Category Archives: Media

Televising Trials

The Pistorius case has reopened the discussion about the televising of trials in England & Wales. There are two interesting articles on the matter in the Times (paywall here and here).

Some of this has already happened.  You can watch live hearings of the Supreme Court on their website, and the Court of Appeal has delivered judgments to cameras.  A Scottish criminal trial has already been televised, in Channel 4’s The Murder Trial.

The real issue is more to do with the contemporary televising of cases involving contested evidence (appellate advocacy is a different beast.

It is hard to deny that televising has helped increase the public understanding of the legal system.  My feeling is that the televising of the Pistorius trial and verdict helped people understand how the case and system worked better than a written account could have.  And the recording of the Leveson Inquiry had a similar effect.  But there are, it seems to me, substantial concerns that need to be addressed before it gets rolled out any further.

The biggest concern is the effect that televising has on advocacy.  A common refrain is a desire to avoid the antics of the OJ Simpson trial.  There were numerous suggestions that Barry Roux and Gerrie Nel were playing up to the cameras in the Pistorius trial rather than engaging in effective advocacy.  Litigation and advocacy styles vary between jurisdictions, so I can’t say with any certainty whether that was the case, but it was the view of a number of legal commentators.

But even if it cannot be said for certain in the Pistorius trial, the wider point that televising could undermine the role of the advocate does make sense.  There is always a pressure on counsel to play to the gallery.  Although our job is to persaude the Judge, the commercial reality is that the Bar is a client and reputation-based profession.  We have to be seen to do a good job, irrespective of whether we are actually doing one.  Those sitting behind us may have more influence over our career than those before whom we appear.  That pressure may be exacerbated by televising.

It is a fair point that trials are meant to be held in public anyway, and that televising is simply updating that principle to the 21st century.  But the problem is that televising is a qualitatively different change.  It amplifies the level of publicity to a completely different order of magnitude.  It is quite different to have your name reported in a written account of a trial to having your evidence being recorded and broadcast.

Giving evidence is a daunting prospect even (perhaps especially) for the most honest of witnesses.  Many witnesses are vulnerable, and often witnesses have to give evidence against themselves or agree to damaging criticisms.  Frequently a witness’s credibilty turns on the fact that they are willing to accept criticisms made of them in cross examination.  Witnesses may feel either intimidated, or otherwise inhibited from being candid, because of the much greater level of scrutiny to which their evidence is being subjected.  In particular vulnerable witnesses, and relevant witnesses who want to avoid any of their dirty laundry being aired, may be intimidated from giving evidence.

This is a relatively common problem in litigation, and the amplifying effect of televising may exacerbate it such that valid claims and defences never get to see the light of day because witnesses feel unable, for a number of reasons, to tell the whole truth, especially when it goes against them.

This would be a particular problem in high-sensitivity cases such as sexual offences or those involving children.  Not all trials are going to be suitable for broadcast.

As I said above, the Pistorius trial helped the public understand it and the verdict better.  It was easier to explain to people how the Court came to a conclusion that suprised many.  But it is quite possible for a televised trial to obscure rather than clarify.

It’s inevitable that if recording of trials occurs, there is going to have to be editing.  The act of editing, though, is of a kind with the art of advocacy; both involve a substantial degree of selecting material to present and material to leave out.  If that is not done properly, or done purely to chase ratings, it risks being prejudicial.

The presented matters are likely to be the points of high drama, even if they are not necessarily the most important to the litigation.  Sometimes the most boring and technical parts of the evidence are where the case is won.  Particularly if that trial involves documents, and you are cross examining to show that the documents do not accord with a witness’s evidence.   And as the Pistorius trial shows, cases are not simply about who is lying, or who is lying worse.

The risk is that broadcasting trials could give a misleading impression of what goes on.  The Murder Trial is a case in point.  When I watched it it felt as though the producer had chosen the parts of the recordings that fit the verdict, and presented the trial as leading inexorably to that conclusion.  In my experience, trials rarely work that way.  It felt like it was simply amplifying the prosecution’s case.  

In South Africa, with judge-only trials and a consequently relaxed set of laws regarding contempt of court, that may not be a problem.  A judge will quite willingly disregard media reports.  But that is less likely with a juror.  The inherently selective presentation of the evidence may unduly influence the juror’s perception of events.

It could also be problematic with appeals.  A selective broadcasting of a case could give the impression that the evidence at trial was stronger than it actually was.  A successful appeal could be undermined by that impression – the public may take the view that they “know” the appellant was really guilty, based on the original broadcasts, irrespective of why the appeal was allowed.

In my view none of these are insurmountable problems, and much (if not all) is a difference of degree rather than kind to how trials already operate.  But they need to be taken into account before there is any furthe relaxation of the broadcasting regime.

Photographic Abuse

I have inserted links to the relevant articles to source quotes, but I would suggest that people do not click on them.

The more I think about the Mirror/Sunday People’s decision to publish photos of Charles Saatchi gripping his wife by the throat, the more irked I become.

The paper, in its decision to publish, has done a disservice to victims of domestic violence.

It should go without saying that what Charles Saatchi did was wrong. But domestic abuse is a sensitive issue and there is a right way and a wrong way of dealing with it.

Much of what is the right and the wrong thing to do in the field of domestic violence is counter-intuitive.

One of the principal weapons in the armoury of professionals working in this field is secrecy. DV professionals undertake painstaking efforts to establish secret and secure channels of communication with victims. They use them to allow victims get help safely and, if the time comes, to leave the relationship in the safest possible way (I say “if” simply because many victims choose not to do so). These efforts are made both to provide the victim with a space in which they feel free to speak to professionals and get help, and for the victim’s own personal safety.

Abusers are, by nature, controlling people, and are often prone to jealousy and paranoia. They use perceived slights as ammunition against their victims. Something as trivial and innocent as smiling at a stranger can be enough to provide the pretext for abuse, humiliation and violence. If they find out that the victim is speaking to a DV professional, that can be enough to put them at risk of serious violence and scupper all the efforts made to help them.

Indeed, the most dangerous time for a victim of DV is, perhaps counter-intuitively, the moment she leaves the relationship. This is in part because the issue is brought to a head and the abuser has lost control of the situation.  DV professionals make significant efforts to lay the ground for the exit in advance and in secret, ensuring that the victim leaves on their own terms, with sufficient security in place to ensure that they are safe, in control of the situation and hidden from their partners. This is something that cannot afford to go off half-cocked.

Cases of domestic violence must be handled with sensitivity, discretion and confidentiality. The victim has to be made to feel safe and secure.

Now look at what the Mirror did.

First, look at how they obtained the story. The account given by the photographer contains some telling details.

But the photographer, who did not want to be named, said: “The pair did not know they were being photographed. I was completely hidden.

“It wasn’t a game, from what I saw, it was more… if that was a game it was a pretty rough game.

I couldn’t hear what they were saying. The ­conversation and action became so worrying for the couple sitting next to them that the woman put her hands over her mouth in shock.”

As does a line in this article:

Last December, there were concerns raised when she and Saatchi had a another bust-up at Scott’s.

He put his hand over her mouth in an apparent bid to shut her up.

Putting those together, the shot was obtained by having a concealed paparazzo lie in wait with a telephoto lens (the fuzzy nature of the photographs is also a giveaway). The reference to this not being the first such occasion suggests that the photographer may have been stationed there specifically to capture such an incident.

Second, think about what has to happen to make the story libel-proof. To ensure that the paper can fall back on the Reynolds defence, they have to put the allegation to Charles Saatchi and get him to comment on it. In other words, they had to tip off the abuser in advance of publication. It is not particularly far-fetched to think that they might accuse the victim of setting him up, or just generally use it as another pretext for violence.

Third, no suggestion has been made that Nigella Lawson consented to these photographs being published.

Tasteless
A tasteless pun.

Put simply, the Mirror, likely acting on knowledge that Charles Saatchi had form, stationed a paparazzo in his usual haunt in the hope of catching him in the act (or took advantage of an enterprising paparazzo who decided to do this of his own accord). Once they got the photos they tipped off a potential abuser and then splashed the pictures all over the front page. Not one or two photos to confirm that it was what it looked like, but complemented by a full online gallery, complete with a tasteless reference to an olive branch (the foliage in the photos).

If they knew that she was, or might be, the victim of domestic violence, they took the decision that the best course of action was to get them papped.

They took pictures of a woman who, in the words of one onlooker “had been abused and humiliated in public”, and decided to magnify the publicity of the abuse and humiliation she received. They decided to tip off an abusive husband, with no evidence of any regard for the wife’s safety.

Now consider the likely consequences: an enraged abuser, a humiliated victim at an elevated risk. Rather than going to Nigella Lawson in confidence, offering her support, asking whether she wanted the photos published, or going directly to the police, they picked a fight with a Saatchi on his home turf: PR. So far, he has played the PR game pretty well considering his hand. If the relationship is indeed one of control, the ratchet may well have tightened. If she wants to leave the relationship, the publication may have actually made it more difficult to do so.

The decision to publish does not appear to have been taken out of concern for a victim of domestic violence, but out of a desire to sell newspapers masked in sanctimony.

Although the original story was published in the Sunday People, the Mirror’s sister Sunday paper, I have referred to both papers as “the Mirror”. They use the same website, are owned by the same company, and are treating this story as a joint effort. There seems to be little point distinguishing between the two titles.

Leveson: Off the Record

According to pundits, Leveson LJ’s report proposes the banning of off-the-record discussions.  This would obviously be a major curtailment of the effectiveness of the press, and unworkable in theory as well as in practice (how do you enforce a ban on something that is done on the basis of there being no evidence of it?).

In particular, it has been suggested that this would amount to a ban of briefings on Lobby terms, and remove one of the institutions that oils the Westminster machine.

This is getting repeated with a certain amount of indignation to suggest that Leveson LJ fundamentally doesn’t understand how the press works, and so the report should be ignored as some sort of overbearing attempt at censorship.  Various journalists are hopping up and down about this.

Except that neither Leveson LJ, nor his report, suggest any such thing.  Here is the closest thing to approach the matter:

The first thing to note is that this does not relate to off-the-record briefing generally.  The remarks are specifically confined to press-police briefings.  The report simply doesn’t deal with such briefings more generally.

Second, in the same section (but not in the image here) the Report accepts the necessity and value of off-the-record briefing.  As you will see from the image, there is no suggestion that the practice should stop.  Indeed they are considered ‘legitimate police and media interactions’!

What is proposes is much more modest.  It is that the term ‘off-the-record’ should be discontinued in favour of the terms mentioned in the shaded box above.  This is because as it stands the existing term has multiple meanings and it’s not always clear which is meant.  It’s a simple matter of a practical recommendation, and there’s no suggestion that this should be enforced by any regulator, statutory or otherwise.  It’s just a simple recommendation that the press are free to take up or reject as they like.

There is no proposal to ban off the record briefings, and those members of the press jumping on this bandwagon are damaging their credibility in saying so.  It’s hardly the most sensible approach to defend ‘freedom of the press’ when, as a member of that same press, you fail to check basic facts.

Put Up or Shut Up

Because if you tell me to, I will.

The Commentator is a relatively recent aggregate of centre-right blogs on the web. Today it has come up with this gem of an article:

How calling someone a “white bitch” is not racist and being a drunken Muslim saves you from jail.

The byline is equally subtle:

The defence of the drunk Somalian women was that they were Muslim and so weren’t used to drinking. The judge suspended the sentence.

The article is a particularly bad one, made worse by the dismissive response when it was challenged. It is riddled with inaccuracies, sloppy research and a poor understanding of how the law works.

The article focuses on three contentions that it suggests show that the law is not applied consistently in this country: the Edward Woolard case; the LSE-Guardian “Reading the Riots” report; and an attack on a care worker where the perpetrators received suspended sentences. Both this, and the article on which it is based, are build on extremely shaky legal foundations.

Edward Woolard is accused of receiving soft treatment from the authorities for his offence:

Instead of charging him with attempted murder, he was convicted of violent disorder and will likely serve a little over half of his thirty-two month sentence. It’s also unsurprising to note that Trade Union Congress supporters and the Socialist Worker Online are supporting Woollard, the latter referring to him as a “political prisoner” and insisting you send him a Christmas card.

This paragraph is utterly ignorant of the true legal position. It was never open to the CPS to charge him with attempted murder, nor was his sentence in any way unusual, as I blogged at the time. He got a textbook sentence for a textbook charge for a textbook offence. The CPS could not have charged him with attempted murder for three reasons. First, unlike full murder, attempted murder requires only an intention to kill. Intending GBH is insufficient. Second, even if the fire extinguisher had landed on someone and killed them, the more appropriate charge, as the authorities bear out, is unlawful act manslaughter. Third, you cannot present a case of “attempted unlawful act manslaughter”. It’s not open to you to do so. The CPS charged him with the appropriate offence, and he got the usual sentence. There was nothing remarkable about it.

So this isn’t an example of unequal treatment before the law.

The next plank of the article is Reading the Riots:

While harsher than usual sentences were doled out, following the initial shock and outrage thieves, looters and arsonists weren’t effectively condemned or shamed by society. Instead, we’ve been preposterously seeking out their rationale or intimating that “we are all to blame”– as one recent BBC Newsnight guest argued. The parents won’t take the blame and the Guardian and LSE insist that somehow it is anyone’s fault but the rioters.

There’s a sleight of hand here. The article is about equal treatment before the law. It notes that in fact rioters got ‘harsher than usual sentences’, which undermines its claim that we’ve somehow gone soft. Then it does a clever little bit of misdirection. Despite undermining their case, they argue that in truth it supports them because of the societal response.

But this is an article about the application of the law, isn’t it? What Guardian journalists and LSE researchers think about the underlying causes of the riots doesn’t have any relevance to whether the law is being applied equally, much though they might wish to think so.

So far, so bad.

This all builds up to the central theme of the article, that a group of attackers got off lightly because they claimed they were drunk Muslims. If that sounds like a caricature, please remember that I am only repeating the title of the article.

This is the offending (and offensive) part of the article:

Not content with calling care worker Rhea Page a “white bitch”, the Somalian women set upon her, leaving her “black and blue” and subsequently ushering her into unemployment due to the substantial mental trauma she suffered. Miss Page commented: “I honestly think they attacked me just because I was white. I can’t think of any other reason.”

But seventeen months later, Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation. Judge Brown said, “I’m going to suspend the sentence” and that he accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her. In our estimation, from the video below, he was more restrained than we might have been.

Gary Short, who defended the attackers said: “They’re Somalian Muslims and alcohol or drugs isn’t something they’re used to.”

This is what qualifies as a legal defence in twenty-first century Britain. No need to worry about the law. No need to be concerned with the consequences of your actions. If you can find an excuse, especially if it is in a minority religion, then you’ll be free to go.

While it is an undoubtedly awful attack, the reporting here is truly dreadful.

Let’s start from the worst and work up: “This is what qualifies as a legal defence”. No, it doesn’t. The defendants all pleaded guilty to ABH. This is a plea in mitigation. It will not get you off, and you are not allowed to deny the facts of the offence. This is not hair-splitting, or jargon, as the Commentator suggested earlier on Twitter. It is completely misleading to call this a legal defence; it suggests (as was, I suspect, the author’s intent) that if you go to court and say “I’m a Muslim/Jew/Mormon etc.” you’ll be acquitted. That is not what happened. Drunkenness is a legal defence only in some very narrow and specific circumstances; the rest of the time, it is no excuse. What’s more, taking one sentence of a plea in mitigation out of context is extremely misleading: without the context you simply can’t know what the thrust of Mr Short’s submissions were. At an informed guess though, it is unlikely that he was saying “let them off because they belong to a minority group”.

Moreover, it’s not even clear that such mitigation really is about their religion. The central thrust of such an argument is not that they’re Muslims, but that they’re not used to drink. Presumably that’s to suggest that their behaviour was out of character, which is a normal piece of mitigation. Their being Muslim would only be evidence to support that proposition, in the same way that my being Jewish might be evidence that suggests I didn’t rob the local butcher for its finest pork chops. But the point here is that it is a matter of evidence, which is case-specific, rather than the law.

“You’ll be free to go” is no better. They weren’t free to go. They have all got suspended sentences. That is as harsh a penalty as the court can impose short of actually sending you to prison. You have to comply with strict conditions (including, here, 150 hours of community service each and curfews), and if you breach those conditions, or commit another offence, the sentence is activated and you will go straight to prison. This is not a soft option, and it isn’t unequal treatment.

“Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation”. That sentence simply doesn’t work. Either the charges were dismissed by the judge, or they weren’t charged, but it can’t be both. The Telegraph suggests that they were never charged with it. That would be perfectly normal. Unlike in the USA, English prosecutors have to be economical with charging practices. You only charge for the minimum offence you need to prove to get the appropriate sentence. If the CPS felt that this was never going to get a sentence longer than five years, then there is no advantage in charging them with the harder-to-prove racially aggravated form of the offence. This approach would be taken in any other case, irrespective of racial issues. It certainly does not suggest the CPS went soft.

“Accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her.” No he didn’t. You have to look more closely at what the judge is actually reported to have said:

He said he accepted the women may have felt they were the victims of unreasonable force from Miss Page’s partner Lewis Moore, 23, who tried desperately to defend her from the attack.

That is like the non-apology you get from someone who’s said something offensive: “I’m sorry you feel that way”. The formulation is entirely subjective. The judge is saying that he accepts that the defendants themselves may have subjectively felt they were the victims; he does not say that they objectively were the victims. In fact, he rejected their claim that the victim’s boyfriend started the fight.

So all that leaves is the fact of the suspended sentence. Why did they get it? All we are told is that in the plea in mitigation their lawyer said they weren’t used to drink, and subsequently they got a suspended sentence. What we are not told is whether the one had any relation to the other, or, if it did, how significant that was. Again, without seeing the fuller plea in mitigation it’s not really possible to tell why they were given a suspended sentence.

Brown J said:

“This was ugly and reflects very badly on all four of you. Those who knock someone to the floor and kick them in the head can expect to go inside, but I’m going to suspend the sentence.”

That suggests that this case had some particular factors that just pushed it below an immediate custodial sentence (though, like any suspended sentence, it passed the custody threshold). There could be several good reasons why that would be. First, they appear to be first-time offenders. Prison is generally not seen as appropriate for a first offence if it can be avoided, as the risks of exposure to hard drugs and more serious criminals risks producing someone more dangerous in the long run. If a non-custodial option can work, then it is generally more appropriate. If the defence’s submissions are what I think they are, i.e. that this was out of character, then the court would look favourably on an attempt to try and give them one last chance (though backed with serious sanctions if they mess up). Moreover, the defendants all entered early guilty pleas, which provides an automatic sentence discount. That may well have pushed them just below the immediate sentence line. Had they chosen to go to trial, and put the victim through the ordeal of re-living the event and the attendant uncertainty of getting a conviction, they would likely have gone straight to prison for a longer sentence. Finally, and more interestingly, there seems to be a particular personal circumstance at play:

As well as the suspended sentence, Hibo Maxamed, who needs dialysis three times a week for a kidney complaint, received a four-month curfew between 9pm and 6am.

That could easily sway the court in favour of avoiding a prison sentence. The prison service would have significant difficulties giving him the appropriate treatment. If a sentence could be found that would avoid that, it could be looked on favourably. The other defendants may have had connected carer roles that made the court reluctant to send them to prison. None of those factors, however, would count in any way as special treatment. They are ordinary sentencing considerations and can be found in the guidelines. There is nothing to suggest that there was any unequal treatment here.

There are, of course, aspects of the law that are open to criticism. One can argue that the conditions of suspended sentences aren’t strong enough; that an inflexible sentence discount leads to practical injustice; and so on. I’m not a bleeding-heart liberal in terms of sentencing. But the debate has to be done on the basis of everyone sharing the same basic facts about things. Commentary on and criticism of the law is necessary in a healthy society. It must, however, be based on a sound understanding of how the law works, not a load of dismissive hand-waving.

Spin Spin Spin

Stop presses, the Daily Mail is running a story that bears no relation to reality.

Following the climbdown on proposed reforms to the criminal justice system, the Mail is in jubilant mood. In particular it’s claiming the following as a victory:

Homeowners and shopkeepers are to be given the right to protect themselves against burglars and robbers.

They will now be allowed to use reasonable force if they perceive a threat to their property. Previously they could act only when they feared for their lives.

Except there’s one slight problem: this is already the law. The test for self-defence is reasonable force, and the law applies to the protection of property. It’s all neatly laid out here.

So who’s fibbing?

Injunctions: Where Now?

I’ve been understandably busy the last few weeks so have largely watched the story unfold from the sidelines. I will have a stab at a few observations.

Superinjunctions are More Likely

Like I said before, very few of the cases under discussion involve superinjunctions. They are very rare. I suspect they will be less so after this case.

Superinjunctions are granted because granting an ordinary injunction will defeat the purpose. What we have seen writ large is a very clear argument in favour of increasing the use of superinjunctions. The press reacted to their being injuncted by engaging in a cat-and-mouse game of jigsaw identification.

Knowledge of the fact that an injunction had been granted spurred people on to try and break it.

The net result is that claimant lawyers are going to be able to argue with more cogency that only a superinjunction will protect their rights, as any discussion at all will otherwise risk it being blown wide open.

Internet Enforcement is Possible

It’s very easy to think that the authority of the courts does not extend to as distributed a network as the internet, and that you can stick two fingers up to the law online and get away with it. This is massively short-sighted.

The law may not be able to police the flow of data in the way it can a physical person or location, but it can exercise a great degree of control over the users of the internet within its jurisdiction. Safety in numbers is also an overblown fantasy.

Enforcement online against the distributors and users of child pornography has been extremely effective to the extent that it is very hard to find it in a medium supposedly as anarchic as the internet. Similarly, efforts against the online presence of jihadist groups in the past have ensured that they lack the security and stability that many come to associate with the internet. When authorities want to enforce their will against those breaking the law online, they are very capable of doing so.

Second, there is no strength in numbers. You do not have to go after every one of the 75,000 Twitter users who reposted CTB’s alleged identity to have the desired effect. You go after those in the press who spread the information online, and then a random segment of Twitter users. By creating a risk you can have the desired chilling effect.

It is surprising how quickly the idea that you can chill speech online has been forgotten given that Twitter’s previous causes célèbres, libel reform and #twitterjoketrial, have had this as their focus. The latter is particularly instructive. Depending on who you listen to, Paul Chambers was prosecuted to scare people off making flippant bomb jokes on Twitter. Even though there was the #iamspartacus campaign soon after that retweeted his original statement, you’ll see that people are now very careful to either not make those sort of jokes, or emphasise that it is a joke by referring to the original tweet. That’s because people are aware that the authorities are willing to prosecute you for it. There is little reason why the same could not be done in a privacy case.

The Pendulum will Swing

There may be a popular mood against privacy injunctions at the moment, but I suspect that will shift the other way as the media get over-excited. John Hemming, in particular, could well be its downfall. He has managed to jump aboard the bandwagon extremely well, combining his own personal vendetta against the family justice system with a desire for gossip about footballers. But I suspect there will come a point where this newfound feeling of popularity and invulnerability will result in public feelings of unease at what is being done in the name of freedom of expression.

Take the case that Beneath the Wig reports:

Yesterday, a new Twitter account started sending out tweets containing details of what the user alleges are super-injunctions, including the case referred to by John Hemming on 26 April.

In referring to that case, the account publishes an address. An address which, if correct, is the home of a child.

In his desire to undermine the ‘secrecy’ of the family justice system, Hemming has, quite possibly, put a child at risk. It was reasonably foreseeable, given what is out there about this case, that someone would do this.

Sadly, I suspect that more of this will happen.

Parliament Will not Legislate

Or, if they do, it will be a largely cosmetic “change” in the law (much like some of the Compensation Act 2002). Even if the law is not quite to Parliament’s liking, whatever they come up with will almost certainly not be to the media’s liking. I doubt many MPs would want to face the criticism that the papers would heap on them if they dared suggest that there are things the media ought not to do. So I suspect it will be kicked into the long grass.

A Shift to Intrusion

After the widespread naming of CTB on Twitter and in a Scottish newspaper, the papers failed to get the injunction overturned. The reasoning is interesting. I post below the entirety of the judgment below (emphasis mine):

Mr Justice Tugendhat:

1. At about 1430 this afternoon Eady refused NGN’s application to remove the anonymity he had granted to the claimant on 20 April. He said at para 23 ([2011] EWHC 1326 (QB)) that “It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion”. Intrusion in this sense includes harassment.

2. Very shortly afterwards a name was mentioned by Mr Hemming MP in the House of Commons in the course of a question which was interrupted by the Speaker. On that basis NGN asked me to hear a further application shortly after 5pm for the anonymity of the claimant to be removed. As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.

3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.

Whether or not this is new law is not for me to say. But what is interesting is the focus on the modus operandi of the media, and not just the nature of the information they seek to publish.

The Supreme Court, Live

Sky News have put up a live streaming channel covering proceedings in the UK Supreme Court.

The usual restrictions on filming proceedings don’t apply, and the Court has several cameras installed. Sky is streaming these.

The site is rather impressive: a decent resolution streaming video with explanation of the court to one side, and the list below (with links to case details) so you can see what’s going on.

The link is here, do have a look if you have a spare moment.

The Power of Twitter

There’s a lot going round in the press today about the power of a certain twitter account claiming to name the “superinjunctors”. The claim is that in so doing they have demonstrated the ineffectiveness of the legal system in keeping up with technology, with injunctions being unable to effectively police the online realm.

This is, of course, a very convenient story for the press to run. “We are being good as gold, but the position is farcical because you can go online and find out for yourself”. The underlying implication is that no matter what the court orders, the information will come out.

This is, inconveniently, untrue.

For private information to get out it has to come from somewhere. It is clear, given that several of that account’s claims were incorrect (most notably the Jemima Khan one), they aren’t getting their information from a decent source.

Where that information is common knowledge though is in newsrooms. The media organisations all have to be served with the injunctions to put them on notice under the Spycatcher principle, and prevent any inadvertent breach.

Since then, there has been a persistent campaign of “jigsaw identification” by certain newspapers of the persons who took out the injunctions. No explicit details, but clever use of other facts, innuendo and positioning of articles left a paper trail for others to follow.

Those I know who know the identities all picked up the information this way, and the twitter account only confirmed the information they already had.

So to say that this is a demonstration of the power of the internet is misleading, perhaps deliberately so. It is a demonstration of the willingness of the newspapers to use any means at their disposal to try to undermine the injunctions, presumably in contempt of court.

Nor should tweeters think that there is safety in numbers. It would probably only take a few targeted contempt proceedings against some easy targets to have the desired effect. There’s a reason we have the word “decimation”.

Superinjunctions

It’s a rather old media trick to invent a scandal. The press leads with reports of, for example, “pressure is mounting on x to resign”. It doesn’t matter that the pressure does not exist; by publishing the story, the media invent the pressure and the prophecy is self-fulfilling.

I can’t help but feel the same about the coverage of so-called “superinjunctions”.

I am not insensitive to the very real damage caused by marital infidelity. But I appreciate that some cases are more complex than the media gives credit. I also do not buy for one second the media’s claims to be guardians of morality. There is a suggestion that when you print a story about marital infidelity, you normalise the behaviour. If you really were interested in preserving the sanctity of marriage you’d be withholding the information, rather than circling like vultures over a dying relationship. I really don’t see how sensationalist media coverage of marital crises helps anyone in the relationship.

The kiss and tell is at heart a grubby commercial transaction. It has very little to do with morality and everything to do with money. Women knowingly sleep with married men, then pit them against the press in a bidding war for the story. The woman is usually not interested in “speaking out”; if the celebrity is the highest bidder the story stays hidden until the next round of blackmail. Nobody involved looks good.

There is, as always, scope for debate on where we draw the line between the Article 10 right to freedom of expression and the Article 8 right to home, family and private life. Unfortunately, as usual, that debate is being muddied by a self-interested media.

It’s worth understanding, in this context, what an injunction is.

An injunction is simply a court order for someone to do, or not do, something. An interim injunction is one you get pending the final decision of a case to preserve your position. A superinjunction is simply a particular type of injunction whose terms forbid you from even saying that the injunction exists.

To give a playground example:

  1. Injunction – “Do not play with the claimant’s toys.”
  2. Interim injunction – “It is not clear whose toys these are. Until we decide that, nobody is to play with them.”
  3. Super Injunction – As with 1 or 2, but also: “Don’t tell anyone that this injunction exists, because if you do so the whole point of the injunction will be defeated.” (admittedly that doesn’t work with the example I’ve given, but hopefully you get the idea).

Unfortunately, this distinction appears to be lost on most commentators. “Superinjunction” has suddenly become a term of abuse used by people to decry any kind of privacy injunction. Most of the stories the media are running with are not superinjunctions. If they were there wouldn’t be in the papers. Most of them are in fact interim injunctions designed to protect the applicant’s privacy until such time as the case can be fully argued.

It’s a holding position: if you print the story now and the claimant wins, they can’t get back their privacy. If you don’t print now but you win at trial, you still have a story that will sell your papers as it will have been subject to an effective embargo. The point being that the cases are often too complex to immediately be settled in an interim application and instead full argument should be heard at trial. Given the level of controversy in this area, you would think that people would want to be able to have the fullest argument possible rather than just letting the media have their fun.

The cases currently under discussion are interim injunctions that simply delete the names to preserve the privacy of the claimants. That was done, I am told, to accommodate press concerns about being prevented from saying anything at all about a story. In other words the judiciary accepted that superinjunctions might be too restrictive, and opted for the least restrictive order possible, balancing the media’s rights against the claimants’, as the Human Rights Act requires them to. They get the story, they just don’t get all the names.

Given that the media have then used that opening to try and undermine the injunctions in their entirety through ‘jigsaw identification’, you might conclude that this was a concession too far. It might even leave you thinking that the only way to prevent the media reporting the story is to not even let the injunction be the story.

This “debate” is not helped by a lot of myths being spread. First, that privacy law injunctions are solely the preserve of rich men. They aren’t. The reason injunctions are being used to protect the affairs of rich and famous (not necessarily important) people is that they are the ones the press write about. Nobody cares if some bloke I know down the pub is cheating on his wife. It wouldn’t sell any papers. By contrast a story about a celebrity love-rat will sell loads. As we’re seeing with the discussion of Jemima Goldsmith’s privacy injunction (again, not a superinjunction, and horribly misreported) they’re not the sole preserve of men. Indeed in that case the celebrities were the ones named, and it was the defendant who was anonymous (with the Goldsmiths’ agreement).

The pricing is also misleading. You can get a privacy injunction, indeed a superinjunction, for vastly less than the £200k figure being thrown about. The costs only rack up that high because, if you have a lot of money, you’re going to get expensive lawyers. The press themselves take on expensive lawyers and are not above using that fact to intimidate people into settling. But the basic cost of getting an injunction is low.

This mythmaking is not helped by John Hemming MP, who jumped on the bandwagon very effectively to further his own, separate, agenda against social services. His case in fact isn’t a superinjunction at all. I would recommend you look at Head of Legal (see here, here, here and here) and Ministry of Truth for more information on this.

The two injunctions that are at the centre of this outrage are less troublesome when you bother to look at them in detail. The first case, OPQ, the injunction contra mundum, is relatively straightforward. X took intimate photos of Y and threatened to sell them to the papers unless Y paid her off. That is a “straightforward and blatant blackmail case” and a criminal offence. Moreover intimate photos are “clearly private”. Moreover there was ‘solid medical evidence’ that publishing would have a serious effect on the health of the Claimant and his family. In that situation granting the injunction looks like common sense.

In the other case, ETK, much has been made of the emphasis on the effect of publication on the children. This is a potentially novel approach to the issue but not surprising when you look at the judgment. In essence we have signed up to so many treaties protecting and promoting the rights of the child that the court was required to protect and promote the rights of the child. The underlying assertion that the kids should just be left to be bullied and the press aren’t in any way responsible for it make one a little uneasy. This especially so given the experience of a case I will come to in a moment.

Why, then, is the media getting all wound up if the situation is more favourable than they make it look? It has something to do with Max Mosley. You will recall that he was accused of taking part in a “SICK NAZI ORGY” and of mocking holocaust victims, despite there being no evidence of any Nazi element.

The consequences for Mosley were personally devastating. His son, a recovering drug addict, suffered a fatal relapse from the pressures of the story.

Unlike many such cases though, rather than taking matters passively Mosley went on the offensive and won substantial damages from News Group Newspapers for the invasion of privacy. The case is worth reading in full to get an understanding of just how the celebrity exposé story works, and how far removed it is from the morality the press profess to uphold. Mosley won, and has pursued his case to the European Court of Justice. In particular, he wants the press to notify the subjects of the story before they publish, to allow them time to consider their legal position. The case is to be decided this week, and the press fear that it will go against them. Consequently they are whipping up anger by conflating a number of different issues.

It’s also worth considering this: I have encountered numerous people who are quite happy to break the terms of the injunctions discussed here. I have not named a single one of them. If I did I suspect they might be rather angry. Perhaps because they feel they had a reasonable expectation of privacy when they spoke about it. If that’s how they feel, then perhaps the law of privacy isn’t as bad as it sounds?

As always, your thoughts and opinions are welcome. If, however, you try to break the terms of any injunction, your comments will be either redacted or deleted.

Can You Call Fred Goodwin a Banker?

Yes.

If the story sounds too good to be true, it probably is.

Misreporting is going around on the terms of a superinjunction alleged to have been taken out by Fred Goodwin. According to the reports, the terms of the injunction prevent anyone “calling him a banker”.

This is inaccurate.

The term referred to by John Hemming MP (and hence why it can be reported on at all) was “identified as a banker”. This would better read as “identified as ‘a banker'”.

What this means is that in any reporting about the superinjunction it would not be acceptable to substitute the phrase “a Banker” for Fred Goodwin’s name. The injunction relates to Fred Goodwin’s alleged conduct, and not his job title.

Let’s say, for example, that Fred Goodwin has been accused of plotting to blow up the moon (so that nobody mistakes this for a genuine accusation). An ordinary report would read as follows:

News has emerged that Fred Goodwin, the former head of RBS, is plotting to blow up the moon.

Now let’s say that Goodwin takes out a superinjunction to prevent reporting of this plot (assume for the moment that he can do so). The aim is to prevent him being identified as the moon plotter. The terms of the injunction say that you cannot name Fred Goodwin as the plotter.

That sounds reasonable enough, but you have to look at it from the point of view of the other side. They are going to want to get round the injunction. They will look for loopholes. Now, as the term of the injunction is only that you can’t say “Fred Goodwin”, you can quite easily defeat it by reporting as follows:

A former head of RBS is plotting to blow up the moon

This version, though it complies with the strict terms of the injunction, would still make it blindingly obvious that it is talking about Fred Goodwin.

When you draft an injunction you have to think about the ways the other side can avoid it. The point of a superinjunction is to prevent identification. A key identifying feature of Fred Goodwin is that he’s a banker. Presumably the conduct the papers intend to report on would identify Goodwin if they simply call him “a banker”. That is what the injunction is trying to prevent. Not calling him a banker.