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.)

Photo: André Spicer
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“It’s scary to do it again”: the five-year-old fined £150 for running a lemonade stand

Enforcement officers penalised a child selling home-made lemonade in the street. Her father tells the full story. 

It was a lively Saturday afternoon in east London’s Mile End. Groups of people streamed through residential streets on their way to a music festival in the local park; booming bass could be heard from the surrounding houses.

One five-year-old girl who lived in the area had an idea. She had been to her school’s summer fête recently and looked longingly at the stalls. She loved the idea of setting up her own stall, and today was a good day for it.

“She eventually came round to the idea of selling lemonade,” her father André Spicer tells me. So he and his daughter went to their local shop to buy some lemons. They mixed a few jugs of lemonade, the girl made a fetching A4 sign with some lemons drawn on it – 50p for a small cup, £1 for a large – and they carried a table from home to the end of their road. 

“People suddenly started coming up and buying stuff, pretty quickly, and they were very happy,” Spicer recalls. “People looked overjoyed at this cute little girl on the side of the road – community feel and all that sort of stuff.”

But the heart-warming scene was soon interrupted. After about half an hour of what Spicer describes as “brisk” trade – his daughter’s recipe secret was some mint and a little bit of cucumber, for a “bit of a British touch” – four enforcement officers came striding up to the stand.

Three were in uniform, and one was in plain clothes. One uniformed officer turned the camera on his vest on, and began reciting a legal script at the weeping five-year-old.

“You’re trading without a licence, pursuant to x, y, z act and blah dah dah dah, really going through a script,” Spicer tells me, saying they showed no compassion for his daughter. “This is my job, I’m doing it and that’s it, basically.”

The girl burst into tears the moment they arrived.

“Officials have some degree of intimidation. I’m a grown adult, so I wasn’t super intimidated, but I was a bit shocked,” says Spicer. “But my daughter was intimidated. She started crying straight away.”

As they continued to recite their legalese, her father picked her up to try to comfort her – but that didn’t stop the officers giving her stall a £150 fine and handing them a penalty notice. “TRADING WITHOUT LICENCE,” it screamed.


Picture: André Spicer

“She was crying and repeating, ‘I’ve done a bad thing’,” says Spicer. “As we walked home, I had to try and convince her that it wasn’t her, it wasn’t her fault. It wasn’t her who had done something bad.”

She cried all the way home, and it wasn’t until she watched her favourite film, Brave, that she calmed down. It was then that Spicer suggested next time they would “do it all correctly”, get a permit, and set up another stand.

“No, I don’t want to, it’s a bit scary to do it again,” she replied. Her father hopes that “she’ll be able to get over it”, and that her enterprising spirit will return.

The Council has since apologised and cancelled the fine, and called on its officials to “show common sense and to use their powers sensibly”.

But Spicer felt “there’s a bigger principle here”, and wrote a piece for the Telegraph arguing that children in modern Britain are too restricted.

He would “absolutely” encourage his daughter to set up another stall, and “I’d encourage other people to go and do it as well. It’s a great way to spend a bit of time with the kids in the holidays, and they might learn something.”

A fitting reminder of the great life lesson: when life gives you a fixed penalty notice, make lemonade.

Anoosh Chakelian is senior writer at the New Statesman.