Reporting restrictions in Ambridge

PITY the poor court reporter on the Borsetshire Echo.

After years numbing their backside on the narrow press benches of that farming county’s courts, faithfully recording drink driving, poaching and a bit of argy-bargy of a weekend outside The Bull, they suddenly have a much bigger story on their hands.

You don’t have to be an Archers fan to know this tale of country folk has taken a sinister turn recently, culminating in Helen Titchener, nee Archer, plunging a knife, twice, into her abusive husband, Rob, almost causing a demise that many fans would have deemed rather timely.

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Helen (Louiza Patikis) and a not at all sinister-looking Rob (Timothy Watson)

The storyline, which has been building for a couple of years, has done a great deal to raise awareness of domestic abuse and the sort of ‘coercive control’ exerted by Rob on Helen. The reaction from the public has been extraordinary, summed up by the amazing response to an appeal launched by Paul Trueman, @paultrueman74 on Twitter.

He set about raising £1,000 for the charity Refuge, which helps victims of domestic violence. He set up a Justgiving page and the sum raised now stands at more than £127,000 .

Rob survived, Helen is behind bars awaiting trial, and her brother Tom has had a characteristically good whinge about the press coverage of his sister’s situation.

But what can the media report, if anything? Tom, while perusing the newsstands on the Sunday after Rob’s near-death, was horrified at the coverage – “They’re not meant to print anything,” he said, setting the teeth of this old court reporter on edge, and not just because of his shrill tone.

I doubt very much that Helen’s alleged offence would have attracted the attention of any national newspapers at this stage. She didn’t kill him, and there is nothing about her, or Rob, which would normally attract the attention of a national newspaper news desk, in my opinion. But let’s give the scriptwriters that bit of licence, as it allowed Tom to give the redtops a bit of a kick, which always plays well to middle England of a Sunday as they listen to the omnibus edition of The Archers, while reading their….er….redtops.

What then, are the rules on reporting this offence?

Firstly, when Helen was arrested, that means that proceedings in the case had ‘become active’ – the judicial ball is rolling and at some point in the future, Helen might face judge and jury. That means that any reporter working on the story ought to keep a weather-eye on the Contempt of Court Act 1981. This says that once proceedings are active you must not publish or broadcast anything which creates a ‘substantial risk of serious prejudice, or serious impediment’ to the proceedings.

So, what does that phrase mean? Is it a blackout on all coverage of the case?

Well no. The Contempt of Court Act was brought in to substantially replace the old common law of contempt, which was too draconian, and the new statute was intended to strike a balance between rights to a fair trial, and rights to freedom of expression.

So, as long as any detail you publish is not seriously prejudicial, then it should not cause you any difficulty. Note that prosecutions for contempt have to be authorised by the Attorney General, and cannot be taken against you by Borsetshire’s barmy magistrates, or even crown court judges – they have to refer it to the AG.

The sort of details that would be prejudicial are:

  • PIctures, E-fits, descriptions or video of a defendant ‘where identity is at issue at trial’ ie the accused is saying ‘it wasn’t me guv’nor’. There may be an ID parade and if you have published a photo, that reminds the eyewitness who to pick out, and it destroys the admissibility of their evidence. The Sun was fined £80k for this, and its then editor Kelvin MacKenzie was fined £20k. This is clearly not the case with Helen, but we often don’t know that for certain in the early stages of an inquiry, so you have to err on the side of caution.
  • Assumptions of guilt. Helen is not yet ‘the attempted murderer’ it is an allegation and can only be reported as such.
  • Evidence that will be disputed at trial. Be it Helen’s threat to kill her husband on Maundy Thursday, or Kirsty’s tales of Rob’s abuse that you have unearthed, you cannot report them yet. They cast the defendant and the victim in alight that might sway a juror, so should be avoided until the trial concludes.

Proceedings remain active until sentence according to the Act, but in practice you can run your background articles as soon as Helen is acquitted and carried shoulder-high from court…..sorry, or found guilty. Once either of these things happen, the jury is out of the equation and can no longer be influence by what you publish.

When Helen appears in court a different set of restrictions apply to what can be written. In the preliminary hearings before trial a report is mean to be restricted to:

  • Name of the court and magistrates
  • Name, age, address, occupation of the defendant
  • Names of the lawyers involved
  • Charges or a summary of them
  • What the court decides about the case – adjournment, allocation for trial etc
  • Arrangements for bail – residence, curfew etc
  • Whether legal as was granted

Pretty thin stuff, very procedural, as you can see. But if the Borsetshire Echo’s court reporter has anything about her, or him, they won’t let those restrictions get in the way of giving their reader a taste of court.

Descriptive passages detailing the oak-panelled grandeur of Felpersham Magistrates Court will be fine. Describing the organic, tie-dyed t-shirt that Helen wore for her first appearance will be ok too. Her mother, Pat, weeping in the public gallery, sitting beside Tony wringing his hands, again, will not be a breach of this law. What would be a problem here would be reporting any detail of prosecution evidence against Helen. A potential juror might read it and be more likely to find her guilty as a result.

However, if Helen’s counsel Anna Tregorran QC, wants to state during proceedings, or after, on the steps of the court, that her client would be vehemently denying the charges and expected to be acquitted on due course, that would be OK to report. Jurors are told to presume the defendant is not guilty and Ms Tregorran’s statement is merely affirming that. However, if Rob’s venomous mother Ursula, were to make a statement proclaiming that Helen was bang to rights, it’s a fair cop, she’s going down – that would not be allowed.

I also foresee a potential problem when this case comes to trial, in the shape of Helen’s young son, Henry. He witnessed the entire incident and will be called as a witness at trial. In such a case it would be very likely that the court would choose to anonymise him using a Section 45A order of the Youth Justice and Criminal Evidence act 1999. This would make reporting his evidence a little difficult.

The law says that any detail which allows someone to identify him is an offence. In such a case, even his age might be seen as an identifying detail. Caution is needed, and if in doubt the Echo’s court scribe ought to get some guidance from the judge on what details about Henry are likely to attract his ire.

One thing to note. Reports of trial proceedings are protected against a libel action by a defence called absolute privilege, for a fair, accurate report published at the same time as  the proceedings. So when, as I fully expect, Anna Tregorran shreds Rob Titchener in the witness box, revealing him as an abuser and a rapist, the Echo is free to splash that across its front without fear of Rob going to law.

I hope the Echo’s staff find this useful. If the editor is reading, I could squeeze a law refresher for the staff in before trial commences.

All of the above assumes that the scriptwriters aren’t going to throw us a curve ball and have Eddie and Joe Grundy spring her from a prison van and hide her away in the wilderness of rural Borsetshire. We live in hope.

Revenge porn – how victim anonymity will protect defendants

THE Director of Public Prosecutions is the latest in along list of people supporting legal anonymity for victims of so-called ‘revenge porn.’

This campaign has been running ever since this offence emerged, with the growth of social media and the ability to easily share photographs and video content.

Before we do go down this road though, we need to understand how such anonymity will end up protecting offenders as well as victims.

Revenge porn was created as a specific offence in the Criminal Justice and Courts Act 2015, Section 33(1) of which says:

It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made

(a) without the consent of an individual who appears in the photograph or film, and

(b) with the intention of causing that individual distress.

There is not mention in that section or that Act of automatic anonymity for victims and it is not an amendment or addition to a Sexual Offences Act which confers such anonymity.

One can completely understand the desire of victims of this offence to be granted anonymity. It is a particularly intrusive and distressing offence. It very often stems from a relationship where there was great trust and intimacy, which later results in the revelation of imagery created during the relationship.

The betrayal, embarrassment and deep distress suffered by victims cannot be underestimated.

However, because of the relationships in which many of these images are created, granting the same anonymity as is currently given to other sexual offence victims will create difficulties in reporting these offences.

Currently there are a range of sexual offences where the victim is given automatic legal anonymity as soon as they report that offence to anyone. These offences include rape, indecent assault, voyeurism, grooming, trafficking for sexual exploitation. This is not an exhaustive list but you can see the range of offending is very wide.

The law on reporting such offences says that you commit an identification offence if you report ‘any matter’ that would lead to someone identifying that person as being the victim of a sexual offence.

What this means in practice is that where there is of has been a relationship between the victim and the accused, the media reporting the case must be careful to blur the circumstances of the case so that no-one can work out who the victim is.

So sexual offence anonymity means much more than just keeping out someone’s name or photo from a report.

The difficulty with granting this level of anonymity in cases of revenge porn is that the very offence itself tells the reader that at some stage the victim was in a relationship with the accused, and one that was intimate enough to result in the accused having possession of this imagery.

I realise that not all revenge porn offences will fall into this category, but many do.

Therefore the identity of the accused will be a detail that would lead to the identification of the alleged victim and media reporting the case would have little option but to anonymise the defendant too.

This will mean that such cases go unreported. The media are accustomed to anonymising victims in sexual offence trials, but if the defendant is anonymous too, then the report means nothing to the reader.

Furthermore, if someone is convicted of such an offence, then surely the community needs to know about their behaviour, so as to warn others who might get into a relationship with them.

The answer could be to give victims some form of anonymity, but one that would not by implication require the anonymisation of the defendant. This solution might appear attractive, but as explained above, it will mean that the victim could be identified by those in their community who knew they were in a relationship with the accused.

Another answer is to give full sexual offence anonymity to victims, but that the Crown Prosecution Service give guidance to the media on what they will regard as an identifying detail triggering media prosecution. This seems to be a bit of a botch and will still lead to the identification of victims.

I don’t have an easy answer to this I am afraid, but these questions must be considered before we legislate and effectively anonymise people guilty of a very serious offence.

The Sun’s ‘Queen Backs Brexit’ splash – issues for IPSO

A QUICK post on the dispute that has been thrown up by The Sun’s sensational splash claiming that the Queen support ‘Brexit’.

brexitsunsplash

The Palace has complained over the story to IPSO on the grounds of accuracy.

A reminder of what Clause 1 of the Editors’ Code of Practice actually says:

1.   Accuracy

i)  The Press must take care not to publish inaccurate, misleading or distorted information or  images, including headlines not supported by the text.

ii)  A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii)   A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv)  The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

v)    A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

I suspect that when IPSO considers this – assuming of course that no agreed remedial action has taken place -it will not boil down to a straight dispute with the Queen’s representatives denying she ever said such a thing and The Sun saying they stand by their sources.

I think that the crux of the matter will be the accuracy, or otherwise, of the headline.

If you read The Sun’s story it might be suggested by the Palace that it does not support the ‘Queen Backs Brexit’ headline. While it may suggest she holds Eurosceptic views which she has voiced in the two meetings mentioned in the story, this does not,in the Palace’s view, amount to ‘backing Brexit’.

It is to my knowledge, the first such complaint by the Palace on behalf of the Queen herself – though complaints have been made in the past on behalf of more junior Royals.

The Sun has robustly defended its story in the past couple of days, saying they had ‘other information’ that meant they were confident the story was accurate. If that information was from a confidential source that could not be mentioned in the story itself it might be enough to defend the story itself, but I am still not sure it shores up that headline.

Of course The Sun will got for the strongest headline possible – Queen expresses Eurosceptic views in meeting with MPs’ is not going to seat flying off the newsstands is it?

It will be a very interesting case to watch when it comes to IPSO for adjudication.

Finally, briefly, can we put to bed any suggestion that The Sun should not have run this story?

Some may think it was wrong for such information to be leaked, but any misdeed is on the part of those leaking the information, not The Sun in publishing it.

The Sun is a newspaper, and a very good one at that, and this is a very big story. If it is confident the story is right then of course it should publish it.

The big question is whether it will get away with that headline.

 

 

 

Sexual offence anonymity – newsrooms beware

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

  • A victim gets legal anonymity as soon as the report the offence
  • That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
  • Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
  • Adult victims can waive their anonymity, in writing
  • Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
  • An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
  • Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
  • Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.

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?

Police Harassment Warnings – Reporters Beware

THE Independent Police Complaints Commission has just upheld a decision to issue a reporter with a harassment warning in a case which should worry all investigative journalists.

Croydon Advertiser chief reporter Gareth Davies contacted Neelam Desai by email and in person following her conviction for frauds totalling £230,000.

Desai claimed the contact was more widespread, but the Advertiser is adamant only two contacts were made.

Davies was later visited by three officers from the Metropolitan Police who issued him with a Police Information Notice, also knows as a harassment notice.

Davies and his paper complained about this to the Met, and to the Independent Police Complaints Commission. Both the Met and the IPCC have found nothing wrong with the decision to issue the notice, you can read the coverage in UK Press Gazette.

At the time of issuing the notice the Metropolitan Police issued this statement:

“The harassment letter was issued by a local Safer Neighbourhoods team in response to a number of reports from the woman, who felt she was being harassed. The officers did this to ensure that the reporter was fully aware that allegations of harassment were being made against him.

A harassment warning letter does not constitute any kind of formal legal action, is not a court order and does not represent any form of conviction or caution. When a harassment warning letter is issued, there is also no implication that the alleged harassment has taken place.”

What I think is particularly disturbing about this case is the way in which such notices can be issued and the lack of an effective right of appeal.

I looked around the for statutory basis for a PIN and, frankly, struggled a bit and that is because they do not have any statutory basis. It appears to be a power that police have taken upon themselves.

This has been the cause of some concern and was the subject of a House of Commons report in March this year.

If you look at the conditions for issuing such a notice listed there, they are:

” there has been a “course of conduct” (not just one event); and

the perpetrator knows or ought to know that their conduct amounts to harassment.”

There may in this case have been a ‘course of conduct’ in that two approaches were made to Desai. However, I would be very surprised if there was a single journalist in the country who ‘ought to know’ that one email and one approach in person would amount to harassment.

If that is the case then pretty much every investigative journalist in the UK should be served with such a notice. If this logic were to be applied elsewhere, criminals, con artists and rogue traders nationwide will be able to get journalists off their back by going down to their local police station and complaining about harassment.

The other issue, over which there is some dispute, is the effect of a PIN. It has been suggested that such a notice will appear on a DSB (formerly known as a  CRB check) into a person’s criminal record. Clearly this is a very serious matter, though a spokeswoman at the IPCC suggested that it was not the case that such notices would always appear.

What is disturbing is that the only avenue of appeal is to the force issuing the notice, and then to the IPCC, which in itself does not reinvestigate the case.

There are no doubt many cases where harassment notices are a very important tool for the police in preventing harassment. I do not think the intent in creating them was to allow convicted criminals to evade legitimate inquiries from a journalist.

Any readers of this site will already know that there are myriad laws in the UK that make a journalist’s job that much more difficult. Here is yet another.

The UKPG has set up an online petition calling for the withdrawal of the harassment notice issued to Gareth Davies.

News websites – take care with comments, ECHR ruling

NEWS website operators need to take care, following a judgement in the European Court of Human Rights.

This was the final appeal by an Estonian news site called Delfi, which took the case to the ECHR after it was found liable for third-party comments placed upon its site. The appeal claimed Estonia had failed to protect its Article 10 rights to freedom of expression by allowing such liability. The judgement can be read here – http://t.co/D1IPjE3Ltp

The case arose after the site carried reports of ice roads to islands off the coast of Estonia being damaged by the activities of a ferry operator. Some of the comments below the story from readers were aimed at the ferry company directors and amounted to libel and hate speech.

The Estonian courts held Delfi liable for the comments because of its failure to promptly remove these comments when notified of them.

The European Court of Human Rights rejected the appeal. It said Delfi by running the story had invited the comments and, knowing this was a controversial issue, ought to have been quicker to act when notified of a problem.

The implications for UK news sites do not immediately seem apparent. It is already well-established practice here that where comments are unmoderated, liability only occurs where a publisher fails to remove material once they have been notified of it.

Most news sites operate post-moderation and remove comments or other material that is flagged up to them.

However, what the Delfi judgement does suggest is that sites need to be prompt to remove. This could have a chilling effect on sites in receipt of a complaint where there is some dispute about the meaning of the comments.

Many websites already, understandably, err on the side of caution and take down material upon complaint. This judgement only reinforces that policy and inevitably this will lead to material that is not actually legally actionable being removed. Determined claimants will, once again, be able to stifle legitimate publication by way of legal threats.

I also think Google, Twitter and Facebook should keep an eye on judgements like this. The Delfi judgement says that it does not apply to social media. If I were in their management, I would still be concerned about the ‘direction of travel’ of the European judges.