In 1900, the editor of the Birmingham Daily Argos was fined £100 by the Lord Chief Justice for describing Mr Justice Darling as an “impudent little man in horsehair”. The editor avoided a prison sentence for “personal scurrilous abuse of a judge” only because of his abject apology. Today, we rightly take a more tolerant approach to criticism of the judiciary. But the critical comments by Paul Dacre, Editor of the Daily Mail, about the judgments of Mr Justice Eady in privacy cases raise important questions about how judges should respond.

In a speech to the Society of Editors on November 9, Dacre accused Mr Justice Eady of “an animus against the popular press”, and complained that the judge had given “arrogant and amoral judgments” that had created a privacy law “with a stroke of his pen”. However strongly Dacre may resent privacy law (except, of course, when his newspaper is campaigning against local authority “snoopers” who pry into the contents of our dustbins), there is no justification for the criticisms.

Justice Eady has faithfully performed his duty to implement the Human Rights Act, which includes a legal right to the protection of private life, and to apply the principles developed by the Court of Appeal and by the Appellate Committee of the House of Lords in a number of recent cases involving newspapers. Any litigant who is dissatisfied with the judgments given by Mr Justice Eady may seek to appeal to the Court of Appeal, to the House of Lords and to the European Court of Human Rights.

However unjustified the criticisms of judges, they can damage confidence in the legal system. However, it would be wrong to suggest that judges cannot answer back. In exceptional circumstances, some judges have written letters for publication in this newspaper responding to criticism of judgments. Alan Paterson’s valuable work The Law Lords mentions a number of such examples, including letters from Lord Davey in 1904, from Viscount Dilhorne in 1975 and in 1980 from Lord Scarman in defence of his colleagues’ decision in a controversial case. Nevertheless, most judges are understandably unwilling themselves to debate with their detractors. Depending on the circumstances, they may be wise to bear in mind Lyndon Johnson’s advice about not entering into “a p***ing competition with a polecat”.

If the judge decides not to respond, who is to speak on behalf of the judiciary? Jack Straw, the Lord Chancellor and Secretary of State for Justice, has a responsibility for rebuking colleagues in government who make ill-informed or abusive attacks on the judiciary. As Lord Irvine of Lairg said as Lord Chancellor in 2003, “maturity requires that when you get a decision that favours you, you do not clap. And when you get one that goes against you, you do not boo.” His comments were widely understood as a well-deserved rebuke for David Blunkett, then Home Secretary, for criticising judges who had ruled against the Government on asylum law.

An independent judiciary should not be relying on a government minister to respond to criticisms from persons other than ministers. Where necessary, an independent judiciary should be defending itself. Last month the House of Lords Select Committee on the Constitution rightly encouraged the Judicial Communications Office to be more “active and assertive” in its dealings with the media by providing judicial spokesmen to respond publicly to criticism.

In answer to Dacre’s speech, the office issued a brief, written statement, but left the main defence to others. Lord Falconer of Thoroton gave a forceful interview on the Today programme, and a letter in this newspaper from four QCs with extensive experience of press law (Desmond Browne, Andrew Caldecott, Adrienne Page and Richard Rampton) explained why Dacre’s analysis “does not bear proper examination”. But given the well-publicised and personal attack on a judge by a journalist of considerable seniority and influence, this was surely an occasion for a senior member of the judiciary to speak publicly to communicate a judicial and judicious response.

Judges have a tough job. By contrast with the judges on Strictly Come Dancing, they do not simply insult, or praise, those who have appeared before them, and then score their performance. And people’s lives may depend on judicial decisions. We are very fortunate in the United Kingdom in the quality of the judiciary. Good judges welcome constructive criticism. But an independent judiciary should not be shy about answering ill-informed and damaging comments.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords. He acts for Max Mosley in a pending claim about privacy law in the European Court of Human Rights

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