Thursday, 7 November 2013

2500 Free Media - The Royal Charter, the News of the World Trial and cameras in court

The last week of October 2013 will go down in British history as when our newspapers commenced to pay for the way some destroyed the right to personal privacy over recent decades. On Wednesday key members of the Privacy Council gained the approval of the Queen for a Royal Charter to set up a new machinery for ensuring that in future complaints are dealt with in an appropriate and speedy manner according to the main recommendations of his Lordship Justice Leveson, following his enquiry which exposed the trauma suffered by individuals and their families as well as the depths of hypocrisy and corruption by individual journalists and those who managed them, a conclusion reached as a consequence of watching and or reading every day of evidence.

It was not surprising to learn that that the majority of those who owned and edited newspapers, responsible for such practices together, it has to be said, some whose concern is primarily for maintaining the freedom of newsprint from any form of democratic oversight, attempted to block the decision of Parliament by asking the High Court to make in effect a restraining order which was rejected. They have said they will now raise the matter with the Court of Appeal. If they do pursue this request, it is likely that the case will be one of those held in public following the introduction on Thursday of live hearings for the first time on British Television..

It is note worthy that the most outrageous reporting of the development came from the Daily Mirror with the headline “Nick Clegg ends 300 years of press freedom in a private deal with Queen, They were quoting a Tory Member of Parliament Tracy Couch who said the development was a disgrace. She was supported by a former Tory Minister “ We said that the Rubicon of statutory press regulation should not be crossed” and adding “ I fear we are leaping over it by Royal decree.” The paper was the only one I could find that disclosed that in attendance at the Privy Council meeting was former Secretary of State for Culture and Leisure Jeremy Hunt As I separately reported in Daily notes 0026 there was a thoughtful editorial in the Sunday Observer (covered in full) which explained the deficiencies of the Royal Charter compromise and suggested that the alternative system being formed by a number of leading newspaper undertakings might become acceptable to a Conservative governing Parliament if this happens after 2015 when in fact the present Coalition has indicated the arrangements under the Royal Charter was likely to come into being. This may prove a good compromise rather than a negative fudge with the proof how quickly all newspaper groups join the self regulation model and adhere to its mechanisms for dealing with complaints quickly and appropriately. We shall all see and judge!.

The pressure is now likely to come from what happens in the trial of Rebekak Brooks, former Chief Executive for Rupert Murdoch here in Europe, who was former editor in Chief at the Sun and the News of the World, and Andy Coulson, former deputy and Editor of the News of the World and former Communications Director for Prime Minister David Cameron, together with three others from the News of the World, the husband of Mrs Brooks, her personal assistant and the head of security at the London based Headquarters.

Their trial opened last week with the accreditation of seventy journalists permitted to make and publish verbatim reports from the court and with provided annex with a live feed under clear rules which if breached could result in being in contempt of the court.

The eight individuals are being tried by a jury of nine men and three women selected over a period of three session and able to anticipate in what has been said will be a trial lasting six months continuing until April, with I assume a break for Christmas and the New Year. It is the jury under the direction of his Honour Judge who will determine whether the defendants are guilty or not of the charges on their indictment and it important that the media and the public remember this fundamental aspect of the British system of Justice. In fact I believe it would helpful when the media decides to cover such important trials that the process is fully explained and kept on line so readers can refer and ensure that they understand the context in which the summaries, however faithfully reported, are being made and I will come back to this point again.

Before the trial commenced there would have been a process hearing at which the arrangements for the trial will have been agreed, given that defendants are likely to be represented by more than one Counsel, a QC in this instance supported by assisting Counsel and, instructing solicitors and their respective clerks. One issue will be the order in which the Counsel will be able to cross examination witnesses and my understanding is that the Counsels or their representatives will hold separate meetings together to review progress to ensure that the defence does not create problems for others although as I was once advised during a 13 week held panel of enquiry, the agreed approach tends to break down when in that instance the “evidence” became stronger in relation to the areas of involvement of one agency or agency worker than others. While in this same instance everyone was circulated with the same documentation and daft witness statements additional and witnesses emerged during the hearing which significantly changed everyone’s understanding and later affected the views of the panel when the matter came to be considered with a view to forming judgements.

I have sat through many criminal and other proceedings, albeit many decades ago as a court attendance officer or for two Children’s departments, prepared and submitted social enquiry reports for Juvenile Courts, the adult Magistrate Court, adoption and matrimonial proceedings at County Court and occasional at the Crown Court, and I was called to attend a potential witness by the police and spent the greater part of the time waiting outside the court while arguments were heard about what I could and could not be asked about documents where a High Court confidentiality order had been granted but the police had provided the defence with the documents as part of their required disclosures.

Despite all the pages devoted to criminal and sometimes civil proceedings most people are not aware of structure of proceedings or the actual the cultural style of a court and which varies between type of Court and between England and Scotland, and of the need to stick rigidly to procedures because failure to do so can lead to the stopping of a trial or to a verdict being set aside at a later date under Appeal procedure. Public understanding may however be about to change.

By a fortunate coincidence I switched on BBC News just in time to witness the first case being heard at the Court of Appeal, by a man wanting to reduce the length of his sentence of seven years because the judge considered that he had been involved in the organising of the manufacture as well as distribution of one million and a half counterfeit pound coins, although the majority of these were blanks yet to be manufactured. The three Lordships considering the request did not accept the three point case presented by the prisoner’s barrister, the elder brother of Prime Minister David Cameron because the case he quoted did not attempt to set out sentencing guidelines for future case, or to because the man had not been directly responsible for the manufacture of the fakes or because of comparative sentence fairness as two others sentenced for the same crime had been given three and two years.

What may have surprised some watching is that the chairmen of the bench rendered a detailed judgement within minutes of formally retiring to give the matter consideration. This is because the judges had prior to the hearing received all the original and subsequent papers plus written submissions on behalf of the appellant and would have reached a preliminary decision making notes and therefore would have only changed or modified their viewpoint if the barrister for the appellant was able to persuade or I assume introduce a new legal point at the hearing.

What I am interested to learn when other cases will be available to be televised and how they will be selected or if the BBC for example will include in Democracy Live or establish a separate channel. I have written to the BBC enquiry the position. Investigating when the Court of Appeal sits in either of its divisions (Civil or Criminal) I discovered that the Department of Justice provides an email service advising of the schedules among a large lists of email alerts covering all aspects of the justice system and that in fact other government departments also provide a similar service.

Returning to the Trial of former News of the World staff with others, the Judge, His Honour Sir John Saunders is a High Court Judge in the Queen’s bench division. born in march 1949 thus aged ten years younger than me. His background is as the recorder for Birmingham having previously been Prosecutor for the Department of Health and Social Security.. He presided over several of expenses Scandal Trials involving peers and Members of Parliament and the Trial of Pakistani cricketers accused of spot fixing betting. Last year he jailed a metropolitan police Commander for three years for perverting the course of justice and misconduct while in a public office.(Sources Wikipedia and the Guardian Newspaper).

He is reported (Telegraph) to have instructed the case the evidence and the arguments you hear in court.. This is an important statement which the casually interested party may not appreciate that a jury has to listen to evidence which itself will be open to interpretations often different interpretation by the Prosecution and Defence and to the arguments present by Council about the evidence and charges on the indictment which I shall detail later, The case begins with the Prosecution outlining the evidence it will present through its witnesses. The prosecution will not question the defendants if they elect to give evidence on their behalf as part of their defence.

Judge Sanders also warned that there had been an unprecedented amount of publicity about case, some of which he described as offensive and demeaning to some of the defendants. He asked them not to discuss the case other than with the colleagues on the Jury and in this respect warned that use of Twitter, or Facebook and other social media and led to imprisonment for contempt of court.

In a separate report the Daily Telegraph which appears to be covering the trial in considerable detail stated that the Attorney General had advised Members of Parliament on the position. Parliamentary privilege means that in theory politicians can talk about such cases without fear of prosecution but the Solicitor General has written to the leaders of the three main political parties ( and I assume also to the others) that Members should refrain from any commentary which could be perceived as prejudicial to the case and those involved.” Judge Saunders has previously drawn attention to the misuse of Parliamentary privilege in relation to Expenses cases.

His honour also made the point that not only are the defendants on trial, British justice is on trial.

The prosecution opened the case for the Crown on Wednesday and is led by Andrew Edis QC. Recently he prosecuted Chris Huhne and his ex wife, aged 56 years and educated at Oxford he has also acted for the defence come to attention when his work helped to clear Bruce Grobbelaar of match fixing in 1997. He became Queen’s Counsel that year and in addition to some high profile murders cases has appeared in case for the Serious Fraud office and in relation to Terrorism.

Reading the various newsprint reports and listening news summaries on the BBC and Sky one can be forgiven for not appreciating the structured way in which the Prosecution is being presented in terms of the three forms of conspiracy charges listed in the indictment. In effect there are three trials taking place at the same time, each with different defendants although some are included in more that one conspiracy indictment..

I am not sure which of the charges potentially carries the great penalty if the case is proved against a defendant but my understanding is that attempting to pervert the course of justice by destroying or concealing evidence does potentially carry a penalty of imprisonment and generally a charge of conspiracy is much more serious than being charged solely on ones own account. However the golden rule is that a defendant is presumed innocent unless a jury (or a judge, Magistrate etc is satisfied that the prosecution has proved guilt beyond all reasonable doubt. It is therefore crucial to emphasise at the outset that the all eight defendants who answer the charges in this court have pleaded not guilty to each and all the charges laid against them

Rebekak Brooks, her husband, her personal assistant and the head Security Officer all face a charge of conspiracy` pervert the course of justice Mrs Brooks faces one charge with her personal assistant between July 6th and 9th 2011 and one charge with her husband and head of security said to have taken place between July 15 and 19TH 2011. The defendants have pleaded not guilty.

Mr Coulson is charged with Mr Clive Goodman, former Royal Editor at the paper and that with others in this instance unknown to commit misconduct in public office and between August 31st 2002 and January 31 2003 and between January 31and June 3rd 2005 to which both men have pleaded not guilty

Mrs Brooks is also charged with two counts of conspiracy with others to commit misconduct while in public office between Jan 1 2004 and 31 January 2012 and one between February 2009 2006 and 16 October 2008 and these charges as those involving Mr Coulson and Mr Goodman are said to be linked to the alleged inappropriate payment to public officials and as stated the defendants deny all the charges.

The third form of conspiracy is phone hacking and Mrs Brooks, Mr Coulson, together with Ian Edmonson who was head of news at the News of the World and Stuart Kutner, the conspiracy of intercepting communications in the course of their transmission are charged with this alleged offence. The alleged dates are between October 3rd 2000 and August 9th 2006 and all the defendants pleaded not guilty to all the charges

It is important to note the specific nature of the allegations and to reminding that it is for the jury to determine as appropriately directed by the Judge in the context of the British Adversarial system which is why the Judge spoke of listening to the arguments as well as the evidence.

My problem is that unless the media reports all the statements, the witness testimony and cross examinations it is impossible for anyone else to try and come to same king of judgement and those 12 men and woman that have been selected to do the job on our behalf.

I believe from previous experience that the media will only give attention to those aspects which they believe will of interest to the general public rather than ensure that a balance presentation is made throughout and therefore I do not intended to duplicate what the written press and TV news media chose to report. One has only to note how what is happening in Syria has dropped from the front pages and daily bulletins to confirm how public interest is interpreted by he media in general..

I will finish this piece by including two matters which were raised by the Prosecution in the opening days of the trial. The first is now a matter of fact in terms of the law viz that phone hacking did take place at the News of the World beyond the matters which were the subject of the original prosecution, conviction and sentencing of the Investigation agent Glenn Mulcaire and the Royal Editor Clive Goodman.

It was announced as part of the proceedings that three former staff of the News of the Neville Thurlbeck, Greg Miskiw and James Watherup had pleaded guilty to charges which involve phone hacking. Mr Thurlbeck was a important Investigative Journalist and editor at the News of World who went on to hold more general positions with the Newspaper until his dismissal. Mr Miskiw is report to have said that the role of the News of the World was to go out and destroy lives. He left the newspaper in eight years ago and returned to the UK from the USA where he had been working and was subsequently charged with hacking the phones of a dozen major personalities including two Cabinet Ministers, a Manager of the England Football team and Millie Dowler. James Watherup worked for the News of the World for over 25 years in two period under nine editors,
It was also announced that Glenn Mulcaire had pleaded guilty to the further charges laid against him and which have been reported as including admitting intercepting the telephone communications of Millie Dowler.

The second piece of information which has been given priority attention by the news media in the UK and elsewhere in the world is the disclosure by the prosecution for reasons which were explained of a letter written by Mrs Brooks to Mr Coulson.

The content of this letter was headline on the BBC and Sky and then in the Telegraph and on the front page of the Daily Mirror and Guardian Newspapers, together with being the first item of news about the trial in other on line commentaries. The Guardian reported that the prosecution described the letter as elegant, intelligent and well written in reply to a letter written to her by Coulson attempting to end their relationship by establishing new rules to limit their contact, something she had said which caused her” a great deal of grief.” The fact is you are my best friend,” she said.” I tell you everything, I confide in you, I seek your advice, I love you, I care about you, worry about you. We laugh and we cry together. Without our relationship in our life I am really not sure how I will cope., I am frightened to be without you but bearing in mind ‘the rules’ you will not know how I am doing and vice versa, Obviously I cannot discuss my worries, concerns, problems at work with you any more.”

The Prosecution said that the jury needed to know of the clandestine relationship (separately reported to have lasted six years) because the two former editors face charges of conspiracy to hack phones. The first question therefore is how well did they know each other? How much did they trust each other. The fact that they were in this relationship, which was secret, means that they trusted each other quite a lot with at least that secret. That’s why we are telling you about the letter “ the prosecuting QC, said.

The Guardian newspaper added that during the stated affair Mr Coulson and Mrs Brooks were separately married. The disclosure of the affair was made during a day spent on just one of the seven counts on the indictment and concerned the conspiracy to hack phones

In opening the case the Mail on Line stated that the jury were told that that Rebekak Brooks had presided over a six year campaign of phone hacking which targeted politicians, pop stars and royals They were told that she her deputy Mr Coulson were alleged to have sanctioned. thousands upon thousands of voicemail interceptions. The phone tapping had become so widespread that lieutenants even used a special do it yourself hacking and targeted rival journalists.”

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