48 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
(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). RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 49
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 50 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 51
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”.
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
8652 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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”.
Specifically, it is important that judges should alert the JCO if there is a
possibility of a judgment or sentencing decision being controversial or
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 53
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.
(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). RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 49
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 50 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 51
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”.
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
8652 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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”.
Specifically, it is important that judges should alert the JCO if there is a
possibility of a judgment or sentencing decision being controversial or
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 53
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.
No comments:
Post a Comment