Unlike some nationals, we don’t think judges are the “enemies of the state”. Far from it, we recognise they are the ones who help us hold power to account. Yet, worryingly, every week I get at least one phone call from a judge to say how scared they are to report bullying. It’s not just justices of colour either. I have white judges who say they have been screamed at by their presiders – the people who head a region or circuit – and they can’t do anything about it. Sadly, like ostriches, the judiciary buries its collective head in the sand denying there can ever be a problem in their exclusive club.
Now, any one of us can watch proceedings at a magistrates’ or crown court. You don’t have to be a member of the press. If you’re a bonafide member of the media you can attend youth court. Journalists can also, with certain restrictions, report from the family courts in Cardiff, Carlisle or Leeds under an experimental pilot. It’s all aimed at showing how open and transparent the criminal justice is.
But sometimes we must exert our rights. For the past couple of years, I’ve been following the case of Judge Abbas Mithani KC. He’s taking on the Judicial Appointments Commission and the Information Commissioner’s Office over a decision not to disclose fully three freedom of information requests.
I knew the case was complex with both sides relying on hundreds of pages in what’s called “bundles” or court documents. That puts me at a disadvantage. To understand the nuances of a complex case, I need to read the court documents before the hearing starts. But few journalists would dare ask for this because they don’t know the law.
On Monday , the judge in the Mithani case held an administrative hearing, and I was allowed to speak at it. After one day to prepare, with a solid legal argument, I spoke very briefly and explained why it was important I had access to the documents. My argument centred on the importance of openness, transparency, and the public interest. I said that I could share with the court the legal precedent [Guardian News and Media Ltd v Rozanov], but I knew I was kicking at an open door. Within seconds, the judge ruled that she was minded to allow the public to have the documents. She ordered the government body to find a way of making them available.
I’m nothing special. You see, the problem with me is that I’m a campaigning journalist who isn’t scared or overawed by authority. It’s always been this way. My bosses say I’m a maverick. I argue that every organisation needs one. My family worry that I don’t know when to back down with authority figures. That problem is exacerbated by the fact I’m brown. Sadly, some white people just don’t get that we of colour can be as intelligent as they are.
Occasionally in my career, I’ve had judges stop a trial because someone objected to my presence on the press benches. In one case I admonished the judge asking whether he would have asked a white reporter to show his credentials. Sheepishly, he apologised. Tuts, shaking of heads and sharp intakes of breath from Mrs C and Miss C.
Last year, I had cause to go up against a judge at Norwich Crown Court. One of my jobs is to teach media law to the next generation of journalists at the University of East Anglia. That involves taking them to court. That day, an usher stopped my taking in students to observe the sentencing of a man who tried to rape a teenage girl. I wasn’t allowed, apparently. Really? I asked to speak with the judge.
She explained that the court was too small for 12 students. I explained that under the courts and tribunal own rules, she had to find room for us. She was not happy. Her attitude was hostile. When she asks a brown boy to stop shouting, I had to gently reminded her of unconscious bias. I may be stupid, but I know that I could be fined or sent to the cells for being in contempt of her court. In the end my students and I were allowed to observe the sentencing. After the incident, I paid for a transcript of our interaction. The courts should record everything once they’re in session. As I expected, I was completely professional.
I mention this because few newsrooms can afford to send reporters to cover courts. I remember when I was at BBC CWR, I’d go to court most days. Except for a few local papers, today we only staff them when there are high profile cases. That means over the past 20 years or so, a generation, we’ve lost a valuable newsgathering tool. Not only that, I’m concerned we’re sleepwalking to letting those in power go unchallenged. It is criminal that I meet journalists who don’t understand their legal rights.
For example, recently my students were told by an experienced reporter that they had to switch off their phones in court. Not true. You can have your phones on … if they are silent, and you don’t record proceedings or disturb the court.
Why has this happened? Because for too long we have not challenged clerks, ushers and judges.
We journalists, we society, must remember that judges may like to think they are supreme in their courts. They may think their courtroom is their fiefdom. But in the end, they are no different from you or me. Their role is merely to interpret the law which parliament passes and deliver judgements based on evidence presented to them. They dispense justice only because we, the public, allow them to. And even then, only when they are free from racism, misogyny, bullying and political pressure.