My witness statement to the Leveson Inquiry – Part 2/2

1 March 2012 by Adam Wagner

Not me giving evidence to the Leveson Inquiry

Last month I was asked to provide a witness statement to the Leveson Inquiry into Culture, Practice and Ethics of the Press. You can download the entire statement here, The questions in bold are those asked by the Inquiry in their request – read part 1 here.

On similar topics, I also recommend the statements of Francis FitzGibbon QC and David Allen Green.

(10) Does/Can blogging act as a check on bad journalism?

Yes. The primary reason UKHRB was set up was to act as a corrective to bad journalism about human rights, and in under two years it has become a trusted source of information for journalists, politicians, those in government and members of the public.

UKHRB operates alongside a number of other excellent legal blogs, run by lawyers, students and enthusiasts for free, which provide a similar service in respect of other areas of law. I would highlight, for example[2]:

1. Nearly Legal housing law blog;
2. UK Supreme Court Blog;
3. Inforrm – media law;
4. The Small Places – social welfare law;
5. Head of Legal – general legal commentary
6. Human Rights in Ireland
7. Law Think
8. Jack of Kent
9. Charon QC
10. Pink Tape – family law commentary by barrister Lucy Reed
11. Eutopia Law
12. Panopticon Blog

Human rights is an example of an area of law which is often misrepresented by the mainstream press.[3] This can be the result of a lack of legal expertise amongst journalists, but also represents some newspapers’ editorial positions which are if not anti-human rights, then certainly anti-Human Rights Act. It is no coincidence, in my opinion, that the Human Rights Act is also widely considered to have bolstered privacy rights and as such threatens the celebrity news-driven business model of most newspapers.

A few recent examples of bad human rights coverage which have been covered on and corrected by UKHRB[4]:

• “Catgate”[5]: This is the most famous example of the misrepresentation of human rights law in the past year, and perhaps ever. It involved the Home Secretary’s claim at the Conservative Party Conference: “We all know the stories about the Human Rights Act… The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.” This myth was initially propagated by the press in 2009, and despite being rejected by the judiciary’s press office at the time, the story was repeated a few weeks prior to the Party Conference in the Sunday Telegraph, which is probably why it was included in the Home Secretary’s speech. Moreover, despite the claim subsequently being rubbished by, amongst others, the Justice Secretary who called it a “complete nonsense example”, the Daily Mail still reported (Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported) that the Home Secretary’s claim was accurate (for that reason, I placed the newspaper on the “legal naughty step”, a “regulatory” innovation by the excellent Nearly Legal housing law blog).  

• “UK loses 3 out of 4 European human rights cases” On 12 January 2012 the Daily Mail (Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals) and Daily Telegraph (Britain loses 3 in 4 cases at human rights court) reported – entirely uncritically – a report written by a Parliamentary Aide and signed by 10 backbench MPs which claimed the UK lost 3 out of 4 cases in the European Court of Human Rights. This was a misleading statistic as it ignored the thousands of cases brought against the UK which are struck out at an earlier stage, which amounts for around 97% of all applications.

• “Britain can ignore Europe on human rights”  In October 2011 The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”. Upon analysis, the headline bore no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.

• We must regain right to kick out foreign criminals”: This 30 June 2011 Daily Express editorial comment in respect of a European Court of Human Rights deportiation decision was riddled with inaccuracies and misrepresentations of the specific case and human rights law generally.

• Human rights prevented deportation of Phillip Lawrence killer: This claim is made regularly by newspapers which are seeking to reduce the European Convention on Human Rights’ influence on deportation decisions – e.g. see Daily Telegraph, 4 October 2011: “The Government had been prevented from deporting Chindamo to Italy, where he lived as a child, because of the Human Rights Act.” But Chindamo’s case was not decided according to human rights law. As was widely reported at the time of the tribunal decision in 2007, Chindamo’s arguments under the Human Rights Act played second fiddle to the main thrust of his case, which was founded on of EU freedom of movement law.

Despite this, the claim has been repeated for years in order to support a campaign against the Human Rights Act. Lord Neuberger referred to this in a speech as an example of inaccurate reporting “which may tempt some into thinking that it is hardly worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and to preclude you enjoying freedom of expression“. He referred to: 

the reporting of the issue of the attempted deportation of Learco Chindamo, who killed Philip Lawrence from the UK. He could not be deported, and, for some parts of the press, this was entirely the fault of Article 8 of the European Convention. Although the Tribunal which made the initial deportation ruling mentioned Article 8, the reason why he could not be deported had however nothing whatsoever to do with Article 8, but was based on the Immigration (European Economic Area) Regulations 2006. (So I suppose it was the fault of Brussels or Luxemburg, but not Strasbourg) – Emphasis added 

A more comprehensive list of human rights myths which have been propagated by newspapers can be found here: http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/human-rights-act-myths/index.php.

In my view, there are a number of reasons why human rights law is often misreported, all of which can be applied equally to other poorly reported areas of law:

Sloppy journalism: Journalists often write articles about court judgments without reading them first, or about trials which they have not personally attended. The latter is a particular problem in relation to family law – see e.g. His Honour Judge Bellamy’s criticism at paragraph 193 of L (A Child: Media Reporting), Re [2011] EWHC B8 (Fam) of The Daily Telegraph’s Christopher Booker’s reporting of the case as “unbalanced, inaccurate and just plain wrong”, a criticism supported by Sir Nicholas Wall in X, Y, and Z & Anor v A Local Authority[2011] EWHC 1157 (Fam) at paragraph 102.

This case has a very interesting history which highlights many of the legal complexities relating to the regulatory and legal sanctions which this Inquiry is investigating. Although the mother involved was ultimately found by Sir Nicholas Wall to be a fabricator who had coached her daughter to lie about being abused by her ex-partner, her case was taken up enthusiastically by journalists such as Mr Booker and also John Hemming MP, who chose (before Ms Haigh was exposed as a fabricator) to expose the “super-injunction” against her in Parliament. Elizabeth Watson, a “private investigator” who published allegations made by Haigh online, was subsequently sentenced to 9 months in prison (later suspended) for contempt of court arising from her blog about the case.

No links to primary sources: Newspapers rarely link to primary sources, in particular judgments, which means that online readers are unable to test claims for themselves. This is why UKHRB seeks to publish links to judgments and other primary materials almost as soon as they are available, and I seek to do the same via Twitter. I also campaign regularly for courts to publish more judgment summaries and press releases as the Supreme Court now does to great effect.

Lack of dedicated legal correspondents: Legal writer Joshua Rozenberg has told Legal Week that many national newspapers no longer have a designated legal correspondent, meaning that they “don’t provide the service they did“.

Merging of factual and opinion reporting: The boundary between “news” and “opinion” in newspapers has all but disappeared, and this is confusing for readers. Editorial positions often leak into “news” reporting: for example, reporting immigration decisions critically, quoting MPs with particularly strong views on one side of the debate and representatives of think tanks from only one side of the debate.

Wilful/reckless misrepresentation: Some newspapers have mounted campaigns against the Human Rights Act, which is their right, but those campaigns are sometimes bolstered by unbalanced reporting in “news” articles as well as opinion pieces and editorials. The merging of factual reporting with opinion is particularly damaging when reporting the law. Complex rulings are difficult enough to summarise when just sticking to the facts. Adding another slant to the multiplicity of opinions which are already sewn into the fabric of a legal judgment is dangerous and unnecessary.

The final factor mentioned above, willful/reckless misrepresentation, is the most insidious. It is also the area where social media can and do help create balance through a free market for ideas. UKHRB regularly criticises articles about law in the mainstream media, as well as “naming and shaming” journalists, and enough journalists read the blog (many subscribe by email or Twitter) for this to have some impact. For example, the Daily Telegraph’s Christopher Booker responded directly to my post asking whether journalists need to attend court to report on trials

I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear “both sides of the story”.

(11) Anything else which you would consider will assist the Chairman to arrive at considered conclusions on any aspect of the Terms of Reference.

I would counsel against the idea that in future only accredited journalists should be provided with access to certain places or information privileges (as proposed by Paul Dacre in his evidence to the Inquiry on 6 February 2012). Although I understand the rationale – providing an incentive to journalists not to lose their press card by way of a disciplinary sanction – this could have a significant detrimental effect on the work of non-professional “citizen” journalists.

It is also hard to see the justification for rewarding journalists with additional privileges whilst punishing bloggers etc. by removing privileges given that it is the poor ethical conduct of professional journalists which has led to the need for an inquiry into the ethics of the press.

The legal blogs mentioned above help to correct bad legal journalism but also improve public understanding of the law. The sheer number, range and quality of legal blogs is in my opinion an excellent example of the public utility which blogging and citizen journalists can provide.

Of course, there are bad blogs too. But any proposed system of regulation which could effect all blogs must be considered very carefully indeed as it risks having a significant chilling effect on the excellent work that many bloggers currently do.

In conclusion, in respect of the problems with legal journalism, I agree with Lord Neuberger, who has said.

It is a sign of a healthy democracy that there are different views within society and that the outcome of individual cases, and the balance struck between individual rights, can be vigorously debated. But such debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.