PRESS CONFERENCE held by THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Judge) on Tuesday 6 December 2011 at THE ROYAL COURTS OF JUSTICE THE STRAND LONDON WC2A 2LL _________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ 1 Tuesday 6 December 2011 STEPHEN WARD: Good morning. The Lord Chief Justice is Lord Judge, which I think everybody knows. Just a couple of things. Could you put your hand up if you have a question and I will indicate who is to speak next. If you could say who you are and who you work for. The Lord Chief Justice knows some of you. Some of you he may not have sen before. It is 45 minutes and it is all on the record. The other thing to add is that there will not be any one-to-one interviews afterwards. At the end of 45 minutes the Lord Chief Justice will leave, and that is it. The first question? JOSHUA ROZENBERG: If you had not been barred by statute from taking part in the House of Lords' debate on the government's Legal Aid and Sentencing Bill, what would you have said? THE LORD CHIEF JUSTICE: I would have said to myself, "This is a matter of high political dispute and I had therefore better be reticent and not exercise my power, if I have it, to speak. JOSHUA ROZENBERG: Do you want to make any comment? THE LORD CHIEF JUSTICE: No. The Bill is now passed -- JOSHUA ROZENBERG: Past the Commons? THE LORD CHIEF JUSTICE: It is now past the Commons. It is a matter 1 of high political dispute and difficulty and it would be very unwise for me to comment, Joshua. I am afraid that may be true of many of the questions that you want to ask me. But it is in the political arena and in those circumstances I think I am wiser to say nothing, as well as required to say nothing. CLIVE COLEMAN (BBC): There has been a huge amount of activity in relation to contempt of court this year. The Attorney has taken a number of cases. Can I ask you a general question as to whether you are satisfied that the current laws that we have are policing the problem, if you like, effectively? And a more specific question about whether you are in any way concerned that if a juror, for instance, goes to the internet and does some research, as in the case of Joanne Frail, they will be looking at a term of imprisonment of perhaps eight months or thereabouts; whereas, if a newspaper pushes the envelope too far, then they would be looking at a fine of £15,000/20,000, which in the global scheme of things is not very much? THE LORD CHIEF JUSTICE: Well, I am not going to comment on either the Frail case or, for that matter, the newspaper case. In those cases, you will remember, there was no editor who was prosecuted. But the short answer to this is very simple. It is: what sort of a jury system do we want? I happen to believe in the jury system. I expect that most people here today believe in the jury system. The jury system started off with twelve people turning up who lived in the village, or town, and knew the defendant and would say on their 2 oath whether they thought he was guilty or not. Well, we are past that. We now say that twelve men and women sit together and examine the evidence and decide whether on the evidence they are satisfied the case is proved. But the important part of this -- and we take it for granted and are in danger of overlooking it -- is they do examine the evidence that has been adduced in the presence of everybody, including the victim, while he or she gives evidence, and the defendant, throughout the trial. If you introduce, or allow for the introduction of the entitlement of any juror to look up any piece of information he or she wishes, you end up with a trial based on the evidence called which the defendant and everybody else has had a chance to deal with, and whatever the other twelve members of the jury have dug up for themselves. So when they retire, they will not be deciding the case on the basis of the evidence they have heard, having listened to both sides; they will be deciding the case on the basis of what they have heard, having listened to both sides, and all the other material which is completely extraneous, which may not be common to them all anyway. That is not our jury system. Let us take a small for instance. The defendant is called John Smith. You look something up on the internet and you discover that John Smith of Acacia Avenue (wherever) has four previous convictions for violence. If the defendant had known that, he might very well have said "But there are two John Smiths in Acacia Avenue. I'm not the one". How can you possibly permit information which comes into the 3 knowledge of the jury which the defendant does not have the chance at least to say, "This is rubbish. This is not right. It is not me" -- or whatever the case may be. So if we want to have a system in which we say a trial will be by twelve good men and women and true, basing themselves on the evidence that is given in court, and whatever private research they may do, well, that is the system we will have. But that is not the system I want. I suspect it is not the system that anybody would want or expect. And if we are to have that system, then we have to have Parliament say that that is the system we have. You will not find the judges saying it. The only way of saving that system is for people who are serving on jurors to honour the oath they have taken, to give a true verdict according to the evidence. If we lose that, we have lost the system. TOM WHITEHEAD (DAILY TELEGRAPH): On the publication of Lord Neuberger's Report, you mentioned there that you had plans to go and see the speakers of both Houses, discussing Parliamentary privilege. Have you had those meetings? Are you able to explain what was discussed or what your view is on the future? THE LORD CHIEF JUSTICE: Yes, I am perfectly happy to answer that question, but I want to start back by making something plain. The privilege of Parliament, in particular freedom of speech -- both in the House of Commons and in the House of Lords -- is absolute. No 4 judge can or would wish to remove it, or change it, or amend it, or undermine it. In the judgment I gave in the MPs' expenses case I gave an example of why I think this is so precious and important, and I am going to give it to you, if I may. It is 1940. The Narvic expedition happens. The war is going really badly. Germany has come through the Low Countries. It is in France. The future is looking very grim -- this was not the future that happened, but if you had been a betting man in 1940, the future was very grim. How did Mr Churchill become Prime Minister and inspire us? A Member of Parliament, in wartime, Leo Amory, stood up in the House of Commons and, using words from the seventeenth century, told the Prime Minister that in the name of God he had to go. Can you imagine any country in the world where that would have been permitted in wartime? But it was a Member of Parliament exercising his privilege to speak his mind that led directly to the end of Mr Chamberlain's government and the arrival of Winston Churchill in power. That is a precious heritage. Parliament has the absolute right to decide what its privilege should be and where it should extend on the issue of freedom of speech. But Parliament has its own rules. It has its own rules to ensure that the privilege is not abused by its members. Parliament has its own rules to ensure that the use of 5 privilege does not cause what I would describe as "trouble" elsewhere. So we have, for example, the sub judice rule. Members of Parliament do not discuss cases which are currently being tried. They do not express views about them. They simply do not discuss them. That is not because the judges interfere; that is because Parliament has chosen to impose it own self-denying ordinance in the public interest. Now, coming nearer to the point that you raise with me, if a Member of Parliament in either House uses Parliamentary privilege in a way which negates an order of the court, it is, of course for the Speaker and the Lord Speaker, and whichever House it is, itself decides if this should be dealt with and how it should be dealt with. For the Lord Chief Justice to see the Speaker, as I have, and the Lord Speaker, as I have, to draw attention to the problem and highlight my concerns in relation to the administration of justice, is not interfering with Parliament, it is an acknowledgement that it is only Parliament that is the body vested with authority to consider how to address the problem.