Murmuring Judges is a play by David Hare, performed at the National Theatre in 1991. The play’s best feature was its title, as I recall (though the set was pretty good). It refers to a statutory offence under Scots law, created in 1540 and repealed in 1973. That offence involves undermining the administration of justice by making scurrilous attacks on judges. It still exists under common law throughout the United Kingdom where it is usually called “scandalising the court”.
Perhaps the best-remembered example dates from 1900. Howard Alexander Gray was editor of the Birmingham Daily Argus. He published a magnificent piece of invective about Mr Justice Darling, who had recently advised the press about how it should report an obscenity case he was trying in the city. Gray wrote: “No newspaper can exist except on its merits, a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty-headedness . . . One of Mr Justice Darling’s biographers states that ‘an eccentric relative left him much money’. That misguided testator spoiled a successful bus conductor.”
Gray escaped prison by making a grovelling apology but was still fined a hefty £100.
In his book Judges, published in 1987, a young barrister called David Pannick argued that “the offence of scandalising the judiciary should be abolished . . . Legal sanctions, even if rarely used, will inevitably deter plain speaking.”
I hope I have not been deterred. Regular readers will know that I have often called for the resignation of Mr Justice Peter Smith, who was reprimanded by the Lord Chief Justice in 2008 for misconduct. My calls have gone unheeded, but nobody has accused me of scandalising the judges. Indeed, there have been no successful prosecutions in England for more than 80 years.
So Peter Hain, the former Northern Ireland Secretary, must have felt on safe ground when he accused a Northern Irish judge of “high-handed and idiosyncratic behaviour” in his recent memoir Outside In. The judge is Lord Justice Girvan, then Mr Justice Girvan, although Hain constantly gets his titles wrong. Referring to the way Girvan had dealt with a challenge to an appointment made by Hain, the former minister recalled thinking the judge was “off his rocker, a view privately expressed to me by the Lord Chancellor, Charlie Falconer, who was equally bemused”.
In March, the Attorney General for Northern Ireland, John Larkin QC — who, unlike his English counterpart, is not a politician — announced that he had been granted permission to bring proceedings for contempt of court against Hain. At a subsequent High Court hearing in Belfast, Larkin argued that criticism of judges which undermined public confidence in the administration of justice should not be permitted.
That argument was roundly attacked, and not just by Hain’s counsel. During a debate in the House of Lords in July, Lord Pannick QC, as he has now become, repeated the criticism he had made 25 years earlier. “Surely a former secretary of state, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence,” Pannick insisted. Calling on Parliament to abolish the offence of scandalising the judges, he added: “Since the Attorney General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep.”
By then, Hain had made it clear that he had not intended to question Girvan’s motivation or his capabilities and, as a result, Larkin had dropped the case against him. But the justice minister, Lord McNally, accepted that “the law is alive and kicking rather than dead”. To allow the government time to consult, he asked Pannick to withdraw his amendment.
And now we have the result. In a consultation paper rushed out in August, the Law Commission proposes that the offence of scandalising the court should be abolished, not least because the scope of the law is so uncertain. The absence of a successful prosecution since 1931 is strong support for the view that the offence is unnecessary, the commission says. There is a “great deal of scurrilous internet material attacking judges in family cases”, it adds, and the failure to do anything about it gives the impression that the law can be flouted with impunity. In general, a law should be enforced or abolished.
The government should take heed. Judges who are traduced should either rise above it or sue for libel, as some have indeed done. By complaining that they have been scandalised, they make themselves look ridiculous and defendants look like martyrs. Judges should command respect — not order it.