At the end of last year I was walking through central London with my girlfriend when something caused her to grab my arm and scream. She was pointing at a bus about 50 metres down the street. The bus posed no immediate threat to us or anyone in the area, so I began to feel a little sheepish that I’d somehow missed her paralysing phobia of buses in the time we’d been together. Before I could clear my throat and say something beginning with ‘It’s more afraid of you than…’ I realised that her scream wasn’t one of fear, but delight. (My inability to distinguish these two sounds in her also gave me pause.)

‘It’s the Clapham Omnibus!’ she said, frantically searching for her camera.

If, like me at the time, you have no idea what this means, don’t feel bad. It just means that you’re not up to scratch on your antiquated legal terminology and also you can’t join my trivia team.

The Man on the Clapham Omnibus, I’d later learn, is a legal term coined in the mid 19th century to describe ‘a reasonable man’. Obvious sexism aside, I find this phrase extremely funny. Not just because ‘omnibus’ is a hilarious word (and let’s face it, it totally is) but also because of its entirely unnecessary specificity. These days ‘The person on the street’ works fine for this idea, but for whatever reason, the legal minds of the 1800s decided ‘No, he has to be on a bus, and it has to be coming from or going to this specific south London suburb. I mean for God’s sake, what kind of a lunatic walks?’

Believe it or not, this term failed to once and for all determine what constituted a reasonable person in the eyes on the law. Which is why last weeks mini-controversy surrounding a speech made by Supreme Court Judge McClellan is so interesting.

Last Thursday, talkback hosts Ray Hadley and Alan Jones were the recipients of a big-up from the most unlikely of sources – the Chief Judge at Common Law from the Supreme Court of NSW. If the words ‘Alan Jones’ and ‘Supreme Court of NSW’ are ringing any bells, that because it’s often the latter’s task of telling the former to stop being such a rampaging arsehole.

Highlights of a speech Judge Peter McClellan had made in late March were reported in the SMH, where he pointed out that judge’s sentences need to take into account community expectations, and more than this, that community expectations based on oft maligned media sources (specifically talkback and tabloids) can still be valid, despite any flagrant factual inaccuracies in the reporting.

His view is out of step with the vast majority of the legal community. Just two days earlier in the same paper Greg Curtin, SC had written an op-ed stating almost exactly the opposite, and, as the SMH points out, Judge McClellan’s speech came just two months after Chief Justice Tom Bathurst called on judges to address the ‘misguided perceptions’ about the crime rate.

A judge of McClellan’s standing siding with the gutter press is enough to make us progressive types spill our lattes in disgust, ruining our perfectly good skivvies. But before we speed-dial Bernard Keane, we’d do well to break down McClellan’s argument into its composite parts.

Straight off the bat, the idea that sentencing should take into account the attitudes of the community is not up for discussion, at least not in this article. It comes from the High Court, who’ve said that judges need to ‘impose sentences that accord with legitimate community expectations’. So if you’re looking to argue the toss on that count, you’re going to need a good deal more legal expertise than me and a posse of very learned, very expensive lawyers. McClellan also argues that there is a perception in this state that judges are out of touch with the concerns of the common man. For the purpose of this article, and also because it’s true, we’ll grant him this, also.

While his premise, that judges ought heed community expectations and that they should also be wary of the perception of elitism, is solid, his conclusions require more mental gymnastics than a ribbon twirler in Bedlam.

It’s worth pausing here just for a brief moment (and perhaps take some time to let the excellent pun in the pervious paragraph sink in) to point out that the High Court’s notion of ‘Legitimate Community Expectations’ seems to suggest such a thing as ‘Illegitimate Community Expectations’, which it does. McClellan’s beef is that judges tend to call expectations ‘illegitimate’ when they are founded on assumptions that coincide with those from talkback and tabloids, which again, they do. This is the precise kind of elitism which McClellan cautions judges against. But what if judges are disregarding these mediums not because David Marr tells them to at their weekly Balderdash soirées, but because they are, in the most objective sense possible, misleading?

Well, okay, but in what way are they misleading? There are a fair few misconceptions which are fuelled by the screech of the gutter press, and they can all be found here in this awesomely cranky article by former DPP Nicholas Cowdery. But the ones that are pertinent to McClellan’s speech are: that the state of NSW is currently suffering from a massive violent crime wave, and that the sentences imposed by judges are weak and out of step with reasonable community attitudes.

The first is easy enough to refute. A brief trip to the website of the NSW Bureau of Crime Statistics and Research will show that violent crime, almost across the board in NSW, is either stable or on the decline. The second is a little more complicated but heaps more interesting.

In 2007, The Australian Institute of Criminology wanted to conduct a groundbreaking study in an attempt to assist judges with just this problem. They were looking to find a group of people who represented a true cross-section of society, who used a variety of information sources to shape their world-view, but who, crucially, understood the mitigating factors involved in the sentencing of a particular case. This sounds pretty tricky, until, like they did, you realise that this is exactly what a jury is.

So, they took some 250 jurors from cases resulting in a guilty verdict, and asked them, before the judge delivered their sentence, what punishment they felt fitting. In all cases, except those pertaining to sex crime, the majority of respondents suggested sentences more lenient than those imposed by the judge. This not only refutes the perception that judges are soft when it comes to sentencing and reasonable community expectations, but turns it on its head. More than this, it’s difficult to argue that those engaged in talkback and the tabloid press wouldn’t have seen the findings (published in 2009) and willfully ignored them.

So why is McClellan so unwilling to pop these two misguided concerns in the ‘illegitimate’ basket and help himself to an awesome cake for a fine day’s judging?

Well, McClellan’s chief concern is the perception of elitism amongst judges, who can afford to live in relatively crime free areas, even after you factor in the expense of wig-cleaning and monthly tubs of gavel polish. Therefore, he says, judges find it difficult to understand community attitudes in areas unlike theirs. This argument and others like it have always struck me as a bit off. They seem to stem from the assumption that in order to be an authority on a certain thing, you need to be that certain thing. There are instances where this is obviously applicable – having a male Minister for the Status of Women would be stupid enough that Chris Pyne probably wants the job – but applying this logic across the board leads you to some pretty weird conclusions. (The most visible and odious of these is that Julia Gillard doesn’t understand working families because she’s got no kids. Guys, she knows what a family is, there’s even wild speculation that she was raised in one herself – plus, she’s bound to have seen at least one episode of Packed To The Rafters.)

What Judge McClellan seems to be getting at is that you don’t need to be a judge or live in a fancy part of town to be eligible for a bus pass, and he’s right to point that out. One of the more noxious assumptions of the left is that anyone who doesn’t share their views has been rendered unreasonable either by bigotry or misinformation. And that’s obviously not the case, just as it’s not the case that everything printed in the tabloids or hate-vomited over talkback is misinformation. It’s just that in the specific case of criminal sentencing, it is.

But far more damagingly, in his assumption that talkback and tabloids reflect the attitudes of the wider community, McClellan’s got another problem. As he says himself in his speech, one of the difficulties of accurately gauging community expectations is that ‘[The community] does not speak with one voice. Some people clamor for retribution, others empathy’. So how genuinely reflective of this wide and varied community are Jones, Hadley and the Tele? I’m struggling to remember the last time that Piers Akerman or Tim Blair ‘clamored for empathy’. I’m also struggling to get my head around how a judge so concerned with the appearance of elitism could color the opinions of so many with such a broad brushstroke.

Of course I’m not suggesting that the views espoused on talkback and in the tabloids do not reflect a larger community sentiment. That would be absurdly wishful thinking. What I am suggesting is that maybe the best way to reflect community attitudes is straight from the source, rather than lazily getting the edited highlights via mediums that thrive on hyperbole and hysteria. It’s like trying to work out what someone looks like by getting a drunk to describe a caricature of them.

It’s important to understand what’s at stake. This isn’t about fretting over the expanding influence of the tabloids; it’s about the independence of the judiciary and, in turn, justice being done.

It is of real concern that judges can use the ‘illegitimate community expectations’ principle to disregard any media with which they don’t agree, but that, at least for now, is not what’s happening. What is happening is that judges are free to disregard certain community opinions, when their foundations are based on lies, which in turn are fuelled by grabs for ratings. This is not unreasonable, and this is not elitist.

You should still be allowed to take a jolly ride to Clapham even if you are misinformed on a few specific issues. Nobody’s seriously advocating some kind of system where all but the most learned and widely read are forced to walk. What seems reasonable, though, is that judges assess the legitimacy of community expectations on a case by case basis, taking into account the underlying assumptions which form them.

It seems unlikely that the tabloids and talkback will heed the Prime Minister’s advice last year to ‘stop writing (and talking) crap’, but still, that doesn’t mean that the judiciary has to swallow it.