“Critical independencies”: A study of the emergence of “judicial communications”...

Moran LJ “Managing the “critical independencies” of the media and judiciary in the United Kingdom.” NB: not to be quoted without permission of the author

“Critical independencies”: A study of the emergence of “judicial

communications” institutions in the UK.

Author: Leslie J Moran, Professor of Law

Contact: School of Law

Birkbeck College

Malet Street

London, WC1E 7HX

Tel: +44 (0)7631 6502

Email: [email protected]

Key words: Judiciary, media, judicial communications, press officers, independent judiciary,

independent media, judicial image, judicial image management

This is a prepublication version of the paper. For the final version of

this paper see:

Law and Popular Culture: International Perspectives

Edited by

Kathryn Brown, Department of Culture Studies, Tilburg University

Michael Asimow, Stanford Law School

David Papke, Marquette University Law School

mailto:[email protected]


Within the space of less than ten years the judiciaries in the various jurisdictions that make up

the UK have gone through many significant changes. One of the changes that has occurred in

all these settings and to date has attracted little scholarly attention is the development of new

communications initiatives. Both the name of these initiatives, “judicial communications”

and their institutional location, attached to the Judicial Offices that support the respective

heads of the judiciary in England and Wales, Northern Ireland and Scotland highlight their

particular preoccupation.1 Judicial communications with the media was a key part of each of

these initiatives. These communication developments come almost a hundred years after the

first communications initiatives were created to facilitate, improve and better manage

relationships between other branches of the state, first the executive2 and later the legislature

3

and the media. Despite the fact that the judiciary appear to be one of the last branches of the

state in the UK to develop specialist media communications initiatives other justice sector

institutions were amongst the first to develop them. London’s Metropolitan Police established

a “press room” in 1919.4 Since that date it has taken on a variety of forms and developed a

wide range of initiatives.5 It currently operates as the Directorate of Media and

Communications, with almost a hundred staff.6 The different pace of development of media

communication initiatives in the judicial branch of the state is despite the fact that a major

judicial preoccupation is judicial image making and image management.7 Likewise media

interest in court and judicial activity is a longstanding preoccupation.8 The two ideas and

ideals of an “independent judiciary” and “open justice” associated with rule of law

democracy contain a set of assumptions and expectations that both recognize connections

between the judiciary and mass media but also demand their institutional separation: what

Lord Judge, Lord Chief Justice of England and Wales from 2008 to 2013 described as their

1 The communications team of the UK Supreme Court is formally attached to the court.

2 Yoel Cohen, “News media and the news department of the Foreign Office,” Review of

International Studies, 14, no 2 (1988): 117-131; Lord Justice Brian Leveson, An Inquiry into

the culture practices and ethics of the press. (London: The Stationary Office, 2012); John

Tulloch, “Policing the public sphere- the British machinery of news management,” Media

Culture Society 15, no 3 (1993): 363-384; Wilson, Keith. “The Foreign Office and the

“Education” of Public Opinion before the First World War.” The Historical Journal, 26, no 2

(1983): 403-411. 3 Jay G. Blumler, “The sound of Parliament’” Parliamentary Affairs 37, no 1 (1984): 250-

266; Andrew Chadwick, “Britain’s first live televised party leaders” debate: From news cycle

to the political information cycle,” Parliamentary Affair, 64, no 1 (2011): 24-44; Michael

Starks, “The sound broadcasting of Parliament.” The Political Quarterly, 49, no 2 (1978):

208-216. 4 Rob C Mawby, Policing Images: policing, communication and legitimacy, (Cullompton:

Willan Publishing 2002). 5 Leveson, An Inquiry into the culture practices and ethics of the press, Vol 2, Ch 2.3.

6 Kate Magee, “Met Police due to cut 50 jobs due to budget cuts.” PR Week April 5 2013,

accessed July 11 2013. http://www.prweek.com/uk/news/1176905/ . 7 Lawrence Baum, Judges and their audiences: a perspective on judicial behavior (Princeton:

Princeton University Press, 2006); Bybee, Keith.J., (ed.). Bench Press: The collision of

courts, politics and the media (Stanford: Stanford Law and Politics, 2007). 8 Robert E. Drechel, News making in the trial courts (New York: Longman, 1983); Greer,

Chris and Robert Reiner. “Mediated mayhem: media, crime and criminal justice” in The

Oxford handbook of Criminology (5th

Edition), ed. by Mike Maguire, Rod Morgan, and

Robert Reiner, (Oxford: Oxford University Press, 2012): 245-278.

http://www.prweek.com/uk/news/1176905/


“critical independences”.9 On one side is judicial image making through “live” performances

in court and related institutional locations and the delivery of reasoned decisions ex tempore

or as published written texts such as reports of sentencing decisions and judgments. Baum10

suggests the audiences in mind for these particular representations of the judicial image are

other judges, people in the wider “legal family”11

and the parties to the litigation. On the

other side is journalists from both the established media and now lay or “citizen journalists”

acting as, “…the eyes and ears of the public”12

making the judicial image in a separate

independent institution. Their primary audience is the news consuming public. The handbook

“Media guidance for the judiciary” produced for judges by the Press team of the Judicial

Communications Office for England and Wales illustrates the role of judicial

communications in this context. It has two dimensions. The first is judge facing. It is, “...a

specialist, dedicated facility to support judicial office holders”13

providing advice and support

on a wide variety of media issues ranging from responding to an invitation for a media

interview to dealing with misreporting, and handling potentially controversial issues. The

second dimension of the work is media facing; responding to media, anticipating media

interest, drawing media’s attention to judicial activity, “…significant judgments, speeches

and statements...”14

Judicial communication initiatives service this two “critical

independences” and play a role in the management of their interaction. The aim of this essay

is to identify and explore the factors that have shaped the formation and establishment of this

judicial communications role in the UK. It draws upon existing research and data. It also

makes use of new empirical data generated by way of semi structured interviews undertaken

with judicial and court communications office holders in the UK and other common law

jurisdictions and senior members of the judiciary.

Judicial media communications initiatives

First some background to put UK developments in context. The development of

judicial media communications offices first emerged in the USA. The Press Office of the US

Supreme Court dates from the 1930’s15

and coincides with the Court’s move to the new

Supreme Court building.16

By 1998 “media officers” were attached to 75 US courts.17

The

first court media office in Australia was established in 1973, attached to the Family Court in

9 Lord Justice Igor Judge, The judiciary and the media. London, Judiciary of England and

Wales and Tribunal Judiciary, 2011: 1, accessed July 22 2013.

http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speech-judiciary-and-

the-media-100406.pdf . 10

Baum, Judges and their audiences: a perspective on judicial behavior. 11

Leslie J. Moran, “Forming sexualities as judicial virtues.” Sexualities, 14, no 3 (2011):

273-289. 12 Lord Justice Igor Judge, Broadcasting Justice. London, Judiciary of England and Wales

and Tribunal Judiciary, 2005, accessed July 19, 2013.

http://www.judiciary.gov.uk/media/speeches/2005/broadcasting-justice. 13

Judicial Press Office. Media Guidance for the judiciary. (London: Judicial Office, 2012): 3. 14

Judicial Press Office. Media Guidance for the judiciary, 3. 15 Prue Innes, The Courts and the media. Report of 1998 Churchill Fellowship. 1998: 14,

accessed July 12 2013. http://churchilltrust.com.au/site_media/fellows/Innes_Prue_1998.pdf 16

Richard Davis, Justices and journalists: the US Supreme Court and the media,.(New York:

Cambridge University Press, 2011): 195. 17

Innes, The Courts and the media. Report of 1998 Churchill Fellowship, 13.

http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speech-judiciary-and-the-media-100406.pdf


http://churchilltrust.com.au/site_media/fellows/Innes_Prue_1998.pdf


Melbourne.18

By the end of the 1990’s, most courts in Australia had public information

officers.19

Similar developments were taking place in New Zealand and Canada.20

Nor are

judicial communications initiatives specific to common law jurisdictions. Gies’s research on

the Dutch judiciary noted that judicial communications specialists began to operate in the

1970’s.21

At the end of the 20th

century a number of communication developments were taking

place in the UK. Lord Chancellor’s Press Office and in particular the chief press officer,

Mike Wicksteed had undertaken some “excellent work” and had developed “extensive

experience in assisting judges”.22

Initiatives included a “media kit” for the judiciary, press

kits for high profile cases, seminars on media relations for court managers and a “check list”

for local court officers providing advice on how to manage relations with the media.23

There

were limits to this judicial support. Prue Innes noted, “There seems to be no formal structures

in the English court system for the media...”24

Some years later, Lord Mackay used the

phrase, “as and when” to describe the nature of the support the Press Office provided to the

judiciary at this time.25

Malleson described the situation as being one in which the judiciary

had, “barely begun to develop the tools which professional users of the press, television and

radio require, let alone those appropriate for the new electronic media such as the internet.” 26

Both Innes27

and Malleson28

note the lack of court and judicial media/press officers

specifically working on behalf of the judiciary to engage and facilitate relations between the

judiciary and media and to improve and promote media coverage of court and judicial

activity. While Innes and Malleson were commenting on the situation in England and Wales,

similar comments about the limits of judicial communications expertise and support could

have been made about the other jurisdictions in the UK. By the end of the first decade of the

21st century a very different institutional picture had emerged. The first dedicated

communications post attached to the judiciary in the UK was established in Scotland in 2004.

The Judicial Communications Office (JCO) for England and Wales was formally established

18

Jane Johnston, “Public relations in the courts.” Australian Journal of Communications 28,

no. 1 (2001): 111. 19

Jane Johnston, “Communicating courts: a decade of practice in the third arm of

government,” Australian Journal of Communications 32, no. 3 (2005): 77-91; Innes, The

Courts and the media. Report of 1998 Churchill Fellowship. 20

Innes, The Courts and the media. Report of 1998 Churchill Fellowship; Johnston, “Public

relations in the courts.” Australian Journal of Communications 28, no. 1 (2001): 108-122. 21 Lieve Gies, Law and the media: The future of an uneasy relationship, (Abingdon:

Routledge, 2008): Ch 7. 22

Innes, The Courts and the media. Report of 1998 Churchill Fellowship, 10-11. 23

Innes, The Courts and the media. Report of 1998 Churchill Fellowship, 9-11. 24

Innes, The Courts and the media. Report of 1998 Churchill Fellowship, 10. 25 House of Lord Select Committee on the Constitution. Minutes of Evidence. London: House

of Lord, 2006-7: January 24 2007, Question 179, accessed July 17 2013.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm . 26 Kate Malleson, The new judiciary: the effects of expansion and activism (Aldershot:

Ashgate Dartmouth, 1999): 193. 27

Innes, The Courts and the media. Report of 1998 Churchill Fellowship, 10. 28

Malleson, The new judiciary: the effects of expansion and activism, 193-4.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm


a year later.29

The Northern Irish post dates from 2007.30

The most recent is the

communications office of the UK Supreme Court that began operations on the 1st of October

2009. A key component of all is judicial media communications. What were the drivers

generating these changes?

Drivers generating change

A variety of factors associated with these judicial communications developments can

be identified. They fall into two broad types; institutional change and changes in attitudes and

perception. Two major institutional changes will be considered, one affecting the judiciary

and the other relating to the media. “Loss of respect” and a growing “deference deficit”,

media criticism of the judiciary and perceptions that the accuracy of news has been in decline

are instances of changing attitudes and perceptions that will be explored. In each case

consideration will be given to how these various factors are linked to the development and

institutionalisation of a judicial communication incorporating a media specialism.

Institutional reform 1: Judicial institutional change

I begin with judicial institutional change. In the UK this is generated by constitutional

reforms. The Constitutional Reform Act 2005 introduced two reforms that have significance

here. A key objective of the legislation was to enhance the separation between the executive

and the judiciary in England and Wales and Northern Ireland. In pursuit of that goal the Act

brought to an end the Lord Chancellor’s role as head of the judiciary in these two

jurisdictions. This function was transferred to the respective Lord Chief Justice.31

The

connection between the separation of powers and relations between the judiciary and the

media was explained during the course of an investigation into the impact of this reform

conducted by the House of Lords Select Committee on the Constitution. The Chair of the

Committee, Lord Holme of Cheltenham, described it in the following way;

The logic of a greater separation of powers is that the judiciary, like other important

bodies in our society, has in a sense to make a case for itself. It has to constantly be

validating what it does, the value of what it does and how well it does it to various

stakeholders, notably the British public.32

The separation of powers reforms are linked here to new demands on the judiciary to

communicate about the judicial role. The specific connection between these new

communication demands and a specialist judicial communications function is made in a later

comment, again by the Chairman. He explained, “The Judicial Communications Office is

29

Lord Chief Justice Lord Phillips, The Lord Chief Justice’s Review of the administration of

Justice in the Courts. London: The Stationary Office, 2008: 55, accessed July 11 2013.

http://www.official-documents.gov.uk/document/hc0708/hc04/0448/0448.pdf. 30 Alison Houston, Transcript of an interview with Alison Huston. September 9 2013:1. Copy

on file with the author. 31

The Judiciary and Courts (Scotland) Act 2008 is a law of the Scottish Parliament with a similar

separation of powers agenda. It establishes the Lord President as Head of the Judiciary and places a

number of responsibilities on the Lord President. There is no reference in the Act to the judicial

communications office. 32House of Lord Select Committee on the Constitution. Minutes of Evidence. London: House

of Lord, 2006-7: January 24 2007 response to question 88.

http://www.official-documents.gov.uk/document/hc0708/hc04/0448/0448.pdf


obviously in this greater separation of powers, quite an important hinge on the door...”33

Despite the rather odd metaphor of a “hinge on the door” what is clear from this comment is

the close and necessary connection between constitutional and institutional changes affecting

the judiciary and more specifically their impact upon the image of the judiciary and the link

with a specialist judicial communications office. A judicial communications office has an

important role to play in assisting the judges to respond to these new challenges and more

specifically to improve, if not make, connections between the judiciary and the key

stakeholders, most notably the public.

A second relevant constitutional and institutional reform is Part 3 of the Act, creating

a new court for the whole of the UK: the Supreme Court. Separation of powers is again a

central theme, this time separating the judiciary from the legislature, Parliament and more

specifically the House of Lords. The logic of the argument presented by Lord Holmes above

in relation to separating the judiciary from the executive applies equally to the separation of

the judiciary from the legislature. An example of this effect is found in a comment made by

Lord Hope who was a judge in both the UK’s final appeal court when it sat as the Appellate

Committee of the House of Lords and in the new free standing court, Supreme Court of the

UK (SCUK). He noted that there were cheaper alternatives to a new court; one was to better

separate out the judicial function of the House of Lords but keep the new court within the

fabric of the House of Lords. This was considered but rejected. His explanation for this was,

“Public perception is everything.”34

Making and managing representations of the newly

separated judicial institution, this suggests, is the whole thing. A slightly different twist on

the relationship between greater separation and new communication needs is to be found in a

comment made by Cornes who, in his study of the operation of the Supreme Court’s

communications office, suggests that one of the effects of separation upon the new court was

a new “self-awareness”. The court, he concludes is “...a new institution staking out its

position within the constitutional firmament. Its new communications capacity has helped

spur this awakening.”35

Here the link between the institutional reforms and a new

communications facility is one of both effect and cause. Staking out its new place in the

constitution calls for the skills and expertise of a communications office to better represent

the separation and this in turn “awakens” a new self awareness which a communications

office further supports.

The Supreme Court opened for business on the 1st of October 2009 with a

communications team in place. This dimension of the new court’s structure and operation is

not something dictated by the 2005 Constitutional Reform Act. There is only one explicit

legislative reference to communications and the new court in the Act. s. 47 exempt’s the

court from the statutory prohibition on cameras in courts then in operation in all other courts

in England and Wales. Sian Lewis, the court’s first Head of Communications, suggested the

origins of the court’s communications team lie elsewhere: in discussions that followed the

2005 Act about the support staff the court would require. During the course of an interview

she explained, “I”m sure it was identified very early that they needed a communications

33

House of Lord Select Committee on the Constitution. Minutes of Evidence. London: House

of Lord, 2006-7: January 21 2007, response to question 213. 34

Lord Hope, “Taking the case to London – maybe it’s not over after all”, March 12 2010:4.

London:Supreme Court of United Kingdom, accessed July 22 2013,

http://www.supremecourt.gov.uk/docs/speech_100312.pdf. 35 Richard Cornes, “A constitutional disaster in the making? The communications challenge

facing the United Kingdom’s Supreme Court.” Public Law (2013): 268.

http://www.supremecourt.gov.uk/docs/speech_100312.pdf


officer.”36

When asked about the reasons for the creation of the communications office she

responded;

I think there is just recognition that it is important that you have one. Obviously others

say that the reason for our existence is to be more accessible to the public and through

that to the media. So there was an absolutely clear recognition that it’s a very

important part of our job and that it’s important for the Court to be open, transparent

and accessible.37

Two things are of note here. The first is the phrase “just recognition” which suggests that the

establishment of a communications team was, by the time the organisational structure of the

court was being put into place, unremarkable rather than a novel or exceptional initiative.

Second, the communications function is connected to the goals of openness, transparency and

accessibility. Currently two of the six members of the communications team have media

responsibilities.

Openness, transparency and accessibility are not only examples of the second general

category, of attitudes and perceptions, but also point to the second institutional theme I want

to consider here: the media. A comment by Lord Judge, Lord Chief Justice of England and

Wales from 2008 to 2013 explains the link;

...it is an essential requisite of the...justice system that it should be administered in

public and open to public scrutiny. And for these purposes the representatives of the

media reflect the public interest and provide and embody public scrutiny.38

Openness, transparency and accessibility are characteristics associated with public access to

and public scrutiny of the judiciary which is a well established goal of rule of law liberal

democracies. As Lord Judge notes, the media plays a key role in the performance of this

scrutiny and in the representation of the judiciary’s openness, transparency and accessibility.

Institutional reform 2: Changes to the media

Changes to the media are the other institutional changes relevant to the development

of judicial communication expertise. The first change relates not so much to the media itself

but the context of its operations. During the 20th

century attendance at court by the public has

gone into steep decline.39

This has elevated the importance of the media. In court,

“…journalists are…the eyes and ears of the public.”40

The “presence” of the “public” is now

36 Sian Lewis, Transcript of an interview with Sian Lewis Head of Communications UK

Supreme Court. November 24 2009: 8. On file with the author. 37

Sian Lewis, Transcript of an interview with Sian Lewis Head of Communications UK

Supreme Court. November 24 2009: 8. 38 Lord Chief Justice Igor Judge, Speech by Lord Judge Lord Chief Justice of England and

Wales: Society of Editors Annual Conference. London, Judiciary of England and Wales and

Tribunal Judiciary, 2009: 2, accessed May 29 2013.

http://www.judiciary.gov.uk/media/speeches/2009/speech-lord-judge-17112009. 39 Linda Mulcahy Legal Architecture: Justice, due process and the place of law, (Abingdon:

Routledge, 2011): Ch 5. 40

Lord Justice Igor Judge, Broadcasting Justice. London, Judiciary of England and Wales

and Tribunal Judiciary, 2005: 1-2, accessed July 19, 2013.

http://www.judiciary.gov.uk/media/speeches/2005/broadcasting-justice.

http://www.judiciary.gov.uk/media/speeches/2009/speech-lord-judge-17112009


primarily the presence of the media; people working for the established media and one might

now add members of the un-established media, “citizen journalists”. In the place of “live”

scrutiny public engagement now takes the form of “mediated quasi-interaction”.41

Under

these conditions the relationship between the judiciary and media, and the management of

that relationship has particular importance.

The other changes relate to the media. In general these are the effects of economic and

technological developments impacting upon the organization and operation of media. A

variety of major changes having a negative effect on the news making capacity of the media

and its ability to report court and judicial activity have been noted. One is the decline in the

number of journalists. In an interview with Elizabeth Cutting, judicial communications

officer for Scotland the scale of the change is captured in the following comment;

Since I started working here eight years ago [2004] I would say 50% of the journalists

are gone. They have been made redundant. Their posts have gone. They have had to

cut back hugely on their budgets because the print media are not selling their

newspapers anymore...42

Specialist court reporters are almost an extinct subgroup.43

At the same time that the labour

force of news workers is shrinking the demand for news stories is increasing. The 24/7 rolling

news environment increases demand for news; there is more news space to fill. New media

platforms create new competition for stories and audiences. The change to screen media

generates new demands for more visuals. In addition scholars have suggested cut throat

competition for new stories impacts on the way news is reported, tending toward what media

scholars describe as the tabloidization of news;44

elevating the importance of conflict, lurid

detail and personalization to enhance “dramatization” and “titillation”, which are

longstanding news values.45

All are affecting the way journalists work in general and the way

they work making representations of courts and the judiciary in particular. The growing need

for shocking and sensational stories together with a well recognised potential for daily legal

proceedings to provide the same keeps and potentially escalates the profile of court and

judicial activity in the news. To meet the demand news has to be produced more quickly;

deadlines are shortened. Gerry Curran, media relations officer for the Irish Courts Service,

described a change in the way journalists work. There is a shift from what he called “fresh

41

John B. Thompson, Political scandal: power and visibility in the media age. (Cambridge:

Polity Press, 2000): 35. 42

These changes are far from being a unique or peculiar development impacting on the UK. See

Innes, The Courts and the media. Report of 1998 Churchill Fellowship. 43

Marcel Berlins, “Loss of court reporters is a blow to open justice.” Guardian December 7,

2009, accessed September 3 2013.

http://www.guardian.co.uk/commentisfree/2009/dec/06/berlins-writ-large-court-reporters;

David Banks, “Court reporting is a dying art- and lawyers should be worried.” Guardian,

October 19 2010, accessed September 3 2012.

http://www.guardian.co.uk/law/2010/oct/19/court-reporting-dying-art-lawyers

David Banks, “Trial by Twitter” Guardian August 14 2012. Accessed September 9 2012.

http://www.guardian.co.uk/law/2012/aug/14/court-reporters-twitter . 44 Richard L. Fox, Robert W. Van Sickel, and Thomas L Steiger. Tabloid Justice: Criminal

justice in an age of media frenzy, (Boulder: Lynne Rienner, 2010). 45

Leslie J Moran, “Mass mediated “open justice”: Court and judicial reports in the press in

England and Wales,” Legal Studies (2013): 1-24.

http://www.guardian.co.uk/commentisfree/2009/dec/06/berlins-writ-large-court-reporters

http://www.guardian.co.uk/law/2012/aug/14/court-reporters-twitter


air” journalism to “cut and paste” journalism.46

Journalists are now less likely to generate a

news story through their own observation and investigations. Now more reliance is placed on

making a story from other published sources; editing a syndicated story, cutting and pasting

from a press release, blog, or other social media source. Under these conditions the

relationship between the judiciary and media, and the management of that relationship, is

subject to new pressures. Declining journalistic expertise and lack of resources is a

potentially dangerous combination. Heightened drama may not sit easy with accurate

reporting. As Elizabeth Cutting notes, “If [the judiciary] want cases covered then we have to

do something extra to get them out.”47

The establishment of judicial media communications

personnel and initiatives is an institutional ‘something extra” that may facilitate new and

improved opportunities to communicate in and through the news media.

Changing attitudes and perceptions

“Openness, transparency and accessibility” mentioned above are terms that fall under the

second category of factors I want to consider; attitudes and perceptions. More specifically

they are all associated with the requirement of publicity and public scrutiny. Their appearance

in Lewis’s comment above is an instance in which their deployment is linked to the judicial

institution and institutional reform, being used to identify new image work required by the

newly enhanced separation or powers. Cornes notes “open, transparent and accessible” have

become embedded in the institutional fabric of the Supreme Court, appearing as named

strategic objectives in the court’s “Mission Statement”.48

They are also used in the court’s

Annual Reports to organize and frame reports of the work of the court’s communications

team. These references to “openness”, “transparency” and “accessibility” are instances of the

new court responding to the new challenges that flow from the separation of powers

settlement; making a case for itself, validating what it does, demonstrating the value of what

it does and showing how well it does it.

“Respect” and “deference” are other attitudes and perceptions that have been linked to

change and the need for new and additional expertise in judicial communications. Loss of

respect, described by the Chairman of the House of Lords Select Committee on the

Constitution as “deference deficit” is one “change”. Journalist Francis Gibb linked loss of

respect to changes in “public confidence” in the judiciary.49

Its link to and impact upon

judicial communications is described by another journalist, Joshua Rozenberg in the

following passage;

I think the judges have to work for [respect]. I do not think they can assume, as

perhaps they used to, that it comes automatically with the role and with the

knighthood. That is why public relations is so important and that is why perhaps it is

46

Gerry Curran, Transcript of an interview with Gerry Curran. June 11 2012:15. Copy on file

with the author. 47 Elizabeth Cutting, Transcript of an interview with Elizabeth Cutting. August 30 2012: .

Copy on file with the author. 48

Cornes, “A constitutional disaster in the making? The communications challenge facing the

United Kingdom’s Supreme Court.” Public Law (2013): 268. 49


of Lord, 2006-7: December 6 2006, response to question 101.


in the judges’ interests for them to be doing more in order to retain – and even regain

– the public’s confidence.50

I want to highlight two matters here. The first is the connection between changes to the

perceived status of the judiciary and the need for more work to be done to better manage the

judicial image in order to maintain, if not reestablish, its status. The second is the connection

made between “respect” and debates about confidence. Confidence has become an organizing

principle against which the operations of institutions of the state in general and the

institutions of justice in particular are now measured.51

Evidence of the institutionalization of

a link between confidence and judicial communications can found in successive business

plans of the Judicial Office for England and Wales beginning in 2009 that make reference to

the need to secure confidence in the judiciary through the work of the judicial

communications team.52

Media criticism of the judiciary which is said to be increasing is another changing

attitude associated with changing perceptions. An example of this argument is to be found in

a response to a question posed by the Chairman of the House of Lord Select Committee on

the Constitution. Paul Dacre Editor of the right of centre tabloid, the Daily Mail newspaper

commented;

...my instinct is that, for years, judges have enjoyed immunity from criticism in the

press but, in a changing age, a 24-hour media age, an age of instant news, an age in

which there is generally a lack of reverence, judges must learn to expect more

criticism and will need to think through how they are going to respond to that.53

Changes in levels of criticism are linked here to changes in the structure and operation of the

media which in turn affect the way news is reported. However claims are problematic being

based as above on anecdote. Members of the judiciary are another source of anecdotal

evidence that media criticism is ever present and on the increase. Lord Phillips, the UK

Supreme Court’s first President commented, “There is a regular diet of express or implied

criticism of sentencing in particular.”54

Lord Judge commented, “...we have had to confront

50


of Lord, 2006-7: December 6 2006, response to question 101. 51 Ben Page, Rhonda Wake and Ashley Ames. Public confidence in the criminal justice

system, Home Office Findings 221, ( London: Home Office, 2004); Mike Hough and Roberts

Julian V. Confidence in Justice: an international review, ICRP Research Paper No 3.

(London: Kings College, 2004); Moorhead, Richard, Mark Sefton, and Lesley Scanlan. Just

Satisfaction? What drives public and participant satisfaction with courts and tribunals,

Research series 5/08. London: Ministry of Justice, 2008, accessed July 18 2013.

https://www.law.cf.ac.uk/research/pubs/repository/1854.pdf. 52 Judicial Office, Judicial Office Business Plan 2009-2010, ( London: Judicial Office, 2009);

Judicial Office, Judicial Office Business Plan 2010-2011, (London: Judicial Office, 2010);

Judicial Office, Judicial Office Business Plan 2011-2012. (London: Judicial Office, 2011);

Judicial Office, Judicial Office Business Plan 2012-2013. (London: Judicial Office, 2012). 53 House of Lord Select Committee on the Constitution. Minutes of Evidence. London: House

of Lord, 2006-7: March 7 2007, response to Q 340, accessed July 17 2013.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm. 54

Lord.Phillips, Transcript of an interview with Lord Phillips President of Supreme Court.

November 22 2011:3. Copy on file with the author (Phillips 2011)

https://www.law.cf.ac.uk/research/pubs/repository/1854.pdf



this year... the increased number of critical attacks on individual judges and the judiciary as a

whole. This year there has been a steady flow...”55

Another source of evidence suffers from

being based on an idiosyncratic data set of selected critical media reports.56

More systematic

or robust evidence is in short supply.57

For some, increased media criticism is linked to and is a response to other

Constitutional changes. Paul Dacre explained;

... it seems to me that if the judges—and this is a matter of opinion—are making

political judgments, then, I am afraid, if they are making political judgments they are

going to have to be held more accountable and they are going to be scrutinised more. I

am afraid that is the way it is.58

Various commentators have suggested that a variety of changes in the law have impacted on

the actual and perceived role of the judiciary in the UK; making the role more political.59

Vernon Bogdanor offered a neat summary of these changes;

We are now... looking increasingly to judges and not to Parliament, to guarantee our

rights. We are looking increasingly to judges and not to Parliament to check the

executive. We are looking increasingly to judges and not to Parliament to determine

the division of power between Parliament and the European Union, and

between Parliament and the devolved bodies. The judiciary therefore is becoming a

more important part of our constitution. We are engaged, it seems to me, in a quiet but

nevertheless profound constitutional revolution.... It follows from this, however, that

judges are increasingly making decisions, which used to be made by politicians, and

which many will characterise as political.60

The political nature of the judicial decisions in these areas Bogdanor noted is in the way they

limit the options available to government and Parliament. Controversy might be at its most

acute when the judiciary are seen to be defending, “...the rights of unpopular minorities, such

as suspected terrorists, prisoners and asylum seekers.”61

Dacre’s comment about the rise of

55

Lord Chief Justice Igor Judge, The judiciary and the media. London, Judiciary of England

and Wales and Tribunal Judiciary, 2011: 2, accessed July 22 2013.


the-media-100406.pdf. 56 Pamela D, Schultz, Courts and judges on trial; analysing and managing the discourses of

disapproval, (Berlin: Lit Verlag, 2010). 57

Moran, “Mass mediated “open justice”: Court and judicial reports in the press in England

and Wales,” , 1-24. 58


of Lord, 2006-7: March 7 2007, response to Q 340. 59

Malleson, The new judiciary: the effects of expansion and activism. 60

Vernon Bogdanor, “Accountability and the Media: ‘Parliament and the Judiciary: The

Problem of Accountability’“ Speech, February 9h 2006: unpaginated. UK Public

Administration Consortium, accessed July 27 2013. http://ukpac.wordpress.com/bogdanor-

speech/. 61

Vernon Bogdanor, “Accountability and the Media: ‘Parliament and the Judiciary: The

Problem of Accountability’. Cf. Lieve Gies, “A Villains Charter? The Press and the Human

Rights Act.” Crime Media Culture 7, no. 2 (2011): 167-183.



http://ukpac.wordpress.com/



more critical reporting brings together two institutional changes. One is the constitutional

institutional changes which facilitate the characterisation of judicial decision making as

“political”. The second is institutional changes within the media which limit capacity to

report and at the same time create new demands for news.

But there is a need for some caution here. Criticism is not necessarily problematic for

the judiciary and thereby is not necessarily a driver of change. Some forms of criticism are a

necessary dimension of media’s role in a democracy and thereby an inevitable aspect of

relations between the judiciary and the media. As Lord Judge explained;

...the crucial issue is that an independent media is an essential element in a free

society. They must be free to criticise the judges. They must be free to criticise the

process and we have to accept their criticisms even if we disagree with them.

Sometimes indeed their criticisms are justified and judges make mistakes. So I have

absolutely no wish for the judiciary to be treated any differently from anybody else in

that sense. Occasionally when criticism is unfair, yes that smarts. But that too must be

true for everybody.62

In an earlier lecture Lord Judge drew a distinction between appropriate and inappropriate

media criticism of the judiciary by way of a contrast between criticism directed at the “legal

principles” which bind the judge and their application by the judge, which is fair criticism

and “vituperative” and “unjust” personal criticism which is “unfair”. The latter is unfair for a

variety of reasons. First because;

...it is unfair; second, that it is difficult if not impossible for the judge to answer,

because inevitably it would mean commenting on a case which he had tried or

decided, when everything that needs to be said about the decision should have been

dealt with in the judgment, so that for the judge that must be the end of it; and finally,

and perhaps in the end most importantly... because of its corrosive long term effect on

the public’s view of the judiciary and the exercise of its functions.63

There is a link here to changes in judicial communications. In the same speech Lord Judge

notes the potential for judges to go further in their relations with the media to address these

problems.

Closely related to these other changes is a perception that the quality of news reports

is changing, more specifically that the accuracy of news reports is in decline. Reporting of

sentencing decisions is a recurring context in which these concerns arise. An example is

provided by Elizabeth Cutting. She begins by explaining that these concerns were a driver

behind an initiative for change, “[the judges] felt that they needed someone…” to deal with

this problem. She continued;

I say they, one or two judges felt that they were having a very difficult time with the

media and having cases reported very badly. There was one particular case involving

62 Lord Chief Justice Igor Judge, Transcript of an interview with Lord Judge, Lord Chief

Justice, September 27 2012: 5. On file with the author. 63

Lord Justice Igor Judge, The judiciary and the media. London, Judiciary of England and

Wales and Tribunal Judiciary, 2011: 5-6, accessed July 22 2013.


the-media-100406.pdf.




a judge who got quite a bad press, unfairly, because the media didn”t understand what

he was doing and what he had done in court in a particular case. That was a trigger for

one of the judge’s pushing to have somebody trying to make that relationship work a

little bit better.64

The “particular case” in question was a criminal case and the reports of the sentencing

decision were the primary cause for judicial concern. In England and Wales news reports

about sentencing decisions have also been a particular concern. A high profile example of

this is news reports about the sentencing of Craig Sweeney. The House of Lord Select

committee on the Constitution described this case and the news reports surrounding the case

as, “…the first big test of whether the new relationship between the Lord Chancellor and the

judiciary was working properly and it is clear that there was a systemic failure.”65

The media

reports of this sentencing decision combined concerns about accuracy of the media reports of

the sentence and the reasons for that sentence and criticism of the judiciary or more

specifically reported criticisms of the sentence not only by the media but by government

ministers and the management of criticisms, by the Lord Chancellor and the Lord Chief

Justice.66

Relations between the judiciary and the media were identified as one of the

problems exposed by this “systemic failure”, “The senior judiciary could also have acted

more quickly to head off the inflammatory and unfair press coverage which followed the

sentencing decision.”67

The Judicial Communications Office was identified as one of the

mechanisms through which this “systematic failure” might be addressed and corrected. One

of the recommendations for change proposed, “…the judges should consider making the

Judicial Communications Office more active and assertive in its dealings with the media in

order to represent the judiciary effectively.”68

Issues of “accuracy” and “criticism” tend to

cluster around sentencing decisions. Due to a lack of empirical research it is difficult to

establish with any certainty whether the quantity of news reports that focus on sentencing

decisions is on the rise. There is certainly evidence supporting the perception that news media

tends to preoccupied with particular moments of judicial decisions making. US scholarship

has identified sentencing as one of those moments.69

There appear to be a variety of reasons for this. Fishman describes sentencing

decisions (and also verdicts) as ultimate dispositions in what is likely to have been a long and

complex process.70

The verdict is the ultimate disposition of the facts and of guilt or

innocence. The sentence is the ultimate disposition of justice and punishment. These

64

Elizabeth Cutting, Transcript of an interview with Elizabeth Cutting. August 30 2012: 2. 65 House of Lords Select Committee on the Constitution. Sixth report. London, House of

Lords, 2006-7: Ch1 para 49, accessed July 17 2013.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm. 66

House of Lords Select Committee on the Constitution. Sixth report. London, House of

Lords, 2006-7: , Ch1 Table 1. 67

House of Lords Select Committee on the Constitution. Sixth report. London, House of

Lords, 2006-7: Ch 1 para 49. 68 House of Lords Select Committee on the Constitution. Sixth report. London, House of

Lords, 2006-7: Ch5 para 194.. 69 William Haltom, Reporting on the Courts: How the Mass Media Cover Judicial Actions.

(Chicago: Nelson Hall, 1998); Mark Fishman, Manufacturing the news, (Austin: University

of Texas: 1980). 70 Mark Fishman, Manufacturing the news, (Austin: University of Texas: 1980): 74.



particular moments in the process are, Fishman argues, critical for reporters. They are

moments that appear to fix the otherwise contested meaning of social relationships that make

up the conflict. They are also moments in a complex process that are relatively easy to

identify. Last but not least they provide final opportunities to report. For all these reasons

they are moments that have great utility for news workers. Fishman describes them as, “...a

readymade scheme of relevance.”71

My own research based on an analysis of 181 newspaper reports of court and judicial

activity in England and Wales from a one day sample of 24 daily newspapers, 10 national

newspapers and 14 from the regions, found a similar preoccupation with criminal

proceedings and with verdicts and sentencing decisions in particular.72

A majority of the

press reports, 69%, covered criminal court activity. The percentage was higher, 80%, in the

region press. Verdicts (mainly but not exclusively of guilt) and sentencing decisions

dominate these reports. For example 78% of the reports dealing with the Crown Court in the

national press sample dealt with ultimate decisions: verdicts (33%) and sentencing (45%).

Almost half the equivalent press reports in the regional sample covered these decisions: 35%

sentencing and 12% verdict. Without further research it is difficult to say if the economic and

resulting institutional pressures on journalists have further elevated the importance of

“ultimate dispositions” as the easiest and thereby the only opportunity to report.

The significance of this preoccupation with ultimate decisions in criminal trials for the

development of judicial communications expertise is twofold. First, the over representation in

the daily diet of news reports about courts and judicial activity makes them particularly

important for judicial communications. They become a preoccupation. In turn their

dominance has generated calls for judiciaries to work harder to shift focus away from these

particular moments of court and judicial activity. This is a call for the judiciary and judicial

communications officers to be more creative and proactive in their communications strategies

to ensure the wider range of judicial work is better represented in news reports.73

The purpose

of this section has been to identify some of the specific institutional changes and changes of

assumptions and perceptions that have been connected to the development of judicial

communication initiatives in the UK. For purposes of presentation and clarity these have been

separated out. As cases such as that of Craig Sweeny illustrate, they may operated

simultaneously. From an exploration of various changes associated with the emergence of

judicial communications initiatives and institutions I now want to turn attention to the offices

and officers that have been created.

Where we are now

In institutional terms the scale of judicial communications operations in the UK is small. In

England and Wales the JCO is made up of the equivalent of 6 full time staff. Only two of

those posts deal with the media.74

One, Stephen Ward, is the current Head of News. In

Scotland, for the first eight years of operation, Elizabeth Cutting was the only judicial

71 Fishman, Manufacturing the news, 70. 72

Moran, “Mass mediated “open justice”: Court and judicial reports in the press in England

and Wales” 73 European Network of Councils for the Judiciary. Justice, Society and the Media. Report

2011-2012: Ch 6, accessed July 22 2013.

http://www.csm.it/ENCJ/pdf/Report%20on%20Justice%20Society&Media.pdf. 74

Other staff come under “Corporate communications” dealing with the judicial intranet and web

related work. There is a similar division amongst staff in the UK Supreme Court communications

office.

http://www.csm.it/ENCJ/pdf/Report%20on%20Justice%20Society&Media.pdf


communications worker dealing with communications between members of the judiciary as

well as media related judicial communications work. A second fractional post was added in

2012. In Northern Ireland the role of judicial communications office is carried out by three

people who carry out media related judicial communication work as part of a wider portfolio

of activities.75

Six people make up the communications and customer services team of the

Supreme Court of the United Kingdom. The “Press Office” is made up of the Head of

Communications, Ben Wilson and his deputy, Anthony Myers.

The individuals who do the media related work of judicial communications offices in

good part work to support the primary communicators, the judges themselves. The size of the

judicial community served and supported by the various judicial communication offices

varies considerably. England and Wales has the largest judicial family with over 40,000

members just over half are lay magistrates sitting in the lower courts. Just over 5,500 are

judges sitting in tribunals.76

In Scotland the judicial body that works with the

communications office is much smaller; approximately 300 middle and high ranking

members of the Scottish judiciary.77

Next in line is Northern Ireland with 71 full time

members of the judiciary.78

The communications team of the SCUK works with just twelve

Justices.

The judicial focus of these specialist media communication initiatives is marked by

both the name of the offices, “judicial communications”, their institutional location and the

nature of their “core business”. In England and Wales, Scotland and Northern Ireland all the

offices come under the Judicial Offices that support the respective heads of the judiciary;

Lord Chief Justices of England and Wales, Northern Ireland and Lord President in Scotland.

The only exception to this is the UK Supreme Court. There the communications team is

formally attached to the court. Judgments and sentencing decisions, the “ultimate

dispositions” of often long and complex adjudicative processes,79

are the core image business

of these offices. As noted earlier the handbook “Media guidance for the judiciary” produced

for judges in England and Wales identifies two dimension of the role of the Judicial Press

Office; one judicial facing and one media facing.80

Offices dedicated to judicial media

communications join together the judiciary and the media and facilitating their smooth

interaction.

The variation in the scale and size of the operation of the justice institutions served by

these various communications initiatives will impact upon the nature of their media related

work. For example Stephen Ward, Head of News in the JCO for England and Wales

explained;

75

Houston, Transcript of an interview with Alison Huston Chief Judicial Communications

Officer, Lord Chief Justice Northern Ireland Office, 20. 76

The judicial statistics for England and Wales are available at: Accessed September 27 2013.

http://www.judiciary.gov.uk/publications-and-reports/statistics . 77

Elizabeth Cutting, Experiences of the Scottish Judiciary. Video, Conference on Perceptions

of law in Society, Ljubljana, 2007. Accessed July 10 2013.

http://videolectures.net/elizabeth_cutting/. 78

Houston, Transcript of an interview with Alison Huston Chief Judicial Communications

Officer, Lord Chief Justice Northern Ireland Office, 7. 79Fishman, Manufacturing the news, 74. 80

Judicial Press Office. Media Guidance for the judiciary. (London: Judicial Office, 2012): 3.

http://www.judiciary.gov.uk/publications-and-reports/statistics

http://videolectures.net/elizabeth_cutting/


There are vast numbers of cases. In the vast, vast majority, and that must be the case

given the small size of the press office and routine nature of most cases, the press

office is not involved at all....

Later in the same interview he explained;

The Press Office will only be involved in the exceptional cases and to a large extent

the bigger cases or the higher court cases which are the ones with the senior judges.

They are sometimes going to be newsworthy because they are important rather than

quirky or of human interest.81

In combination these two observations suggest the Judicial Press Office’s (JPO) involvement

is highly selective and is necessarily so.82

In sharp contrast to this the Press team of the Supreme Court is integrated into the

routine that surrounds every judgment delivered by the 12 Justices of the court, currently over

70 per calendar year. Wednesday is judgment day. On that day a selection of judges come

into court and the designated judge reads out a summary of the judgment in open court.

Several judgments may be delivered on the same day; each summary delivered by a different

judge.83

Immediately after the courtroom delivery a copy of the full text of each judgment is

made available on the court’s website. This is accompanied by a press summary which is also

the basis for the judge’s courtroom speech. And a video of the judge delivering the summary

of the judgement is available via You Tube.

The Press Office is involved in every press summary and every video. The press

summary, drafted initially by judicial assistants and approved by the relevant judge(s) they

are then made available to Ben Wilson and his deputy;

...myself and my colleague Anthony, who is deputy head of communications, will

probably spend some time on Monday clearing the press summaries which come in

from the judicial assistants. They will have been drafting them on Friday and over the

weekend. By Monday we usually want to be in a position to have them finalised for

the Wednesday judgment hand down. We look at those to make sure that they are as

jargon free as they might reasonably be. It is always a difficult balancing act....On

Tuesday we are preparing the material to send out on Wednesday morning; so getting

final versions of the press summaries and the judgments, checking that Anthony and I

understand the outcomes, and looking ahead for the obvious questions we might get.84

But not all of the decisions of the SCUK are reported in the mass media. Ben Wilson

suggested that between a quarter and a fifth of the Court’s decisions get reported but only in a

81 Stephen Ward Transcript of an interview with Stephen Ward, Head of News, and Andrew

Tuff Head of Corporate Communications, Judicial Communications Office for England and

Wales. November 6 2012: 6. Copy on file with the author. 82

Other factors are explored in Leslie J. Moran, “Managing the news image of the judiciary: the

role of judicial communications officers.” SORTUZ: Oñati Journal of Emergent Socio-legal

Studies forthcoming Moran forthcoming. 83

As of January 2013 a video recording of these events is available via You Tube. Accessed October

9 2013 http://www.youtube.com/uksupremecourt . 84 Ben Wilson, Transcript of an interview with Ben Wilson Head of Communications UK

Supreme Court, May 29 2013: 7. On file with the author.

http://www.youtube.com/uksupremecourt


small number of the “quality press”. Wider coverage in the national press is limited to, “one

in every 8 or 9 cases”.85

Last but by no means least, the media related work of the judicial communications

staff needs to be put into the context of the day to day operation of the courts and judiciary. In

the context of England and Wales Stephen Ward explained;

There are many thousands of [the judiciary] and very few of us. Most of them have no

contact with the communications office in any form and certainly the Press Office in

particular from one year to the next. They won”t have a need for a specialist or

individual attention. They are rank and file members of the judiciary doing their job.86

With regard to the media, “If they are doing their job within reasonable circumstances, that

won’t involve the Press Office.”87

These comments draw attention to the fact that judicial

media communications initiatives work with an assumption and expectation that the “critical

independences” operate with little or no intervention by the judicial communications media

workers in the vast majority of cases.

Conclusion

The point of departure for this essay is the sea change within the judiciary which has seen the

establishment of specialist judicial communications offices that incorporate media

communications in all the jurisdictions that make up the UK. It has not been the aim of this

essay to write a detailed history of the changing relations between the judicial branch of the

state and the media. The objective has been to identify some of the main drivers behind the

establishment of these new communication initiatives and offices. These are relatively small

organisational changes. But in many respects their size poorly reflects their importance. The

various activities they perform, be it providing press and media guidance and support to

members of their respective judicial families, functioning as a one stop shop for press and

broadcast journalists, or developing educational resources for present and future citizens, are

all of great importance. They are intimately connected to the ideal of open justice and respect

for an independent judiciary as fundamental goals of a successful rule of law democracy.

There are similarities and differences between these institutional developments. It has only

been possible in this paper to touch briefly on the impact of institutional location and funding

upon the day to day operations of judicial media communication initiatives. As with many

aspects of judicial image making, image management and image use in the UK much

research still needs to be done. This paper seeks to make a small but meaningful contribution

to changing that state of affairs.

85

Wilson, Transcript of an interview with Ben Wilson Head of Communications UK Supreme

Court, 10. 86

Ward, Transcript of an interview with Stephen Ward, Head of News, and Andrew Tuff Head

of Corporate Communications, Judicial Communications Office for England and Wales 4. 87

Ward, Transcript of an interview with Stephen Ward, Head of News, and Andrew Tuff Head

of Corporate Communications, Judicial Communications Office for England and Wales, 5.


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