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COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
Published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Tim Crook’s Media Law Bulletin January 2010
Secrecy, Identity, and the Rule of Law
1. The national British media showed in January 2010 that it has no stomach or professional desire to assert the open justice in the principle of a criminal court identifying young children who commit the most heinous of crimes. Instead in the case of the Edlington 10 and 11-year-old ‘sadistic torturers’, it was the parents of the victims and a local Sheffield based newspaper who unsuccessfully asked Mr Justice Keith to lift the anonymity granted under section 39 of the 1933 Children and Young Person’s Act. The position of the victims’ parents has been reported in the Mail on Sunday: ‘‘People should have the right to know if there are people like that living anywhere near them.’ The Press Association reported that several media organisations had applied to lift the restrictions after a hearing last year but most later decided against pursuing their applications. It is possible that there is an unreportable aspect to the case that has persuaded the national media not to pursue the lifting of the restrictions.
2. The judge ruled the two brothers could be harmed in custody if they were identified. He said their rehabilitation might ‘not progress’ if their names were released, and it would mean that they would have to be provided with new identities on their release. He also pointed out that their family, who have already fled Doncaster after threats, would have to be moved at public expense. His decision is in contrast to Mr Justice Moreland, the trial judge at Preston Crown Court in 1994, who decided to permit the public identification and the release of police photographs of Jon Venables and Robert Thompson for the torture and murder of 2 year Jamie Bulger in Merseyside after their conviction. However, censorship orders were later applied on the media coverage of their arrangements in youth custody and the High Court later issued contra mundum orders in perpetuity on anything that could lead to their new identities on their release at the age of 18 in 2001.
3. 16 years later British cultural and social values have changed. The idea of naming and shaming very young criminals so rarely accused of murder or extreme level assault is seen as retrograde, immoral, and inappropriate. Some newspapers did challenge the all pervasive media bans on the Bulger killers’ new identities in 2001, but they faced some acerbic criticism from within the media itself, including The Guardian.
4. Furthermore, Mr Justice Keith at Sheffield Crown Court had to conduct the hearing last week in the light of an ECHR ruling in the Bulger case that ruled aspects of the Preston Crown Court trial process of Venables and Thompson as a breach of their human rights. There is every indication that the judge conducted the sentence hearing of the Edlington boys with great skill, according to prevailing precedent and statute, and under the intense pressure of media scrutiny although neither defendants nor victims were identifiable and Doncaster Social Services sought to keep secret the full report of the serious case review of their own investigation from the trial judge and the media. One would have thought that a request for a serious case review report from a Crown Court tasked with the responsibility of sentencing children for very serious criminal offences would have been respected. Is it not the case that the fate of children in the context of a criminal trial and sentencing process should take precedence over any confidentiality in a document arising out of an examination of their past care and the role and performance of the child care professionals assigned to them?
5. The Independent in an editorial has pointed out the folly of concealing the full report from public examination.
Rather than argue for the justice of the victim’s families in seeing the ‘sadistic’ young brothers identified and exposed along with their parents, the Independent has concentrated on the fact that the detail of the concealed report reveals that a range of child protection agencies had been in a position to intervene in the lives of the two offenders and their notorious attack was preventable. The report was leaked to the BBC’s Newsnight programme and Doncaster council unsuccessfully spent in the region of £30,000 trying to stop the BBC reporting the public interest issues arising from its contents.6. Initially there appeared a political, judicial, cultural and media consensus that the secrecy attaching to the Edlington case was civilised and correct and the position of the victims’ families seemed marginalized. But it now appears that the media at least has been waking up to their reasoned advancement of the rationale and justification for identifying the brothers. It seems reasonable to explore the arguments in support of such a move. The English legal system and wider society is fundamentally confused about where the boundaries on secrecy should begin and end. But as the famous philosopher and legal jurist Jeremy Bentham once said: ‘In the darkness of secrecy sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.’ [Constitutional Code, Book II, ch. XII, sect. XIV.' The Works of Jeremy Bentham, vol 9 (1843) at page 493.]
7. Advocates for secrecy usually begin with emotionalised justifications based on all of the vulnerabilities and insecurities of the human condition, family and society: the children; sexuality; human dignity; security and the fear of terrorism. In this way you can establish exceptions and particulars that breach the dam of immutability. There are no floodgates opening, but over time the principle of utility and pragmatism extends the qualification of the immutable value into an arbitrary contingency.
8. And the Edlington, Doncaster ‘sadistic’ 10 and 11-year-old brothers press all of the right buttons. We talk about confidentiality and privacy and not secrecy. We talk about the innocence of children. We invest in the hope that forensic psychiatrists and therapeutic psychological experts really are the masters of the universe. They, like the Jesuits, can take a child at any young age and produce the law-abiding and civilized man. We all hope for sociological trans-substantiation. We all hope that love and kindness and the good life in custody rather than the punitive and retributivist will exorcise the sociophathic demons in these two young boys.
9. The local community in Edlington, Doncaster know full well who they are. They have a close and terrifying understanding of their full identities and character. The micro-community also knows who the victims were. The ‘confidentiality’ applying to the victims and their parents is based on a statutory anonymity arising out of the fact that they were also victims of a sexual crime. Their parents have no right or discretion to agree to identification. Only the judge has the power to do that until or unless the child victims can exercise their own choice at the age of 16. So there is a complex nexus of social utility and legal efficacy attaching to the secrecy that offers little degree of moral certainty in supporting the principle of identification and publicity.
10. In the court proceedings all of the information before the public in the court is usually transparent and explicit. The ‘secrecy’ or ‘confidentiality’ is by way of injunction on outside media publication. But in modern and postmodern society media publication is supposed to be the electronic and printed extension of the public gallery. It is in this way that the media can fulfil the constitutional role of being the watchdogs of democracy.
11. What do we miss as a society by not knowing the identities of the people involved? To begin with it is more difficult to imagine the people involved as sentient human beings. They have no face, no identity, no authentication and integrity in terms of truth and factual being. Because they have no existential social being, they are denied their individuality and social and cultural autonomy. The brothers are neither themselves or they are everybody else. They are the same as every 10 and 11 year old boy everywhere in our society. There is no distinction between victims and defendants and every child of the same age. Our adult population is having enough difficulties relating to ‘children’ with the ongoing phenomenon of presumption of paedophilia, fear of being misunderstood, requiring qualification and clearance for contact, apprehension and identification of feral criminality, fear of being accused of behaviour and contact with the presumption of guilt and nefarious motives and intention. Secrecy of this kind makes every 10 and 11 year old child a potential sadistic torturer.
12. And this is where the judge’s reasoning and justification for secrecy begins to unravel. He rightly wishes to protect the brothers from vigilante justice and promote their rehabilitation. But as everyone who has had any contact with any penal institution knows, everybody knows everybody’s crime and everybody is innocent and everybody, to quote the seminal film Shawshank Redemption ‘was xxxxed by a lawyer.’ This is true of a specialised youth custody centre and local care accommodation as it is of a high security adult prison.
13. The problem with such secrecy, as the confidentiality and privacy surrounding the future life of Ian Huntley’s former partner Maxine Carr has demonstrated, is that any youth entering protective custody and being moved in the next five to ten years risks being bullied and targeted as one of the ‘sadistic’ Edlington brothers, just as any stranger woman settling in a town, village and hamlet in the United Kingdom has risked being singled out as Maxine Carr in disguise and under a new identity. This is postmodernist persecution of a retrieved notion of the medieval witch.
14. The judge informs us that the brothers’ family has fled Doncaster. Well no risk of reprisal in Doncaster then. The logic here is not good. Does this mean that identification means that there is a clear and present danger that wherever they have moved to will lead to attacks and risk to life? If this is the case what is the disincentive, legal deterrent and social demotivation against such reaction? If it is presumed that identification will lead to mob rule and vigilante reprisal what is to stop and discourage such reactions to any stranger family moving into a new area on the basis that they must be the family of those 'feral sadistic torturers'? On this basis I would not like to be a couple old enough to be the parents of the two boys, with South Yorkshire accents, moving into a new town or village in the next year or so.
15. There has been much heart-warming editorial comment around this case about how British society must learn to be less condemnatory, more understanding and prepared to show a greater willingness to forgive. These are indeed noble aspirations. Of course they can be exercised with more confidence and certainty when collectively all members of the community can be given a chance to know what it is they have to understand and forgive.
16. In the absence of secrecy and confidentiality there can be no tolerance for threats, intimidation, vigilante and mob media hatred and violence. The rule of law is tested by the investigation, prosecution and conviction of such conduct as crimes. Mob media and vigilante journalism can be prosecuted and sued under the 1997 Protection of Harassment Act. The courageous and seminal case brought by Esther Thomas against the Sun proved that point at the Court of Appeal in 2001.
17. Perhaps it is time that the police and the courts demonstrated that they are prepared to assert and confirm the rule of law that those properly and fairly tried, convicted and punished must without exception be allowed to live as peaceful and law-abiding citizens anywhere in the community once they have received punishment according to the law.
18. The cultural atmosphere of ‘confidentiality’ in relation to this case extended disastrously to the serious case review report whose summary turned out to be much less than the sum of its parts and more of an exclusion of public interest information highlighting in detail where our child protection system had gone so wrong. The fact that the trial judge could not even gain access to it raises a serious issue about the writ of the rule of law in these circumstances. The fact that it was leaked to the BBC indicates somebody somewhere knew matters of public interest were being suppressed.
19. The fact that the BBC successfully defended a prior restraint injunction or ‘gagging’ process is a credit to the BBC and the High Court judge who resisted the charge for secrecy. Mr Justice Tugendhat’s words remind us how important the rule of law is in a democratic society: ‘In this case there have been lamentable omissions by Doncaster to follow the procedure set out in the Civil Procedure Rules governing the application for an interim injunction. I have not refused to grant the order because there have been technical failures. I have refused the order on the merits of the application. But if the proper procedures had been followed, it would have been apparent, before any application was made to the Judge, that no injunction was required against the BBC in this case at all. The failure to follow the correct procedures means that substantial costs have been incurred which need not have been incurred. In any case, the rules are not just technicalities. They are essential measures for preventing unfairness and injustice to a defendant. A defendant has a right to be heard, and to know the case being advanced against him.’
20. The British system of justice is engaged in an acute constitutional struggle against the forces of executive contingency and arbitrary abuse of power and the surrender by legislature of the importance of the rule of law. It is my belief that we have been abandoning our immutable and libertarian values in a diminishing and disillusioning march and concession to the authoritarian tendency.
21. There appears little enthusiasm to investigate the increasing problem of secrecy in the English criminal justice system. This is very disturbing because the developing secrecy is not simply restricted to the privacy of very young children associated with exceptional and, thankfully, very rare cases of life-threatening assaults and homicide. There is a real risk that secrecy is becoming the norm not the exception in the process of witness evidence in serious criminal trials. The complex and unusual instances of defendants receiving anonymity in criminal trials is increasing; not lessening. And what was seen as an essential immutable in English criminal justice, that the identity of the judge and members of a judicial tribunal should always be public, a precedent established in an action by the investigative journalist David Leigh in 1987, (R v Felixstowe Justices ex p Leigh 1987 QB 582), is in grave risk of being chipped away. Magistrates have begun to publish a discourse of fear and apprehension of reprisals in the context of their names, addresses and contact information being accessible by defendants and convicted prisoners.
22. The Court of Criminal Appeal, in the frame of decisions ‘in exceptional circumstances’, has begun to challenge immutable principles of open justice. For example the history of an appellant’s serious manslaughter crime was censored on the grounds that the publicity would psychologically undermine the appellant’s health. Recently the identity of a judge in a criminal case involving allegations of jury interference was prohibited from publication and the transcript of the appeal court ruling was removed from the public record and is now only accessible by way of summarized law report.
23. One of the difficulties of the political enthusiasm for secrecy is that a powerful House of Lords ruling that anonymous witnesses in criminal trials are unlawful, R v Davis 2008, was rejected by the current New Labour Government and Justice Minister/Lord Chancellor Jack Straw. The 2008 Witness Anonymity Act restored and legitimised a process of defendants being convicted on the basis of evidence from people whose identities they and the public are never untitled to know. This systematic process of secret justice has been continued through the provisions of the 2009 Coroners and Justice Act despite the clearest warning from Lord Rodger in R v Davis that secret justice is jurisprudentially wrong in any historical, social and cultural context: ‘My Lords, it is axiomatic that the common law is capable of developing to meet new challenges. But threats of intimidation to witnesses and the challenge which they pose to our system of trial are anything but new. In theory, the common law could have responded to that challenge at any time over the last few hundred years by allowing witnesses to give their evidence under conditions of anonymity. But it never did - even in times, before the creation of organised police forces, when conditions of lawlessness might have been expected to be far worse than today. Moreover, Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it. In these circumstances, while I am very conscious of the problems confronting the authorities which have led them to adopt these measures, in my view it is not open to this House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the procedure adopted in the present case.’
24. The voices of dissent in the British legal community are cogent and portentous. The eloquent and worrying warnings of Geoffrey Robertson QC (1, 2) and Dr Eric Metcalfe in his convincing report for Justice have fallen on deaf ears. Dr Metcalfe’s outstanding and magisterial 241 page report proves beyond reasonable doubt that secret evidence, and by logical conclusion any secrecy in the legal system, is unreliable, unfair, undemocratic, damages the integrity of the courts, weakens national security rather than preserving it, and is fundamentally unnecessary. Far from being pragmatic, cost-effective, and a utilitarian compromise in exceptional circumstances, judicial secrecy is corrupting, and like a cancer untreated, spreads exponentially to destroy anything good and morally purposeful in its host.
25. Geoffrey Robertson QC argued nearly 2 years ago that witness anonymity in criminal trials is a perjurers’ charter: ‘The witness anonymity bill is the result of a panic that followed last month's ruling by the law lords that, under the principles of English common law and the European Convention on Human Rights, a defendant could not be convicted "solely or to a decisive extent upon the testimony of one or more anonymous witnesses". This should never have been doubted: as a matter of common sense, no trial can be fair if critical evidence cannot be challenged. However, in 2006 the court of appeal erroneously endorsed this unlawful practice, which led to a flood of applications from the police - some 600 are said to have been granted. One unedifying reason for rushing this bill through is to validate, retrospectively, orders that were unlawful when they were made.’
26. In July 2008 Mr Robertson was talking about 600 criminal trials run with witnesses secret to the defendant. The government’s Witness Anonymity Act was passed and the opportunities for secret witnesses have been extended and expanded; not limited by the Coroners and Justice Act 2009. So I imagine we can realistically assume that well over a thousand criminal trials have been conducted in the United Kingdom in full breach of the time-honoured principle of natural justice audi alteram partem, or ‘hear the other side.’ No adversarial hearing can hear the other side if the other side does not know who it is making the accusation, and what that accusation is. Secret witnesses destroy all of the principles of natural justice that underpin the concept of fair trial: The right to be heard; the right to confront one’s accuser; the right to an adversarial trial and equality of arms; the right to be informed of the accusation; the presumption of innocence; the right to counsel. Back in 2008 Geoffrey Robertson argued: ‘The police claim that they cannot secure convictions without anonymity orders because of an increase in intimidation. But this is not a new problem: the Krays and Richardsons terrorised London, yet were convicted without resort to secret witnesses. At the height of intimidation in Northern Ireland, Lord Gardiner (Jack Straw's greatest of predecessors) rejected a proposal for witness anonymity for the very reason that it infringed the right to a fair trial. In the US and Italy today, effective witness protection schemes minimise the danger of reprisals from mafia gangs.’
27. The principle of the right to confront one’s accuser and the right to trial by jury is enshrined as an immutable constitutional right in the USA. [See Coy v Iowa 487 US 1012, 1015 (1988); Crawford v Washington 124 S Ct 1354, 1359 (2004); Alvarado v Superior Court of Los Angeles County 23 Cal 4th 1121, 1137-1140 (2000); Alford v United States 282 US 687 (1931) Pointer v Texas 380 US 400, 405 (1965); Kirby v United States 174 US 47, 55 (1899); Smith v Illinois 390 US 129, 131 (1968)] US Federal marshals do not lose their witnesses. Federal and state judiciaries use the rule of law to make it categorically clear that intimidation and reprisals against witnesses whether civilian or state investigators will be met with investigation and deterrence. There is no misunderstanding. In this way the costs of witness protection programmes and measures are proportionate and effective.
28. Why is the situation so different in Britain? I believe the problem started when the British courts emotionalised and morally justified secrecy for the hallowed and vulnerable: children and women in the context of sexual abuse and anything that involved the destruction of dignity and innocence. The monster mythology grew around the vulture tabloid journalist as a purveyor of voyeurism, schadenfreude and vicarious insatiation of the sensational. It is easy to ban the utterance and dissemination of evil than evil itself. The efficacy and utility of such measures jumped like flash fires in the bush and the lightning charge of electricity through water in a tropical storm to the secrecy of witnesses from defendants, then secrecy for defendants against mob rule and media vigilantes, the secrecy of jurors from trial participants and the rest of society, and soon it will jump to secrecy for judges and magistrates against defendants and the rest of the world.
29. But the seeds for secrecy and the anonymizing of witnesses in the British criminal justice system may have been planted unwittingly by the British media themselves. The modern slide to secrecy can be identified in the Northern Ireland case of R v Murphy and Another [1990] NI 306. As Lord Bingham explained in R v Davis: ‘The first judicial departure from established principle in the United Kingdom occurred in a trial in Belfast arising from the murder of two British army corporals, of which two defendants were accused and convicted. At trial the prosecution adduced the evidence of a number of television journalists who, in the course of their work, had filmed the scene of the killing. The trial judge (Sir Brian Hutton CJ) had given leave that these witnesses should not be identified by name and that, when giving evidence, they might be screened so that their faces should be seen only by the judge and the lawyers on each side, but not by the defendants or the public. The Court of Appeal in Northern Ireland upheld the trial judge's decision. […] If a departure from established principle, the decision in R v Murphy was nonetheless a small one: at trial, defence counsel raised no objection to the identities of the witnesses being withheld; the defence did not challenge that the witnesses feared for their safety if their identities were revealed, nor that it was in the interests of justice that the evidence should be received; the evidence of these witnesses, although a necessary formal link in the prosecution case, did not implicate the defendants in the commission of crime; and the credibility, as opposed to the reliability, of the witnesses was not in issue.’ [footnotes omitted.]
30. It is important to emphasise how devastating and terrifying witness intimidation can be; for the witnesses themselves and their families. Fear is at the root of bullying, tyranny and organised crime. It can only be stopped when the criminal justice system and surrounding society defeats that fear through prosecution and deterrence. That is the first and usually the least necessary protection. Has British society disintegrated and been broken to the extent that it is incapable of protecting the published assertion of truth in criminal trials and for that truth to be tested by public scrutiny and cross-examination? I am not convinced.
31. It is important to spell out the consequences of legal secrecy, the denial of published identity and the decline of the rule of law in the United Kingdom. Secret justice will lead to a reduction in the conviction rate of jury trials. Jurors will grow to distrust secret witnesses when the potential for lying and perjury reveals itself through miscarriages of justice and the essential unfairness of the procedure. The difficulty, of course, is that it will be well nigh impossible for the media to investigate or test the process of perjury. There is no public record to track back on. In order to investigate, the journalist needs the very information it will be a contempt of court to disclose.
32. The small proportion of corrupt and dishonest state investigators will not hesitate to find informants to construct false testimony. It is human nature, human society and human history. The malicious and dishonest will find it easy to construct false accusations and secure false convictions while hiding behind the cloak of witness intimidation that the anonymity provisions provide. At some point in the future a liminal and seminal miscarriage of justice will arise based on secret witnesses who lied and were not exposed because of the anonymity privileges provided by the legal system. How it emerges I cannot fully predict. But I imagine it will be the result of whistleblowers coming forward or emerging forensic evidence contradicting the cast iron certainty of anonymous evidence. There will be a catastrophic collapse in the integrity of British criminal justice. It may threaten the very validity and practice of trial by jury itself- a constitutional immutable that has already begun to be compromised by the predictable modern British tendency for pragmatic exception and compromise and the slow and lamentable march from the particular to the general.
LINKS
Joshua Rozenberg blog - Leading and respected UK Legal Affairs journalist.
US Supreme Court blog - Longstanding and much respected coverage on the US Supreme court.
Heather Brooke - Award winning campaigning journalist and Freedom of
Information expert.
Paul Lashmar - Respected investigative journalist and lecturer at Brunel
University.
Tim Crook Media Law Bulletin November 2009
Tim Crook Media Law Bulletin December 2009
