Asking questions of Rebekah

What can and cannot be said.

Rebekah Brooks is expected to attend the DCMS Select Committee tomorrow, fresh from her arrest and lengthy questioning by the Metropolitan Police. As she sits there, there will be nothing which can stop her being asked any question by any MP on the committee, however prejudicial or incriminating the question is in its assumptions. There will also be nothing to stop any MP making any aside about her conduct, however defamatory or - indeed - inaccurate. She will just have to sit and take it. There is nothing legally she would be able to do to stop them.

More interesting is what she can say in reply. On one hand, there is the contention that whatever she says will be protected absolutely by privilege. She can say whatever she likes, and be safe from suit or prosecution in respect of those words. As with a great deal of our "constitutional law" the limits of such a supposed right are not exactly marked; but it is likely she can speak with legal safety should she really want to do so. Indeed, it may well be that she decides to answer the questions fully, presumably repeating anything and everything she has also said to the Metropolitan Police.

 

However, it may not be in her interests to say things which would otherwise be prejudicial to any defence which she may wish to use in the event of prosecution. She certainly may not want to incriminate herself. For, although there may be a formal barrier of privilege to prevent the use of those words as part of any prosecution or civil claim, any such words could well inform practical litigation decisions and she will be challenged to repeat those words outside of Parliament. Any attempt to rely on privilege will quickly become artificial.

That is why we should not be surprised if, at least for many questions, Rebekah Brooks does not assist parliamentarians with their enquiries. Like anyone arrested and bailed, she is entitled to due process. There is no reason why her general rights in this regard should be circumvented just because she has been summoned by a select committee. The issue would then be what Parliament could do with any refusal to answer certain questions? One hopes that they would do nothing, whatever the heady talk of contempt of Parliament and imprisoning her in the Tower. The rights and liberties of the subject are always important, even when that subject is Rebekah Brooks.

Addendum

According to reports, the lawyer for Rebekah Brooks has now said:

The position of Rebekah Brooks can be simply stated. She is not guilty of any criminal offence. The position of the Metropolitan Police is less easy to understand. Despite arresting her yesterday and conducting an interview process lasting 9 hours, they put no allegations to her, and showed her no documents connecting her with any crime. They will in due course have to give an account of their actions, and in particular their decision to arrest her, with the enormous reputational damage that this has involved.

In the meantime, Mrs Brooks has an appointment with the Culture, Media and Sport Select Committee tomorrow. She remains willing to attend and to answer questions. It is a matter for Parliament to decide what issues to put to her and whether her appointment should place at a later date.

Second addendum

The PR company Bell Pottinger has confirmed that Rebekah Brooks has instructed veteran white-collar defence lawyer Stephen Parkinson of Kingsley Napley. Parkinson's profile details his extensive work as a prosecutor and as a defence solicitor in many high-profile cases. The combination of Bell Pottinger and the highly regarded Kingsley Napley means that Brooks has a strong (and expensive) joint litigation and PR strategy in place.

Bell Pottinger also confirmed that the express reference to her suffering "enormous reputational damage" was deliberate. It remains to be seen if this admission has any adverse effect in limiting her ability to (threaten to) sue anyone other than the police for libel, as it may provide a so-called "Jameel" abuse of process defence (where a claim can be struck out because the claimed damage does not go substantially further than the reputation which can otherwise be shown or is admitted).

Third addendum

The House of Commons publishes a guide for those giving evidence to select committees (pdf). In this guide the House states that the absolute privilege exists in respect of evidence given to a select committee "provided that it is formally accepted as such by the Committee".

There is also this House of Commons paper (pdf) on what constitutes "contempt of Parliament". In essence, any refusal to answer questions would probably have to be referred to the Standards and Privileges committee (or the whole House) before "contempt of Parliament" proceedings could commence: if so, the DCMS select committee cannot compel answers there and then at the hearing.

 

David Allen Green is legal correspondent of the New Statesman.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Appearing in a book is strange – being an actual character must be stranger

Much as it jolts me to come across a reference to my music in something I'm reading, at least it's not me.

I was happily immersed in the world of a novel the other day, Rachel Elliott’s Whispers Through a Megaphone, when suddenly I was jolted back into reality by my own appearance in the book. One of the characters hears someone singing and is told, “‘It’s Leonora. She sings with her window open.’ ‘She’s good – sounds like Tracey Thorn.’ ‘She does, doesn’t she.’”

It was as if I’d walked on stage while still being in the audience. It’s happened to me before, and is always startling, a kind of breaking of the fourth wall. From being the reader, addressed equally and anonymously, you become, even momentarily, a minor character or a representative of something. In this instance it was flattering, but the thing is, you have no control over what the writer uses you to mean.

In David Nicholls’s Starter for Ten, set in the mid-Eighties, the lead character, Brian – a hapless student, failing in both love and University Challenge – hopes that he is about to have sex with a girl. “We stay up for an hour or so, drinking whisky, sitting on the bed next to each other and talking and listening to Tapestry and the new Everything But the Girl album.” Ah, I realised, here I represent the kind of singer people listen to when they’re trying, though possibly failing, to get laid.

Fast-forward a few years, to the mid-Nineties of Bret Easton Ellis’s Glamorama, a book constructed from lists of people and things, clothes and music, which apparently indicate the vacuousness of modern life. “I dash into the Paul Smith store on Bond Street, where I purchase a smart-looking navy-gray raincoat. Everything But the Girl’s ‘Missing’ plays over everything” and later, “In the limo heading toward Charing Cross Road Everything But the Girl’s ‘Wrong’ plays while I’m studying the small white envelope . . .” Here I’m being used to represent the way bands become briefly ubiquitous: our songs are a soundtrack to the sleazy glamour of the novel.

These mentions are all fine; it’s only the music that features, not me. Spotting yourself as an actual character in someone’s novel must be more shocking: one of the perils of, for instance, being married to a novelist. I think of Claire Bloom and Philip Roth. First she wrote a memoir about how ghastly it was being married to him, then he wrote a novel about how ghastly it was to be married to someone very like her. Books as revenge: that’s very different indeed.

Few people who had ever met Morrissey emerged from his memoir unscathed (me included), but particularly Geoff Travis of Rough Trade. He was hung, drawn and quartered in the book, yet seems to have maintained a dignified silence. But it’s hard knowing how to deal with real people in memoirs. In mine, I chose not to name one character, a boy who broke my 18-year-old heart. Feverish speculation among old friends, all of whom guessed wrong, proved how much attention they’d been paying to me at the time. I also wrote about my teenage band, the Marine Girls, and then sent the chapter to the other members for approval. Which led to a fresh outbreak of hostilities and not-speaking, 25 years after we’d broken up. Don’t you just love bands?

Worrying about any of this would stop anyone ever writing anything. Luckily it didn’t deter John Niven, whose scabrous music-biz novel, Kill Your Friends, mixes larger-than-life monsters such as the fictional A&R man Steven Stelfox with real people: and not just celebs (Goldie, the Spice Girls), but record company executives (Ferdy Unger-Hamilton, Rob Stringer) known best to those of us in the biz, and presumably thrilled to have made it into a book. John confirmed to me recently: “In the end I got more grief from people I left out of the book than those I put in. Such is the ego of the music industry. I heard of one executive who bought about 30 copies and would sign them for bands, saying, ‘This was based on me.’ You create the Devil and people are lining up to say, ‘Yep. I’m that guy.’”

In other words, as I suspected, there’s only one thing worse than being written about. 

Tracey Thorn is a musician and writer, best known as one half of Everything but the Girl. She writes the fortnightly “Off the Record” column for the New Statesman. Her latest book is Naked at the Albert Hall.

This article first appeared in the 06 April 2016 issue of the New Statesman, The longest hatred