Scandalising the Judiciary
I usually try to keep things fairly light hearted on the mindsplurge but every now and then I find something a little bit more serious that I do not think has been adequately dealt with in the press. Such a story is that which follows regarding the offence of ‘scandalising a judge’.
A very recent case that was brought against Peter Hain MP by the Attorney General of Ireland John Larkin regarded criticisms that Peter Hain had made in his autobiography about Lord Justice Paul Girvan’s handling of the judicial review of Hain’s decision to appoint a police widow, Bertha McDougall as interim victims’ commissioner for Northern Ireland during Hain’s time as Secretary of State. There was criticism in the press of the decision to bring the case against Mr Hain. The Guardian has in a blog said that the public should have the right to criticise the judges to ensure that justice was always done. An old Latin saying goes “Quis cusodiet ipsos custodes?” – Who keeps the keepers. It has been adapted more recently by the English writer of graphic novels, Alan Moore, who wrote the book ‘The Watchmen’ (since made into the film of the same name) as, “who watches the watchmen?” I do agree with this to an extent but I kind of think that the Guardian has missed the point. In their handling of the story I felt the Guardian had taken a viewpoint that was sympathetic of Mr Hain and seemed to give the impression that the offence of scandalising a judge was archaic and should no longer be prosecuted.
I was a little bit disappointed by the coverage that the case got in the national press considering that it dealt with such an important issue. Aside from the Guardian’s ostensibly biased report and a couple of very matter-of-fact reports that were delivered by the BBC, Sky, and the Independent there was little mention to be found of the story in the national press as far as searching Google revealed. Many small local papers had carried the story but it was as though no one really cared despite the importance of the case.
Admittedly Mr Hain’s book: ‘Outside in’ is hardly going to rock the world by criticising one judge but the fact that it set up a precedent whereby it would be open season for contempt of legal decisions made in the courts was extremely worrying. I do not think that Mr Hain has really done anything wrong; he made some comments about Lord Justice Paul Girvan’s decision that could have been slightly better worded but was quite gracious about his intentions when he clarified exactly what he had meant. Of course once he had clarified the point he had wished to make the case was dropped. A.G. John Larkin had no wish to prosecute and bore no ill will to Mr Hain but it is important to ensure that the court system is not criticised in such a way as to create scandal and to undermine the work that they are doing.
Mr Hain’s publisher proclaimed that the decision to drop the case was a triumph for freedom of expression but really freedom of expression was never under any threat. The public’s right to criticise the judiciary was never in any danger. There is simply a right way to go about it and a wrong way. As soon as Mr Hain explained how his criticism was intended A.G. John Larkin backed off. It has to be remembered that everybody is allowed to have an opinion. That is a quality of our life in a liberal democracy. The position of Mr Larkin and Mr Girvan was merely that it was unacceptable to categorically state that Mr Girvan’s decision was wrong. To do so would have been the voice of a senior political figure undermining the judiciary. That would have been utterly unacceptable. As soon as Mr Hain coached it in different terms to clarify that he had: “never qualified his (Lord Justice Paul Girvan’s) standing and motivation as a judge before that case nor have I done since. My words were never intended to, not do I believe that they did, in any way undermine the administration of justice in Northern Ireland or the independence of the Northern Ireland judiciary…” then the case was dropped.
The A.G. Mr Larkin said, “If the matter had been qualified or explained in the way it now has and only now has, these proceedings would not have been taken.”
There is no victory for freedom of speech here so the triumphant smugness of biteback publishing is wholly inappropriate. I am offended that so many politicians should have leapt to the defence of Mr Hain. Really he should have known better than to publish his criticism using the words that he did. As a politician his craft is rhetoric and he should have been able to avoid this before it had even happened if he had been more careful with the way in which he expressed himself.
I do hope that this case does not lead to new legislation proclaiming this offence to be obsolete. There is no reason to lose the offence of scandalising a judge. It would serve no purpose to repeal such a law. As has been seen in this case it has not infringed on Mr Hain’s freedom of speech, it has merely encouraged him to choose his language a little more carefully. The purpose it serves in protecting the judiciary from aggressive criticism is a purpose that is of the utmost importance to law and order. In this modern age when people are worried about hoodies, drug addicts and crooks the last thing we need is to undermine the operation of the judiciary just so that politicians can be lazy with their use of the language.