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| Mail on Sunday's revelations of legal threats expose reporting dilemma | Mail on Sunday's revelations of legal threats expose reporting dilemma |
| (5 months later) | |
| Last Friday I defended The Sun for publishing the fact that Rolf Harris has been arrested, saying the paper had done so in the face of legal threats. | Last Friday I defended The Sun for publishing the fact that Rolf Harris has been arrested, saying the paper had done so in the face of legal threats. |
| The extent of those threats was exposed yesterday by the Mail on Sunday, which carried extracts from letters sent to it, and other newspapers, by the London legal firm, Harbottle & Lewis (H&L). | The extent of those threats was exposed yesterday by the Mail on Sunday, which carried extracts from letters sent to it, and other newspapers, by the London legal firm, Harbottle & Lewis (H&L). |
| It partly explains why the mainstream national press did not publish that Harris had been arrested on 28 March, despite it being reported by the blogger Guido Fawkes and being the subject of speculation across a wide swathe of social media. | It partly explains why the mainstream national press did not publish that Harris had been arrested on 28 March, despite it being reported by the blogger Guido Fawkes and being the subject of speculation across a wide swathe of social media. |
| Similarly, though papers were aware that Harris has been questioned by police last November, that information was withheld from readers (along with TV viewers and radio listeners). | Similarly, though papers were aware that Harris has been questioned by police last November, that information was withheld from readers (along with TV viewers and radio listeners). |
| What worried some editors and their legal teams was the threat by H&L to sue them for libel should they report the police's actions in relation to Harris. | What worried some editors and their legal teams was the threat by H&L to sue them for libel should they report the police's actions in relation to Harris. |
| But why did editors - presumably, on advice from their office lawyers - give in to the legal threat? Consider H&L's argument as advanced in its letter dated 5 January. | But why did editors - presumably, on advice from their office lawyers - give in to the legal threat? Consider H&L's argument as advanced in its letter dated 5 January. |
| Two red herrings… and the public interest | Two red herrings… and the public interest |
| First, it raises the quite separate matters of Lord McAlpine and Louis Walsh, talking of "unfounded allegations" against the former and the settlement of a libel action, in Ireland, against The Sun by the latter. | First, it raises the quite separate matters of Lord McAlpine and Louis Walsh, talking of "unfounded allegations" against the former and the settlement of a libel action, in Ireland, against The Sun by the latter. |
| On the face of it, neither of these matters have any equivalence to Harris having been arrested. They are, in one sense, red herrings. Second, the letter states: "There is no public interest in publishing such an article as is entirely self-evident following publication of the Leveson report." | On the face of it, neither of these matters have any equivalence to Harris having been arrested. They are, in one sense, red herrings. Second, the letter states: "There is no public interest in publishing such an article as is entirely self-evident following publication of the Leveson report." |
| Self-evident? This is a contentious claim. Let's break that down into two parts. The public interest justification is straightforward enough. If we allow that the police can arrest people without it being public knowledge, we face the possibility of the police operating in secret. | Self-evident? This is a contentious claim. Let's break that down into two parts. The public interest justification is straightforward enough. If we allow that the police can arrest people without it being public knowledge, we face the possibility of the police operating in secret. |
| As for the Leveson report*, there is no specific recommendation about the reporting of arrested suspects. In the body of the report (not in the conclusions), there is an observation suggesting that "current guidance [on arrest reporting] needs to be strengthened." | As for the Leveson report*, there is no specific recommendation about the reporting of arrested suspects. In the body of the report (not in the conclusions), there is an observation suggesting that "current guidance [on arrest reporting] needs to be strengthened." |
| In what The Guardian last week called "a controversial passage" in his report, Lord Justice Leveson wrote: | In what The Guardian last week called "a controversial passage" in his report, Lord Justice Leveson wrote: |
| "I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public." | "I think that it should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public." |
| Fair enough. It's a personal view in which he expressed broad agreement with the Met police commissioner Bernard Hogan-Howe and chief constable Andy Trotter. It is not, however, a cast iron recommendation and, even if it was, it would not be binding on the press until, or unless, parliament decided to amend the law. | Fair enough. It's a personal view in which he expressed broad agreement with the Met police commissioner Bernard Hogan-Howe and chief constable Andy Trotter. It is not, however, a cast iron recommendation and, even if it was, it would not be binding on the press until, or unless, parliament decided to amend the law. |
| Note also that the report states that Trotter himself, in believing that arrested individuals should not be identified by the police or the media, "recognised that others may hold a different perspective." | Note also that the report states that Trotter himself, in believing that arrested individuals should not be identified by the police or the media, "recognised that others may hold a different perspective." |
| Indeed, they do. The media, as a watchdog holding power to account, has an obligation to ensure that arrests do not happen in private. Therein lies the wider public interest. | Indeed, they do. The media, as a watchdog holding power to account, has an obligation to ensure that arrests do not happen in private. Therein lies the wider public interest. |
| Why are some suspects named and others not? | Why are some suspects named and others not? |
| Having successfully achieved media silence between November and 28 March, H&L felt confident enough to write again to the Mail on Sunday's managing editor on 30 March: | Having successfully achieved media silence between November and 28 March, H&L felt confident enough to write again to the Mail on Sunday's managing editor on 30 March: |
| "You state… you are intending to do what no other media organisation in this country has done and publish that our client has been arrested on very serious charges. | "You state… you are intending to do what no other media organisation in this country has done and publish that our client has been arrested on very serious charges. |
| The highly damaging personal and legal consequences of doing so will not be lost on you… the factual basis of your claiming actual knowledge of the identity… is non-existent… You ought to ask yourself why the police have not named the person involved." | The highly damaging personal and legal consequences of doing so will not be lost on you… the factual basis of your claiming actual knowledge of the identity… is non-existent… You ought to ask yourself why the police have not named the person involved." |
| Well, the paper might have asked itself that question a thousand times down the years, but with a twist: why are the police naming this arrested person but not naming another? | Well, the paper might have asked itself that question a thousand times down the years, but with a twist: why are the police naming this arrested person but not naming another? |
| In other words, why should papers simply do as the police demand? When it suits the police to name a suspect, they do. But here's a more relevant question: on what basis do the police make such decisions on identifying suspects? | In other words, why should papers simply do as the police demand? When it suits the police to name a suspect, they do. But here's a more relevant question: on what basis do the police make such decisions on identifying suspects? |
| There are no clear public guidelines on such matters. There is no concordat with the media. It is known that the Association of Chief Police Officers (ACPO) is pondering over whether to issue nationwide guidance urging forces not to confirm the names of arrested people to the media. | There are no clear public guidelines on such matters. There is no concordat with the media. It is known that the Association of Chief Police Officers (ACPO) is pondering over whether to issue nationwide guidance urging forces not to confirm the names of arrested people to the media. |
| That advice, incidentally, will only underline what usually happens already around the country, where most police forces operate a policy of anonymity for suspects. | That advice, incidentally, will only underline what usually happens already around the country, where most police forces operate a policy of anonymity for suspects. |
| So, given that there is no law against identifying arrested people, some are identified in the media - through leaks or because the individual wishes it to be known (yes, that happens) - and some are not. | So, given that there is no law against identifying arrested people, some are identified in the media - through leaks or because the individual wishes it to be known (yes, that happens) - and some are not. |
| A related problem is the widening gap between a person being arrested and being charged. These are simultaneous acts in many jurisdictions (such as the United States). | A related problem is the widening gap between a person being arrested and being charged. These are simultaneous acts in many jurisdictions (such as the United States). |
| Here in Britain, arrest and charge are two distinct acts. Once upon a time the timing between each was closer together. Gradually, that situation has changed, an aspect of the justice system that the press should be highlighting. | Here in Britain, arrest and charge are two distinct acts. Once upon a time the timing between each was closer together. Gradually, that situation has changed, an aspect of the justice system that the press should be highlighting. |
| Incidentally, I must stress that an arrest doesn't mean someone is necessarily guilty. I note that both The Sun and the Mail on Sunday state that Harris has strenuously denied the accusations against him. | Incidentally, I must stress that an arrest doesn't mean someone is necessarily guilty. I note that both The Sun and the Mail on Sunday state that Harris has strenuously denied the accusations against him. |
| It is fair to ask however whether it is just - and therefore in the public interest - for the police to arrest people, place them on bail, and then wait sometimes longer than a year or more to decide whether or not to charge them. | It is fair to ask however whether it is just - and therefore in the public interest - for the police to arrest people, place them on bail, and then wait sometimes longer than a year or more to decide whether or not to charge them. |
| Why Fleet Street was in a collective quandary | Why Fleet Street was in a collective quandary |
| Anyway, to continue the tale. In a follow-up email to the Mail on Sunday's managing editor on 30 March, H&L's senior partner, Gerrard Tyrrell, wrote: | Anyway, to continue the tale. In a follow-up email to the Mail on Sunday's managing editor on 30 March, H&L's senior partner, Gerrard Tyrrell, wrote: |
| "If you proceed then both you and the editor of your newspaper are on notice of the consequences." | "If you proceed then both you and the editor of your newspaper are on notice of the consequences." |
| Well, the Mail on Sunday's editor, Geordie Greig, has clearly, if belatedly, called Tyrrell's bluff and accepted the potential consequences - a libel lawsuit. | Well, the Mail on Sunday's editor, Geordie Greig, has clearly, if belatedly, called Tyrrell's bluff and accepted the potential consequences - a libel lawsuit. |
| Would such an action succeed? One supposed defence would have two arms - the story was factually accurate and it served the wider public interest (about the system of justice needing to operate in the public spotlight). | Would such an action succeed? One supposed defence would have two arms - the story was factually accurate and it served the wider public interest (about the system of justice needing to operate in the public spotlight). |
| But here's why Fleet Street was in a collective quandary. Papers do sometimes get sued over arrests, especially when people are subsequently not charged, and the resulting action hinges on the meaning of the published article. | But here's why Fleet Street was in a collective quandary. Papers do sometimes get sued over arrests, especially when people are subsequently not charged, and the resulting action hinges on the meaning of the published article. |
| Could it be said to have brought the person into disrepute? Was it presented in such a way (a sensationalised splash perhaps) that it could have defamed the person? Aside from the simple statement of facts about the arrest, did accompanying material over egg the pudding? | Could it be said to have brought the person into disrepute? Was it presented in such a way (a sensationalised splash perhaps) that it could have defamed the person? Aside from the simple statement of facts about the arrest, did accompanying material over egg the pudding? |
| Then there's also the meaning of an arrest itself. Were there really "reasonable grounds" for suspecting that the person could have committed an offence? | Then there's also the meaning of an arrest itself. Were there really "reasonable grounds" for suspecting that the person could have committed an offence? |
| Of course, the only organisation that knows that for sure is the arresting police force itself, and the police cannot be relied upon to cooperate. So where's the proof for a newspaper to defend an action? | Of course, the only organisation that knows that for sure is the arresting police force itself, and the police cannot be relied upon to cooperate. So where's the proof for a newspaper to defend an action? |
| Indeed, the very fact that the police don't obtain sufficient evidence to prosecute suggests the grounds for the arrest were not, after all, reasonable. | Indeed, the very fact that the police don't obtain sufficient evidence to prosecute suggests the grounds for the arrest were not, after all, reasonable. |
| So, even if experienced and skilled newspaper lawyers had regarded H&L's letters as bluster, they would certainly have counselled caution. | So, even if experienced and skilled newspaper lawyers had regarded H&L's letters as bluster, they would certainly have counselled caution. |
| Cavalier coverage in the past bordered to contempt | Cavalier coverage in the past bordered to contempt |
| All of that having been said, there cannot be any doubt that newspapers have been cavalier in the past about implying guilt when reporting arrests. The classic case was, of course, that of Christopher Jefferies, the landlord of the murdered women, Joanna Yeates. | All of that having been said, there cannot be any doubt that newspapers have been cavalier in the past about implying guilt when reporting arrests. The classic case was, of course, that of Christopher Jefferies, the landlord of the murdered women, Joanna Yeates. |
| That was a disgraceful slur on that innocent man, for which two newspapers - The Sun and the Daily Mirror - were rightly fined for contempt of court. | That was a disgraceful slur on that innocent man, for which two newspapers - The Sun and the Daily Mirror - were rightly fined for contempt of court. |
| For some years, papers have edged ever closer to contempt in their reporting of arrests, citing the rights enjoyed by the media in the United States. Too often, former attorney generals allowed them to get away with it. | For some years, papers have edged ever closer to contempt in their reporting of arrests, citing the rights enjoyed by the media in the United States. Too often, former attorney generals allowed them to get away with it. |
| The current one, Dominic Grieve QC, has shown much more backbone and I welcomed his decision to be much more rigorous in prosecuting papers. | The current one, Dominic Grieve QC, has shown much more backbone and I welcomed his decision to be much more rigorous in prosecuting papers. |
| Editors were wrong to jump the gun and the ACPO initiative, as supported by Leveson, is the result of their past poor behaviour. It is also, of course, the reason for H&L's boldness in the Harris incident. | Editors were wrong to jump the gun and the ACPO initiative, as supported by Leveson, is the result of their past poor behaviour. It is also, of course, the reason for H&L's boldness in the Harris incident. |
| Now, taking on board the history, there needs to be a sensible compromise about the reporting of arrests. We in the press must retain the right to publish the facts and, in return, we must do it as fairly as possible to avoid any possible prejudice. The facts, and only the facts, must be the watchword. | Now, taking on board the history, there needs to be a sensible compromise about the reporting of arrests. We in the press must retain the right to publish the facts and, in return, we must do it as fairly as possible to avoid any possible prejudice. The facts, and only the facts, must be the watchword. |
| That is surely the fairest way to balance the rights of the individual and society. | That is surely the fairest way to balance the rights of the individual and society. |
| *Leveson report: vol 2, part G, chap 4/2.39, p791 | *Leveson report: vol 2, part G, chap 4/2.39, p791 |
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