lord Chancellor is swiftly put in the picture?
Mr Wicksteed: That is a good question for Peter.
Mr Farr: We have regular contact with the Department
for Constitutional Affairs press office and other press offices
as appropriate, the Home Office and so forth. It is not a case
of agreeing a common position on occasions, it is more a case
of how are you responding to this? We get their lines and they
get our lines, our position on something, so that we are aware
of what each other is saying.
Q286 Lord Lyell of Markyate:
If we go back to the Sweeney case, how quickly did the Judicial
Communications Office recognise that the trial judge had precisely
followed and very carefully followed all the sentencing requirements
and how quickly was the Department of Constitutional Affairs press
office also aware of that?
Mr Farr: We were quite quickly aware because
once a transcript became available we were sent a copy of the
sentencing remarks which we duly sent out, although it tended
to get a bit lost in the storm. I am not sure how quickly the
DCA press office was aware but certainly I know that they would
have been sent it. I believe it was sent to them roughly the same
time as ourselves.
Q287 Lord Lyell of Markyate:
If it happened again do you think it would happen more swiftly?
Mr Farr: I think so.
Chairman: While we are in this area,
Lord Peston might have a question.
Q288 Lord Peston:
My question has been answered, My Lord Chairman, very clearly
by Sir Igor as to the role of a judge, possibly retired, in explaining
why the decision had been taken, and Sir Igor has categorically
said no way.
Sir Igor Judge: I would be particularly worried
about a retired judge doing it because he certainly would not
know about the 2003 Criminal Justice Act and although I know about
it, I have to look it up every time I have to make a decision.
It is not easy legislation.
Q289 Chairman:
There are no circumstances in which you would want a senior spokesman.
Sir Igor Judge: I am speaking only for myself,
not in relation to the judicial decision; I do not want the decision
justified other than by the judge. How the office works to make
sure that all the facts are available to those with an interest
in the case is a different matter, but to have all the facts of
the case available and then have a retired judge saying "I
think the sentencing judge did a jolly good job here" is
not actually the way I personally would like to see it work, but
that is my own view.
Q290 Chairman:
As you said earlier in response to my question the reason for
your feeling that is it then creates a game of tit-for-tat; that
is the reason you do not want the judiciary's best case made early
in the piece, you want it to be part of the process that happens
invisibly between the Lord Chief Justice and the Lord Chancellor
and probably more visibly between the Lord Chancellor and fellow
ministers.
Sir Igor Judge: Yes, and the judge has the responsibility
of making clear why he has reached the decision that he has. The
most important people for that—Mr Rozenberg will forgive
me—are not the press, it is the people in court, the defendant,
the victims. They are the people to whom these remarks have to
be addressed.
Chairman: Thank you. Let us go to Lord
Windlesham.
Q291 Lord Windlesham:
Running through the dialogue I had a question dating back to my
own time, many, many years ago, at the Home Office. Does the Home
Office—I seek information here—have any role currently
on sentencing policy and decision?
Sir Igor Judge: No. That is the answer, but
there is something more to come. We now have a Sentencing Guidelines
Council and the way in which that system works, taking it very
briefly, is that the Sentencing Guidelines Council, after taking
advice from the sentencing Advisory Panel, produces a draft guideline
which has to be submitted directly to the three ministers—the
Home Secretary, the Lord Chancellor and the Attorney-General—and
the Home Affairs Committee. They are entitled if they wish to
comment on the draft guideline in any way they think appropriate.
When the consultation period is over those observations come back
to the Sentencing Guidelines Council which then reflects on them
and then produces the guideline which it thinks appropriate, so
in fact there is a link between the Home Affairs Committee, the
Home Secretary of the day and the Sentencing Guidelines Council.
Q292 Lord Windlesham:
There are a lot of people now involved, are there not? At one
stage the Home Secretary had almost complete oversight of proceedings,
but now there are others as well and you have indicated who they
are.
Sir Igor Judge: Yes.
Q293 Lord Windlesham:
Does that lead to a degree of diversification and therefore no
real certainty as to what the likely outcomes will be?
Sir Igor Judge: On the particular issue that
you asked me about there is no problem. When the information comes
back, it is considered by the Sentencing Guidelines Council which
produces its answer. But if I may say so you are asking a much
wider question, which is, who is going to be responsible for policy
in relation to prisons, probation, mandatory sentences, sentences
of imprisonment and public protection and so on. There the answer
is the legislature, and the answer is the Home Office is still
in charge of the legislation which produces our criminal justice
system.
Q294 Lord Morris of Aberavon:
Could I ask about the role of the Lord Chief Justice in media
strategy? Under what circumstances is he asked for guidance and
asked by the media to make an appearance?
Mr Farr: As head of the judiciary, as you would
expect, we keep the Lord Chief Justice abreast of all the significant
news stories relating to judges. Certainly if we were preparing
a response to an issue that was very topical and controversial
we would either use the Lord Chief Justice's own words or we would
make sure that the form of words that the office was using was
one that he was content with. In terms of media interest in the
Lord Chief Justice, interview bids arrive regularly from all sorts
of media organisations for all sorts of things. Some of them are
quite inappropriate, for example would the Lord Chief Justice
like to come along and talk about this particular decision in
this particular case which, as Sir Igor has outlined, is clearly
not something we can entertain. Others are broader, and he considers
those and he makes a judgment with his other commitments permitting
whether he would accede to that request.
Q295 Lord Morris of Aberavon:
Could I follow that up regarding how he makes a judgment. Mr Joshua
Rozenberg said the other day that he had not given a press interview
for a year; is that unusual? What is the advice tendered to him,
should he be more accessible or not or is he making the right
decision?
Sir Igor Judge: I would like to say something,
with respect, if you do not mind. The Lord Chief Justice gave
an interview in October 2005 and if you have at any time a chance
to read the transcript, the media questioning of him—and
I emphasise media, not just newspapers—page after page after
page includes at least one question which is designed to elicit
some remarks from the Lord Chief Justice which will enable the
story to be "Lord Chief Justice at odds with ... " or
"Fury at ... "—you can write your headline no
doubt as well as I can—"with the Government".
That is not actually a very happy way for a Lord Chief Justice
to be interviewed, and if the object of having a conference is
simply to address practical issues but the questions are loaded
to produce the "Fury with Government" kind of headlines,
the Lord Chief Justice is entitled to take the view that this
is not in anybody's interest. The other point, I know, is that
he intends to give the Judicial Studies Board lecture this year
which will be in March; that will be just under one year since
the new arrangements came into force. That in my view—although
ultimately of course it is for him—is the minimum time that
is appropriate to pass; one year is not much in a constitution
that has been here for a thousand or more, and he will be able
to address in that lecture how things are running and how he sees
them. Over-exposure to the media, in my view, is not necessarily—indeed
in my view it definitely is not—in the public interest,
but ultimately it is for the Lord Chief Justice of the day to
decide what he thinks.
Q296 Lord Morris of Aberavon:
With respect I tend to agree with what you have said, but by last
October the date I have here is 11 October 2005, is that right?
Sir Igor Judge: Yes, if you look at page 5—if
my memory is right—there are at least three questions in
a pretty short bit of transcript which are designed to provoke
the Lord Chief Justice to say something which can be given a headline.
Lord Morris of Aberavon: I have read
it. Time after time after time. Thank you very much.
Q297 Chairman:
Sir Igor, one of the things that the Committee is wrestling with
is if the Government set out to produce somewhat greater separation
of powers between the executive and the judiciary, is not the
inevitable consequence of that—and it may be constitutionally
desirable—that there will be a degree of tension because
the essence of separation is the creation of tension? What we
are wrestling with—and indeed you are at the very sharp
end of—is how to manage that tension in a sort of normative,
regular and appropriate way. Should we not be somewhat more philosophical
about separation meaning tension?
Sir Igor Judge: I hope I will not be misquoted,
or at any rate have some sub-editor writing a good headline about
it, but I think a degree of tension is healthy. We all very loosely
say "the Government", but in the end Parliament legislates,
and then it does not really matter what the judges think. The
judges apply the law that Parliament has produced. If the Government
has an idea and it seeks the views of the judges, the judges must
express their honest views and it may therefore be a view that
completely disagrees with the Government and that may create tension.
In the end the Government takes its bill to Parliament and Parliament
decides what the law will be; I do not find a problem with tension,
there are plenty of situations in which intelligent people can
have different views and express them. For the moment there is
a tension but then, provided you all recognise they are views
honestly expressed, there should be no more tension. I wonder,
My Lord Chairman, if you would mind if I just say something slightly
more on this general subject of judicial independence. It is no
longer—in my view it never has been, but this is still my
view—a concomitant of independence that judges should be
isolated. I mentioned to you when dealing with the sentencing
issue the National Criminal Justice Board; I am a member of that
with Lord Justice Gage; we have judges on NOMS—that is offender
management; we have judges on the Criminal Justice Council, and
on the Very High Cost Cases review board. The Senior Presiding
Judge is on the ministerial executive board of the DCA and on
the HMCS board, and of course up and down the country nationally
courts boards have judges on them. They are not executive members,
but they are there to offer a judicial view about the practical
reality and how a particular suggestion might work in practice.
None of that impinges on judicial independence. At the end of
it you have expressed your view, account has been taken of it
and it may or may not find favour; as I say, in the end the legislation
comes through and we are consulted. I cannot remember how many
consultation papers I received this year, but if I remember some
of them: Making Sentencing Clearer, we responded to that,
quashing convictions, how should we deal with that, rape and the
impact of drink, both in relation to the woman—it is usually
a woman—and in relation to the man. There is even a paper
called Making Sure Crime Doesn't Pay, which the judiciary
has had to respond to. We expect to respond to these papers; we
do not expect our response to carry the day; the Government has
to decide what it will put before the two Houses, and so it goes
on. I have meetings, for example, with the Attorney-General. I
saw him on Monday. I can see no reason why I should not tell you
that one of the things he told us was that he proposed to make
a statement about the evidence of Professor Southall; that does
not impinge on our independence, or his. He also told us that
he was concerned about the way in which the deployment of judges
for dealing with heavy fraud cases was working; it is a legitimate
concern, he drew it to our attention and that is for us to deal
with. I can tell you that week after week after week these sorts
of discussions are going on at ministerial level, at official
level, and so on. I do not think myself that expressing our views
has created serious tension and, more important, I do not myself
think that that impinges in any way on my judicial independence
or the acknowledgement by the minister of it. I am sorry that
has taken me so long, but there is quite a lot of material in
this.
Q298 Chairman:
It is well worthwhile, Sir Igor, we are grateful for that, thank
you. We will have to conclude shortly, but just reverting to your
understandable nervousness about exposing the Lord Chief Justice
to loaded questions that are designed to provoke a visible row
of some sort, one of the reactions to not going on the record
is to go off the record. I was quite disturbed when we had several
distinguished media editors to hear that in their opinion the
practice was growing of off the record briefings, I will say by
the judiciary but I do not point at any particular judge and nor
did they. Of course, this is the world of politics that most people
in this room are very familiar with where you do read the next
morning X's fury with Y because somebody has said off the record,
when asked, yes, pretty fed up about that and that was transmuted
the next morning to the judge's fury. Let me ask you very directly—and
this is obviously a question for the JCO—what is your attitude
towards the culture of off the record briefings by judges?
Sir Igor Judge: Mine is easy: we have to distinguish
between a conversation that I may have—I have conversations
with Mr Rozenberg perhaps and regard him very highly. I do not
regard my conversations with him as a briefing, they are discussions
about this that and the other. Myself, I think it is unacceptable
for judges to be making statements to journalists about a proposed
policy, a proposed piece of legislation or indeed one that has
just come into force unattributably, so that it is printed. If
you are going to make any statements of that kind you should be
prepared to accept responsibility for them, but I do not think
you should be making them because one day you may very well be
sitting in judgment on the very legislation which you are criticising.
For my part I think off the record briefings of the kind that
you are asking me about should not happen. That is my very clear
view.
Q299 Chairman:
I am delighted to hear that. It is, as we all know, quite difficult
to distinguish between an agreeable lunch with Mr Rozenberg subsequently
appearing as background and senior judges are expressing concern
about that. Is that part of a conversation over lunch or is it
an unattributable briefing?
Sir Igor Judge: I would not expect, if I were
to say something as indiscreet as that, that Mr Rozenberg would
report it at all.
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