Top legal expert on why curbs on papers pose threat to democracy
THE
rich and powerful are using the law to silence their critics like never before.
Police, politicians and celebs have created a climate of fear to intimidate whistleblowers.
In the past few days three people have been arrested in Cumbria by cops probing the leak of a £700 chauffeur bill run up by their commissioner but paid by taxpayers.
And a Hampshire police sergeant is accused of trying to censor his local paper after it criticised a councillor.
Judges want to ban the Press and public from knowing the identity of people who are arrested. The detention of TV star Rolf Harris was kept secret for FIVE MONTHS and only published after it was formally confirmed by The Sun.
Ministers are pushing plans for court cases to be held in secret. And around 80 journalists have been arrested in the past two years, many by police probing the source of their stories.
It is all part of the chilling effect of the Leveson Inquiry into Press standards.
Here, media lawyer GAVIN MILLAR QC explains why
restrictions on our free press have gone too far and why YOU will be deprived of information you have a right to know.
FREEDOM of the Press is what is left after the law has its say.
So the
media and the law have never been the best of friends. Now our Press freedom is under attack.
Things journalists have been able to do and say for many years are being questioned, prohibited and penalised.
For 100 years, Fleet Street could “publish and be damned”. If they libelled the rich or powerful, they could be sued for damages — but they could never be prevented from publishing. As one 19th Century judge rightly said: “Often a wholesome act is performed in the publication and repetition of an alleged libel.”
This is especially true when wrongdoing by politicians is concerned.
But in the past decade, court orders preventing publication have become commonplace. Many have been made simply to hide the embarrassing extra-marital affairs of celebrities.
Our fine tradition of open justice has also been eroded. In 1955, senior judge
Lord Denning described the court reporter as the “watchdog of justice”. If he is to do his job properly, Denning said, every case must be heard in open court. But today
many cases are heard behind closed doors or without the parties being namedNow the Government are legislating for “secret courts” in national security cases — a familiar instrument of oppression under authoritarian regimes.
These developments are worrying.
Full court reporting ensures public scrutiny of the administration of justice. This puts pressure on judges to decide cases fairly and on witnesses to tell the truth. Miscarriages of justice are less likely.
Now Parliament wants all newspapers, magazines and bloggers, however small, to pay to join an approved regulator — or risk facing penal damages in the courts.
Politicians, the most vulnerable targets of Press attacks, jumped at the chance of imposing this burden on the Press when Lord Justice Leveson put it forward
Last week I was in Azerbaijan with an international commission of jurists. I met an editor whose small paper criticises the country’s all-powerful government.
The paper faces two libel judgements in favour of pro-government claimants — costing the publisher a total of £600,000.
As the paper cannot afford to pay, its bank accounts have been frozen and, as I left, the editor was waiting for the bailiff to lock up his printing presses.
Maybe this will not happen here. But I wouldn’t bank on it.
Now there are new and less well-known threats to Press freedom. Vital police sources of journalistic information are being squeezed. Many of the stories we read come from the police.
And it is not just national newspapers and broadcasters who need this information. Regional and local newspapers depend on it.
The information may simply be when to turn up in court or a particular location to pick up a good story. But it may be much more. The police tell journalists in confidence when crimes are not being investigated properly, or at all. They tip off journalists about mismanagement and corruption in the service. They leak about serious misconduct by politicians, officials and businessmen.
These days it is assumed that this only happens if money changes hands. But payment of police sources is very much the exception, not the rule.
Police normally give information to the Press because they want wrong-doing to be exposed.
The sunlight of Press coverage can be a powerful disinfectant. Or it can open up other lines of inquiry.
Until now, police have given journalists the names of those they have arrested. The Leveson report recommended that this practice should end. And now the judges have told the Law Commission that they agree.
But very often when the Press name a suspect, witnesses come forward, helping the police make a case. It is hard to see why this valuable link between the law and the public interest should end. These are difficult times for both sides to this vital relationship.
Last year’s Filkin report, commissioned by the Metropolitan Police and the Home Office, led forces to warn officers of dire disciplinary consequences if they spoke in confidence to the Press.
Leveson has endorsed the approach of Elizabeth Filkin, a civil servant. At the same time, media organisations and their proprietors are coming under pressure from law enforcement agencies, the courts and politicians. Sometimes there is pressure to hand over confidential information on dealings between journalists and police.
More often, it is pressure simply to stand back and allow the police to gain access to material through the courts.
Seizing on this opportunity, the police asked Leveson to support changes to the 1984 Police & Criminal Evidence Act, which has long given protection to journalistic material. Leveson did so and the Home Office is now consulting on this retrograde step.
Last week it was revealed a police sergeant in Hampshire had complained to a local paper on behalf of a councillor who had been criticised by the paper for verbal bullying of colleagues.
The sergeant visited the paper’s offices to discuss its editorial policy towards the politician.
Worse still, journalists and their sources are being arrested and charged with leaking offences more freely than ever before. Around 80 journalists have been arrested in four Met operations in two years.
I say nothing about whether those arrests were right or wrong. But police and prosecutors are now emboldened to use the criminal law in this area. This is worrying, as in my experience they have no understanding of public interest journalism and its value.
We are more likely to see misguided arrests in cases where precisely such journalism was at stake. The result of all this is that a valuable source of public interest journalism is drying up.
I believe we are poorer for this and our democracy will suffer. The Press must tell the public this — as it will never be said by politicians and police chiefs. Nor should we forget that the rich and powerful have most to gain from this climate of fear.
Indeed, I believe we should enact clear and detailed laws protecting all whistleblowers, especially in the police and health services, in a way that our law now fails to do. We should ensure that they — and journalists — have a “public interest speech” defence in all cases, both civil and criminal.
We should also have a strong, statutory “shield” law for journalists to protect them from having to reveal their confidential sources.
In practice, however, a court order is rarely needed in these cases, as most journalists understand the limits of their ethical duty to protect a source.
In these worrying times we should remember the words of
former American President Thomas Jefferson nearly 200 years ago.
He said:
“If a nation expects to be ignorant and free, it expects what never was and never will be. The people cannot be safe without information.
“Where the Press is free, and every man able to read, all is safe.”
Gavin Millar QC is a leading media barrister and a member of Doughty Street Chambers
http://www.thesun.co.uk/sol/homepag...ress-can-be-a-very-powerful-disinfectant.html
