He invited the courts to stop interfering in the work of an inquiry which ought to be regarded in the same vein as a truly quasi- judicial body rather than just another politician or administrative body. He praised the dissenting judgment of Mr Justice Hooper in the divisional court who would have upheld Lord Saville's decision on the basis that the conclusion reached was not irrational in law. David Pannick QC's Times article the previous day took similar form. There is, surely, a huge difference between academic analysis of a case that has finished and newspaper articles that are short on analysis but long on soundbite and carefully timed to be read at a time when judges are about to decide a case that even David Pannick conceded raised difficult questions about judicial review in a sensitive context. We are all susceptible to being influenced by those whose views we respect.
Judges are no exception.
When, therefore, barristers as eminent as Sir Louis Blom-Cooper and David Pannick go on public record in a sensitive case the week before the court of appeal sits to say, in terms, that they believe that Mr Justice Hooper got it right and the majority of the divisional court got it wrong there is danger afoot. It is also possible that the public will think that trial by newspaper will lead to bias. Lord Hoffman, so the House of Lords later held, should have disqualified himself from sitting on the Pinochet case not because he was actually biased but because there was a real danger that the public would believe that justice was not being done because of his association with Amnesty International. Ever since the Sunday Times Thalidomide litigation in the early 70s it has been well recognised that only if a publication goes beyond fair and temperate comment will it constitute contempt. But it is precisely the respect in which such commentators are held by the judges that means that their opinions are all the more likely to be taken seriously.