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Murmuring Judges is a play by David Hare, performed at the National Theatre in 1991. The play's best feature was its title, as I recall (though the set was pretty good). It refers to a statutory offence under Scots law, created in 1540 and repealed in 1973. That offence involves undermining the administration of justice by making scurrilous attacks on judges. It still exists under common law throughout the United Kingdom where it is usually called "scandalising the court".

Perhaps the best-remembered example dates from 1900. Howard Alexander Gray was editor of the Birmingham Daily Argus. He published a magnificent piece of invective about Mr Justice Darling, who had recently advised the press about how it should report an obscenity case he was trying in the city. Gray wrote: "No newspaper can exist except on its merits, a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a        microcosm of conceit and empty-headedness . . . One of Mr Justice Darling's biographers states that ‘an eccentric relative left him much money'. That misguided testator spoiled a successful bus conductor."

Gray escaped prison by making a grovelling apology but was still fined a hefty £100.

In his book Judges, published in 1987, a young barrister called David Pannick argued that "the offence of scandalising the judiciary should be abolished . . . Legal sanctions, even if rarely used, will inevitably deter plain speaking."

I hope I have not been deterred. Regular readers will know that I have often called for the resignation of Mr Justice Peter Smith, who was reprimanded by the Lord Chief Justice in 2008 for misconduct. My calls have gone unheeded, but nobody has accused me of scandalising the judges. Indeed, there have been no successful prosecutions in England for more than 80 years. 

So Peter Hain, the former Northern Ireland Secretary, must have felt on safe ground when he accused a Northern Irish judge of "high-handed and idiosyncratic behaviour" in his recent memoir Outside In. The judge is Lord Justice Girvan, then Mr Justice Girvan, although Hain constantly gets his titles wrong. Referring to the way Girvan had dealt with a challenge to an appointment made by Hain, the former minister recalled thinking the judge was "off his rocker, a view privately expressed to me by the Lord Chancellor, Charlie Falconer, who was equally bemused".

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