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In August, as there was criticism of ‘disproportionate’ sentences for rioters, former Lord Justice of Appeal and President of the Family Division, Sir Mark Potter, published a briefing paper assessing to what degree the media influence the judiciary.
The policy brief for the Foundation for law, justice and society emanated from a workshop held in Oxford in July, which examined the influence of the media on the judiciary and politics. A report of the workshop, The Court of Public Opinion: Justice, the Media, and Popular Will, can be found here.
In his briefing paper, Sir Mark argues:
1. Judges are open to the influence of the media like anyone else, but the judicial oath and training render them well aware of their obligation to put matters of opinion to one side when deciding the cases before them.
2. With respect to sentencing, judges should have regard to public opinion; and in that respect, they are largely reliant on, and to a degree influenced by, the responsible media.
3. Media pressure did lead to the opening up of the Family Courts to the press.
4. Lord Neuberger’s Committee, set up following the press furore over so-called super-injunctions has set in train the making of appropriate rules to improve practice and prevent what have on occasions rightly been seen as abuses of procedure.
However, discussing similar influences on the Law Lords/Justices of the Supreme Court, he quotes research carried out in 1982 that identified three principle influences on decision-making process:
“First, the quality of the judgments in the courts below. Second, the arguments of counsel before them. Third, and most influential, the interaction and discussion with their colleagues about the case in question and, fourth, legal academic opinion.”
He concludes:
“What is noteworthy is that none of the Law Lords mentioned the media as a source of influence in their decisions or saw it as their function to target or address the media when delivering a judgment . . . I do not think that, similarly questions and researched, the present members of the Supreme Court would give much different replies.”
His evidence for this is human rights decisions that reach the court, particularly in relation to alleged terrorists and asylum seekers.
Nonetheless, he does feel that “in relation to the procedures of the court, and in particular questions of accessibility and openness, the modern judiciary are as a body sensitive and, where appropriate, responsive to informed criticism in the media.” As a former President of the Family Division, he says he was influenced by media pressure into opening up the Family Courts to reporting. (He refers also to Lord Judge’s interim guidance on the use of Twitter in court in a similar vein).
