Judges must be open to criticism

Last week the Northern Ireland Attorney-General, John Larkin, QC, withdrew the charge of contempt of court against Peter Hain MP, the former Northern Ireland Secretary of State, for making critical comments about a judge. But the episode demonstrates the urgent need for Parliament to reform the branch of the law known as “scandalising the judiciary”.

In his autobiography, Outside In, published last year, Mr Hain was critical of the way in which a Northern Ireland High Court Judge, Mr Justice Girvan (now a Lord Justice), had dealt with a judicial review application against one of Mr Hain’s decisions. Mr Hain described the judge’s conduct as “high-handed and idiosyncratic” and said he “thought the judge off his rocker”.

Mr Larkin brought proceedings alleging that the comments were in contempt of court. A series of cases in the early 20th century had established that harsh criticism of judges could be a criminal offence.

The most infamous case was the fine imposed by the Lord Chief Justice on the editor of the Birmingham Daily Argus, Mr Howard Gray, in 1900 for describing Mr Justice Darling as an “impudent little man in horsehair, a microcosm of conceit and empty-headedness”. The judgment of legal historians on the quality of Mr Justice Darling’s contribution to the law is even less flattering than that of Mr Gray.

The legal climate changed. By 1984, Lord Diplock (no legal radical) described the application of this area of contempt law as “virtually obsolescent in England”.

A series of cases had established that judges, like all other public servants, must tolerate criticism, at least when it did not allege bad faith or was not simply “scurrilous abuse”.

In 1936, Lord Atkin ruled that “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”. He added that “the wrong-headed are permitted to err”, so a contempt could not be established by proving that the comments were unjustified.

Applying these principles, the Court of Appeal in 1968 dismissed an application for alleged contempt brought against Mr Quintin Hogg, MP, later Lord Chancellor Hailsham, for writing a magazine article criticising a Court of Appeal decision.

Lord Denning emphasised that “we do not fear criticism, nor do we resent it”. That was because “there is something more important at stake. It is no less than freedom of speech itself.”

Mr Larkin was rightly subjected to a barrage of criticism for bringing legal proceedings against Mr Hain. (Perhaps he will start proceedings for “scandalising a law officer”?).

He has belatedly climbed down after Mr Hain made clear in a letter that he had not intended to question the motivation or capabilities of the judge. Mr Larkin responded that he no longer believed there was any risk of damage to public confidence in the administration of justice.

The irony is that public confidence in the judiciary is undermined far more by legal proceedings which suggest that the judiciary is a delicate flower which needs protection against criticism than by a politician’s autobiography which would otherwise have been ignored.

The vice of such legal proceedings is that they will inevitably inhibit others from speaking out on perceived judicial errors.

Judges, like other public servants, must be open to criticism because in this context, as in others, freedom of expression helps to expose error and injustice and it promotes debate on issues of public importance. Mr Hain was entitled to express criticism of a judicial judgment, whether his views are right or wrong, respectful or outspoken.

The only value of Mr Larkin’s extraordinary conduct is to open up a debate on whether this branch of the law should be repealed. Why should criticism of judges, unlike other public servants, be subject to special legal restrictions?

It used to be said that judges cannot answer back. But they can and do.

Lord Justice Sedley was the most recent judge to sue for libel, winning an apology in the High Court last year after bringing proceedings in respect of false statements in The Daily Telegraph about his conduct of a case.

Any residual purpose in the use of contempt law in this context is more than outweighed by the inhibiting effect it has on free speech on matters of public importance.

For an Attorney-General to seek to have the courts punish someone for criticism that “scandalises” the judiciary is simply scandalous.

The Crime and Courts Bill now before Parliament provides an opportunity to repeal this absurd law. I intend to table an amendment for debate at Committee Stage in the House of Lords next month.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords