Since last year’s notorious “Enemies of the People” headline, there has been a fierce debate about how the judiciary should respond to public criticism. The Lord Chancellor, Liz Truss MP resisted calls to speak up on the judges’ behalf, saying that although she supported the independence of the judiciary it was not for her as a government minister to censor the tabloid press. Instead, she suggested judges should speak up on their own behalf. But that can cause problems, as recent events have shown.

The judiciary are “hopelessly bad at communicating with the press” and “simply won’t get engaged”, according to Sir Alan Moses, a former Lord Justice who is now chairman of the press regulator Independent Press Standards Organisation (IPSO) speaking to the BBC at the time. (It’s not the first time he’s criticised the judiciary for their failure to engage with the media, as revealed in this discussion of his 2014 lecture, Wearing the Mourning Robes of our Illusions: Justice in a Spin.)

But Moses agreed with the Lord Chief Justice, Lord Thomas of Cwmgiedd that the Lord Chancellor had not gone far enough to defend the judiciary in the wake of the High Court’s decision in the Brexit ‘Article 50’ case (Regina (Miller and another) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin); [2017] 2 WLR 583, DC).

The problem is not just a matter of explaining the court’s decision or setting the record straight. Public criticism and a feeling of being undervalued (along with other factors, such as pension cuts and dismal facilities) have led to what was described on Radio 4’s Law in Action as a judicial “recruitment crisis”, with one High Court judge, Mr Justice Haddon-Cave saying that that “Enemies of the People” headline was “a seismic shock for the judiciary”.

But Liz Truss, when interviewed on the programme, while defending her low-key support for the judges, said she thought “the way we build judicial morale and judicial value is by the judiciary themselves talking about what they do”.

A culture of reticence

What happens, though, when judges do speak out? First of all, they need to overcome a deeply embedded conventional reluctance to “descend into the arena”. Then, unless they are members of the senior judiciary, who are regularly invited to make speeches, or have retired, they also need permission to engage with the press or public outside the courtroom.

As noted by Penelope Gibbs, of the charity Transform Justice, in a post entitled Should the judiciary speak out more?: “Most district, crown court and High Court judges would never in their whole career speak to the press – partly because the process to get permission is slow and labyrinthine, and partly because there is a culture of reticence.”

According to Gibbs such permission is controlled, not by the Lord Chancellor’s office, but by the senior judiciary, so it is ultimately a matter for the Lord Chief Justice to put right. When it comes to the magistracy, the obstacles are even more impenetrable, says Gibbs: “I once tried to get permission for a gay magistrate to speak out about the importance of diversity. This would have benefited efforts to recruit more diverse magistrates. But the magistrate was banned from doing so.”

Slapped down for speaking out

Despite these obstacles, some junior judges nevertheless do speak out. And what happens when they do? They get slapped down! A trio of recent decisions by the Judicial Conduct Investigations Office (JCIO) testify to a culture almost of judicial omerta.

Recorder Peter Herbert OBE, who sits as an employment and immigration judge and is chair of the Society of Black Lawyers, was disciplined earlier this month after making a public speech on a political issue, during which he said: “Racism is alive and well and living in Tower Hamlets, in Westminster and, yes, sometimes in the judiciary.”

The JCIO said in its statement dated 6 April that Herbert had “been issued with formal advice after making a public speech criticising the election commissioner’s decision in 2015 to declare Lutfur Rahman’s election as mayor of Tower Hamlets void. A disciplinary panel found that the recorder’s comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct.”

Next day, Judge Jonathan Durham Hall QC was also “issued with a formal advice” by the JCIO, also for speaking out. You may recall that he was the judge who, a year ago, offered to pay the defendant’s victim surcharge if she were forced to pay it. (See, eg, The Independent, Judge offers to pay court fine of abuse victim who stabbed her abuser on his doorstep after he avoided jail.) According to the JCIO statement: “The Lord Chancellor and the Lord Chief Justice considered this failed to demonstrate impartiality, and that his comment amounted to misconduct.”

A few days later, Recorder Jason Dunn-Shaw was “removed from judicial office” for allegedly posting anonymous messages on Facebook responding to criticism of his judgments. The JCIO statement said he had been: “using a pseudonym to post comments (some of which were abusive) on a newspaper website about a case in which he had been a judge and another in which he had been a barrister. In his own name he also used publically [sic] available social media sites to post material or not remove material which was not compatible with the dignity of judicial office or suggested a lack of impartiality on matters of public controversy.”

Peter Herbert has complained that the disciplinary process is discriminatory against judges drawn from ethnic minorities; but more generally it seems to have been used to stifle public comments, particularly critical ones, from junior members of the judiciary. Such an approach is hardly likely to promote judicial morale in the way envisaged by the Lord Chancellor.

Correcting a misunderstanding

There has been some good news, though. Faced with a situation where he had been lied to by the defendant at the time, and widely misreported in the press thereafter, HHJ Judge Richard Mansell QC exercised powers under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to recall a defendant, Mustafa Bashir to court, and correct both the sentence imposed on him for offences of violence against a former partner, and the public’s misunderstandings about the so-called “cricketer” case.

Judge Mansell had originally sentenced Bashir to 18 months imprisonment suspended for two years, which was widely criticised in the press as being too lenient (see Daily Telegraph, Abusive husband spared jail amid claims he lied about having a contract as a county cricketer.)

He now imposed an 18-month term of immediate imprisonment — not because of the public outcry, but because of the lies put forward in Bashir’s mitigation, when he claimed to be about to take up a professional cricketing job (he was not, and the relevant club seems barely to have heard of him).

The judge also took the opportunity to address the misreporting of his earlier decision in the press, which had misquoted the words which the judge himself had taken from the relevant sentencing guidelines concerning the “particular vulnerability” of the victim: “I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim. I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.”

“Particularly vulnerable” meant especially vulnerable, exceptionally vulnerable or unusually vulnerable. The press had selectively quoted the word “vulnerable” without any of these qualifiers, giving a wholly misleading impression of the judge’s assessment of the position of the victim, as required by the guidelines.

The problem was that the public understanding of the case had been coloured by the slanted or sloppy press coverage, and this in turn had encouraged politicians to make ill-informed pronouncements (as one MP duly did) without anyone taking the trouble to read the actual remarks of the sentencing judge. (These are set out in full in another helpful post by the Secret Barrister.)

This case offers a rare example of an occasion when a judge was able to make a public statement setting the record straight. But he could only do so by virtue of a procedural power to recall the case to court: if he had gone straight to the press or resorted to social media, his remarks would probably not have been nearly so well received.

Paul Magrath is head of product development and online content at the Incorporated Council of Law Reporting for England and Wales (ICLR). He tweets as @Maggotlaw.