The Power of Twitter

by Ben on May 10, 2011 · 0 comments

in Media

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”.

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Superinjunctions

by Ben on May 9, 2011 · 12 comments

in Media

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.

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Result

by Ben on May 6, 2011 · 0 comments

in Human Rights, Overseas

A few weeks ago I wrote about Bradley Manning’s treatment in prison.

It now appears his conditions have improved significantly:

Under the old prevention order, Manning was forced to strip naked and wear just a smock at night, he had no bedding and was not permitted any personal items in his cell. He was kept locked up in solitary confinement for 23 hours a day in a windowless cell, and allowed only to walk in a yard on his own for that final hour.

In Fort Leavenworth, by contrast, he has a large window that lets in natural light. He has a normal mattress and bedding and his clothes are not removed at night.

Manning can have personal objects in his cell, including books and letters from family and friends, as well as legal documents relating to his case. He can write whenever he wants.

His new life of detention is also considerably less lonely. There are five other pretrial prisoners and Manning spends much of the day in their company. His cell is connected to a common area used by four of the detainees with a television and exercise machine, table and shower area.

You can read the full article at the Guardian.

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Pupillage Q&A

by Ben on April 20, 2011 · 0 comments

in General

Guardian Law will be holding a live Pupillage Q&A with several pupils and a tenant this evening at 6

http://www.guardian.co.uk/law/2011/apr/18/pupillage-live-q-and-a.

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Burqa Banned

by Ben on April 12, 2011 · 4 comments

in Human Rights

by Charles Roffey

France’s “Burqa Ban” came into force yesterday.

I posted about this last year and generally stand by what I wrote then. There is a debate to be had about the Veil and its place in both Islam and the West. That does not entitle a liberal democracy to use the coercive power of the criminal law to force people into compliance with “our values”. Coercion cannot and should not replace rational debate and persuasion. If it does we’re no better than the systems we claim to abhor.

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Pupillage Advice, Part 2

by Ben on April 4, 2011 · 0 comments

in General

The original post is now up at Legal Week.

Having had some initial feedback, I’ve been given some further pointers worth repeating here:

More Links

Current Awareness – run by the librarians of Inner Temple, this is a very good roundup of links to relevant legal news. You don’t have to read every link posted, but it’s useful to keep abreast of what’s going on. Definitely count this as one of the blogs worth reading.

Pupillage Blog – I don’t read it, but apparently other people like and recommend it.

Do Your Homework

Chambers get deluged with CVs and applications. They will look for (legitimate) reasons to bin whatever they can. If you give off the impression that you know nothing about the set you’re applying to, they’re very unlikely to want you. Applying to a specialist revenue law set with an application stating your passion for criminal law is very likely to result in your application being filed in the dustbin.

This ought to go without saying, but unfortunately it does happen. It makes you very easy to bin indeed.

Go onto Chambers website and look at what they do and what recent cases they have appeared in. Comb through the site for every useful detail. Bear these in mind when you apply and give a reason why you want to be a pupil at that specific set. Try and look at editions of Chambers & Partners and Legal 500 (the student edition of the former is particularly useful). Tailor your applications to the set.

Cheque You’re Spelling. Punctuation and Grammar

If you paid close attention to the last post I wrote on this subject you’d notice that the final paragraph was a bit grammatically non-sensical. If you didn’t notice it, that’s because I edited it after I posted it. Unlike here, you don’t get an opportunity to amend once sent. The Bar is a job that expects very high standards of written and oral communication. You are paid, roughly speaking, to write things and say things. If you can’t do either well this may not be the job for you. Some parts of the Bar are extremely paperwork-heavy. The pupillage committee will be looking at how you present yourself on paper, and it will be the first impression you make. Make sure it’s a good one. Spelling mistakes and so forth are relatively easy to correct, but potentially lethal if left in.

Similarly make sure you’ve answered the questions asked and not failed to leave any out. A friend once forgot to put in the addresses of his referees. Needless to say the set didn’t offer him pupillage, and he never made that mistake again. Similarly, although it may be considered pedantry, avoid putting prepositions at the end of sentences unless you have no choice. It’s a habit you need to cut down on.

Spellcheck won’t cover this. It wouldn’t notice the errors in the above heading. Similarly don’t expect to spot these mistakes as soon as you’ve written them: your mind will fill in the gaps and you will see a complete sentence in place of the nonsense you’ve written. In this regard you have two options: either get a friend (preferably a non-lawyer) to check the draft for these errors (I believe this is allowed), or leave the completed application for a few days then go back to it having done something else.

Anticipate the Questions

Certain parts of your CV will bring up obvious questions (e.g. “Why didn’t you get a 1st?”; “Why did you do a GDL rather than a law degree?” etc.). Other questions are very likely to come up in general (“What attracts you to this set?”). Treat it like your UCAS personal statement. If you put something in your application, expect to get grilled on it. Be prepared for the tough and incisive questions and have answers prepared (but NOT scripted). Don’t think you’ll be given an easy ride: approach your CV from the pupillage committee’s perspective and think what questions they’ll ask on it, especially the tough ones. It again may be helpful to have someone who’s been through the process look through your CV and ask you the tough questions.

Similarly, if your law school or university offers a mock interview service, use it.

Know Your Weaknesses

If you know that some part of your CV isn’t as strong as it could be, don’t try and hide from it. Accept it and deal with it. Have an answer ready for why that weakness is there (but remember: no excuses and no scripted answers). If you can find some way of eliminating the weakness, do it. For example, if you got a 2:1 in your degree, aim for a Distinction on the GDL; if you lack advocacy experience, go mooting or join a debating club.

Apply Early

I don’t mean this in the sense that your application should be complete the day the Portal opens. As far as I’m aware, the Portal applications all get sent to chambers at the same time, so use the given time to fine-tune yours (please correct me here if I’m wrong). What I mean is that if you’re in your GDL year or still on your LLB, you should consider applying now.

First, it will mean you don’t have to take a gap year after the BPTC if you succeed.

Second, if you don’t succeed, you’ll know a lot more about the process and be able to make a better series of applications the following year.

Third, with a few exceptions, there is little harm in applying more than once to the same set. This point is worth checking though: some chambers have a One Attempt Only policy, and will only allow another try in exceptional circumstances. Check the pupillage policy of chambers before you do so, and consider whether, if you want to treat this as effectively a trial run, you might be better holding off until next year.

Finally, you only get a limited number of attempts at applying for pupillage after you’ve done the BPTC. Why waste one?

Give Yourself a Spare Week

Submit your applications a week before the deadline. This should give you enough time to deal with any technical problems that come up. In particular, the Portal has been known to crash around the deadlines when everyone floods the servers. Submit a week before and you’ll save yourself a lot of headaches.

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The Orwell Prize

by Ben on April 1, 2011 · 1 comment

in Humour

I didn’t make too much of an issue of it but I entered my blog for the Orwell Prize for Blogging earlier this year.

A few days ago the results for the longlists were announced. I have just had a look and suffice it to say I am not happy.

The concern isn’t personal. I am not bothered in the slightest that I have not got an award for my writing. My interest is wholly professional.

My blog writes about law. UK Human Rights Blog and Head of Legal have been known to do the same on occasion as well. Unlike them, I don’t write this blog out of the goodness of my heart or a general passion about the law but a calculated effort to raise my profile and rake in business. When I become a fully fledged barrister I intend to use this blog as a way of obtaining instructions from solicitors.

This then becomes deadly serious when you realise that one of the Orwell Prize judges is David Allen Green, a solicitor and partner at a prestigious law firm. The implication of the selection of their blogs over mine is obvious: Wagner and Gardner are worthy of receiving instructions and business, but I am not. This is in no way an accurate reflection of ability and experience. There is an implied assertion that my skills as a lawyer are simply not good enough to merit attention. This is a serious allegation against my professional ability and conduct.

The same cannot be said of Peat Worrier and Pink Tape because, frankly, they’re a bit rubbish compared to me.

I am taking this accusation extremely seriously and have instructed Carter-Ruck to represent me in this matter. I consider the decision to be highly defamatory. I am asking for substantial damages, but my attitude to the same will be determined by the nature of their response to the pre-action correspondence I have also sent.

UPDATE: A lot of people on Twitter are referring me to Arkell v Pressdram (unrep). So many as to suggest the Intended Defendant has orchestrated a further defamatory campaign. I have done my research: the case isn’t on Westlaw, and it’s therefore not authority for anything.

UPDATE 2: April Fools.

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Pupillage Advice

by Ben on March 31, 2011 · 5 comments

in General

Pupillage Portal has just opened and hundreds of aspirant barristers will be applying for pupillage all across the country. Many will be disappointed and will receive correspondence containing the (in)famous line “the standard was exceptionally high”. The standard has been “exceptionally high” for many years now though, which makes you wonder when it’s going to stop being the exception.

I was lucky enough to get pupillage last year so have fortunately been saved from going through the whole system again. It still leaves you with paranoia, but of a different kind: “will I get pupillage?” becomes “will I get tenancy?”, and you start worrying that you will turn up on the day specified to discover that they in fact sent the offer pack to you by mistake, or never received your signed contract.

For all those who are applying this year, I wish the best of luck and hope you get pupillage at a place that you will enjoy.

I am not going to dish out buckets of advice. I am not some super-pupilllage star that had every chambers I applied to clamouring for me and giving me a stack of options to choose from. I’m not going to pretend I know everything about the process and can therefore give out some winning advice. These are just a few brief points that I wish I’d known when I started the process, rather than learning through mistakes.

Recommended Reading

Like I just said, I’m not an expert. The people who write these are. I read them and found the advice really useful.

Some of these are written for an audience that know absolutely nothing about the Bar and pupillage. That does not make them a waste of time if you are über-moot champion and have published three-dozen articles on your favourite area of law. They contain a lot of detail that is not immediately obvious, and even if you find yourself skim-reading some parts, there are very likely to be others that teach you something new.

Pupillage and How to Get It - written by Simon Myerson QC. Filled with excellent articles containing a large amount of information and detail about the process and what you can do to help yourself along the way. It is worth reading the entire archive of his posts for advice.

The Pupillage Pages – a new site recommended by the above. I’ve only had a glance at it so can’t vouch for its quality, but I’d trust that recommendation.

The Path to Pupillage – a book I simply cannot recommend enough, and not just because I have an indirect interest in it. This book has a lot of useful information and practical advice for applicants, including little testimonials from pupils and practitioners on what they applied for. This book covers everything but it’s still worth reading the chapters that you think you already know, as there are details in those chapters that you probably don’t.

Bewigged and Bewildered (Old Edition; New Edition (pre-order)) - a very good comprehensive overview of a career at the Bar. It goes a little wider than the above book, which allows it to cover different areas. In particular the part on choosing your desired practice area is especially good as it focuses on the practicalities.

Get Opinions

This is really for the LLB and GDL students. Quite a few chambers will assess you by way of writing an Opinion. This is a specific type of document in which you offer practical legal advice on a legal question. It is not as academic as a problem question. They have a specific style. Make sure you know how these are written and formatted. BPTC students have an advantage here because they have been taught how to do this over a (roughly) 10-week course. Do not let them get an edge on you because you do not know how to write one of these. In particular, make sure you know how they are formatted: you do not want an otherwise-good answer to be ditched in favour of an answer of similar quality simply because yours looked less impressive because it was a big chunk of prose (I don’t know if this happens, but why take the risk?). Buy a book on opinion writing and learn the basic principles to put yourself on more of an equal footing.

Read the Blogs

You will be asked questions about current developments in the English legal system. You will be rewarded for knowledge and understanding of these. From the rumours I have heard, Alternative Business Structures (i.e. Clementi) and the Jackson review of costs are becoming hot topics in interviews. Read both reports and understand the issues. I wouldn’t be surprised if the proposed cuts to legal aid were also a topic of questioning. You need to know about these areas (especially those that relate to your desired practice area/chambers). You are expected to take an interest. Read the legal press, read the legal blogs. Make sure you know, within reason, what’s happening in this world. Similarly, know wider developments in your chosen practice area. If you want to be a commercial barrister, have “commercial awareness”. If you want to do Family Law, know about the government’s proposed changes to legal aid.

I would particularly recommend Garrulous Law, it’s written by a very charming and handsome man who knows everything there is to know about everything that matters. Seriously though I’d start by looking at the blogs on my blogroll, then the blogs on their blogrolls, and so on until you’re sick of the whole exercise and wish you’d never read this.

In a similar vein listen to Law in Action and Charon QC’s podcasts.

Pimp Everything

Try and relate everything in your application form (within reason) back to why you think it would make you a good barrister. It shows you understand what the job is about and have “relevant skills”.

For example, I used to work as a teaching assistant in a saturday school for under-13s. That sounds about as remote from the Bar as you can get. But it’s still relevant; you need tact, communication skills, the ability to explain complex ideas in simple and comprehensible terms, and an ability to handle large amounts of documents. There’s probably something you’ve done in your employment history that provides you with a relevant skill. Tell them. They won’t know otherwise.

Similarly, no mini-pupillage is unremarkable. Think of something that happened that confirmed why you wanted to be a barrister (finding out how much your supervisor earns probably isn’t quite right), or was otherwise significant or memorable. Say why that was.

Hold Your Own

The softest interview I had was swiftly followed up with a “the standard was exceptionally high” letter. The toughest interviews I had were followed by invitations to the next stage of the process. The interviewers go hard on you to see how well you will cope under pressure. They want to know that you’re not going to take a concession unnecessarily just because the judge looks irritated or your opponent has told you your case is rubbish. Just because they are doing so does not mean that you are wrong or a failure. A tough interview can be a sign that they are taking you seriously enough to test you. I walked out of all of the tough interviews thinking I’d failed. One some occasions I was right, but it wasn’t because the interview was tough.

If you think you’re right, stick to your guns and politely explain why you think you are. Don’t back down just because the senior practitioner is being irritable. That being said, if you are sure that you’re wrong, and it’s not just because the interviewer scares you a little, then it may be better to admit you were wrong and reconsider your position.

On a related note, don’t be afraid of silence. Taking time to think or re-read something can come across as a strength, not a weakness.

Don’t Make Excuses

You’re digging yourself further into a hole. Explain, but don’t excuse. If, for example, you didn’t get your predicted grades because you were lazy, don’t start coming up with all manner of self-pitying reasons why this was the case. They often sound rubbish. Take responsibility for yourself, admit that your grades dropped because you were lazy, and explain why Chambers don’t have to fear that you will be that lazy in the future, preferably with some evidence to back it up.

If you have a genuine mitigating circumstance, explain it (usually in the covering letter), but don’t spend too long on it.

Be Honest

In addition to the matters of ethics and personal integrity, if you lie you’ll probably get caught. If you don’t get caught then you may get found out later. There’s a good chance that whatever you want to lie about will not kill your application or career. By contrast if you lie about it there’s a very good chance that it will. It’s not worth it.

Don’t Steal a Wig and Gown

I know they did it in Silk, but that show is, to put it politely, not 100% accurate. Similarly don’t try and steal an out-of-date copy of Archbold from Hammick’s, don’t push a senior member of chambers down the stairs, don’t have the charisma of a damp fish, don’t ask women their age, don’t stick your hands in your pockets and certainly don’t give off the impression that you haven’t a clue what the law is.

Good Luck

If at first you don’t succeed… well let’s hope you do as I don’t want to receive a load of hate-mail for giving out duff advice.

If you have anything to add, or any questions, please descend upon the comments section.

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“Don’t Know” to AV

by Ben on March 17, 2011 · 2 comments

in Constitution, Politics

I have absolutely no idea how I’m going to vote in the AV referendum. It’s not a straight PR-FPTP debate, so the usual arguments don’t apply. On the other hand I don’t quite understand what effect it would have on the electoral system, and thus the relative advantages and disadvantages.

The Yes and No campaigns have been lamentable. As far as I can tell they have spent most of their time talking to each other, usually whining about each side’s tactics. No2AV have been engaged in dirty tricks and some very bizarre scaremongering (apparently a Yes vote is also a vote in favour of abolishing maternity units). Similarly the Yes campaign makes a lot of criticisms of the existing system and FPTP, but does very little in the way of positively explaining why AV, as opposed to any other system, is the right solution other than a generall mumble about ‘fairness’.

In other words we have two uninspiring and negative campaigns generating more heat than light. I feel neither wiser nor better informed for all their bluster and campaigning.

Given the potential constitutional ramifications of this referendum, we deserve better. Merely abstaining isn’t really an option, tempting though it may be.

To that end I plan to open out my blog to discuss the issue in more detail. The aim is to have an honest discussion of the actual issues underlying the AV. No bluster, no tactical posturing, no dirty tricks.

I’m hoping to start with a podcast debate and take it from there, with (preferably) some guest posts. I’ve already got Mark Thompson, of Mark Reckons, for the first podcast, but I need more people for that and others.

If you’re interested and want to help out, please let me know.

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Can You Call Fred Goodwin a Banker?

by Ben on March 11, 2011 · 4 comments

in Media

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.

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