MISCARRIAGE OF JUSTICE

Andrew Geddes, a circuit judge, says that

journalistic sloppiness has brought the bench into disrepute

LET me begin with the ridiculous. In Jan- uary I was trying a case of violent disorder at Oxford Crown Court. There were six defendants, all related, who it was alleged had attacked with hockey sticks and cricket bats another family with whom they had a long-standing feud. Every day the court was packed with seven barristers and their instructing solicitors, supporters of the two sides, and, of course, the press.

When we were about a week into the trial, a defence barrister came to see me in my room to tell me that he had unfortunate- ly left his wig and gown and all his papers in his car in London. I told him not to worry, as I was quite content in the circumstances for him to appear unrobed. 'I am afraid, Judge,' he replied, 'that's not the problem; I am unable to cross-examine the prosecution witness without my notes of what he said.' There was nothing for it but to adjourn the case until the barrister had returned to Lon- don and collected his papers. We did not start that day until 1.30 p.m.

The next day, the Oxford Mail came out with the front-page splash 'I've left my wig in the car, M'lud'. The article that followed made it appear that the delay, which 'cost an estimated £4,400', was caused by my refusal to let the trial continue until the barrister concerned was properly dressed. It went on, `Court rules say that barristers should wear wig and robes when appearing before a judge, but it is at the judge's discretion whether they may continue without them. Peter Fan, a spokesman for the Lord Chan- cellor's offices, said that, although he had not heard of a previous occasion where a case had been adjourned because a barrister had been improperly dressed, the dignity of the court should be preserved at all times.'

The reason, one suspects, why the article received such prominence was because it preserved and reinforced the popular myth that courts and judges are out of touch, and are more concerned with protecting their dignity than with the pursuit of jus- tice. The truth would have got in the way of a good story. To be fair, the editor agreed to publish a correction. A tiny paragraph appeared the next day under the immortal headline 'Delay not caused by wig'.

Much more serious was the experience of a Manchester judge who had to sen- tence a man for indecent assault and inde- cency with a child at the height of the paedophile frenzy in August.

The facts were these: the defendant, who had been a primary-school teacher in Rochdale, had sexually assaulted female pupils during the mid-1980s. The offences had consisted of touching over clothing and inviting the girls to touch him. He was arrested in 1992 when one of the girls made a late complaint. The defendant then told the police of two other girls whom he had abused and he was indicted in relation to all three girls. Before his appearance before the Crown Court in Bolton, a fourth girl, KH (the complainant in the case in question), was asked by her mother if she, too, had been abused and she denied it categorically. The defendant pleaded guilty at Bolton and was sen- tenced to 30 months' custody.

Upon his release he went to live in Dorset and didn't come to the attention of the police again until KH made a com- plaint alleging that, despite her denial to her mother in 1992, she had in fact been another of the girls abused by the defen- dant in 1985-86. At his second trial this year, the defendant put before the jury his convictions and sentences, as he had done in his interview with the police. He main- tained that he had made a clean breast in 1992 of all his offending and denied that he had, so to speak, 'missed out' KH. The jury did not believe him and convicted.

On sentence the main thrust of the miti- gation was the unusual situation: namely 'Without you I am nothing.' that the defendant had already served a term of custody based upon a course of abu- sive behaviour that had been revealed by the complaints made by three pupils, when in fact it could have been four, and that on bal- ance it was unlikely the sentence would have been very different had that information been available to the Crown Court at Bolton in 1992.

The judge was also urged to take into account as subsidiary factors that the defen- dant had been 'named and shamed' by 'a certain national newspaper', the fact that he had funded his own defence at a cost of £15,000, the fact that the offences were very old, and the fact that the offences in ques- tion, compared with some that came before the courts, were not the most serious. In his sentencing remarks the judge made it clear that the principal reason for suspending the custodial sentence of a further 15 months was the fact that a sentence of 30 months had already been served.

The press reaction was as inflammatory as it was inaccurate. The judge's careful reason- ing was ignored and the story was circulated nationwide that a paedophile had escaped prison because 'he had already suffered enough at the hands of the press'. It didn't stop there. The story was picked up by com- mentators and leader writers who accepted it at face value, despite a copy of the judge's complete remarks being lodged with the Press Association. No one bothered to check what the judge had actually said. Janet Daley, in the Daily Telegraph, was of the opinion that the judge's sentence reflected an attitude of 'disdainful conceit' displayed by the judiciary to the views of the public.

No less derided were the remarks of the judge in the case earlier this year, when a Mr Teshome was tried for murder. He had strangled a Ms Teane after sexually assault- ing her, and then pushed her partly clothed body down a drain in her back garden. The trial lasted three weeks. The accused and almost all the many witnesses were Ethiopian. In his summing up, the judge said: 'When a lot of witnesses give evidence in a case that is going to take a little time, I try to pencil in a description. I try to bring them back to you when I sum up. It is quite difficult in this case with the Ethiopian wit- nesses, because you may think they all look rather similar and it has been difficult to find any distinguishing features.'

The press had a field day — riot, of course, about the murder or its lurid details, but about the judge's remarks. The headline of one was typical — 'Judge: Ethiopian witnesses all alike' — followed by an article expressing outrage at his `offensive and racist remarks'.

In another case, a tear was seen to course down the face of a judge who was sentencing a juvenile. Reporters rushed out of court to telephone their news desks with the remarkable story that a judge had found the task of sentencing so painful that he had wept. Only later was it pointed out that the judge had an eye infection. It is bad enough that such inaccurate reporting often results in unfairness to the judge concerned. The Manchester judge was threatened that unless he substituted an immediate custodial sentence of ten years he would be permanently disabled. The police took the matter sufficiently seriously to provide him with protection. What is far worse is that media misrepresentation undermines public confidence in the judicial system, and ultimately in the rule of law. The above are just a few recent examples of a widespread and endemic malaise. Almost every judge has a similar horror story to tell.

But it isn't only inaccurate reporting that has this baleful effect. 'Opinion pieces' can also give the public a very false impression of how the law is applied in courtrooms. Peter Hitchens, in the Daily Express (14 August), had this to say of the Human Rights Act: 'As of 2 October the British Parliament will cease to run this country and will hand over its powers without a struggle to the judges . . . What the Act means is that opinions of judges will over- ride those of MPs, the Cabinet and — of course — the electorate. You think the law is soft on paedophiles? Just you wait. . . . ' He was also of the view that judges were `now violently to the left of public opinion'.

John Bercow, who is described by the Independent as 'the Conservative home affairs spokesman', has his own contribu- tion to make to the debate: 'There are a lot of judges today who seem to have not the slightest awareness of or interest in the views or sensitivities of the mass of the British people. This is constantly revealed In the judgments they hand down and the extraordinary insouciance with which they regard quite bestial activities. . . . When I have looked at the summing up and I've listened to what the judge has actually said, I have wondered whether the judge inhabits the same planet as I do.'

Unfortunately Mr Bercow is not pre- pared to disclose the details of the cases he refers to. When asked for those particu- lars, Mr Bercow stated, through his secre- tary, that his research was 'ongoing' and that he would not disclose such informa- tion until he had decided to release his findings. One must wonder if any such cases exist, or, if they do, whether Mr Bercow's opinion of them would stand up to any scrutiny. Certainly, his confusion over judgments handed down (which only occur in civil cases) and summings up which are directions on the law and evi- dence to a jury and have nothing to do with sentencing — leave little ground for optimism. Whatever the position, most people who have some familiarity with the law would agree that both his statements are a grotesque distortion of the truth.

It isn't surprising, then, that, in a recent study for the Home Office by Professor Hazel Genn on public attitudes to the courts, 70 per cent of those surveyed saw judges as old and out of touch and serving only the interests of the wealthy. The pub- lic also said that they lacked confidence in the fairness of the court hearings and were nervous about seeking to resolve disputes in court. Of course, the vast majority of the public have never seen the inside of a real courtroom and have to rely on the media for such knowledge as they do have. It is therefore significant that the results were very different among those who had actually experienced the court process.

Professor Genn concluded that this false impression arose principally from the misin- formation about judges disseminated by the media. However, she went on, 'The influ- ence of the media on the public imagination comes from an absence of any competing accurate and regular information flow. The courts have a crucial role to play in protect- ing citizens and enforcing rights, and will- ingness to use the courts is bound to be influenced by public confidence in them.'

Here, I think that judges are open to criti- cism. We do not communicate enough with the public, and all too often allow the truth to be lost by default. Clearly, in order to carry out that function effectively we are to a very large extent dependent on the media. We need them as much as they need us. We should, as individuals, make ourselves accessible to the press so that we can explain to them what is going on in our courts and why. We should be available to answer questions. Obviously, in the interests of justice, there have to be limitations on what we can say, but the ground rules are well established and are widely understood and accepted by the media.

Equally, I think that we should commu- nicate more effectively as a body than we do. We need to contribute to that 'compet- ing accurate and regular information flow' so pertinently referred to by Genn. There is no one who speaks on behalf of judges; indeed, there is no one body that repre- sents the judiciary in this country. Perhaps the time has come when there should be.

As we are outside politics, we should restrict our remarks to those matters which affect our independence (such as attempts by politicians to remove judges who make unpopular decisions), and matters where it can properly be said that we are expert witnesses. A good example of the latter is the government's current proposal to restrict the right to trial by jury. The public are surely entitled to know what judges, who are trying cases daily before juries, think about the matter.

It is, of course, the duty of the media to report what happens in court, however embarrassing that may be to the judge con- cerned. All judges accept that. But there is widespread frustration at what is seen as a growing tendency to publish inaccurate or unbalanced reports of what judges do in their professional capacity. It makes our job more difficult, as well as causing the public to lose confidence in the courts.