Monday, 4 July 2011

Some thoughts on a free press.

I was today at the funeral of Lord Rodger of Earlsferry.  A very great judge.

It was however also an occasion for the gathering of the legal great and good and, while I am not among them, by virtue of my former office, now demitted, I am, as they say, known to them. So it was a natural topic of conversation as to what I was now “getting up to”.

I explained that I had returned to the political fray and had my own blog: In consequence I suffered the light hearted teasing that I would become an internet lawyer; offering online advice to those whose cases were so hopeless that no real life lawyer would take them on.

All very jovial.

Politics however remains my hobby: the law my business.

Generally therefore, if you want my legal advice, you need to pay for it. Here however is one piece of gratuitous advice. Do not waste your time complaining to the Press Complaints Commission.

I say that not as an abstract or political observation but one based on professional experience.

Now, confidentiality is the single most important requirement of a lawyer, so, even in what follows, I have altered the detail insofar as it might allow the client to be identified. You will have to take my word that it is true.

My first experience involved a Labour representative whose son had committed a minor drugs offence. A very minor offence committed by quite literally thousands of young people. This offence had however attracted the attention of a tabloid newspaper not because of its seriousness but because of his father’s identity, his father being mentioned in the article more often than the actually perpetrator of this (far from) heinous crime.

The Press Complaints Code on this was clear.

i) Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.

A slam dunk you might think. Don’t be ridiculous. The PCC ruled that the reporting was justified because the client had never spoken out against the current provisions of the Misuse of Drugs Act. And the reporting was thus “in the public interest”. Not, you understand, because the client  had spoken in  favour of the current law, or suggested his son be made an exception of in relation to its provisions. In reality the determination proceeded on the basis that the PCC code was no more than a form of words and it was certainly no part of the role of the PCC to do more than publish these words. And then find reasons to ignore them.

I gave up at this point but the client did not. He had spotted a report in the same publication that the daughter of a minor Scottish country and western singer had been arrested for shoplifting. Let’s accept your excuse in my case, he asked, how do you justify this? With the greatest of respect (meaning contempt) the Commission replied, since you have no connection to the Parties named, you have no locus to complain!

I could happily list any number of other examples but I will jump to something else. When, in 1998, the Labour Party created its Panel of Candidates for the Scottish Parliament, one of the tests was to give an example of legislation one might introduce to the Scottish Parliament if elected. My own, evidenced based example, was that the PCC code should be placed on a statutory footing: not, for the avoidance of doubt,  that the terms of the code should be anything other than self-imposed, but rather that if the Commission declined to apply its own rules there should be an appeal to the Court of Session.  This was an example of the Scottish Tail being able to wag the British dog. Since the red tops publish UK wide, an appeal in Scotland effectively meant an appeal anywhere.  I had no problem with that.

One might think however that a submission for acceptance to a panel of candidates was a matter of very minor interest indeed. Oddly enough, far from it. After my admitted acceptance to that panel, a very senior member of the Party’s leadership advised me that, if I wished to be actually selected, it would be as well not to press this proposal as it had come to the adverse attention of the Prime Minister’s Office.

What the (word omitted) was going on here? One could only conclude that Labour needed the tabloid press and the price of that dependence appeared to be that the self same press should be entitled to do what they like, hidden behind the charade of self-regulation.

Tonight, we have heard quite shocking revelations about the Milly Dowler case. The most sad element of this however was the perceived need of Tom Watson to appeal publicly for his own Party leadership to say something about this. Which they still haven’t.

So, freed from the need, once again, to climb the greasy pole here is what I suggest should happen.

1. The Police should be instructed to determine the facts as a matter of the utmost priority. (Even for these people I stand by the presumption of innocence)

2. Assuming the facts are prima facie established, all of those involved should be arrested and, if they maintain their innocence and are released on bail, their bail conditions should include having no part in the production of any publication until trial. If convicted they should receive lengthy periods of imprisonment, even if they have been dinner guests of the Prime Minister at Chequers.

3. For the avoidance of any misunderstanding, the DPP should be instructing the Metropolitan Police that the Crime they are investigating is not a technical contravention of the Data Protection Act or RIPA but rather an attempt to pervert the course of justice.

4. The PCC should be put on a statutory footing with immediate effect: its current membership dismissed and a new membership appointed through a proper “Nolan” process.

5. No final decision should be made on the takeover of BSKYB until the trials are concluded and if conviction follow not only should Murdoch be prevented from that takeover, he should be required to relinquish his existing shareholding under penalty of otherwise losing the company’s licence to operate in the UK.

I write all of this with no expectation at all that any of it will happen. After all, Murdoch has probably got the photographs.

And the last client I saw who nurtured a naive belief in self regulation?  We’re about to sue. God bless the European Convention on Human Rights.

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