UK: Spectator fined after admitting reporting breach
The Spectator has been ordered to pay £5,600 after admitting a November 2011 article about the trial of Stephen Lawrence‘s killers breached a court order. Associate editor Rod Liddle’s piece claimed defendants Gary Dobson and David Norris — who were convicted in January 2012 of Lawrence’s 1993 murder — would not get a fair trial. It appeared in the magazine after the trial had started and an order imposed on reports that could influence the jury’s view of the defendants. The judge said the article caused a brief moment in which the trial was in jeopardy, but the magazine’s swift apology and removal of the piece online meant it was not undermined. The magazine’s lawyer apologised for its “bitterly regrettable” failure to make checks.
Liddle was wrong to write Lawrence trial article, and the Spectator was wrong to publish it
Rod Liddle was stupid to write his article on the trial of Gary Dobson and David Norris, and the Spectator was stupid to publish it. Now the magazine has been fined — not for contempt of court, though anyone with a faint awareness of media law knows that law was broken, but for the even more straightforward offence of breaching a court order. A judge said don’t do it and they did it: it doesn’t get simpler.
Does the incident raise any more complicated issues? No doubt the case will be made.
Liddle thought the trial of Dobson and Norris for the murder of Stephen Lawrence was unfair, and he expressed this view in the Spectator while the trial was in progress. No problem there, you may think, except that well-established and well-known English law forbids such opinionating in public while the justice process is under way.
It does so, not as a form of authority-inspired censorship, not to inhibit discussion about the justice system and not because the system doesn’t really trust jurors, but to protect the weak and the innocent. The law exists because defendants, their lawyers and others who cared about justice argued for it and won the argument.
Liddle knew this. Now he may disagree with the law, but in a democracy the normal course of action for people who want to change a law is to make the case for change rather than to break the law.
Equally, if he believes strongly that Norris and Dobson are victims of a miscarriage of justice he was free to make that case after the verdict. There are, sadly, plenty of miscarriages of justice and there are quite a lot of people who want to draw attention to them. With rare exceptions they do so within the law.
Does Liddle really disagree so fundamentally with the law on contempt that he feels the need to break it? Does he really care so much about the case of Norris and Dobson that he will break the law to support them?
If so we can respect his views even if we question his methods, and perhaps we can look forward to seeing him engage in further acts of civil disobedience in pursuit of his cause. We can also expect him to explain that his past actions were calculated and deliberate (though the Spectator might not be happy about that).
If, on the other hand, this was a casual act of arrogance by someone who knew he personally would pay no price for it, how surprised would we be?
Brian Cathcart teaches journalism at Kingston University London and is a founder of the Hacked Off Campaign. in 2000, he won the Orwell Prize for his book The Case of Stephen Lawrence. He tweets at @BrianCathcart
The Justice and Security Bill will make secrecy the norm
The Justice and Security Bill was introduced in the House of Lords this week. Should it become law then it will have a devastating effect on the extent to which the public can find out about matters of major importance. These include the activities of those suspected of threatening security and of the authorities who attempt to counter such threats.
Do not be misled by the Daily Mail’s claim that the Bill is a “climbdown” and a victory for their campaign against secret justice. To be sure, the Mail was a key player in the government’s decision to remove inquests from the proposals, but this Bill is not victory. The Justice Secretary Ken Clarke maintains it will not result in the “public finding out less about the truth in important cases”, but that seems unlikely.
Under the bill if information emerged in civil cases that could affect national security, then the government could ask the court to use closed material proceedings (CMPs). The opposing parties and their lawyers would then be excluded from crucial parts of the case; only the judge and government parties would remain, with a special advocate representing the interests of the claimant.
The media will have no access. There is no requirement that the public be notified a CMP will be sought, even though in criminal cases seven days’ notice is required for an application to close a court on national security grounds. The media would be totally excluded from hearings which consider whether CMPs should be used, without even a special advocate representing the public interest in open justice.
It is virtually certain CMPs will become the norm in this area because the proposed rule is that if the judge thinks that a disclosure of information would be damaging to national security, then she or he must order a CMP. The judiciary defer strongly to executive judgments about what will damage national security (and the government tends to set a low threshold for damage) and, once reaching the conclusion national security would be damaged, a judge will have no discretion on the order that follows.
In theory, the legislation would not permit the government to use CMPs to cover up embarrassment. In practice, however, the outcome is likely to be different. A key rationale behind the laws is that the government must protect relationships with other countries, and especially the United States. If embarrassment to the UK government can be claimed to affect those international relationships then, in a kind of legal alchemy, non-damaging embarrassment can be transformed into damage. The result will be secrecy.
We can expect these procedures to apply in many important cases. The Justice Secretary has indicated that it is intended to apply only to a narrow group of cases, such as actions for damages by former Guantanamo Bay detainees claiming British complicity in detention or torture. The Green Paper that preceded the Bill said 27 cases were in issue, though the government refused to say what they were.
In the Law, Terrorism and the Right to Know research programme at the University of Reading, we have tried to identify the cases likely to be affected. Our list is now at around 20 cases where claimants have been subjected to detention, torture, extraordinary rendition and the like. They stretch across the world, alleging British complicity in wrongdoings from Guantanamo Bay to Pakistan, Afghanistan, Kenya, Uganda, Libya, Egypt and Bangladesh, among others.
But the reach of the Justice and Security Bill is wider than even these cases. It will also include matters that occur solely within the UK. While inquests are no longer to be subject to CMPs, any civil actions which follow inquests could fall within its provisions if intelligence sources or methods could be disclosed. That could well include cases relating to deaths as a result of shootings by police.
If police make arrests in a counter-terrorism operation and are subsequently sued for assault or false imprisonment then CMPs would very likely be sought because the action may well involve disclosure of methods used by the security services.
There will inevitably be other categories of cases in which the laws will be applied. National security is a broad church.
One of the most disturbing provisions in the Bill is the absence of any weighing of competing public interests in the decision to order the use of CMPs. The Bill removes all consideration of competing interests in open justice. No matter how strong the public interest may be in the substantive issues or in process of justice being done in the public eye, a judge cannot take account of that.
Moreover, there will be no recording of how often CMPs are used. There will be no method or point of review to determine when closed judgments can be made open. This Bill proposes that these matters are closed forever.
There is every reason to see this Bill as laying the foundations for a secret state where the executive is able to use national security as a blanket to hide proceedings from the public eye, regardless of how great the public interest in open justice might be.
This Bill will make our governments less accountable. It will make secrecy the norm. Our parliament should oppose it fiercely.
Lawrence McNamara runs the ESRC-funded Law, Terrorism and the Right to Know research programme at the University of Reading. He tweets at @UniRdg_LTRK
Index on Censorship letter to Joint Committee on Human Rights