A COURT case without recent precedent is today expected to pack Belfast’s High Court — even though the case is only listed to be briefly mentioned.
Court officials have taken the unusual step of asking journalists wanting to cover this morning’s contempt of court action taken by Attorney General John Larkin against former Secretary of State Peter Hain to register, such has been the interest in the case across the UK.
The attorney general’s landmark case alleges that Mr Hain “scandalised the court” which found against him while secretary of state in 2006 by attacking the judge who presided, Lord Chief Justice Paul Girvan, in a deeply personal manner in his memoirs.
Those comments — which take up two pages in Mr Hain’s £20 book — related to Lord Justice Girvan’s judgment that Mr Hain had broken the law over how he appointed Bertha McDougall (who was entirely innocent) as interim victims’ commissioner.
In recent days, as it has become increasingly clear that Mr Larkin is not for backing down in prosecuting Mr Hain, a massive campaign has begun at Westminster against the action, which has even led to the prime minister being grilled about the case in the House of Commons. Mr Cameron appeared to indicate that he opposed the decision to bring the matter to court.
But Mr Larkin — who before being appointed attorney general in 2010 was one of Belfast’s leading QCs — has a reputation as a fiercely independent thinker.
Much of the political campaign has involved ridicule of the decision, given that the precise law used against Mr Hain was described by the Privy Council in 1899 as having virtually died out in England.
However, there have been cases taken since then which alleged that individuals had scandalised a court, though none in recent years against a political figure as senior as Mr Hain, who remains on the Labour front bench as a shadow minister.
Senior DUP figures, including Finance Minister Sammy Wilson and deputy leader Nigel Dodds, have been strongly critical of Mr Larkin’s decision to prosecute.
On Sunday, Mr Dodds — who had his pupillage with Lord Girvan after graduating from Cambridge — warned Mr Larkin that the case “has some implications for the office and standing of the office of the attorney general”.
Jim Allister, the TUV leader and himself a leading QC, is one politician who has conclusively supported Mr Larkin’s action.
Mr Allister said that it was the duty of the attorney general to protect the independence of the judiciary and said it was wrong for some to suggest that “he should turn a blind eye to audacious assault on the probity of a senior judge”.
John McBurney, the veteran solicitor who represented Ms McDougall as a notice party in the original case, told the News Letter that in his view Mr Larkin had little choice but to act.
“I think the reaction of our Lord Chief Justice to the outrageous remarks of Mr Hain regarding an eminent and highly respected judge of the Court of Appeal indicates the gravity of the situation which has arisen,” he said.
“Are we really to believe that any party to litigation should, with impunity, be permitted to make offensive, unwarranted and outrageous comments about our judges and their judgments?
“Or is it simply senior politicians who should be permitted this abusive privilege without fear of challenge?”
Mr McBurney said that “clearly Lord Justice Girvan cannot easily make any public comments on this matter at this point” but added that it was therefore important to look at what the Lord Chief Justice, Sir Declan Morgan, said about the case in January.
At that point Sir Declan released a highly unusual statement in which he said that Mr Hain had made “serious allegations impugning the integrity” of Lord Justice Girvan.
Sir Declan said: “The comments impact not just on a single judge but are potentially an assault on the wider independence of the judiciary which is a principle underpinning our democracy.”
Mr McBurney said that he agreed with the Lord Chief Justice’s statement.
“In light of the situation which quickly developed I am not surprised that our attorney general felt it necessary to actively consider the matter and take steps to have the comments scrutinised in a forum where consequences may arise.
“Mr Hain with his belated public attack on Lord Justice Girvan has damaged our judicial system without cause and compounded the problem by repeating his unwarranted remarks when challenged about them.
“I would respectfully suggest that Mr Hain should urgently reconsider his position and retract the offensive remarks.
“Were this to happen I would hope that the current proceedings could then be discontinued or stayed.”
Today’s hearing will confirm whether or not Mr Larkin is pressing ahead with the case, although there is no indication that he is considering withdrawing proceedings.
Lord Justice Higgins will preside at today’s hearing but there is speculation that a panel of three judges may hear the case when it comes to a full hearing.
Today’s hearing will decide on the timetable for the case and on issues such as when affadavits and skeleton arguments must be submitted by each side.
Mr Hain is being represented by leading London lawyer Geoffrey Robertson QC, while Mr Larkin is expected to represent himself.
Yesterday a very senior Belfast legal figure told the News Letter that the case had divided opinion among lawyers but that the case was “being viewed with mild amusement by many”.