That argument was roundly attacked, and not just by Hain's counsel. During a debate in the House of Lords in July, Lord Pannick QC, as he has now become, repeated the criticism he had made 25 years earlier. "Surely a former secretary of state, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence," Pannick insisted. Calling on Parliament to abolish the offence of scandalising the judges, he added: "Since the Attorney General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep."
By then, Hain had made it clear that he had not intended to question Girvan's motivation or his capabilities and, as a result, Larkin had dropped the case against him. But the justice minister, Lord McNally, accepted that "the law is alive and kicking rather than dead". To allow the government time to consult, he asked Pannick to withdraw his amendment.
And now we have the result. In a consultation paper rushed out in August, the Law Commission proposes that the offence of scandalising the court should be abolished, not least because the scope of the law is so uncertain. The absence of a successful prosecution since 1931 is strong support for the view that the offence is unnecessary, the commission says. There is a "great deal of scurrilous internet material attacking judges in family cases", it adds, and the failure to do anything about it gives the impression that the law can be flouted with impunity. In general, a law should be enforced or abolished.
The government should take heed. Judges who are traduced should either rise above it or sue for libel, as some have indeed done. By complaining that they have been scandalised, they make themselves look ridiculous and defendants look like martyrs. Judges should command respect — not order it.
