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, 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. 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. So I have seen the Speaker, I have seen the Lord Speaker; I have explained the nature of my concerns as the Lord Chief Justice; and it now for them, together with the House itself, to make whatever decisions they think appropriate about whether to extend the sub judice rule, where to apply it, how to apply it, and so on and so forth.

But I end where I began: the privilege is Parliament's and it is absolute. It is for them.

6

TOM WHITEHEAD: And I take it from that that you certainly have not

made any recommendations in those meetings as to where you think it should go. Could I ask were there discussions about the reporting -- because that obviously isn't absolute privilege, that's only qualified privilege?

THE LORD CHIEF JUSTICE: That has never arisen for discussion in any

discussion in which I have been involved.

TOM WHITEHEAD: Do you have a view on it?

THE LORD CHIEF JUSTICE: I think I had better leave it to Parliament

to decide what Parliament wants. The problem is, I am not sure the law is terribly clear on the issue and if the point is taken, then I may very well to sit in the court that decides it.

JOSHUA ROZENBERG: Can we just press you on your concerns that you

expressed to the Speaker and the Lord Speaker? Can you tell us a little bit more about what you said to them?

THE LORD CHIEF JUSTICE: I do not think I should really. It is for

them to say what they want to say. But I am prepared to say this. The issue of whether or not orders of the court which are reached on the basis of the evidence before the court can, in effect, be set at nought by the exercise of Parliamentary speech by one Member of Parliament is a matter for consideration. What process the Houses,

7 if they decide to deal with it at all, may decide to adopt is for them, not for me. So I am afraid, Joshua, I cannot really amplify that.

FRANCES GIBB (): There is a report out today which apparently suggests some support for looking again at the mandatory life sentence and perhaps removing it. What is your view? Would you prefer judges to have discretion on sentences of life?

THE LORD CHIEF JUSTICE: Well, this is another potentially hot political potato, is it not? Opposing views are held with some passion. Indeed, the opposing views go deeper than that. I think that just about who would do away with the mandatory life sentence, there will be someone next door -- perhaps even in the same house -- who will take the view that capital punishment ought to be restored. So I am going to be circumspect.

Murder, of course is always an exceptionally serious offence; but, like every offence, it varies in its culpability and seriousness.

An armed robber goes out and wipes away a security guard by firing at him straight in the heart. Or a pervert damages and then kills an innocent child -- both murderers.

A loving partner, after years of devotion, as a final act of devotion agrees to do what his other half has begged him to do, and as a final act of love, sees him or her into eternity. He or she is a murderer.

8

They all receive the same sentence: life imprisonment. That is completely automatic. There is no option for the judge. But, of course, as we all know, they do not serve as long. The life sentence is now regarded as covering the potential risk presented by the defendant. The minimum term, to which I shall come, reflects the punishment and deterrent element in the sentence reflecting the particular gravity of the offence.

Now, sometimes that sentence is a whole life term -- that is literally the rest of the person's life is in prison. But more often than not it is less than that. The life sentence is sometimes a 30 year minimum, sometimes a 15 year minimum, and sometimes, in the kind of exceptional case that I was illustrating a few minutes ago -- and indeed there is such a case -- five years minimum. If at the end of that period the Parole Board is satisfied that it is safe to do so, the offender is released on licence. The licence continues to the end of the life. That is the life imprisonment part.

Now, that is an important background. The sentence on each defendant in reality is not the same. The sentence is life imprisonment, but the time served in prison will vary from defendant to defendant, as the judge assesses the gravity of the offence.

Now, it seems to me that perhaps the real problem is with the law of murder itself. It is particularly difficult and troublesome when more than one person is said to be involved -- a joint enterprise

9 murder. Three people attack one. The one dies. What part did each of those three play? Which one struck the fatal blow? Which one carried the dangerous weapon? Which one was egging on? And so on and so forth.

But it is complicated too by the various defences: lack of intent; the new defence replacing provocation, loss of control; diminished responsibility. These are all extremely complicated when they are all put together in a single case, and the proposals for reform -- and we have had a number of them -- have not been taken forward, except piecemeal. As I speak to you, I am tangling with the very difficult issue of loss of control in the context where sexual infidelity is one of the causes for the loss of control, and how we deal with that.

Now, I am not discussing that case, but it does not make anything in the law of murder very straightforward. It is sometimes felt that in the long run the complications leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.

I think that is what I want to say about it, Frances. Have I sufficiently answered you question?

FRANCES GIBB: Yes.

10

OWEN BOWCOTT (): There has obviously been a lot of concerns expressed in the media and elsewhere about sentencing and the way sentences were reached after the riots. Given that we may be moving into another recession and a period of austerity, do you think there is an argument for the Sentencing Council to set out more clearly, so that it is understood more broadly by the public, the range of sentences that people risk if they take part in activities in the context of disturbances or riots?

THE LORD CHIEF JUSTICE: I am afraid the short answer is: no, I do not think it is necessary. If people have not understood the decisions reached by the court, we cannot really explain them. As with most other things to do with sentencing, there is a wide discrepancy of views.

But as you have raised the riots, I want to make one point, which has nothing to do with this conference, but it gives me an opportunity to say something, so forgive me if I take the opportunity.

In the judgment we handed down in relation to the riots sentencing, I thanked a lot of people who had helped with what I regarded as a remarkable piece of efficiency in dealing with the cases. I think may have helped actually to reduce the dangers of further riots, or riots continuing -- the fact that people were in court by 10 August and sent to the Crown Court and so on and so forth. I thanked the legal profession for their work in court. I think some of the

11 defence solicitors felt that I had not sufficiently individually recognised the work done by defence solicitors. If they thought that, they were mistaken. It was certainly not my intention to exclude them. I specifically included them as part of the legal profession, which of course includes the people who act as clerk to the justices and some of the prosecutors. I want to record publicly that the defence lawyers made a huge contribution to the efficient running of the courts at that time. I am grateful to them. So thank you for asking a question about the riots. I am sorry I did not answer your question, but at least I have got in the piece I wanted to say.

KEIR SIMMONS (ITV NEWS): The hope has been expressed over time to reduce the prison population. Do you see sentences other than prison sentences as effective, and that we should be using those more? Looking across the landscape, if you like, do you see the prison population in the years to come?

THE LORD CHIEF JUSTICE: That is a whole lot of questions, some of which are impossible to answer. I would love to predict the future. There are a number of non-custodial sentences that are extremely effective, extremely sensible, and which are imposed in many, many cases. But if the offences is too serious, you cannot, in my view, impose a non-custodial penalty. You tell me whether the future will produce us more serious crime or less serious crime, and I will tell you whether the prison population will increase or the prison population will decrease.

12

My view is that for the right case, for the right defendant, a non- custodial sentence is appropriate; but not for every case. And there are cases for which the only alternative available is a custodial sentence. I am sorry, the question is slightly too vague for me to be more specific.

KEIR SIMMONS: That is fine, but the hope appears to be that,

politically, we can move to a more non-custodial sentencing? Is that do-able, if you like?

THE LORD CHIEF JUSTICE: Well, it is silly for me to say that judges

cannot have any regard to the issue of public money when the country is bust, as it is. Actually, in the end, we are passing sentences. There is a system for release of prisoners automatically after half, save in the context of minimum terms and so on, which we were discussing earlier in the context of life sentences. I have no doubt -- I know it to be the case -- that from time to time prisoners are released before they have finished serving half. But in the end judges have to pass the sentences that they believe to be right. If the national emergency requires that prisoners are released more quickly than that, that really is a matter for the government, and they are accountable to public opinion and to Parliament for the way in which they deal with it.

STEVE DOUGHTY (): The new member of the Supreme Court, Mr

Sumption, has made it clear that he believes that judges using mainly

13 processes of judicial review and human rights have delved too far into the every day decision-making in politics -- my examples being the recent case involving Sefton in the Isle of Wight, and the High Court has told local councils what cuts they may or may not make. Do you agree with Mr Sumption.

THE LORD CHIEF JUSTICE: I am very sympathetic with Mr Sumption and the views he has expressed.

STEVE DOUGHTY: Would you expand?

THE LORD CHIEF JUSTICE: I would love to give you something to write down. I am very sympathetic with that. Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be. I think we have to be careful to remember that we cannot administer the responsibilities which others have. So local authorities have responsibilities, and so on and so forth. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly. Occasionally -- and I suppose it is inevitable -- there is an overlap where what we are doing, or the orders that we make, actually impact on the administration for which others are responsible. So when I say I am sympathetic with Mr Sumption's view, it is a genuine sense of sympathy. We have to be careful to make sure that we stay within our proper function.

14 WESLEY JOHNSON (PA): Can I just take you back to what you were saying about the mandatory life sentences and perhaps the need for a careful reform of the murder law? Can you just tell us a little bit more about that, how you see it happening, or what you would like to see? Can you expand on that a little bit?

THE LORD CHIEF JUSTICE: The Law Commission produced a provocative, but very interesting and carefully thought through paper called "Murder, Manslaughter, Infanticide" in 2005 (or 2006), which did a complete analysis of the law of murder.

The government then produced its own paper called, would you believe it, "Murder, Manslaughter, Infanticide". But actually the relationship between the two documents, other than the title, was hard to find. We had reform of the law of provocation; so it is now called loss of control. We had reform of the law of diminished responsibility, which stayed the same in name but has changed in its ingredients. But on the major issues which the Law Commission had asked for a public discussion about -- whether you should have two degrees of murder -- there were no proposals. I may be wrong about that, but there was certainly nothing which got into any subsequent Act. I think there were no proposals, but I know that nothing got into a future Act.

The reform of murder piecemeal does not actually alter the complications of the law. It simply means that you have a new defence called "loss of control", a new defence called "diminished

15 responsibility", but they all have to bear into the problem of, for example, joint enterprise murder. Who is guilty of murder when four people surround somebody? The one who kicks? The one who suddenly produces the knife that is the offensive weapon that causes the death? The one who eggs on the man who has the knife? The one who says to him, "For God's sake!" -- in other words, in a complaint that it is going much further. I am not trying to sound facetious, but it is one thing to be party to punching somebody, and quite another to be party to using a potentially lethal weapon on him.

At the end of it the judge has to direct the jury, and the jury has to work out which of them is guilty of murder, bearing in mind that to be guilty of murder you have to be a party to a common enterprise to cause grievous bodily harm or to kill, and your part in the particular joint enterprise may have involved neither; but the issue may have arisen halfway through the process. I am not trying to make it difficult, but as I am speaking I can see some of you thinking, "Good grief, is that where we have come to?" But that is the point. If the whole law of murder were looked at, that might very well address the question of whether or not those who are asking for the automatic sentence to be removed would have their biggest concerns allayed.

WESLEY JOHNSON: So would you back the two tier murder?

THE LORD CHIEF JUSTICE: There I am not going to speak my view because that will be a political question when it comes up.

16 Everything to do with the law of murder -- capital punishment, non- automatic sentence -- is highly political. People have very, very strong views. As I said at the beginning, for everyone who says "No automatic life imprisonment", there is another who says "Capital punishment".

What I would like -- I am prepared to say this --, first of all, the law must keep in step with public opinion. There has to be a balance between the law we have and what the public regards as an appropriate law. The second is, I would like, if the matter ever got to Parliament, for it to be dealt with by way of a free vote so that Members of Parliament could vote in accordance with their consciences. But that is a wish.

MARTIN BENTHAM (EVENING STANDARD): Further to this, you mentioned

obviously the particular issue of the loss of control through sexual provocation that you are grappling with. Obviously you can't go into the precise details, but what is the dilemma? And, just more broadly, when new definitions are created, what is the problem that that creates? I know what it is, but would you like to expand on what the precise problem is?

THE LORD CHIEF JUSTICE: Yes. I am not commenting on a particular

case because, as I say, I am writing a judgment. There is a clear requirement for the purposes of assessing whether there are sufficient grounds to amount to the loss of control defence, sexual infidelity must be disregarded.

17

Let us just pose a perfectly likely scenario. It does not matter which sex we take. A woman comes home and she hears noises upstairs and realises that something is going on in the bedroom. She goes upstairs and she finds her husband in bed, having sexual intercourse with a woman -- a next door neighbour, somebody she knows. Now, that is not a sufficient situation for the loss of control defence to apply if, in a blaze of fury, she kills her husband. That is what the law says.

But let us use the same example. Instead of going into a fury then, she expostulates (no doubt in fairly robust language) about how furious she is with him and what on earth (again using robust language) does he think he is doing -- or what does she think she is doing. He leaves the bed and starts to insult her and to say it is all her fault, she is frigid. And then she goes into a fury and kills him.

What do you do about the fact that he insulted her and taunted her and said it was all her fault? Do you ignore it? Do you ignore the context? That is the issue I am grappling with.

Take a different example. A woman puts up with being beaten by her husband regularly. Once a month, when he is drunk, he beats her. Three times a year she has to go to hospital with bruises. Then one day when he is beating her he tells her that he has been unfaithful to her. Something snaps in her and she kills him.

18

Where do we go there? She has put up with being beaten time and time again. The reference to sexual infidelity is the last straw. Is that to be ignored? Is sexual infidelity to be disregarded? Those are the issues that I am grappling with on loss of control. I will let you know the answer when I have written it.

CLIVE COLEMAN (BBC): Can I ask you -- I will be greedy and try and ask two questions. One is in relation to joint enterprise, and it is really a moral question. It sounds to me as though what you are saying is that your concern is that there are some people who will be caught within the net of a joint enterprise criminal prosecution who are simply too morally remote from the crime to be within the net and that that is a problem.

THE LORD CHIEF JUSTICE: That is not what I am saying. I am not actually expressing a view either way, whether more people should be caught or fewer people should be caught. What I am saying is that it is fiendishly difficulty.

CLIVE COLEMAN: Yes.

THE LORD CHIEF JUSTICE: And when the judge sums up the case to the jury: "The case against the defendant Coleman is this, against the defendant Rozenberg is this, and Bentham is this", it is extremely complicated. The end result may not always seem to John and Jane Citizen to be the right result when set against other cases of

19 murder. But I was not actually suggesting that the current law does not embrace people correctly or does embrace people correctly. I am just saying how very complicated it is.

CLIVE COLEMAN: Okay. I will park that question in that case.

THE LORD CHIEF JUSTICE: Yes.

CLIVE COLEMAN: Can I ask you about disclosure?

THE LORD CHIEF JUSTICE: Yes.

CLIVE COLEMAN: The Met(?) case last week where there was obviously a major problem. Very late on, in a very large criminal trial, it came to light very late in the day about disclosure, and when I started looking into it barristers were saying, "Actually this is an error of the criminal justice system where there are real problems because it is not properly resourced". Once the officer in the case divides the evidence up between the used evidence and the unused evidence, and the unused evidence goes into schedules, no one actually physically checks to see whether things are there. There is no mechanism for seeing whether evidence has been tampered with, destroyed, interfered with or whatever. That will startle many people. There are also issues of disclosure in relation to the Radcliffe(?) investigation. It is particularly acute in cases involving police officers. What concerns do you have on that?

20 THE LORD CHIEF JUSTICE: I think the issue of disclosure is one of

the most difficult ones for the entire criminal justice system at the moment. We have a system in which the police investigate a crime. That is obviously the system. In the course of the investigation they find evidence which leads them eventually to put the case to the Crown Prosecution Service and say: "Is there enough evidence to prosecute and, if so, for what?" In the course of the investigation they of course dig up all sorts of material which does not appear to be relevant to strengthen the prosecution case, but which may be available to help the defendant if he is charged. We have to have a system which is honourably worked by which any material which is of potential assistance to the defence is made available.

Now, that is fine and good in the days when the police officer laboriously went round to the house and took a statement in longhand and either it was used or it was not used; and if it was not used, the defence could have it. Nowadays -- well, the trial in Swansea, I am told, and I have no reason to doubt this, there were 800,000 -- 800,000 -- items of unused material, covering a period of 23 years, which gives you some idea of how vast this disclosure issue has become. Putting it bluntly: where are the people to go through 800,000 items of unused material to decide whether or not this may be of assistance to anyone of however many defendants there were? Was it ten who were arrested and charged?

Now, we have also had cases where justice has miscarried because the disclosure issue has not been properly handled -- and we cannot have

21 that. So it is a very major issue. The Criminal Procedure and Investigations Act 1996 does not seem to me to be working, partly because too much is expected of it, and partly because, as I say, the process of investigation has become so much larger.

For myself I have already asked Lord Justice Gross and the President of the Queen's Bench Division to look into this for me some months ago. I have had a report from them. They are going to discuss it with the Law Officers because there must be a system for us working together to make sure that the disclosure issue is handled better. That is part of the process, I hope, which will lead to an improvement in it. But we must not run away -- I cannot produce a process that will avoid some one looking carefully at all this material. That is why disclosure is, and will continue to be, a major problem in big, complicated cases involving crime.

CLIVE COLEMAN: The barristers say that they are simply not paid to

look at the unused material on both the prosecution and the defence side. So sometimes they do, and sometimes they don't.

THE LORD CHIEF JUSTICE: That is not a question, is it? It is a

comment. I have asked Lord Justice Gross and the President of the Queen's Bench Division to look at this. The judiciary take the view it is a very serious problem. There are all sorts of aspects to it, and I would not dream of commenting on one, as opposed to another.

MARTIN BENTHAM (EVENING STANDARD): Further to Steve's question about

22 judicial review, do you think that Parliament has, in effect, created a problem for itself here by -- there are so many cases now that certainly I seem to see anyway where a local authority or some public body has fallen down because it is not considered its duty to conduct the appropriate impact assessment on this body, that body, that group of people. From your point of view, has this led to a great complication of the way decisions are made and therefore you, as the judiciary, have to deal with the law as it is? Has this, in effect, made it very difficult for local authorities and other public bodies not to trip over the very complex legislation that surrounds their decision-making process?

THE LORD CHIEF JUSTICE: Martin, that is an interesting question. I am not going to answer it directly in any specific way, but I will say this. The law relating to the criminal justice system has become astonishingly complicated, and I suspect that anybody working in any particular field will say the legislative process in the last ten to fifteen years has become increasingly complex -- harder to understand and therefore more difficult to comply with.

MARTIN BENTHAM: And just on that point -- we are going to get some figures on Thursday actually about the number of new laws that have been brought in under this government, I think, but from your point of view, at the receiving end, so to speak, has there been any diminution of the number of new pieces of legislation?

THE LORD CHIEF JUSTICE: In the famous words of our eighteenth

23 century political philosopher, the legislative burden has increased, is increasing and ought to be diminished. But I am not confining myself to the criminal justice system. I think in every respect there is a vast amount of legislation -- and do not forget, the Acts of Parliament are not the end of it. There are all the regulations made thereunder, and there are millions of regulations. I did an essay relatively recently comparing the criminal justice legislation in 2003 with the criminal justice legislation over the previous fifty years. 2003 on its own out-bid fifty years.

FRANCES GIBB (THE TIMES): Lord Neuberger supports positive action to

promote the numbers of women -- or boost the numbers of women and other groups to the top of the judiciary. Do you?

THE LORD CHIEF JUSTICE: If you tell me what "positive action" is, I

will answer the question. I will answer the question differently. I think that the process of selection of judges should be blindfold. I do not think there is any relevance in the potential candidate's gender, skin colour, creed, racial origin, or sexual orientation. It seems to me that we must have the best man, or woman, for the particular job.

FRANCES GIBB: What he means is implementing, or making use of the

provision of the Equality Act which --

THE LORD CHIEF JUSTICE: As to that, I have said before, and I shall say again, if you find you have two candidates of identical -- or

24 effectively identical -- quality, then there is much to be said for using the Equality Act provision as the final arbiter. But it is actually very unlikely that you will have candidates about whom that can be said. But if you do, it is obviously the right way to go. But by the time you are talking to the top of the judiciary, actually (with one or two exceptions) he or she will have a track record of cases decided, judgments given, trials presided over, and so on and so forth. It would be strange if for the particular job you had in mind you were unable to say that there is a better candidate. But if you reach the stage where there was a thin piece of paper between them, that you could not identify any real difference, yes, the Equality Act provision makes sense. I have said this before. I am not saying anything new. I am not saying anything after Lord Neuberger. I think I have been saying it for some years now.

GAETAN PORTAL (BBC): Can I just take you back to the disclosure issue that Clive asked you about? Isn't there a difference between cases like Lynette White, or Daniel Morgan, where it is the sheer volume of material that has caused the case to come a cropper, and the difference between that and what you referred to as miscarriages of justice, participating informants, or police officers going under cover and not disclosing that they are under cover? There is a big difference between the two, isn't there? The checks and balances are there, but even in cases of Customs and Excise officers and participating informants -- we have seen in this case with undercover police officers, that those checks and balances don't really work sometimes. Do you not think that something more needs to be done in

25 this area?

THE LORD CHIEF JUSTICE: Where I disagree with you is this. The principle is the same. The application of the principle in, shall we say, a participating informant case is much more complex; but the principle is identical, namely, that the defence is entitled to have sight of material which may be of assistance to the defence. Now, I entirely agree, therefore, that it is more difficult, more problematic, but we have to keep in mind the principle.

MARK WHITE (): Can I ask how you feel about the trial of allowing reporters to tweet in court proceedings has gone, and also extend that to the advent of television cameras for some court cases? Is that something that is being looked to with a degree of trepidation or a feeling perhaps that it is about time by yourself and your fellow judges?

THE LORD CHIEF JUSTICE: Well, as to tweeting, I will be issuing in the next few days the outcome of the consultation process that I set up last year. I have had an astonishing degree of response expressing views in lots of different ways. The essential difference of views arises in two areas. One, should there be an assumption that a legal correspondent or a journalist or an accredited media person should be able to twitter out of court without seeking the judge's permission; or should it always be required that he should seek permission? That is point number one.

26 Point number two is: whichever way that goes in relation to -- I will say media -- should that apply to every John and Jane Citizen? The difference is that John and Jane Citizen are less likely to understand the rules of contempt than most journalists who come into my court.

That will be out with you anyway before Christmas. I have promised myself, and it will be. I suppose Stephen would say I should say no more about that, so I will say no more about it.

Now, let me turn to the other question. Last week I had a meeting with your team, the BBC, ITN, all explaining to me how important it was for the administration of open justice for television cameras to be present in court. I had no reservations about some aspects of this, and I had very huge reservations about others.

The first point we have to grasp is: there is an Act of Parliament. That will have to be repealed. It will have to be replaced.

I personally -- and I am speaking entirely personally -- have no difficulty with television cameras being present during the course of argument in the Court of Appeal and during the course of judgments being given -- whether in the Criminal Division or the Civil Division -- subject to cases of fresh evidence where witnesses come forward. I think there is a case for saying there should be no difficulty in televising the judge's sentencing remarks in the Crown Court at the end of the trial. I have some reservations about it, but for the

27 time being we can ignore those reservations. The proof of the pudding there may be in the eating.

But I do have very significant concerns about the impact of the television camera on the trial process. It is terribly easy to overlook what a difficult situation a witness finds himself or herself in. There are enough pressures. The pressure of being on the television, even if they think they are welcoming it, alters something about the witness.

If you are -- forget an old lady -- if you are a vigorous young woman who actually has witnessed a crime in your street, committed by somebody in your street, and you are on the television why you give your evidence. You must think to yourself, "I wonder what the defendant's friends are going to make of my presence here. I wonder what my neighbours will think of it."

So on the trial process I think there are huge difficulties. But let us take it in stages, is my view. Let us allow for the televising of the Court of Appeal processes. I am bound to say to you: they will not made riveting television. They will not. You will not get a huge audience. That is as far as I want to go for the time being. If that works, we will then see how much further it can or should go.

MARTIN BENTHAM (EVENING STANDARD): We find you and your clues(?) very entertaining. We would like to have more of you please.

28 STEPHEN WARD: Thank you very much everybody. That is 45 minutes.

THE LORD CHIEF JUSTICE: Thank you all very much for coming.

(End of press conference)

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