News

4 comments on “Why judges need no further powers”

Why judges need no further powers

PROPOSALS to give judges far-reaching powers over the media to prevent prejudice to trials are wrong and here are three quick reasons why.

The idea is included in the Law Commission’s consultation on contempt of court and means that judges could order the temporary removal of material from online archives before and during a trial if it might prejudice the case.

I will be submitting a detailed response to the commission’s consultation, but I wanted to set out a brief argument against that specific idea, in the hope it would prompt others in the media to realise the huge burden it will potentially place and on them and prompt them to respond to the consultation as well.

1. If you give judges this sort of power, they will exercise it too widely and too often

Often for the best of reasons, judges make orders which are simply beyond their powers in law. They may do so to preserve a fair trial, or to protect a vulnerable victim or witness, but they overstep what the law says they are allowed to do.

There are countless examples of the misapplication of orders under Section 4 and Section 11 of the Contempt of Court Act 1981 and Section 39 of the Children and Young Persons Act 1933.

At the Law Commission symposium held recently to discuss their proposals. One judge attending, unwittingly perhaps, gave a perfect example of this.

He had, he told the audience, been the judge in the trial of two police officers over the Hillsborough disaster. During that trial he had made an order banning publication of any photograph of the memorial to the 96 who died at Hillsborough. He explained that feelings were inflamed at at the time and they needed no further inflammation by publication of such an emotive picture.

There were various nods of approval from the audience when he said this.

The question is, under what power in law did he make such an order? Section 4 of the Contempt of Court Act 1981 allows for an order postponing the reporting of an element of a trial, or the entire trial, to prevent prejudice to proceedings. However, it only gives judges the power to postpone reporting of their proceedings, it cannot apply to events outside the court. The Hillsborough Memorial was not part of those proceedings, so ought not to have been subject of any order.

2. The practicalities of removal of material will impose a huge burden on publishers and ultimately render such orders ineffective.

The idea of these orders is that where someone has been the subject of previous proceedings or trials, widely reported, that an order can be made so that those reports are temporarily hidden from public view, so that a juror on their trial will not find them.

They will not work, and here’s why.

The idea is based on the premise that prejudicial material will be easy to find, identify and disable. Things are never that simple, even with the formidable technology at the disposal of publishers.

Let’s take the example of Gary Striker, Premiership footballer, leading goal scorer and well-publicised bad-boy.

Let us say, for simplicity’s sake, that stories about Striker fall into six categories:
1 Sport stories including match reports which feature him
2 Sport stories which feature Striker’s often very serious foul-play
3 News stories featuring Striker’s public appearances that contain innocuous material
4 News stories that detail Striker’s appearances in court on a variety of charges
5 Sport stories that mention his convictions in passing
6 Stories from all of the above, which include readers comments that mention his previous convictions

Let’s say Striker is up on a very serious charge, heading for Crown Court trial and the judge decides to make an order for removal of prejudicial material.

I don’t think any automated programme exists that would differentiate the above categories.

The only way you will be able to sort out the prejudicial from the innocuous is to have people read them, and in the case of someone as famous as Striker, that will mean sifting a vast amount of information. Who will that burden fall upon?

Will the defence, or judge, in seeking, or making an order, be required to specify which stories they want removed?

Or, as I suspect, will the power be to make a general order for removal of prejudicial material, leaving publishers to sift out the benign from the risky.

In a case like that of Striker, that will be almost impossible to achieve in a timely manner.

I do hope that publishers, of both new media and traditional newspaper websites, will respond to the Law Commission proposals and urge a rethink on this issue.

If they don’t, then pity the poor minions who have to weed out every prejudicial mention of Gary Striker.

0 comments on “Ten Tips to help you pass NCE Law&Newspaper Practice”

Ten Tips to help you pass NCE Law&Newspaper Practice

NCE is fast approaching and for hundreds of junior reporters around the country a lot hangs on this. A pass means they become senior reporters, and for those in training contracts it traditionally means the freedom to ply their trade elsewhere. A pay rise often accompanies elevation to senior status too. So you can see why it is taken seriously.

It’s a tough test though, with a number of different papers and a portfolio of work to complete as well. There are lots of opportunities to mess it up.

For about four years I was chief examiner for the NCE newspaper practice – which is a test of legal and ethical knowledge as well as your reporting skills.

Here are my 10 tips to junior reporters facing the exam, I hope they help.

1. Watch the time. You only have one hour for the exam. There are 50 marks for the law question and 25 each for the two practice questions. So, logically you might allocate 30 minutes to law and 30 to newspaper practice, but keep your eye on the clock. It is very easy to get carried away with the law question and not allow yourself enough time for the practice. If you really nail the law, that might just be ok, but you will really need to nail the law. I saw far too many papers with a rushed final question that hardly got any marks at all.

2. Know your law. The NCE when I was writing it anyway, focused on mainstream legal issues – contempt, libel, mags court restrictions, children, sexual offences and the PCC code. There might be other items such as privacy, confidentiality and copyright thrown in, but those main items should get you through.

3. Don’t confuse your defences. A favourite question of examiners features the defences for a court report. All too often candidates claimed absolute privilege – a libel defence – as a defence against contempt of court. There’s a simple mnemonic I invented to avoid this. “Banksy says remember your ABCAbsolute privilege has Bugger-all to do with Contempt. The defence against contempt for court reporting is S4(1) of the Contempt of Court Act 1981 which says a fair, accurate contemporaneous report of court proceedings cannot be in contempt of court, sop long as no order has been made under S4(2) postponing the report.

4. Don’t scattergun. You might want to play on the safe side and put down every single thing you know about the law, but that just tells the markers that you can’t spot the problem at hand. Keep the law relevant.

5. Be specific. If you think the problem in the question is libel explain why. Many candidates lose marks by simply saying: “The problem here is libel…” then going on to explain the defence that might apply. There will be marks available for explaining exactly which  words are libellous and why. The same goes for any other legal issue, analyse why it is a problem, then go on to explain the defence that might apply.

6. Know your PCC Editors’ Code. Go to the PCC website, look at recent cases. Know the code inside out. It’s in your contract of employment, you’ve probably been given it a few times during your traineeship, it’s on the PCC website, there really is no excuse for not knowing it. In the current climate I would not be at all surprised if it features more often in NCE exams than it has before.

7. Be realistic. On the practice questions, where you are explaining how you would handle a story, make suggestions that you would expect to work every day. You might like to talk to the Prime Minister on the issue at hand – he would not return your call.

8. To vox pop or not to vox pop. This has become a standard part of many candidates practice answers. Sometimes it is a relevant idea, very often it is not. If you think it is, then do please tell the examiner what you would ask and how the responses would add to the story. The same goes for the digital equivalents of a telephone or internet poll.

9. Check your answer. Build in time to check your answer. You are not marked down for spelling on this exam, or at least weren’t when I was examining it. But nevertheless, checking your copy might avoid some terrible howler being submitted that might cost you marks.

10. In the unhappy event you fail, stump up for a failure report. It will certainly help you get through it next time and so it is worth the money.

In any event, I hope the above is useful, and good luck on the day.

25 comments on “Contempt of court and how to avoid it”

Contempt of court and how to avoid it

I have spent 12 years training journalists and others in media law and I, like many, thought contempt of court was a bit of a  paper tiger.

We had had very few actions for contempt brought by the Attorney General over the years and those that had been were so blindingly blatant that anyone with a rudimentary knowledge of the law could have avoided them – the Leeds footballers, Bowyer and Woodgate contempt by the Sunday Mirror, for example.

But recently we have had a series of contempt actions, with more pending.

The Sun and Daily Mirror were prosecuted over reporting of the arrest of Chris Jefferies, landlord of Joanna Yeates – an innocent man ‘monstered’ by the tabloids.

The Daily Mail and The Sun were prosecuted for contempt for publishing a photograph online of a man holding a gun during his trial.

The Attorney General is due to decide whether to bring an action against a journalist who allegedly tweeted details of pornography found on Vincent Tabak’s computer which was ruled inadmissible as evidence at his trial for the murder of Joanna Yeates.

The Mail and the Mirror face a contempt action over reports of a trial of Levi Bellfield, killer of Milly Dowler

Now The Spectator awaits a decision from the AG after columnist Rod Liddle weighed in with commentary on the Stephen Lawrence murder trial which the jury were directed not to read.

I have written many, many times about the AG Dominic Grieve’s attitude to contempt and the fact that he has warned he will take action where there has been prejudicial reporting.

So, for those of you out there wondering what contempt is and how you might steer a path through it, here is a quick guide.

1. What is contempt?

The law that protects the judicial process. It covers many things from obedience to orders of the court to behaviour in the courtroom itself. But if you are in media then you worry about contempt by publication – ie putting something out there which might derail the judicial process.

2. When do I worry about contempt?

When proceeding are active. The old common law of contempt used a wooly phrase – proceedings ‘pending or imminent’ which was whatever a judge took it to mean – a week, a month, a year. The Contempt of Court Act 1981 swept this aside and created the concept of ‘active’ proceedings. Proceedings are active when someone has been arrested; a warrant has been issued; they have been orally charged or an information has been laid. If none of these things has happened then contempt evaporates as a problem – publish whatever you like.

3. OK, proceedings ARE active, what should I avoid

Publishing something which creates a substantial risk of serious prejudice or serious impediment to those proceedings.

4. What does that mean?

Well, that’s a little subjective, but case law has shown the following to be a problem:

*Photos or descriptions where identity is at issue – ie the defendant claims it was not him who committed the crime and the prosecution has eyewitnesses whose testimony has to be tested by way of an ID parade. They must rely on their memory of the offence, not a photo helpfully published by the media. This action cause the record fine for contempt (so far) £80,000 for the Sun and £20,000 for Kelvin MacKenzie as editor.

*Assumptions of guilt – in crime reports, police have arrested A man, not THE man.

*Previous convictions – not normally allowed in as evidence, so don’t go informing the jury of them.

*Blackening a defendant’s character – if the prosecution do it in front of the jury, that’s fine. Just don’t do it yourself as they await trial.

5. Does this mean a media blackout about a crime if proceedings are active?

No. The CCA 1981 was drafted in response to the Sunday Times coverage of the Thalidomide scandal, which had been found in contempt under the old common law. The ST took an appeal all the way to the European Court of Human Rights, which ruled that the common law contempt, as applied, was in breach of the ST’s right to freedom of speech. So the CCA 1981 includes a Section 5 defence of ‘discussion of public affairs’. So, for example, a euthanasia trial does not shut down all mention or discussion in the media of the issues of euthanasia. But such discussion should avoid direct commentary on the trial.

6. What other defences do I have?

Section 3 defence – you didn’t know and had no reason to suspect there were active proceedings. But you have to show you checked. So if you’re reporting a crime and the police fail to inform you, when asked, that someone has been arrested, then you have a defence.

Section 4 (1) defence – you can’t be in contempt of court if you are reporting court. As long as the judge has not exercised powers under Section 4 (2) ordering you to postpone reporting of some aspect of the trial.

That’s about all there is to it. I realise that when the Pack are covering a story it is sometimes hard to resist carrying the same stories as others and to outdo your rivals at any cost. However, I cannot emphasise enough the folly of doing so. Dominic Grieve takes this very seriously and he has shown he is prepared to act.

If you need further assistance in any of this, you can find my contact details on the contact page of this site.

0 comments on “The Leveson Inquiry, Paul Dacre and what I should have asked Kelvin Mackenzie”

The Leveson Inquiry, Paul Dacre and what I should have asked Kelvin Mackenzie

I was down at the Leveson Inquiry into the culture, practice and ethics of the press this week.

It is being called the phone hacking inquiry, although it’s clear to all that it’s brief is far wider than just looking at why a few papers hacked into people’s mobile phone voicemail.

I was attending a seminar of those who may have useful information for the inquiry. There were a few invited speakers, and much discussion from the floor, and we were all asked to consider making submissions of evidence to the inquiry to assist it.

There were two big-hitting speakers on the day I was there – in the morning Daily Mail editor, Paul Dacre  and in the afternoon, former Sun editor, Kelvin Mackenzie. Both men are Fleet Street legends, though very different in their style and content of what they said.

Mackenzie’s speech had been given to the media beforehand and made the front page of that night’s Evening Standard – you can read the full text here.

It was a barnstorming performance, but how much light it shed on tabloid practice, I’m not so sure. Learning his opinion of Prime Minister David Cameron – pretty low – was fascinating, but it did not move the debate on press ethics anywhere very much.

Less well-headlined was Paul Dacre’s address, which you can read here, in which he made a significant concession to those seeking a tougher regulatory system.

He said that he would be prepared to look at an ombudsman system for the press – perhaps a retired judge supported by two retired editors. The ombudsman, he said, might have the power to investigate wrongdoing and even levy fines.

It was quite a bombshell given that the previous week’s seminar had seen editors queuing up to support the current system of self-regulation. Dacre came in a few days later and proceeded to pull the rug out from under them.

But his speech begged a few questions.

Is the ombudsman a replacement for the Press Complaints Commission, or a supplement to it as a ‘court of last resort’?

Will the ombudsman have statutory force, compelling the industry to pay fines as Ofcom does?

Will there be statutory compulsion of the whole industry to come under the ombudsman’s authority – thus answering the questions many asked last week regarding the Daily Express and Daily Star’s withdrawal from the PCC?

Some attending believed Dacre had thrown the ombudsman line into his speech at the last moment, knowing that it would cause consternation among those listening, but not really being too concerned with the fine detail.

Myself, I’m with those who thought it was something more strategic. Perhaps Dacre has seen which way the wind is blowing and wants to try to shape the more stringent regulatory system that is approaching post-Leveson.

As Lord Justice Leveson said when he summed up: this is just the beginning of the beginning, there is much, much more to come in this inquiry.

As for Kelvin Mackenzie’s contribution, I laughed along with many of the audience, and only afterwards did I consider one of the things he said.

He was asked about The Sun’s influence and whether, after the 1992 general election when the paper ran the headline “If Kinnock wins today will the last person to leave Britain please turn out the lights” – and headline for the ensuing Conservative victory “It’s the Sun wot won it”.

Just a bit of fun, he said, no-one would decide how to vote on the basis of a Sun headline.

The Sun has undoubtedly produced some of the most memorable front pages in recent years – from ‘Freddie Starr ate my hamster’ to ‘Gotcha’.

The French have a saying – l’esprit de l’escalier – literally the wit of the staircase, meaning the things you think you ought to have said at the time, but only think of as you are climbing the stairs to bed. I had a moment of that an hour or so later as we digested the day’s events.

Not every Sun front page has been a ‘bit of fun’ and one in particular, printed on the Wednesday after the Hillsborough disaster, headlined ‘The Truth’ and which blamed fans for the events of the day, was anything but ‘fun’.

In the days when the police, the football authorities and the government should have been held to account for safety in football grounds – that front page took the pressure off them and laid the blame on those who could have done least to avert that catastrophe.

I was working in the North West at the time of Hillsborough. I attended funerals of the dead fans for my paper. I spoke to bereaved families. That front page was, and still is, shameful.

I could, and should, have asked Kelvin Mackenzie whether that was ‘just a bit of fun’ – but I missed my chance.

I’m sorry.

0 comments on “Welcome”

Welcome

This is the new website of my media law consultancy. You will find information here about me;  the services I offer; who I’ve worked for in the past and how to contact me.

If you would like to talk about how I can help you please use the details on the Contact page to get in touch.

On this page you will find details of my latest projects, as well as media law news which I think may be of interest.