One of the easiest things for a reporter to produce is knocking copy about the judiciary and the legal system. The “law is an ass” piece almost writes itself. Readers are more than ready to nod-along with any attack on a supposed judicial idiocy or misapplication of the law.
Alongside the copy will be the usual photographs of a grown-up wearing a silly costume and wig. (For, as Danny in Withnail and I avers in his story of the defendant accused by a judge of wearing fancy dress: “You think you look normal, your honour?”) Add to this the inherent human interest in stories of apparent injustice, and an element of class prejudice against posh and out-of-touch judges, and then you understand why monstering the judiciary is a staple of the popular press. Such pieces can be fun to write and fun to read.
But there is a risk in the media assaulting and insulting the judiciary and the legal system. An independent judiciary is as fundamental a part of a free society as a free press. Wise journalists know this: the courts are the means by which the media can challenge and even defeat illiberal moves by the government. They also can provide a shield — albeit an imperfect one — to repel attempts by private individuals to coerce the press. The media may not like judges and courts, but they would miss them awfully if they were not there.
So there has to be an ongoing balance: the press should be free to criticise the courts, and the courts must remain independent of media (and political) pressure. This is important, as those who want absolute power tend to dislike equally a free press and an independent judiciary. This is why the tweets of President Donald Trump seem to alternate between complaints of “fake news” (ie, the free press that exposes him) and of “so-called judges” (the judiciary that rules against him). He cannot (easily) defeat a free press or an independent judiciary, so he needs to discredit them instead.
The comments this morning of the president of the UK’s Supreme Court are an important contribution to the issue of media-court relations. In an interview, Lord Neuberger properly points out that there was nothing wrong at law with the attacks on the courts during the Article 50 litigation, but there is a concern about the effect on rule of law from unfair criticism. He emphasises that the courts are there to decide cases according to the law: that is what they do. His implication is that the ones who are “out of touch” are the ones who do not understand that is the function of the judiciary.
But this is part of a wider problem. The legal system in the UK is not as well understood by non-lawyers (including journalists) as it should be. One trivial measure of this lack of knowledge is the standard use of gavels in media depictions of court life. As the splendid “inappropriate gavels” Twitter account has to explain on an almost daily basis, British judges do not use gavels. They are as much a wrongly imported Americanism as shouting “Objection, your honour”, witnesses “taking the stand”, and Perry Mason’s strange rules of evidence.
There is nobody in particular to blame for this lack of knowledge. One could almost say, happy is the society where few know about the practicalities of litigation. But the ignorance also means that when something in court becomes newsworthy, the news coverage can misinform and misdirect.
For example, in the Brexit litigation judges become “enemies of the people” when they ensure the people’s representatives in parliament take a decision rather than a prime minister under the royal prerogative following a referendum that parliament itself had chosen to make not binding.
The courts — especially the UK Supreme Court — are working on promoting the public understanding of the law: there are more publicly available case reports, sentencing remarks, transcripts and footage than ever before. An optimistic view is that the availability of such information will provide the public with a better understanding of what happens in court, so mistakes in the law (when the law is indeed an ass) can be distinguished from mistakes in reporting the law (when something else is the ass).
But don’t feel too worried for the judges. The British courts are used to severe criticism, fair and unfair. They have even survived the attacks of William Hogarth, Charles Dickens and Peter Cook. So they will no doubt survive the attacks of the modern tabloids.