Key Legal Reports, Speeches & Papers
From time to time throughout the Commonwealth, lawyers and senior law officials make keynote speeches which are significant to the media. We hope to collect the most important of these and archive them here.
UK
At the recent Society of Editors Conference, the Lord Chief Justic, Sir Igor Judge, made a wide ranging speech in which he emphasised the role the media has to play in open justice. The text of his speech is reproduced below:
SOCIETY OF EDITORS ANNUAL CONFERENCE 2009
STANSTED - 16TH NOVEMBER 2009
So, here I am again open to criticism as an individual unelected by the democratic process but vested with power. But I am in good company here. You too are unelected men and women vested with power. And, if I may say so, just as you should not underestimate the power of the press, you should not let your young men and women now entering into careers with the press to underestimate the importance of what you and they do.
My essential theme today is one that some of you will have heard before, and it is one that, given the chance, you will hear from me again. It is a message that needs to be repeated as frequently as possible.
An independent press and an independent judiciary are twin cornerstones, and bulwarks, of a free society. I choose the words carefully. Cornerstones because the entire fabric of a free society is dependent on an independent press and an independent judiciary. Bulwarks because these are the institutions which must defend a free society when it is threatened. We are, as I have said before, mutually independent – of that, there can be no doubt, and you must feel able to criticise me when you think it appropriate, as I will feel it necessary, in the performance of my duties, to criticise you, if and when that is appropriate. But our mutual independence should not mean that we treat each other with a lack of respect. If we do treat each other without respect, how can we expect anyone else to treat us with respect? Now why am I emphasising this. I have in the past challenged you with this question, and there are some of you here who have not heard it before. Name me a country, state, or community where there is a subservient press and an independent judiciary. There is none. Name me such a place where there is a subservient judiciary and an independent press. There is none either. That is why we must work to preserve both. All of us must work to preserve both. It is not quite love and marriage. That cannot be. A degree of tension is inevitable and healthy if only because we are independent of each other. But, the entire fabric of a free society is dependent on an independent press and an independent judiciary. In that sense we are mutually dependant. Nevertheless we cannot compromise on our independences but in any democratic society they must work together.
But notice, if you will, that I have spoken about an independent press. I do not mean a handout by the government of the day, or the local authority, or any other institutional organisation which affects the lives of the citizens of the country, producing its own broadsheet. I do not want the proceedings of the local council to be reported by an employee of the local council. I do not want the press to be the broadsheet of the local authority or the Government. I do not want proceedings in court to be reported by a member of the judicial communications office. Spin is neither a cornerstone nor a bulwark of a free society. We need independent, objective reporting.
Just as an independent press can expose the errors made by local authorities and governments, so too, the administration of justice in the courts should be open to the public scrutiny which an independent press provides. You have the right to be present in court unless the right has been taken away. Unless the right has been expressly taken away, your right to be in court is no different to and no less than the right of the lawyers, the advocates, even the judge himself or herself. You are not performing the same function as the judge, but you have a valued function to perform. Just by being there you ensure that it remains true today as it has since Roman times when Pliny told us that on every occasion when someone is sitting in judgment in court, he himself, or she herself, is being judged. But perhaps I could urge you to bear in mind before you judge a judge, that it is no ground for criticising the judge that he is applying the law. He may not like the law any more than you do. But if he were not to apply the law he would be open to justifiable criticism for allowing his personal preferences rather than the law to govern his decision.
Because of my core belief in the principle of open justice, I put my full support behind the first production of the publication, Reporting Restrictions in the Crown Courts, and in the Magistrates Courts – is it all those years ago? It is why I put my personal support behind the recent update. This is one of those areas when, although a judge, I have been able to advance one of my core personal beliefs, to achieve what to me is a crucial personal objective. It is my personal belief that in any society which embraces the rule of law it is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny. And for these purposes the representatives of the media reflect the public interest and provide and embody public scrutiny.
The publication represents a classic collaboration between a number of independent organisations. Not one of them has been in the slightest compromised by acting in the joint venture. The independence of each is preserved. But equal advantage has been gained by the different institutions, and much more important, the venture has been to the advantage of the public interest, which we both serve.
As the title to the paper indicates, there are occasions when the ability to report cases is restricted. The purpose of the guide is to ensure that the representatives of the media can make submissions directly to the court, without the need to instruct lawyers, to point out either that the law does not permit the exclusion of the media or that there is no power or ground to prevent them from reporting, and if it does prevent it, whether the court ought to exclude the media or prevent the reporting with reasons why it should not. The guide can be used for this purpose.
But may I move on to what I believe to be a more delicate subject, and I tread very warily, and I do not intend to cause umbrage or offence. But the best way I can put this to you is to ask myself how representatives of the local press can be present in court, or for that matter in local councils, or anywhere else where the press should be, if there is no local press? I am not comforted with the thought that the press can be admitted to court and report if it wishes. I am not content if there is no one to go into court and observe and write up. If there is no one to walk in, the public interest is damaged. That is the harsh reality.
We must consider, must we not, whether “we” (meaning, we as society as a whole, as well as we, meaning anyone with an interest in a free press) see as essential the survival of a cornerstone and bulwark of a free society, the very issue of newspaper survival. For this I am not addressing what I hope will be the temporary phenomenon of the current recession, which we must hope will be over sooner rather than later. More than 2 million people are out of jobs. I am hoping that this is one of those economic cycles – and cycles do go round. We shall eventually emerge from the recession. My concern is with something much more fundamental.
I have commented before on the potential impact of modern technology on our jury system. Taking it very shortly, how we will expect a future generation, accustomed to gathering information through a screen – to sit and focus and attend and assimilate information which is served up, not through the eye, but through the ear. In other words, our oral tradition of justice being administered in an adversarial forum. This modern form of technology will, I belief, have as dramatic an impact on society as a whole as the invention of the printing press itself, and its impact will be much more rapid. I grant you that the end result is the printed word, but it is not the printed word in a book, or in a carefully prepared edited newspaper. The technology is already all pervasive. Think how much more pervasive it will be. Think, indeed of its impact on our lives generally. But in the present context, how many of our young do read newspapers? How many, if their parents do not have one at home, would trouble to buy one? Is the habit of someone of my generation, to start the morning with a newspaper – exercise first - being inculcated into the young? And then, perhaps more starkly, how many of our local newspapers have already been closed down, or have reduced the days of publication, and how many more are under threat of closure or reduction?
I have studied “The Enhancement of Service Study”. It reveals, among generalisations, that many daily papers in particular are in a downward vicious spiral. Sales are declining. They need to cut costs. Some weeklies are relying on council press offices too much. If that is true, it should send a shiver down all our spines. Experience of local government reporting is being lost. Court reporting has suffered too, with 64% of newspapers covering fewer court’s sessions than before. The decline in local government and court reporting has led to an overall decline of the number of court reports appearing. These are self-explanatory and important considerations. If you are talking about survival, then this information matters hugely to the fabric of our society.
I underline one further problem: even if you are all agreed that there is a potential difficulty, as independent men and women, you may not agree on the solution. And there remains the commercial imperative, you are in competition with each other, in what appears to be a reducing market. This is surely an issue that the Society of Editors has to address, if possible as a single body. So I am not advocating any solution, and indeed it would be presumptuous of me to do so when I have none to offer. I suggest that we should welcome any thinking out of the box. I welcome the discussion tomorrow of how the press will be in the year 2020. This will be the fastest 10 years we have ever known. Today we do not have the slightest concept of what technology will be doing to our habits by 2019.
Believe me, I shall follow all this very closely. The survival of an independent press matters to me personally, but it is essential to the fabric of our society and the values that we cherish.
I shall touch on two or three further topics. There are, of course, other problems. The Conditional Fee Agreement is problematic for many defendants. The difficulties are not confined to newspapers. I seem to remember a number of newspaper editors welcoming the introduction of the Conditional Fee Agreement. It may surprise you, but I suspect that they thought it a very good thing for lawyers who fail to bring home the bacon to find that the trough was empty. The end result, however, is, as ever, miles away from what was anticipated. Bear in mind that before CFAs, there was no legal aid for defamation purposes, and the playing field was level. I do not know – and I really do not know – what Lord Justice Jackson will recommend. I do not know what the MoJ pilot currently running will produce by way of evidence. What I do know is that a system in which one side carries no potential burden for costs while the other carries the burden of its own, and the other side’s costs, and the success fee, and indeed the ATE (after the event) insurance appears on the face of it to be a little like the old Yeovil Town football pitch, only with one side playing uphill through both halves of the match. This creates an imperative to settle, even when you have a good case, because you cannot afford the cost of the match. I await Jackson LJs’s recommendations with interest, but ultimately, of course, there will need to be legislation, which will have to be structured so as to permit those without access to any funds at all, to bring actions to achieve redress when they are entitled to it.
Next, I come to what are described as super-injunctions. I am surprised at the recent suggestion that this is a new order. In an appropriate case it is entirely justified. Where, for example, a defendant is committing a fraud, and you believe that he has a number of associates, an order preventing him from reporting the fact that an injunction has been issued against him would be extremely wise, because without it, he would be able to inform his dishonest colleagues, and they would immediately take steps to hide away the assets. What I find astonishing is this. I have never understood and still do not understand that anybody could possibly believe that a judge sitting in the High Court in London, giving such an injunction, would ever have it cross his mind that he was making an order that Parliament could not debate if Parliament wished to do so. This is what the Bill of Rights was all about. One of the fundamental principles of our constitution is that members of Parliament can discuss anything they like. No judge in my view has ever thought he was making an order that could in any way diminish the ability of Parliament to discuss anything. Parliament can decide when there will be occasions when it will be reticent, but that is because Parliament says so. I have not understood why this has become such a great big issue. If it is because it has just emerged as an issue, fine – let’s put it to bed.
The third point is to repeat what I have already said publicly, that I am not proud of reading, as I frequently do, that “London is the libel capital of the world”. I do not regard it as a badge of honour. I am deeply unsympathetic to “forum shopping”. I believe that justice should be done where justice needs to be done. If you commit a murder in Bristol, it should normally be tried in Bristol. Forum shopping has no appeal to me. Forum shopping means that a case is litigated, not where the alleged wrong occurred, or has caused serious damage, but in the country or before the courts which might advantage one of the litigant. I just point out that any changes to the law will have to be made by Parliament. My personal opinion is neither here nor there. And as it is, if such a case should come up for decision by me, I should have, as judges must, to apply the law as I honestly believe it to be.
