Geoffrey Robertson QC argues that the Northern Ireland Attorney General is making a very big mistake in taking on Peter Hain & Biteback Publishing
The legal establishment of Northern Ireland has launched a criminal prosecution against Peter Hain, threatening him with up to two years imprisonment for “scandalizing the court” – i.e. for criticising a judge whose rulings caused problems for the peace process whilst Hain was Minister of State for Northern Ireland. This prosecution is not only a direct attack on free speech and an attempt to suppress information of considerable public interest, but it is calculated to encourage similar attacks on human rights that are being made in other countries against honest critics of bad judges.
Not that Lord Justice Girvan is necessarily a bad judge. He certainly infuriated the Minister and his civil servants by judicially reviewing one of their appointments, and directing the Attorney General to enquire into their conduct. Many will now read the three allegedly criminal pages in Mr. Hain’s memoirs (“Outside In” - Biteback publishers, p 331-333) – it is the counter-productive consequence of all censorship to boost the sales of the offending literature. In Hain’s opinion – and, crucially, all he expresses is an opinion - “I thought the judge off his rocker” because he was questioning the conduct of senior civil servants in a “high-handed and idiosyncratic manner”. But after this spat is over, with his civil servants largely vindicated, Hain tells how he is presented with the legal establishment’s recommendation for the next appointment to the Court of Appeal – none other than the infuriating Justice Girvan. With barely a moment’s ironic reflection, the Minister promotes the judge whose rulings caused him such trouble and political strife.
This is a heartening story that could never occur in most countries in the world, which do not have our tradition of judicial independence and where judges who stand up to political rulers are dismissed and certainly never promoted. Hain expresses well and honestly what Ministers often feel about judges who second-guess their decisions on judicial review, but the great thing about the British tradition is that anti-government rulings should not prevent a judge’s promotion. The very pages that the Attorney General of Northern Ireland wants to suppress constitute real and dramatic evidence of this tradition, and the story will find its way into future textbooks on British politics. By attempting to stop it ever being told, this law officer shows that he cannot recognise the public interest when it stares him in the face.
But Mr. Larkin’s decision to prosecute – and, more disturbingly, the prosecution has been allowed to go forward by the Lord Justice Higgins – has serious consequences for free speech, especially in common law countries where the law of “scandalisation” (in Scotland, it is delightfully called “murmuring judges”) is often used to jail critics of judges who are government lickspittles. It was first devised by judges themselves in the late eighteenth century as a means of silencing critics like John Wilkes. It was revived for colonial purposes in 1899 by judges who said it was not needed in Britain, but might be needed in colonies with excitable “coloured populations”.
The Establishment soon thought it was needed in Britain: the editor of the Birmingham Argus was convicted for describing Justice Darling, quite accurately, as “an impudent little man in horsehair” who was “a microcosm of deceit and empty-headedness”. In the 1930’s the crime was used for blatantly political prosecutions: The New Statesman was convicted for doubting whether Marie Stopes could be fairly tried by a Catholic judge, and the “Daily Worker” for labeling a reactionary judge as “a bewigged puppet exhibiting strong class bias”. But when the morals crusader Raymond Blackburn relied on these precedents in 1968 to prosecute Quentin Hogg QC (later Lord Hailsham) for criticising Court of Appeal judges for their interpretation of gaming legislation, he was laughed out of the Court of Appeal. Lord Denning proclaimed “the right of every man to make outspoken comment…on all that is done in a court of justice”. The crime of “scandalising the court” has never been heard of since in this country, until this foolish prosecution of Mr. Hain.
Although the crime has been a dead letter in the UK for 80 years, it is regularly used in other countries to punish critics of pro-government judges. In Singapore, for example, it is used all the time – in 2010, to convict editors of The Wall Street Journal for reporting (accurately) that the International Bar Association had found that Singapore judges were pro-government! A few months ago a newspaper editor in Mauritius was jailed for reporting a barrister’s attack on the Chief Justice. There have been recent convictions in Trinidad, Ghana and other Commonwealth countries, although the courts in Canada have abolished the crime because it contravenes the constitutional guarantee of free speech. The use of “scandalisation” and “insult” laws to prevent criticism of judges has become such a serious human rights problem that the International Press Institute is holding a session on “Colonial Legacies – Criminal Defamation” at its World Congress next month. The prosecution of Peter Hain is an outrage because of the encouragement it gives to repressive governments to use the “scandalisation” offence, thereby undermining the UK’s international efforts to protect freedom of speech.
The fallout from this prosecution is certain to damage the reputation of Northern Ireland’s judges. That stands high, thanks to their courage throughout the troubles, and to the intellectual distinction that some – the late Lord Lowry in particular – have brought to the law. But this prosecution assumes them to be so lacking in confidence, and in public confidence, that the administration of justice will be disturbed by the moanings of an ex-Minister about Lord Justice Girvan. The Chief Justice has damaged his own reputation by permitting this ill-conceived prosecution to go ahead. How, for example, can his judges be perceived as fair to Hain, over accusations he has made against their esteemed colleague? One reason that “scandalising the court” should be abolished is that it breaches the right to free speech, and another is that judges called upon to try it are inevitably seen as biased against those who criticise judges.
Where stands the British Parliament in relation to this absurd offence? It has abolished other legal relics like blasphemy and sedition. It has only considered “scandalisation” once, back in 1981, when government support for a private members Bill was withdrawn after the Court of Appeal judges denied a divorce to a woman who had complained that her husband treated her unreasonably by having sex only once a week. A tabloid journalist telephoned the judges’ wives to ask how often a week they thought was reasonable, whereupon Lord Hailsham said the offence might still be necessary to deal with such conduct. Privacy laws and Leveson now provide the answer: If Parliament should l legislate in this session to abolish the archaic crime of “scandalising” judges – to save those in Northern Ireland from being made an international laughing stock by their vainglorious Attorney General.
* This article appeared in today's Times.