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Who judges the judges?

18 March 2014

12:53 PM

18 March 2014

12:53 PM

I like Jonathan Calvert and Heidi Blake of the Sunday Times. I will not pretend they are anything like close friends or family. I doubt if I see them more than once a year. But before you read any further you should know about our acquaintance. It is important for journalists to declare their interests. Readers must be free to make up their own minds, even if I believe – especially if I believe – that a friendship or family bond could never influence my writing.

In a few days, the Sunday Times will apply for the right to appeal against a decision by Mr Justice Tugendhat from July last year. Peter Cruddas, a former co-treasurer of the Conservative Party had sued the Sunday Times after it sent undercover reporters – Calvert and Blake – to interview him. The investigative journalists brought all their kit with them – concealed cameras, hidden tape recorders, the works. They pretended to be agents for foreign investors, who wanted to give money to the Tories, and covertly recorded as Cruddas talked.

The headline ‘Tory treasurer charges £250,000 to meet PM’ followed.

Tugendhat found the paper guilty of libel and malicious falsehood. It should not have said that Cruddas was a corrupt man, who offered opportunities to influence government policy and gain unfair advantage through meetings with ministers. It was also false, he continued, for the paper to allege that Cruddas accepted donations to the party knowing that the money was to come from abroad, in breach of UK electoral law. Tugendhat ordered the paper to pay £180,000 in damages – not least because the party leadership forced Cruddas out after the story broke.

Here is why I am dragging up this old case, and it is not because I am concerned with the details of the dispute between Cruddas and Sunday Times. What strikes me is Tugendhat’s failure to declare an interest – in this instance his family connections to the Conservative Party.

Michael Ashcroft, the Tory donor, congratulated his friend and ally Cruddas on his victory. While Tugendhat was a barrister, Ashcroft hired him. In his account of his life in politics Dirty Money, Dirty Times, Ashcroft describes Tugendhat as ‘formidable’ and ‘arguably the greatest legal expert in the country on privacy’.  Lawyers compare themselves to taxi drivers because they will work for anyone. I always reply that they remind me of an older profession. The point remains that just because Tugendhat worked for Ashcroft may not mean much or indeed anything at all. Nevertheless, I’d have liked him to have declared the association.

More solid are Tugendhat’s family ties to the Conservative Party. His brother, Christopher Tugendhat is a Conservative peer and former MP. In November 2013, local Tories in Tonbridge and Malling selected his son, Tom Tugendhat, a former soldier, to be their parliamentary candidate at the next election for one of the five safest Tory seats in the country.


Tugendhat did not declare his connections and invite both sides to consider whether they wanted another judge. The Sunday Times’s lawyers might have raised them, but the paper says it did not know about judge’s son or the praise in Ashcroft memoirs at the time of the case.

I called Tugendhat’s clerk and left a message asking to speak to the judge last week. No one got back to me, so I will ask you the question I would have asked him: should Tugendhat have recused himself, as the lawyers put it?

Tugendhat has not broken any rules by not declaring his family connection. But, in my view, he should have declared the connection and left it to others to decide whether he should hear the case. People always wheel out Caesar’s long-suffering wife on these occasions. But hackneyed though the emphasis on poor old Pompeia’s virtue may be, hers is not a bad example to follow. Judges must be above suspicion.

Meanwhile it seems to me that eventually a writer or publisher will need to challenge one part of Tugendhat’s judgment. Most of it was devoted to why the Sunday Times’ accusations were false. But some of the words he used are open to a dangerous interpretation.

‘In his speech of 8 February 2010 Mr Cameron explained that for him to give access to donors and to be influenced by them could be proper,’ the judge said. Those words might be interpreted to mean that if the prime minister says it is proper to give access to donors in return for money, then it is proper, and the citizen cannot gainsay him. If so, it becomes very difficult if not impossible to call the swapping of influence for cash or the sale of peerages ‘corrupt’.

In fact, the Cameron speech Tugendhat quoted from was his famous declaration that lobbying would be ‘the next big scandal’. Cameron acknowledged that it was proper for businesses to lobby government on occasion (which may have been the point that Tugendhat was trying to make) . He did not say, however, that it was proper for rich men and organisations to pay for access to political power, not least because he would have been hounded from office if he had. It seems to me that Tugendhat’s words create the opposite impression.

Tugendhat went on to find Heidi Blake guilty of malice against Cruddas on the basis that she had told him that, like millions of others, she disapproved of the present system of party funding.

‘Ms Blake made a number of remarks which suggest that she did have a motive to injure Mr Cruddas. She expressed strong disapproval of the present system of party funding. She said it was “quite shameful for the Prime Minister to tout himself to businesses who pay to have their photograph taken, it’s demeaning to his office. She also expressed the scepticism of the motivation of donors… But disapproval of the present system of party funding is not an excuse for misreporting impressions and assumptions as facts.’

Nor is it. But what does he mean here? If Tugendhat thinks that it is libellous to falsely accuse a party fundraiser of selling access to ministers, then of course he is right. If he means the English can no longer describe the selling of access or peerages as ‘corrupt’ simply because that sale does not technically break any laws, then, in my view, he misunderstands how a free society works.

His judgment is perilous because it seems to adopt the extremist position.

‘The present system of party funding, whether desirable or not, is lawful and practical, whereas other possible systems, such as funding out of taxation, or mass membership of political parties, are either not provided for by law, or not in practice available to the parties, however much they might wish that they were. This court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties. That may or may not be an opinion which people may honestly hold. It is not true as a matter of fact that the system is corrupt.’

As I wrote of his circular reasoning in the Spectator at the time:

One of the many pernicious aspects of our libel law is that it allows judges to express personal prejudices that have no place in a courtroom. It is not up to a judge to start pontificating on the practicality or otherwise of state funding. These are political questions that ought to be beyond his brief. Meanwhile his statement that ‘this court cannot declare to be corrupt, as a matter of fact, the system of party funding authorised by Parliament and adopted by the Conservative and other parties’ manages to sum up everything that is wrong with British complacency in one sentence.’

I might have added that in a free society the citizen is perfectly entitled to call cash for access ‘corrupt’ or the ‘behaviour of a banana republic’ or any other insult he or she wants to deploy. Free societies are boisterous places. It should be for the public to decide whether a writer or speaker has gone too far, not the courts.

If we keep on having rulings like Tugendhat’s, the danger for the future will not be that writers go too far but that they will not go far enough.

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Show comments
  • Jimmy Sands

    I’m normally a fan of Nick’s but some of this is bizarre. He seems at one point to be suggesting that political allegiance is genetic. As a lifelong Labour voter with an ex-Tory MP in the family I can assure him this is far from the case and I suspect my case is not unique. I thought the recusal point was very weak although he is in firmer ground in attacking the ruling itself, which seems poorly reasoned.

  • bugalugs2

    And when the judge sits down and the first words out of his mouth, addressed to one of the barristers appearing before him are “Just to finish off what I was saying ….” basically the judge had been having a chin-wag with one side’s barrister immediately before the hearing!

  • Graham Pearson

    A reading in full Mr Justice Tugendhats judgement and his forensic examination of the meeting that took place between the hacks and Peter Cruddas and its subsequent reporting in The Sunday Times will leave no one in any doubt that Calvert and more particularly Blake were very much the authors of their own misfortune. I feel very sorry for Peter Cruddas, purely as an individual, who was completely stitched up and subsequently vilified for something he had not done. Shame that Nick Cohen has nothing to say about that, but instead turns his guns on Tugendhat to make some kind of “guilt by association” claim.

  • George McCarthy

    Yes, he should have ‘recused’ himself. This is a difficult area, made more difficult by successive governments, pushing the boundaries of the law. The only thing I could fault the pair on would be; False Representation. Cruddas knew the rules in place and he was breaking them! This is a typical political ploy to avoid punishment and is now being muddied by the why’s and wherefores?
    Just as what is the difference between ‘illegal’ and ‘unlawful’? Or why one thing can be legal but unlawful? Legalese tying it’self up in knots!

  • colinpeters

    As a small works builder, I was the victim of a fraudster who obtained legal aid certificates on one pack of lies and then, 5 years later, a judgement, favourable to himself on a conflicting pack of lies, and all within the knowledge of every lawyer concerned, including the compliant judge.
    Surely this was blatantly corrupt. For how this injustice happened, see my website by googling my name and ‘builder’.

  • Iain Paton

    Judges can be wrong, as is clearly the case in this example. Cruddas can be said to be corrupt, as can the system of party funding, legal or otherwise. It may not be criminal, but it is corrupt and wrong and must be changed. The journalists were performing a public service.

  • Chris Bond

    “I might have added that in a free society the citizen is perfectly
    entitled to call cash for access ‘corrupt’ or the ‘behaviour of a banana
    republic’ or any other insult he or she wants to deploy. Free societies
    are boisterous places. It should be for the public to decide whether a
    writer or speaker has gone too far, not the courts.”

    Then why is the entire left spending it’s time a) shutting down discussion with constant harassment, threats and intimidation (no platform) and b) using manipulative language to paint people with perfectly reasonable views as extremist and beyond the horrific?

    I suppose what Mr Cohen meant to write here was “It should be for LEFTISTS to decide whether a
    writer or speaker has gone too far, not the courts”

    There, corrected it for you.

  • Icebow

    I hate it that we now have a ‘supreme court’ in place of the Law Lords.

    • Tom Tom

      We don’t really have a Supreme Court because we don’t have a codified constitution and it was created by Act of Parliament

      • Thomtids

        And whilst we’re at it. They seem disinclined to release the full text of the Oaths the Court members took and to whom they would good and faithfully discharge their duties.

  • Durham Dan

    Nick, as a trainee journalist I am currently studying defamation. Apparently in the past juries tried most defamation cases. Fewer cases are now heard by juries, and proposed reforms could make jury trial the exception rather than the rule. I assume in the case you refer to above there was no jury. Is it not the case that getting rid of juries will only lead to more cases where a judge’s judgement is called into question? Isn’t part of the point of juries to avoid potential conflicts of interest?

  • JCQC

    That the Sunday Times would not have known about Tugendhat’s connections is laughable. First, he is or was the judge in charge of the civil jury list – ie, presides in most of the libel and slander cases. Since most such cases involve newspapers, it is hard to believe that the press have done no research on his background on which the ST could draw. Second, it is not that hard to do the research. It is not as if his name is Smith or his family is obscure. Third, it is common practice now for litigants to at least google the names of their trial judge. In this case, the connections to Christopher Tugendhat (in Wikepedia) comes at the top of the list of hits. Fourth, the ST is no stranger to litigation or an innocent abroad in the process. If the ST chose not to raise the question of recusal at the time it can only be because they chose not to or were advised not to. Either way, it has nothing to complain about. It is hard to see the ST as some victim of non-disclosure. As for whether the judgment was right, no doubt the Court of Appeal will tell us.

  • rtj1211

    Actually, the more important question to be asked is who selected Judge Tugendhat to preside over this case and were they fully aware of the network of allegiances, both current and historical, which could quite reasonably be described as ‘worthy of declaration in the Registry of Justices’ Interests’ or whatever the analogous document might be called in the Legal Profession?

    I would have thought that the job of those allocating cases to judges should be twofold:

    1. Firstly, to identify those with demonstrated skill, experience and maturity in the area covered by the case.
    2. Secondly, to eliminate any of those from the short-list for whom a damaging-, potentially damaging- or retrospectively damaging conflict of interest could exist.

    Clive Ponting was a clear victim of the British Establishment selecting a ‘Hanging Judge’ in the 1980s, who was quite superbly over-ruled by a British Jury in one of the finest examples of the value of trial by one’s peers in British Legal History.

    It surprises me that appropriate checks and balances on the legal establishment have not been instigated in the subsequent 30 years and, if this case is anything to go by, perhaps one should say ‘better late than never’ and ‘get on with it before the next election’.

    • Ahobz

      Tugenhardt is the judge in charge of the libel list, that is why he sat in this case.
      I cannot see there is any conflict of interest here. The case was not about party affiliation, but the meaning of the ST article. Note that Tugenhardt refers to the fact of corruption. Had the ST said,”He offered us access to the PM for money. We think that is corrupt.”, that would have been an expression of opinion and so not libellous.

  • Frank

    This judge comes up with some quite strange judgements and, if memory serves, loves giving blanket injunctions to people who shag outside of marriage.
    Presumably judges got through a sanity test from time to time??
    The English courts do seem to be going through a bad time, particularly the family court and the court of protection (where it now seems you can steal from an old lady with dementia and not be prosecuted, or even named).

  • Dougie

    Ministers should be open to influence by anyone with a good argument. To exclude any individuals or companies from putting forward good ideas just because at some time in the past they have made a donation to a political party is bonkers. Provided all donations are legal and properly recorded the system is transparent enough for journalists like you to question any apparent improprieties.
    As the expenses scandal showed – but few commentators seem to have grasped – the only solution to creeping corruption in our political system is for voters to vote only for candidates they believe to be honest and trustworthy, rather than just putting their X against their party of choice.

    • Samuel Kaine Wheeler

      It’s very hard however for ~80,000 people to meet their candidate. Party allegiance is meant to be an indication that this person has such-and-such views. In a way the problem is that the current parties are such broad churches that what you think that rose, or tree symbolises may be very different from what your candidate does.

  • AnotherOldBoy

    Mr Justice Tugendhat was appointed to the High Court bench on 29 April 2003 so he it must be at least 10 years since he acted for Michael Ashcroft. Should a judge declare that he acted for someone in the same political party as a litigant before him when at the Bar several years earlier? No. Should he declare the fact – which it might be thought that a national Sunday newspaper would know – that his brother is a peer taking the whip of the same party as the litigant in front of him? Again, the answer is clearly no. And the same answer applies to a judge whose son is a potential Parliamentary candidate for the same party as that to which a litigant before him belongs.
    And Mr Cohen misreads the passage of the judgment he sets out. Read properly and carefully Mr Justice Tugendhat was saying that (I) funding of political parties out of taxation is not provided by law and (ii) mass membership of political parties is not in practice available to the political parties. This does not involve adopting an “extremist position”.
    I should add that I am no fan of Mr Justice Tugendhat. But this is just one journalist sticking up for two others.
    Finally, it is a criminal offence to sell peerages, or any other honour: see the Honours (Prevention of Abuses) Act 1925.

    • Kennybhoy

      “But this is just one journalist sticking up for two others.”

      It’s Nick Cohen we’re talking about here ffs! lol

    • Mike

      Corruption is a subjective thing and its in the eye of the observer not a court or government to make that social judgment. It can certainly be argued that cronyism and many types of lobbying are corrupt although not necessarily a criminal act. Methinks Mr Justice Tugendhat tied corruption to criminal acts (thereby assisting libel cases for cronies) rather than the general public perceptions of what corruption is. This was much the same way bankers called PPI fraud mis-selling to avoid being labelled with a criminal style moniker.

  • aron lipshitz

    Would a judge who happens to be Jewish, be expected to declare an interest in a case where a defendant was also of that faith? How about a homosexual or even pro-paedophlia judge (of which there appears to be a very large number) in similar circumstances? A Mason? We could go on………………..

    • Tom Tom

      We really would not want judges who are Jewish outing themselves

    • Samuel Kaine Wheeler

      If a judge were to oversee a case against his own Rabbi, or a judge who used to drink at the Admiral Duncan oversee the trial of David Copeland, I think it might be appropriate for them to consider their position.

  • Tom Tom

    I am not convinced judges should be drawn from barristers. I think it might be better to have judges enter a separate track from practising lawyers – the top-down class nature of the judiciary is compounded by the narrow base from which QCs are drawn and the limited slots for a self-perpetuating priesthood to fill each generation. They are appointed for life and tend to develop a God Complex to the point that they cease to read case material and divine their verdicts which lesser mortals would deem arbitrary and discriminatory and unjust

    • Dougie

      Judges are no longer exclusively drawn from the ranks of barristers. There are now judges who were solicitors or Chartered Legal Executives.

  • monty61

    Did he go to Eton by any chance? Edit: I just checked, he went to Ampleforth.

    • Tom Tom

      So he is Catholic not Jewish and has outed himself

  • Jingleballix

    Nick Cohen is of the left……but is of strong integrity….a rare combination in the past 20yrs.

    He’s 100% right in this instance.

  • gelert

    He’s another Oxbridge toff. Dog doesn’t bite dog. That is the true corruption in British society.

    • Cooper cap

      Whereas Labour dogs bite toffs continuously

      • gelert

        They like a mouthful 😉

  • Grrr8

    How on earth were the Sunday Times lawyers’ ignorant of the judges family connections to the Tories?