Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

Judges and the Media

The Judicial Independence Project recently held its second seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence, Judicial Accountability and the Media’.

Perhaps the most noteworthy part of the discussion was a general acceptance by seminar participants that judges are influenced by the media in their judicial behaviour. The effect is particularly evident in sentencing: sentences have increased significantly in the last 20 years. Opinions differed as to whether this influence is a good thing. Some pointed to the success of media campaigns in overturning injustice, for example in challenging flawed expert evidence in the case of Angela Cannings and Sally Clarke. For others, the media was described as ’emotional, irrational and obsessed with the short term’ and their influence was – or could be – damaging. One example cited was of the change in the law of damages to reflect a ‘compensation culture’ that Government research has shown does not exist.

Participants also expressed concern about the recent use of parliamentary privilege to break court orders and about a more general trend of ambivalence about judicial independence in Parliament. The continuing importance of the sub judice rule was emphasised.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Open justice to the box, urges Neuberger

“Lord Neuberger is probably the first member of the senior judiciary to weave together the many strands of justice in the internet age, and has produced a formidable, progressive and, crucially, practical manifesto for open justice in the 21st century.” 

So pronounces Guardian’s Law in an  almost gushing verdict on the Master of the Rolls’ lecture to the Judicial Studies Board last week.   

The eyecatcher  of  Neuberger’s speech is  the televising of court proceedings. But his concept of more open justice ranges much more widely,  over the perceived gap between Justice or the Law (not quite  a solecism ) and  how to avoid writing “ vanity” judgments and embrace instead “ crisp , short,” drafting.   He even discusses the  bete noire of  super-injunctions.  Goodness, he’s so accommodating that he seems like an intelligent layman at times; hardly a vested interest in sight. While his concept of Open Justice is hardly new, (implying institutional resistance perhaps?) his restatement of it is timely and comes across as requiring judges and lawyers to be clearer and more accessible. His embrace of new technology although tentative, shows he recognises the validity of pressure for greater judicial accountability.

  The path to televising the courts has been trodden before as the BBC report explains. A pilot in the Court of Appeal in 2004 was never shown publicly. The subsequent consultation ended predictably, with a fairly even division of opinion among a small number of respondents ( just over 200) and a look ahead to another consultation that never happened.  Not a lost cause exactly, but a project that was never gripped.

Neuberger has now given a boost to the cause – or will have done, if more than this blog,  the Guardian and  the BBC pick it up.  On admitting  the cameras ,  he comes near to saying, why not? And he supports tweeting in court ( cf MPs in the Commons chamber ).  While he is doubtful about televising criminal trials (a pity, despite the problem of some witnesses ) his doubts do not extend to criminal appeals.

The protocols for televising court proceedings would be complex and as Lord Phillips has pointed out expensive, at least by the quite modest standards of the Supreme Court budget.

Editorial control would be likely to remain vested in the courts. But on what basis might cases  be selected and who in real time would be responsible for editing?  If televising were to be any more than a visual record, commentary would  be essential, in a form perhaps similar to law reports which have all but disappeared from the press.  

While Neuberger’s examples of press distortions of cases are telling, you might nonetheless feel his cautious hopes for countering those distortions are naïve. After all, the televising of Parliament has done little for public confidence in MPs . Nevertheless in the digital age, I would assert his is a very proper aspiration. At the very least, televising would greatly widen access to full judgments and arguments which as far as I know remains notoriously difficult for lay persons.  At best, televising whether by narrowcasting  on the internet or in a special digital TV channel (the two platforms will shortly converge anyway), could act as a sharp spur to greater clarity  and public understanding.

Of these matters, let us hear more.