Former British Prime Minister of the 1930s Stanley Baldwin once said the power without responsibility abused by press was the prerogative of the harlot through the ages. Lord Justice Leveson in 2012 recommends that politicians should enter the harlot’s boudoir and direct the press how to behave behind a screen or two. They might do it via a cadre of Ofcom handmaidens, but the effect will be the same.
Well it’s happened. Sir Brian Leveson has given his verdict on the culture, practices, and ethics of Britain’s press and conduct with public, police and politicians. Like all good criminal judges he weighed the mitigation before punching with the sentence, though at the end he conceded ‘the ball moves back into the politicians’ court. They must now decide who guards the guardians.’
I was there reporting by Twitter. Now I am going to opinionate by blog.
Public Inquiries, in the main, are the kiss of death for judicial careers, and do not exactly do much for the reputation of the judiciary. Judges are drawn in as delaying and lightning conductors for panic by politicians and usually like gods and godesses are expected to deus ex machina sort the mess out.
To say Lord Justice Leveson was handed a poisoned chalice is something of an understatement. He has done his best, the work must have been stressful, but the report is a remarkable achievement and he deserves to be thanked and appreciated. Behind the scenes there has also been incredible work by the inquiry team and his assessors. He was given a game, rules and team-players he had to play by. What he has to say is important and should be respected.
I have consistently said the inquiry should never have taken place once individuals had been arrested and charged for criminal offences central to the narrative, issues and subject of the inquiry. In my opinion substantial risk of serious prejudice and impedance of administration of justice there has been by inquiry evidence, process and report, but I am not going to draw anyone’s attention to it here.
What was unacceptable and unlawful for the innocent Christopher Jefferies after his arrest for the murder of Joanna Yeates is unacceptable and unlawful for those facing trial by jury, ironically drawn from the very profession that tormented and hurt Mr. Jefferies so egregiously.
Above:- Soundcloud track of interview with David Davis MP
I have repeatedly expressed elsewhere my frustrations that the credibility of the inquiry process should have been rescued by not only taking place after all criminal proceedings had been completed, but with a panel of assessors that was more balanced and therefore giving LJ Leveson a wider, broader and experienced understanding of the culture of journalism. I have no problem with Sir David Bell, former chair of the Media Standards Trust being an assessor or indeed the others who include admirable and distinguished lawyers, journalists and public servants.
But the judge also needed the help of people such as former Guardian editor Peter Preston, former Times editor and Calcutt Committee member Simon Jenkins, the current editor of Press Gazette, Dominic Ponsford, former women editors such as Rosie Boycott or Janet Street-Porter, a respected regional editor such as Nigel Pickover of the Ipswich Evening Star, or a successful local and regional paper proprietor such as Sir Ray Tindle.
I would also have given him an experienced and highly respected media lawyer associated with victim claimant and media defendant representation. David Price QC would have been ideal. All should have been witnesses at the very least. I understand Mr. Pickover was, but Sir Brian would have gained so much more by being able to reflect and analyze with people such as these inherent within the inquiry, not at arm’s length and objects in the witness box.
He also needed at least one senior journalist with considerable tabloid and popular newspaper experience to contextualize and brief him. The Sun‘s Trevor Kavanagh would have been ideal. If only Paul Foot had still been alive.
I make these points because it grieved me that day after day the inquiry was making such basic clangers of distortion, misinterpretation and mistaken emphasis. Quite rightly the inquiry gave space and sanctuary for the media victims. That was achieved with sensitivity, respect, consideration and dignity. But there needed to be some robust checks to avoid allegation, mythology, exaggeration and false-consciousness to materialize as fact.
Methods and structures of cross-examination need to be present in these inquiry processes as well as a more robust representation and protection for witnesses and interests, who in my opinion, were being overwhelmed by the opportunism caused by the seeming abandonment of the principle of lis alibi pendens. (same legal issue and case being pursued in another forum or jurisdiction)
While there was litigious mining of evidence to benefit causes in other judicial, state investigative and legislative processes, there was also the grave risk of breaching the rules of natural justice.
So in my opinion what did LJ Leveson get right? He reaffirmed the constitutional importance of the press ‘as guardian to the interests of the public, as a critical witness to events, as a standard bearer for those who have no one else to speak up for them,’ as a true safeguard of democracy, holding power to account and he declared that ‘press freedom in Britain, hard-wired over 300 years ago’ should not be jeopardized.
He said that all of the press serves the country very well for the vast majority of the time with ‘truly countless examples of great journalism, great investigations and great campaigns.’ He recognized that public interest also involves entertainment, irreverence, being unruly and opinionated.
He recommended legislation to ‘enshrine for the first time the legal duty on the government to protect the freedom of the press.’
He quite rightly accepted that the Metropolitan Police in 2006 had to narrowly focus their enquiry into phone-hacking at the News of The World because of the extraordinary threat of multiple terrorism plots that had to be a priority.
He quite rightly established that on the evidence the News of the World did not delete messages and cruelly give false hope to Milly Dowler’s parents that their abducted daughter was still alive. This is vitally important to the Dowler family. They should never be left in any doubt that any journalist in this country would be so irresponsible, negligently malicious and stupid to disrupt and undermine any police inquiry searching for a missing child by destroying evidence. I never believed that this was possible when the Guardian so alleged. It is important that the record has been set straight and clarified.
The judge has erred in not appreciating that it was the allegation of deleting, not hacking that ‘sparked the public revulsion’ leading to the shutting down of the country’s most successful Sunday newspaper and compelled Prime Minister David Cameron to convene the Inquiry. The hacking allegations in relation to Milly, and other murder and terrorism victims quite rightly generated outrage, but I believe it was the implication of the deletion allegation that created the ‘revulsion’, an important level and dimension of public and political reaction.
He has backed the use of arbitration as a low cost alternative to libel proceedings that could be incentivized with cost penalties for claimants and media defendants who turned down the option should they go into the Queen’s Bench Division. The concept was certainly not invented by the Media Standards Trust or CCMR. It has been in the public domain for a number of years and more particularly has been pioneered in practice by a distinguished media law solicitor who has been a most unfortunate casualty of the tsunami of pressure directed at News International newspapers.
He has supported the concept of a conscience clause for journalist’s contracts and a whistle-blowing route to the new manifestation of print media regulation, though for the life of me I have been somewhat perplexed about why there has not been a fierce remedy in employment law for anyone bullied and pressured into unethical or illegal conduct at work.
So what primarily has the judge got wrong? Like the solid, distinguished and experienced criminal judge he is, he has been unable to temper his professional instinct to seek criminological and legalistic solutions to social and cultural ambiguity.
The inquiry did not call sufficient evidence, submissions and witnesses on comparative media law and inadvertently narrowed its horizon on the constitutional and jurisprudential paradox of journalism law and ethics.
Lord Justice Leveson has made the same mistake of Hacked Off, Media Standards Trust and the Coordinating Committee for Media Reform that the ‘public interest’ for the media & journalism can be codified like some monotheistic decalogue. It cannot and should not.
The position of public interest needs to be triangulated as far away from state legislative, executive and judicial interest as possible and has by its very nature to be located as close to the relationship between media and audience as possible.
But we know where LJ Leveson sits or stands on this issue because he says so on page 1,764: ‘If an editor can create his own definition of the public interest without any constraint then the standards will be meaningless.’
An experienced and practiced UK media lawyer knows this country’s journalists are already plenty underpinned or should I say ‘overpinned’ by statute and case law. Nothing that happened in relation to ‘Hackgate’ was not legally remediable or indeed not open to criminal investigation, prosecution and conviction.
Phone hacking was ended by the 2006-7 police enquiry and jail sentences for a reporter and private detective. The job was done, but obviously not the civil justice for victims beyond the focus of aides to the Royal Family.
Most of the media victims associated with Hacked Off and who gave compelling and important evidence to the Leveson Inquiry have been amply compensated, apologized to, remedied and exonerated and cleared of any libel, smear, false rumour & unfounded accusation.
Each and every one of them has been propagandized as hard cases demanding general law reform. The emotional impact on public opinion is difficult to resist. A family who have lost both their children through suicide associated with newspaper coverage argue for grieving relatives to sue for libel to protect the reputation of the dead. But such a facility available in Italy and Spain would have completely blocked the media investigations into the alleged crimes of James Savile and Cyril Smith after their deaths.
Bribery, computer hacking, perverting the course of justice as well as phone hacking have generated a scale of Metropolitan Police investigation and arrest of journalists and their sources, the like of which this country has never seen. The UK is now, according to global human rights bodies vying in a notorious league table of authoritarian states for the number of arrests and trials of journalists.This is to be resolved by our criminal justice system. Enough said. Reporters Without Borders views the implications of a post Leveson press regulation with grave concern.
Lord Justice Leveson quite rightly recommends reform of the existing Press Complaints Commission to establish a more independent, pro-active and credible system of regulation with imaginative low cost arbitration for libel and these are inspiring and constructive measures. The press industry must stop ‘marking its own homework,’ he says.
But by going a few steps too far he surrenders to constitutional naivety and the authoritarian tendency. Like Hacked Off, he treads a path of good intentions to the devil in the detail of his report.
The developing UK respect to the right of privacy, developed by prior restraint and far too many secret injunctions, and lacking the US constitutional attenuation by First Amendment needs pulling back and resetting. But he urges ‘exemplary damages […] for all media torts, including the invasion of privacy.’ This is a penal populist move and will add considerably to the chilling effect arising out of litigation where the burden of proof remains on the media defendant.
LJ Leveson recommends reform of section 32 of the Data Protection Act 1998 to reduce the public interest defence for journalists, and this will make it harder to defend with a higher burden and threshold of demonstrating public interest. The judge says the breach will need to be ‘necessary for publication, rather than simply being in fact undertaken with a view to publication.’
He advocates transforming the civil wrong and crime into an emotional phenomenon with a ‘right to compensation for distress conferred by section 13 of the Data Protection Act 1998 […] not restricted to cases of pecuniary loss, but should include compensation for pure distress.’
The judge recommends the introduction of custodial penalties in addition to existing fines for journalists breaching the Data Protection Act- evidence of my argument that his approach to media wrong is to criminalize further media information gathering conduct and content.
The ‘Hackgate’ scandal, current police enquiries and the 2003 death of Dr. David Kelly and subsequent Hutton Inquiry have been abject disasters in relation to the protection of journalists’ sources.
Lord Justice Leveson’s recommendations make the situation much worse. Again away from the theatrical drama of the Queen Elizabeth the Second conference centre on Thursday, his report contains devastating implications.
He’s asking the Home Office to consider repealing the protection of sources provision in Schedule 1 of the Police and Criminal Evidence Act 1984 and be amended to define and by implication narrow the definition of the phrase ‘for the purposes of journalism’ and he’s also advocating a cutting back and constriction of the protection of confidential journalistic material.
If Parliament follows his advice the protection will only apply to material held in confidence if possessed continuously ‘since it was first acquired or created subject to an enforceable or lawful undertaking, restriction or obligation.’ Yes this is legalese and lacks the exciting celebrocratic rhetoric of his ‘summary statement.’
But the detail is indeed a demon’s trick for the future of protecting journalists sources. It is a shattering and polaxing of the defence against police warrant, search, seizure and disclosure that has been a vital protection since 1984 and the police have been trying to break it down year after year. They had their foot in the door in relation to terrorism legislation. Now Leveson has given them a battering ram. The confidential shield for the purposes of journalism to protect sources who themselves may have committed criminal offences and, or civil wrongs will be shattered. I cannot believe that this would square with the jurisprudence of the European Court of Human Rights.
More bad news is to be found in his recommendations for police off-the-record briefings and whistle-blowing. I am presuming he wants the unofficial and confidential source flow from police detectives to crime reporters to be choked to death and subject to a data trail of disclosure. Association of Chief Police Officer members will be subject to recording ‘all of their contact with the media, and for that record to be available publicly for transparency and audit purposes.’
The sanctioned, approved and only lawful ethics line for whistle-blowing for any British police officer will be the Independent Police Complaints Commission, meaning that any officer who seeks help from the media would have no potential defence to misconduct in public office, breach of the Official Secrets Act and disciplinary action or prosecution.
As a longstanding and experienced journalist who investigated the most frightening and awful dimensions of police corruption in this country, these proposals are truly awful and authoritarian. They are also naive. Any frank and confidential discussion about them to any police officer would elicit this fact. Another chilling effect already being felt will turn into an ice-age.
Yet another disturbing recommendation buried in the thousand and more pages of the four volume report, and disappointingly not highlighted or sign-posted in his presentation at the conference centre, is his backing for anonymity for all crime suspects from the point of arrest. Such a move would be disastrous for freedom of expression and law enforcement investigation. Again this directly emanates from the emotional hard case propaganda force of Hacked Off and Christopher Jefferies.
For the media, this will mean a constant libel jeopardy since the police will not be providing the qualified privilege protection of identifying people arrested. For law enforcement all of the significance of ensuring the public knows who has been arrested, whether an obvious and apparent advantage or not, will be lost.
Anyone who has information that could inform the police and an arrested person’s solicitor of their innocence will not have the opportunity of being able to come forward. Anyone who has information that could inform the police that another person or persons is/are the real offenders would not be able to do so, because they would be denied the right to receive such critically important information- essential to Article 10 of the Human Rights Act and European Convention on Human Rights and Fundamental Freedoms.
The media will be unable to evaluate the application of the Contempt of Court Act 1981 which statutorily applies the Strict Liability Rule from the time of an arrest.
This is wrong on so many levels that it really defies belief that it could even be a serious recommendation. If this becomes practice, my knowledge and experience as a long standing crime journalist is that more innocent people will be arrested, charged and convicted of crimes they did not commit, and many guilty people will avoid justice.
Lord Justice Leveson was lively with his rhetoric on Thursday about his independent regulatory legislation not being ‘statutory regulation’, but ‘only for the purpose of recognising a new, independent, self regulatory system.’
By the time his audience was getting its head round ‘I am proposing independent regulation of the press, organised by the press, itself with a statutory process to itself promote press freedom, provide stability and guarantee for the public that this new body is independent or effective,’ he could have been a surgeon persuading a sprinter to have his leg cut off because it would make him run faster.
You needed to gather all four heavy blue covered volumes to pick out the reality. A US producer I spoke to only took volume one thinking that was large enough. She couldn’t believe there were four. All credit to those journalists who have been sorting out LJ Leveson’s hall of mirrors or as I started this blog, ‘concertina screens in the harlot’s boudoir’.
Private Eye’s editor Ian Hislop has worked it out and he is understandably somewhat displeased that his magazine would be likely subject to sanction by Ofcom should it refuse to be so ‘independently self-regulated.’
The problems lie in Volume Four, Chapter 7 from page 1,748. You need to start at page 1,760 and move through the pack of cards of ‘recognition body,’ boards, appointment panels, code committee, membership, exclusions and criteria for independence. If you still have the will to live you will eventually discover the new punitive world of press regulation post Leveson:
‘I recommend that the Board should have the power to impose appropriate and proportionate sanctions (including financial sanctions up to 1% of turnover, with a maximum of £1 million) on any subscriber found to be responsible for serious or systemic breaches of the standards code or governance requirements of the body. The sanctions that should be available should include power to require publication of corrections, if the breaches relate to accuracy, or apologies if the breaches relate to other provisions of the code. Financial sanctions should be appropriate and proportionate.’
I can’t imagine this is the most attractive incentive to contract into a new world of independent ‘self-regulation’ of the press. But if you are unwilling what will happen to you? You will eventually get to page 1,774 and discover that the stop-gap, or electric fence as it were, is going to be Ofcom ‘a statutory regulator and its Chair [is] appointed by the Government.’
I can’ t imagine any newspaper and magazine editor in the country was particularly inspired and filled with joy when they twigged this facet of the report’s endless truss of structures, remits and procedures for sorting out their industry.
Lord Justice Leveson is certainly right when he says there will not be a police officer in every newsroom, but what he has omitted to disclose is that there is going to be a lawyer in every newsroom and in fact the presence and central role of media lawyers is already recognized with their attendance at the editorial meetings of most national broadcast and Ofcom compliant media publishers.
There is a ditty diagram of accountability, constitution, oversight and regulation made up of six boxes on page 1,777. Quite how Ofcom sorts all this out and contains what appears to me a monumental edifice of regulatory bureaucracy, will no doubt be a considerable boon to the salaried apparatchiks on the south side of Southwark Bridge.
I complete my phlegmatic analysis of LJ Leveson’s report with a warning about his suggestion to legislate to ‘guarantee media freedom.’ You will find this on page 1,780 and US First Amendment it is certainly not.
I am not sure I have ever seen Sir Brian smile. He certainly looked fierce on Thursday, even when appearing lost in the Queen Elizabeth the Second conference centre presumably trying to find the back door to leave for Australia where he is to ‘lecture’ our common law cousins on the subject of privacy. I could have taken his picture when he walked past me to the right, and then walked past me to the left. But I didn’t. I am afraid his ever present apparent anxiety is something I share with him. And the proposed qualification to the guarantee for British media freedom, I shall call it ‘Leveson’s caveat’, is certainly no therapy:
‘Interference with the activities of the media shall be lawful only insofar as it is for a legitimate purpose and is necessary in a democratic society, having full regard to the importance of media freedom in a democracy;”
I fear that the regard to the importance might be ‘full’ but does it mean that it is particularly emphasized, does it have priority or paradigmatic significance? Legitimate purposes and necessities in a democratic society sound all well and good, but in the context of ECHR jurisprudence are easily ditched and blurred in the marshy mist of margin of appreciation, competing rights imperatives, executive convenience, and national security. If my reading of this measure is overly pessimistic, I apologize. I am sure the desire to enshrine something important and protective for the media is sincere and well-intended.
I have decided to leave the National Union of Journalists because of its support for ‘statutory underpinning’, its failure to ballot or in my opinion properly consult its membership on the issue. Statutory underpinning is what Lord Justice Leveson recommends, but what it means is something rather worrying as I hope this posting has made clear.
I am happy to say I have been accepted as a member of the Chartered Institute of Journalists and shall do my best to be of assistance to them and the wider noble and honourable profession of British journalists.
The Independent has somewhat playfully revealed that LJ Leveson’s report contains an apparent copying and pasting from Wikipedia of a spoof aspect of their founding history. This is hardly the best example to student journalists.
The pressure and discordant racket of more than a year of moral panic about journalism has cost hundreds of millions of pounds, and I cannot help thinking of the hundreds of jobs lost and not invested in, making the risk of far more serious mistakes much likelier.
What happens next? Well many of my colleagues in the Department of Media & Communications at Goldsmiths are active Hacked Off and Coordinating Committee for Media Reform executives and activists. And their campaign is brilliant, charismatic, compelling and persuasive. They are engaged with enormously talented, wealthy and powerful public figures in all fields, high profile ‘media victims’ who certainly had and continue to have righteous grievances.
It comes down to politics. If the Tories endure in government, with or without the Liberal Democrats, we may not get statutory underpinning, but I imagine we will get jail sentences for journalistic breaches of data protection, exemplary damages for all civil media wrongs, including privacy, a dissolving of the shield of protection for journalists’ sources in the Police and Criminal Evidence Act 1984, and a mealy-mouthed, compromised and flawed statutory declaration of a guarantee of media freedom, probably a lot worse than that kindly conjured by Lord Justice Leveson.
Should Labour win the next general election, it is more than likely we will get the above, plus the Ofcom taser for non-compliant and disobedient newspaper and magazine publishers and a chilling effect on journalistic expression the like of which this country has not experienced since the 17th century.
Hacked Off and my gallant and talented academic colleagues will continue campaigning on the crest of media victim-hood and a social democratic aspiration to regulation of media plurality and they will score many more successes, including blanket anonymity for anyone arrested until charged or to the point of being convicted (ideas emanating from the experience and views of Christopher Jefferies) statutory or case law obligation for potential breach of privacy victims to be given prior notice before publication (campaigned for by Max Mosley), censorship before trial of news and journalistic archives to avoid prejudice (proposed by the Law Commission) and a statutory right of reply (proposed by CCMR).
As a consequence Britain will no longer be the mother of press freedom and liberty, and many more journalists abroad will find the lights going out in terms of their relative freedoms, some will find themselves in jail for seeking information and publishing it, others will die. I can’t help recalling that Hugh Grant said this point was all ‘Bollocks’ on the C4 documentary ‘Taking on the Tabloids’. I am sorry the debate has been reduced to such a level of immaturity. Of course, it is not ‘Bollocks’ at all as any serious minded and professional journalist in this country or abroad knows only too well.
These changes and trends toward authoritarian measures to control, police and check ‘media power’ are not in the British national interest and leave a sad and discreditable legacy for our young people and I am happy to protest and campaign against them knowing that my conscience is clear and intentions sincere.
Comparative Media Law and Ethics 