This relates to
The late Lord Lyell of Markyate (formerly Sir Nicholas Lyell), Conservative Attorney General from 1992-1997
The late Mr Geoffrey Harold Scriven (1936 - 2012) of Cheshire ("Mr Scriven")
The late Lord Williams of Mostyn, Labour Attorney General from 1999 to 2001 ("Lord Williams")
The Rt Hon the Lord Brown of Eaton-under-Heywood PC, formerly known as Lord Justice Simon Brown in the Queen's Bench Divisional Court ("Lord Brown")
Lord Irvine of Lairg, Labour Lord Chancellor appointed (by the then Prime Minister Blair) in 1997, who retired in 2003 and received a lump sum of £180k and a pension of £90k pa ("Lord Irvine")
The Rt Hon Tony Blair (formerly MP), Labour Prime Minister from 1997-2007 ("Mr Blair")
The Rt Hon Nick Clegg MP, Deputy Prime Minister in the present Coalition Government and Leader of the Liberal Democrat Party ("Mr Clegg")
Mr John Larkin QC, Attorney General for Northern Ireland ("Mr Larkin")
Mr Peter Hain MP (Labour) ("Mr Hain")
The Rt Hon David Cameron MP, Prime Minister in the present Coalition Government and Leader of the Conservative Party ("Mr Cameron")
The Rt Hon David Blunkett MP (Labour) ("Mr Blunkett")
Mr David Ford MLA, Northern Ireland Minister of Justice and Leader of the Alliance Party of Northern Ireland ("Mr Ford")
(The above-named are listed in the order in which they are mentioned below.)
In England, Wales and Northern Ireland, there used to be a law, which was known to have been used in England in 1344 but which may have been in force earlier, against "scandalising the Court", under which it was an offence to publish any criticism whatsoever, regardless of whether it was valid, of a named or otherwise identifiable judge*. The penalty was indefinite imprisonment.
WE KID YOU NOT
Even if one had had proof, for example, that a judge had taken a bribe, it would have been illegal to publish the fact, at least in any way which would have identified the judge.
It was abolished in 2013. (A similar law, against "murmuring judges", still exists in Scotland but has not been used in modern times.)
In 1997, Lord (then Sir Nicholas) Lyell used it to pressurise Mr Scriven, who had been alleging misconduct by judges, to give an undertaking to the effect that he would never make similar allegations again.
Under "New Labour", Lord Williams prosecuted Mr Scriven for alleged breach of the undertaking (which Mr Scriven maintained had been given under duress). Mr Scriven was the first person since 1931 to be prosecuted for alleged breach of an undertaking of this type. Lord Williams also brought but later dropped a substantive charge of "scandalising the Court".
Mr Scriven remained defiant. He said "Someone has to stand up for what is right, even if it means going to prison."
Had he been imprisoned, the case would probably have attracted much greater media coverage and become a great embarrassment to the Government. He was not imprisoned but was declared a "vexatious litigant" under Section 42 of the Supreme Court Act 1981 (as amended), by Lord Brown, on 4 February 2000, in London. Mr Scriven had no right to be heard by a jury in relation to either the alleged breach of the undertaking or the decision to have him declared a "vexatious litigant".
For more details of Mr Scriven's case, see the article in The Guardian of 5 February 2000 by Clare Dyer, Legal Correspondent.
We invite readers to consider why Lord Brown acted as he did.
None of Mr Scriven's allegations against judges has ever been publicly investigated and, as far as we know, no government official has ever disputed the truth of any of them.
Indeed, under the law against "scandalising the Court", it would have been illegal for anyone, even another judge, to publicly investigate any of Mr Scriven's allegations against judges. (Nobody could have publicly investigated any of them without, at least, having incited someone to "scandalise the Court".) To have had them publicly investigated, Lord Williams would have had to give an undertaking to the effect that he would not use the law against "scandalising the Court" in connection with the investigation.
An article entitled "Vexatious Litigants", which used to be on the website of Watmores Solicitors, quoted extracts from the judgement handed down by Lord Brown against Mr Scriven on 4 February 2000, in particular Lord Brown's statement "The overwhelming likelihood is ... that the August date was a pure mistake." The background to this was that Mr Scriven had proved that a Court document must have been issued later than the date stamped on it. Mr Scriven had always maintained that the document had been incorrectly dated deliberately as part of a fraud but, because none of Mr Scriven's allegations against judges has been publicly investigated, there is not enough evidence in the public domain to enable the public to judge whether Lord Brown was correct. The incorrect date was 15 August 1992, a Saturday when the Court was, of course, closed. Lord Brown's judgement quoted an earlier judgement of a Judge Lees which had stated "I ... do not see how ... inserting such a date could materially assist any conspiracy ... and it seems to me that if someone wished to bring in further a conspiracy in the way the respondent contended, that to predate it to a Saturday seemed to be a very odd thing to do." However, there is also not sufficient evidence in the public domain to enable the public to judge whether the incorrect date did give grounds to suspect a conspiracy. It is clear, however, that if the person who predated the Court document was dishonest, he or she was also careless. Why did Lord Brown make the assertion? He had not publicly investigated any of Mr Scriven's allegations against judges and nor had Judge Lees.
If Mr Scriven's allegations against judges were all groundless, why did no judge ever sue him for defamation, before a jury?
There was a campaign, supported by the well-known barrister Geoffrey Robertson QC, to have the law against "scandalising the Court" abolished but the Labour Government resisted it.
This law can not only stifle valid criticisms of judges, it can cause distrust of good judges by undermining confidence in judges generally and by preventing unfounded complaints against judges from being properly examined in public.
A website which criticised judges was closed down further to an approach by Lord Irvine to the Internet Service Provider.
Lord Irvine stated, in a letter of 7 December 1999 to an MP regarding the offence of "scandalising the Court", with particular reference to Mr Scriven's case, "The mischief at which the offence is aimed is the undermining of public confidence in the administration of justice ... The Attorney General has the Prime Minister's full confidence." The law against "scandalising the Court" does not only apply to good judges. Why shouldn't people undermine public confidence in crooked, biased or incompetent ones?
However, several newspaper articles in recent years and a Channel 4 documentary, "Dispatches", on 18 December 2003, have criticised judges but, as far as we know, neither Lord Williams nor either of his Labour successors (Lord Goldsmith and Baroness Scotland) ever used the law against "scandalising the Court" against anyone except Mr Scriven. The Coalition's first Attorney General for England and Wales, Mr Dominic Grieve QC MP, (who left that office in 2014, after the abolition of the law against "scandalising the Court") did not do so but the present Attorney General for Northern Ireland, Mr Larkin, did, against Mr Hain and the publisher of a book by him. See below.)
From the above it is very clear that Mr Blair was opposed to the repeal of the law against "scandalising the Court" but did not believe that the Attorney General should try to enforce it routinely.
Mr Blair may have privately investigated Mr Scriven's allegations, found them to be false and regarded the legal gagging of him as justified. He may also have privately investigated other people's criticisms of judges and found them valid. He may have realised that Lord Irvine's statement "The mischief ..." quoted above was fatuous and privately reprimanded him.
He may genuinely (but, one may think, misguidedly) have regarded the law against "scandalising the Court" as a legitimate tool of his Attorney General, who could be trusted to use it selectively in the public interest.
Did he not realise that his Government, by prosecuting Mr Scriven but not having his (Mr Scriven's) allegations publicly investigated, had prompted reasonable suspicion that it was concealing misconduct by one or more judges? (The suspicion was fuelled by Lord Irvine's fatuous statement.)
Mr Blair could not now clear himself of suspicion.
On 1 July 2010, Mr Clegg made a long speech on the theme of "Freedom". He talked about "protecting civil liberties" and "repealing unnecessary laws which have no place on the statute book" but conspicuously absent from his speech was any mention of the law against "scandalising the Court". This was not surprising; his Party was in coalition with the Conservative Party, which had used that law against Mr Scriven in 1997 and there had been no relevant change in Conservative Party policy since then.
On 27 March 2012, the BBC reported that Mr Hain was to be prosecuted for criticising Lord Justice Girvan in a recently published book and that he (Mr Hain) had said "I am astonished ..." and "I will defend free speech." Shortly afterwards, Mr Hain vociferously called for the abolition of the law against "scandalising the Court" but, when the Labour Government was resisting the campaign to have it abolished, he was a minister in that Government!
(The BBC report did not contain the expression "scandalising the Court" but it was clear enough that the prosecution was to be based on the archaic law referred to above.)
The explanation most favourable to Mr Hain is that, when publishing the book, he did not know that he was acting illegally and, by implication, had never read any of the newspaper articles about Mr Scriven's case and did not know that the Labour Government, in which he had been a minister at the time, had resisted a campaign to have the law against "scandalising the Court" abolished.
The Guardian and other newspapers dated 18 April 2012 reported that Mr Cameron (in response to a question from Mr Blunkett) had expressed disapproval of the decision to prosecute Mr Hain and that many other MPs had also done so. However, none of the three main political parties had publicly called for the abolition of the law against "scandalising the Court".
The prosecution was brought by Mr Larkin, who has a duty not to prosecute any person unless it is "in the public interest" to do so. We invite readers to consider whether he exceeded his powers and, if so, whether he should be dismissed for (inter alia) wasting public money.
A preliminary hearing occured in Belfast on 24 April 2012 but, shortly afterwards, Mr Larkin decided to drop the case, further to receipt of a letter from Mr Hain. The letter is quoted in an article dated 17 May 2012 in guardian.co.uk. We invite readers to consider whether anything else may have influenced Mr Larkin's decision.
Between 10 August and 19 October 2012, the Law Commission carried out a consultation on the law against "scandalising the Court" and, on 4 December 2012, recommended that it be abolished.
The Law Commission has existed since 1965. Why did it not make this recommendation long ago, in particular, shortly after the publication, in the national press, of articles which had mentioned the law against "scandalising the Court" in relation to Mr Scriven?
Furthermore, highly paid staff, including a professor, were involved. They were not discussing rocket science.
The present Coalition Government could have avoided the expense by introducing, in or before spring 2012, a very simple Bill to abolish the law against "scandalising the Court".
Was the Law Commission involved in a job creation scheme?
The recommendation was implemented, in relation to England and Wales, by means of an amendment, introduced in the House of Lords, to the Crime and Courts Bill.
Lord Irvine did not object. Had he changed his opinion since 1999? If so, why has he still not publicly expressed any regret?
It was implemented, in relation to Northern Ireland, by means of an amendment to the Criminal Justice Bill (Northern Ireland).
Mr Hain has not publicly criticised Lord Irvine.
Lord Irvine is still receiving his huge pension, despite the serious cuts in expenditure on important public services.
*This is based on our interpretation of case law.
Last updated 16 January 2015