The continuing threat of contempt

THE publisher of GQ magazine was recently fined £10,000 in a case that reminds us contempt of court remains a serious legal threat to journalists.

GQ was found guilty of contempt last year after they published an article by US journalist Michael Wolff during the phone hacking trial of Rebekah Brooks.

Last month they were fined £10,000 for the offence, which is pretty low for contempt fines – courts have unlimited powers of fine for contempt. Those of us with long memories know The Sun set the record when it was fined £80,000 for contempt and it’s then editor Kelvin McKenzie was personally fined £20,000 (and that was in the ’90s, so allowing for inflation that would be an even more savage fine today.

The GQ article was a piece of commentary, and it was run in the magazine during the trial itself. It also included certain information that the jury had not been told about during the trial.

The contempt proceedings are reported by the Guardian here, and last week’s hearing to set the fine can be found here.

Some points about the case worth noting:

Firstly, journalists will often point out that jurors are warned not to do Internet research about a case and so any juror finding the material must have ignored that warning. That sounds logical on the face of it, but in practice that is not how things work.

This was a contemporaneous report, not something sitting in GQ’s online archive that a juror had to unearth. It was published during the trial and was trailed in the front page of the magazine.

Jurors are warned not to do research, but they are not told to avoid the daily reporting of proceedings. Fair, accurate reports of the day’s evidence are not a contempt risk, so long as they stick to what the jurors have heard or seen in court that day. The GQ article went beyond that and included information the jury had not heard as well as suggesting Rebekah Brooks was a disreputable woman.

Any commentary attacking the character of a defendant during trial is a real risk of contempt, unless, of course, it was given in evidence during the trial and so would have been heard by the jury.

Secondly, even if the material was published before trial and unearthed by a juror ignoring the judge’s warning, the publisher could still be prosecuted. The Attorney General and the courts take the view that the publisher is wrong for putting it there and the juror is wrong for looking for it, so both could be prosecuted.

Finally, it illustrates the perils of ‘comment’ journalism, which is very popular at the moment. In many areas it is completely risk-free, but running commentary on a live court case that is being tried by a jury is fraught with danger.

This threat to fair trials posed by prejudicial online material is one of the reasons we have seen an increase in the number of contempt prosecutions in recent years. The last Attorney General, Dominic Grieve QC warned when he took office that the so-called fade factor, the idea that prejudicial material published at the time of a crime was safe because it would have faded from a juror’s memory by the time of trial, no longer held true in these days of searchable online publication.

The current Attorney General, Peter Wright QC, does not seem to share quite the same enthusiasm for prosecution as his predecessor, but the GQ case should serve as a warning to editors that he is prepared to prosecute where publications overstep the mark

GQ were able to point to mitigating factors which helped reduce their fine. They had taken legal advice over the article, so it was not a case of them being reckless about contempt, even though they made the wrong call on the day. They withdrew thousands of magazines from circulation and pulped them when the legal problems with the article became clear. They also paid the AG’s prosecution costs of £50,000.

If you want to avoid contempt of court, you could start by reading my post on doing just that. It remains by far and away the most-read post on this site, which perhaps shows how worried journalists are about it (although in reality libel is much more frequent and potentially more expensive).

In the long run though, I wonder how long contempt can try to hold back the tide of prejudicial publication in high profile trials. You only have to take a brief look (though definitely not if you are a juror in the case) at some of the social media postings about the trial of Adam Johnson to see that the law is struggling here.

You might argue that no rational juror would take any notice of social media blowhards with minimal followings. But some of the people commenting are well-known themselves and clearly know nothing of this area of law (and why should they) or else do not think it applies to social media.

They are wrong, but it will take a prosecution to hammer home that message. If the Attorney General is prepared to prosecute a newspaper with 50,000 readers, how can he justify not prosecuting someone with a million Twitter followers?

On departing as an External Examiner

For the past four years I have served as an external examiner at Cardiff University’s Journalism School. I have looked after the law and public admin parts of the MA and postgrad diploma there.

The postgrad diploma is the course I started at Cardiff 27 years ago, which launched me into a career in journalism, after a law degree failed to convince me that the law was for me (though what goes around comes around and the law dragged me back in the end)

It was a magical year for me, I met some fellow students who would go on to be brilliant journalists, and discovered that I might just scratch a living by writing myself. Cardiff remains a beacon of great journalism training.

For the last exam board I added a few departing comments, and for what they are worth, here they are.

“This is my last year as external examiner for my old journalism school and it has been a huge pleasure coming back and seeing that the place, though in a different building, remains the excellent school it was when I attended back in 1987-88.

As ever, journalism looks like it is facing a crisis, assailed by plunging print circulations, combined with the mystery of how anyone can profit from digital.

Add to that that the phone-hacking scandal, the Leveson Inquiry and the trials which we have seen concluded only last week and an outsider would be forgiven for wondering why anyone would want to enter an industry so clearly doomed.

And yet, I am sure, as in my day, places on the Cardiff course remain at a premium. I still meet alumni from years before mine and after, and I am invariably impressed with their achievements after they left Cardiff.

Despite its current troubles, great journalism will continue to thrive, on many platforms, wherever people are interested in stories – so that means everywhere. I have no doubt that at the forefront of that will be the journalism produced by Cardiff graduates.

Thank you for having me as an external. My best wishes to the staff there and all your students for the future.”

2013 in review

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 19,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 7 sold-out performances for that many people to see it.

Click here to see the complete report.

Phonehacking Trial Day 3

THE livetweeting of today’s proceedings conveyed the drama of events at the Old Bailey as three of the defendants all entered guilty pleas.

You can Guardian coverage here.

Daily Mail here.

The Independent here.

The Daily Mirror here.

Daily Telegraph here.

Hacked Off’s take on it here.

That’s it for now, update later tonight if any more copy catches my eye, feel free to tip me off to anything you think particularly well done. If Times or Sun staff want to lob me a link over their paywall, I’ll be happy to include it here.

UPDATE

Link to coverage by The Drum’s James Doleman here.

Phone Hacking Trial, Day 2

EARLY post, so not all the papers are carrying their coverage yet. I will update later if they file tonight.

Day 2 was slow again and dominated by jury selection it seems, but the Mr Justice Saunders got things under way before the end of the afternoon and it was events outside court, or rather a Private Eye cover that was centre of attention.

Reported in The Guardian, The Telegraph, The Drum, and at Hacked Off.

All went for the judge’s extensive warning to the jury not to be swayed by outside coverage. not to go Googling or looking on Twitter or Facebook for items about the trial or its background.

The Attorney General’s office announced in the afternoon it would not be pursuing Private Eye for contempt. No real surprise, it was miles away from being in contempt and the judge’s remarks were a relatively mild admonition to ignore it. If he had been gravely concerned by it, Ian Hislop would have been ordered to court tomorrow to explain himself, which many a judge has done in the past to errant editors.

Still, it livened up Day 2. Prosecution opening tomorrow, which we’re told can be live tweeted.

Update, here’s coverage from The Independent, The Mirror and the Daily Express

It particularly love the line by Mr Justice Saunders warning jurors away from blogs written by politicians and actors on subjects ‘they know very little about.’ Who can he mean?

Phone Hacking Trials

The trials over alleged phone hacking and associated matters are due to get under way next week.

I will carry a daily digest of news, links to the best reports and such commentary as the Contempt of Court Act 1981 and any other restrictions will safely allow.

Do drop by.

If you spot any good coverage I’ve missed, send me a link, or drop me a line on Twitter @DBanksy

Nigel Evans, contempt and clues about alleged victims

WAS Nigel Evans flirting with contempt of court by so publicly protesting his innocence on TV at the weekend?

That was the question I was asked after he had appeared before cameras to deny the allegations of rape; talk of his shock that they had been made and thank his constituents and friends for their support.

We have seen this sort of statement often recently, especially by those caught up in Operation Yewtree and other inquiries stemming from the Jimmy Savile scandal (although it must be pointed out Evans’s case is in no way linked to those wider inquiries.) Celebrity emerges from home after being released on bail to make a statement to camera insisting they are not guilty, that they will be proved so in due course and to thank their family, friends and fans for their support

Could such a statement be a problem legally? Well there is no doubt that contempt of court is a risk now. Evan has been arrested, so proceedings are active for the purposes of the contempt of court act. That means that nothing should be published or broadcast now which could cause substantial risk of serious prejudice to any future proceedings.

Will claiming you are not guilty create such a risk? If it is simply an insistence you are not guilty, then no. Thanks expressed for support are also fine. Remember any jury will be told on the first day of trial that the defendant is presumed innocent.

I do think that Stuart Hall’s recent statement, which went beyond proclaiming his own innocence to ask why those making the allegations had not reported them before, skirted the edges of contempt. And I think Mr Evans was unwise to talk about detail of one of his accusers and his recent contact with him.

I don’t believe it cleared what is quite a high bar for a contempt prosecution, even with the current Attorney General Dominic Grieve’s seeming enthusiasm for prosecution.

However, I do think what he said could be an identifying detail about one of the complainants. They get anonymity for life once they make an allegation of rape and that forbids publication of any detail that would identify them as the victim of a sexual offence.

So if anyone, not necessarily everyone, can work out who the victim is from a detail you have published or broadcast, then you are guilty of an offence, and a sexual offence at that. The detail does not have to be obvious things like the complainant’s name or address, just some fact that enables someone, perhaps someone who knows them, to put two and two together and identify them as the victim.

Victims’ anonymity lasts a lifetime and can only be lifted with their consent, that of a judge, or if they are subsequently charged with an offence in relation to the complaint such as perjury or perverting the course of justice. Any decision to prosecute is made by the Crown Prosecution Service in this instance, not the Attorney General.

 It is likely we will see more statements like that of Mr Evans, but if such accused do no want to add to their list of legal woes, they need to take care what they say

The death of Lucy Meadows

IN the past couple of weeks there has been significant debate over the death of a teacher called Lucy Meadows.

Briefly, Lucy was a primary school teacher, who was transgender, she had previously been Nathan Upton. A letter was sent home to parents last year explaining that in the next term, he would return as Lucy.

This was picked up by local media, and then by national press and a number of articles were run on Lucy.

On March 19 Lucy was found dead. No-one else is being sought in connection with her death. Though there has yet to be a full inquest hearing, the speculation is that Lucy took her own life. Indeed, at the opening of the inquest reference was made to previous attempts Lucy made on her own life. No dates were given for those attempts.

The fact that Lucy’s death followed her exposure in local and national media has led to understandable speculation on the part that exposure may have played in her death. One article in particular, by Richard Littlejohn in the Daily Mail, has attracted particular disapproval. in his column he said, among other things, that not only was Lucy in the wrong body, she was in the wrong job.

There have been calls for his sacking, and a peaceful candlelit vigil outside the Mail’s offices to protest at that piece.

There are two areas on which I feel able to comment. Firstly the speculation about the part press coverage played in Lucy’s death. Secondly, whether journalists have any business knocking on the doors of people like Lucy Meadows.

Some people have been measured in their commentary on the first aspect. While deploring Littlejohn’s column and what they describe as the ‘monstering’ of Ms Meadows, they do not make a direct link between the press behaviour and coverage and her death, until more evidence is heard to establish such a link.

Others have been less circumspect and have made a far more direct causal link between the coverage -the Littlejohn column in particular – and her death.

I think the latter, though I understand their anger, are mistaken.

I have been a journalist for 25 years and have covered many, many inquests. One of the first things you realise when you are sent to cover a day of inquest hearings is how depressingly common suicide is. The other thing you quickly learn as a reporter seeking an answer for your story as to why someone killed themself, is how often it is not explained.

Many of those who take their own lives leave no note, and have not given any indication of an intention to kill themselves. Frequently notes left are equivocal and do not give any clear answers as to why the person too their own life. Almost invariably coroners do not read out notes at the inquest, rather they refer to them and simply say whether they show the deceased had formed an intention to take their own life.

The inquest into Lucy Meadows’ death might give us some answers as to show she died and if she did take her own life, why she may have done that. But it equally might not. Until that inquest it is probably wise to reserve judgement on the part, if any, played by press coverage in her death.

Secondly then, have newspapers and their reports got any business ‘doorknocking’ someone in Lucy Meadows’ position?

Fundamentally, yes.

Firstly, Lucy Meadows has a right to privacy, in what must be an intensely difficult time.

Secondly, as a teacher she holds a position where her actions are going to be scrutinised.

There is a balance to be struck between those two positions and the public interest has to be taken into account.

If a teacher is transgender, that might attract comment from parents, although in Lucy’s case any negative comment seems outweighed by the positive.

But, in my view, it is not wrong to ask the question of parents what they, and their children, think about this. If it is positive, report that. Avoiding the question surely perpetuates the idea that this is something to hide, which it isn’t.

As for Littlejohn’s column. I would like to know, from those who knew her, what Lucy’s thoughts were about it. Was it something she regarded as deeply upsetting, or did she ignore it, indeed, had she even read it? I’m not defending it, but I’m not going to blame her death in it without any evidence whatsoever, which some seem prepared to do.

I would also like to know the extent to which Ms Meadows was ‘monstered’. Was this a pack camped outside the school for days on end, or was it a solitary reporter or agency asking questions at the school gate? I would like to know numbers and duration before I accept that it was a ‘monstering.’

Even those who stop short of blaming Littlejohn for Ms Meadow’s death will say, “We’ll it can’t have helped.” How do they know? They are assigning an effect to the column which is up supposition.

Those calling for Littlejohn to be sacked need to be careful that they do not use a tragic death as a means to attack a paper and writer they don’t like.

I don’t share Littlejohn’s views on transgender people, or pretty much any other minority that features in his columns, but I’m uncomfortable calling for someone to be sacked because they write something I disagree with. Freedom of expression is uncomfortable at times, but it must protect those who express views that we vehemently disagree with, or it’s not a right.

So, for what they are worth, those are my thoughts. If the press coverage did play a part in Ms Meadows’ death then perhaps we as an industry need to look harder at how we cover this issue and those it affects.