Examination of Witnesses (Questions 340
- 359)
WEDNESDAY 7 MARCH 2007
MR PAUL DACRE
Q340 Chairman:
Perhaps we could come on to the Human Rights Act in a moment because
it is something on which we would like to have your views. One
of the things that is of concern to the Committee is the fact
that it is not appropriate most of the time for judges themselves
to get involved in the adversarial combat. In a sense, as we have
identified, it is extraordinarily difficult for judges to answer
back and in many ways inappropriate for them to answer back if
attacked. I wonder to what extent you feel and journalists feel
that it is fair game to attack individual judges, understanding
that, unlike a politician or even a private citizen, they are
not expected to and nor is it appropriate for them to jump into
the ring and start punching back.
Mr Dacre: There are two prongs to that question.
I am not sure in a modern world—and I am not dogmatic on
this—that judges can any longer adopt the position that
they cannot explain their actions. It seems to me, when there
are very controversial judgments, it is beholden to them to make
sure they explain fully their position on these, otherwise it
is going to lead to all kinds of misunderstandings. As to whether
judges are fair game, my instinct is that, for years, judges have
enjoyed immunity from criticism in the press but, in a changing
age, a 24-hour media age, an age of instant news, an age in which
there is generally a lack of reverence, judges must learn to expect
more criticism and will need to think through how they are going
to respond to that. I know you say you want to come back to the
Human Rights Act but it seems to me that if the judges—and
this is a matter of opinion—are making political judgments,
then, I am afraid, if they are making political judgments they
are going to have to be held more accountable and they are going
to be scrutinised more. I am afraid that is the way it is. If
they are making more and more lenient sentences—and I know
it is not the judges, I know it is the sentencing guidelines,
I know it is the politicians—they are going to have to explain
their position on this more vocally and more lucidly. What mechanisms
they might choose for doing that is for a bigger conversation,
perhaps.
Q341 Chairman:
I am glad you acknowledge that a lot of these sentencing issues
are to attack the judge for administering the law within the guidelines
provided by the Government. It suggests to the layman, let alone
to a committee like this, that it is the Government who should
be in the sights of those criticising rather than the judges doing
their job.
Mr Dacre: If I may humbly say so, that is correct,
yes. But perception is everything and therefore the judges need
to address that, do they not? They need to get their message across.
Q342 Baroness O'Cathain:
How can they?
Mr Dacre: Far be it for me to give them advice
but the Lord Chancellor and the Attorney General, it seems to
me, have become too politicised. The Chief Justice, I suspect,
is going to have to assume more and more of a role of speaking
up for the judiciary. I do not know. Senior judges, maybe they
can speak up for the judiciary. We live in an age, I am afraid,
of televisual communication: if you do not get the message across,
you are losing the perception war.
Q343 Chairman:
It is a shame that you missed—although I know how busy you
are—the previous witness, Dame Hazel Genn, who was saying
that we all (gesturing at us as well) share a responsibility
for seeing that the very qualities you started with as to why
the judiciary is admired (its independence, its impartiality,
its special position) are not damaged. Because, if we damage it,
we fatally damage one of the elements of our public life.
Mr Dacre: I could not agree with you more. If
I could be so bold as to say, the free press needs an independent
judiciary in the extreme. If I may also be so bold, the judiciary
needs a free press to support it against an over-powerful executive.
The two can help each other.
Q344 Chairman:
One of your very entertaining columnists, Allison Pearson, whose
articles I always enjoy personally, criticised the trial judge
in the Sweeney case in these terms—and, as you say, criticism
in a post-deferential society must be expected: "Judge Williams
and his kind"—which I guess means the rest of the judiciary—"just
don't get it, do they? Cloaked in a little erminetrimmed authority,
these men ... . show contempt for the British public". Of
course, he was following sentencing guidelines, so, in retrospect,
does that seem part of the mutual responsibility: of judges for
seeing that we have a free press and the free press for seeing
that people understand what judges do?
Mr Dacre: I am glad you brought that up and
I have obviously given this some thought. The first thing I would
like to say is the obvious: Allison Pearson is a commentator.
She is a columnist; she is not a reporter. I took the precaution
of bringing the Daily Mail's news report of that Monday
on this very contentious decision and in my view it was a classically
fair piece of reporting. The sixth paragraph of this story read:
"But Judge John Griffith Williams QC said he had no choice
but to reduce the tariff in the light of Sweeney's guilty plea.
Sentencing guidelines introduced in 2004 meant the judge had to
cut a further third off the tariff which would previously have
been nine years. That made the tariff six years but a further
reduction was made for time served." That was very high up
in the copy and the rest of the story is then reaction to the
judge's comments. Allison Pearson is a brilliant columnist whose
genius, brilliance, is to connect with millions of middle-class
women in Britain, which she does very successfully. I do not believe
that there was a middle-class woman in Britain that Tuesday who
did not feel sick in their stomach at reading that a man with
18 previous convictions, who had kidnapped a three-year old little
child and subjected her to the most awful three-hour ordeal, who
was out on semi parole at the time, then only got five and a quarter
years because he had pleaded guilty, despite the fact that he
had been caught red-handed—red-handed—in the car and
pleading guilty to me and to most people was an utter sophistry.
All I can say—and you may say that judges cannot do this—is
that the judge in that case should have been more media savvy.
Indeed, I think the judges do need to learn to be more media savvy
for the age we live in. I think the judge should have anticipated
that storm and should have gone out of his way to explain himself.
He should have said, in passing this sentence: "Many of you
feel astonishment and rage at this, that a man who has done this
is only getting five and a quarter years. I refer to the fact
that I am bound by reporting restrictions and this issue should
be taken up with the politicians and the law makers in this country."
I have read the reports of the case and I do not think the judge
said that. He allowed this misunderstanding to mushroom. Of course
it was compounded by a minister and a junior minister diving in
opportunistically to exploit it, but, again, if I may be so bold,
when that situation was running out of control it would have been
helpful if someone like the Lord Chief Justice had gone on television
and said, "Look, we must get this in perspective."
Q345 Viscount Bledisloe:
It would appear, Mr Dacre, that you thought that maybe the judiciary
should be more proactive in dealing with your comments. In the
light of the fact that you accept that Judge Williams had no alternative
but to pass this sentence, would you therefore have regarded it
as perfectly reasonable if he had sued your newspaper for libel?
You said he showed contempt to the public. He did what he was
bound to do.
Mr Dacre: I do not think that is libellous,
with great respect. It is comment really. We are still free to
comment. Going back to that story, the irony of this situation
is that Allison Pearson is a very liberal lady, a very liberal
columnist. Goodness knows what some of the Daily Mail's
columnists might have said. I would refer you, however, if you
thought she was tough, to The Sun of that day. The banner
headline on the front page was "Guilty as charged."
And that is referring to the judge. "Sack the softies"
is their inside story. Their leader read: "What truly beggars
belief is the arrogance of judges in their mink-lined ivory towers
who leave the rest of us to cope with the real crisis of soaring
crime ... .. Judges are a law unto themselves. Far from understanding
the public outrage, they round on The Sun for daring to
raise the issue at all. What would the ignorant public know about
the delicate balance between guilty and punishment? How dare we
question their lofty rulings or their right to sit on the bench
until they fall off it? As things stand, judges can cock it up
every time they sit on the bench and frequently do but he or she
is immune from the sack unless caught with his pants down or fingers
in the till." I would humbly suggest that Ms Pearson was
very moderate in her views.
Q346 Viscount Bledisloe:
That only seems to me to demonstrate that there were other papers
that Judge Williams could have sued as well.
Mr Dacre: I very much doubt it. I bow to your
superior knowledge of jurisprudence but I do believe comment is
free in this country.
Q347 Chairman:
Reading The Sun, you are astounded at your own moderation!
Mr Dacre: I am, yes.
Q348 Lord Lyell of Markyate:
The Department of Constitutional Affairs, in its Review of
the Implementation of the Human Rights Act in July last year
concluded that "negative and damaging myths prevail about
the Human Rights Act" and it suggests that the media were
responsible. Do you agree with this assessment?
Mr Dacre: The media, of course, are always responsible
in this country. They always want to shoot the messenger. No,
I do not accept that, I am afraid. There are some papers that
are critical of the Human Rights Act; there are others who are
passionately in favour of it. The BBC, which is the most powerful
voice in Britain, which dwarfs the influence of Fleet Street,
is very pro Europe and very pro the Human Rights Act. So I do
not blame the media. I blame the Human Rights Act for placing
judges in a very difficult position.
Q349 Lord Lyell of Markyate:
In part, in relation to the Human Rights Act, has it not stood
up for a good many liberties, like the right to a fair trial?
Mr Dacre: Yes. But, I am afraid, if I am being
honest, I have referred to taking decisions that overturn decisions
taken by law makers and I have seen the huge and significant impacts
the Human Rights legislation has had on my own industry. I believe
it is both worrying for my industry in terms of press freedom
and worrying for the slight wedge it is driving and the anxiety
it is driving in relations between the judiciary and judges, because
more and more we are witnessing the emergence of an aggressive,
judge-made privacy law based on case law. We have seen some astonishing
decisions which are overturning freedoms which we have had for
decades. This is being done without any recourse to Parliament.
We were assured when the Human Rights came in that it would not
lead to the introduction of a privacy law and we are seeing this.
I do worry that this is leading to some of the angst between the
media and the judiciary. Again, they are being put in a position
in which I do not think they should have been put.
Q350 Chairman:
Could I just ask you whether you think the Constitutional Reform
Act with this greater separation between the judiciary and the
executive has also affected relationships between the media and
the judiciary? "Relationships" may be the wrong word,
but the way in which the media see and report upon the judiciary.
Do you think that has been affected in any way by the passage
of the Constitutional Reform Act?
Mr Dacre: I do not really think so. Are you
referring to the Judicial Communications Office?
Q351 Chairman:
That, as a manifestation of this greater separation, they now
need to explain themselves from their own offices.
Mr Dacre: I have spoken to my news desk about
this. Our view is it does an okay job. It gives a nuts and bolts
background to issues. It is employed by good enough people but
they are journalists and so they do not really have an understanding
of the most controversial issues of the day. I suspect in the
Craig Sweeney case that the particular office which you people
perhaps would have hoped would have played a role was virtually
useless. Virtually everyone said they did not know what the judge's
thinking was. Anyway, again, anonymous spokesmen in a modern communications
world are virtually useless: you need a flesh and blood face to
go on television or the radio to put the case.
Q352 Chairman:
It was one of the very powerful points you made earlier in this
evidence that the judges need to work out more effectively how
to communicate, how to find a spokesman, how to handle the media,
how to make the case, both the general case and the specific one.
You have made that point but I think you are saying that the Judicial
Communications Office, although it is not hindering that process,
has not made any enormous difference in your perception.
Mr Dacre: That is a fair summary, yes.
Q353 Lord Woolf:
Do you think there is any danger, if the judiciary become overactive
in the fields we have been talking about, which are very difficult
ones for the judiciary, of their being sucked further into the
dispute and in fact damaging their image of being impartial?
Mr Dacre: Could I just digress for a moment?
Forgive me, because I meant to mention this earlier to you. Because
one knew that one was coming to this Committee, the Daily Mail
commissioned a poll into what the British public thought of the
judiciary. We have not carried the poll, we thought that would
be discourteous, but we may well carry it after my appearance
at this Committee. You might be interested in some of the bullet
points. The poll suggests a lack of public trust in the judiciary.
Most strikingly, only 18 per cent have faith that the sentences
they want passed against criminals will be reflected by the courts.
Only 36 per cent said judges could be trusted to put the interests
of ordinary people first compared to those of minority groups.
In the poll some 56 per cent said judges generally do not understand
the lives of normal people and 58 said they do not understand
the impact crime has on their lives. An overwhelming 75 per cent
said sentences were too lenient. Only three per cent said punishments
were too harsh, while 18 per cent considered them about right.
Bearing in mind Allison Pearson: women were even more concerned
than men, with 77 per cent criticising too lenient punishments,
compared to 74 per cent for men. The poll said some 62 per cent
of people of all ages said they would disagree with any judge
who said sentencing burglars and robbers to a community punishment
was a better option. Some 43 per cent said judges were more concerned
with the rights of minorities than ordinary people. Some 58 per
cent said terror suspects were put first, compared to 32 per cent
who said that the right balance was struck. In the poll, some
56 per cent said judges generally do not understand the lives
of normal people, and 58 per cent feel they do not understand
the impact crime has on their lives. An overwhelming 68 per cent
said, now that judges exercise more political power, the public
should have the right to know more about their lives and opinions.
Two out of three, 64 per cent, said that senior judges should
be subject, as they are in the US, to a vetting process by MPs
before their appointment. The same percentage, 64 per cent, said
judges should be appointed for fixed terms. That was a pukka poll,
conducted by ICM between March 2 and 4 of over 1,000 people, which
is an acceptable number for a valid poll.
Q354 Chairman:
I do not want to interrupt your answer, but, just noting that
with great interest, since you have introduced this into your
evidence, and it is very interesting—it does not entirely
square with some of the other polling evidence we have heard—but
I take it as a serious poll, seriously conducted—would it
be possible to share that with the Committee?
Mr Dacre: Yes, and I would do so before we used
it in the paper.
Q355 Chairman:
We are very grateful. Thank you. I am sorry, I did not mean to
interrupt.
Mr Dacre: To try to answer your question, firstly
I would suggest that the poll provides you with some fairly powerful
indicators that you have quite a job of communicating to do. I
would also say you need to be aware that, whatever Allison Pearson
says, politicians say in much more robust language about the activities
of judges. I have heard Home Secretaries on both sides of the
divide speak in terms that certainly would be libellous, with
great respect. It goes back to this matter of where the line is
drawn between independence and accountability and what mechanisms
you use to get your side across. I am very sure of one thing:
you are not getting your side across and you need to do. You need
to address it.
Q356 Lord Woolf:
I was seeking to get your answer on whether you think the judges
are the right people to do the act which is needed to redress
this information you provide. There is a danger of drawing them
into—
Mr Dacre: I understand that but surely the senior
members of the judiciary can take a magisterial and Olympian role
here. You do have that freedom without destroying the independence
and accountability of judges below them. Without being silly,
could I throw back the question at you? Who do you think should
represent them? Clearly the Lord Chancellor cannot any more. Clearly
the Attorney General—particularly this Attorney General—cannot.
Is there some constitutional mechanism, a new creature you can
create in a constitutional role, who can speak up for the judges
without being seen to damage the independence of the judges? I
do not know the answer.
Q357 Lord Woolf:
And I am not giving evidence!
Mr Dacre: No. I was seeking to tap into your
superior knowledge, but anyway ...
Q358 Lord Peston:
I am very interested in the survey that you told us about. I am
glad you are going to leave it. I was not very clear entirely
what you think follows from it. Although I do not have it in front
of me, it seems that that survey should be addressed to our political
masters, not to the judges at all. Most of them sound like things
that require particularly the House of Commons and the Government
to do something about them rather than the legal profession.
Mr Dacre: Except, as I keep saying, the perception
is that it is the judges' fault. That might be terribly unfair,
but you have to address that.
Q359 Lord Peston:
If you take the one on vetting, for example, one can see the argument
here but surely that is an argument that has to be put before
politicians.
Mr Dacre: Yes.
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