The Spectator and the jury

A clear breach of the law does not mean that the law was right to begin with.

Rod Liddle was an idiot to seek to publish an article which anyone with the slightest  knowledge of media law would tell you risked a prosecution for contempt.   Whoever at the Spectator took the decision to publish the article was an even greater idiot.  For, as Brian Cathcart rightly points out, the publication posed a genuine threat to a trial which Stephen Lawrence’s family and many others had worked so hard to achieve.  In the end the Spectator was prosecuted for a breach of a specific court order rather than under the general law of contempt; but either sanction would have applied in this situation.

But.  

I am afraid there is a but, for as stupid as the Spectator and Liddle were in publishing the article, it does not make the general law of contempt - which polices publicity in criminal proceedings - correct.  A trial is a matter of public importance; and so in a free society, journalists and the public should be able to discuss the case in court in open and robust terms.  An exception to this should be when such exercises of free speech undermine that other great liberal value of a right to a fair trial.

And here lies a significant problem.  For whilst judges and lay magistrates can, it seems, be trusted to block out adverse publicity when there is a case before them to adjudicate, such respect is not accorded to juries.  Indeed, the law of England and Wales is extremely paternalistic in respect of juries, and often jurors themselves will be punished for seeking further information on the trials on which they have to decide.  Some may say that such protection is unrealistic and ask if the worldliness of jurors is not wanted then why do we have juries in the first place.  On the other hand, however, any defendant should be allowed to answer only the case put against them in court.  It would be wrong for a defendant’s fate to be based on something on which they have not had an opportunity to make a case (and this applies to justices of the Supreme Court in the Julian Assange appeal as much as any hapless juror caught surfing the internet).

Furthermore, the general  law of contempt serves a useful service in regulating the conduct of the press when someone is arrested or charged.  It is not perfect, as the examples of Christopher Jefferies and Robert Murat demonstrate; but it is likely that such prejudicial coverage would be worse if there was no enforcement of contempt law at all.  If we lost the law of contempt generally then the monsterings of suspects would face no real check.

But the paternalistic attitude towards jurors is also creating artificial situations.  The last decade or so has seen it possible for anyone to publish on the internet.  It has also made it possible for jurors to research at ease, regardless of their clear duties to the court.   It is not enough for the law to pretend this will not happen, even if it continues to punish severely those jurors who transgress.

How the competing rights to free expression and to a fair trial should balance is a difficult, if not impossible, question to answer satisfactorily.  Neither liberal principle will always trump the other.  The courts therefore need to find a sensible approach which accords with the habits and expectations of the citizens who will serve as jurors, and those who will discuss live cases using social media.

Just because Liddle and the Spectator should have known better on this occasion, it does not make the general law relating to discussing and reporting cases in the news appropriate in all circumstances.  Justice and free speech are two pillars supporting a free society, and we need to soon work out a way that they do not readily collide.

 

David Allen Green is legal correspondent of the New Statesman

The Spectator magazine, of which Rod Liddle is an associate editor and columnist.

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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Nicola Sturgeon is betting on Brexit becoming real before autumn 2018

Second independence referendum plans have been delayed but not ruled out.

Three months after announcing plans for a second independence referendum, and 19 days after losing a third of her Scottish National Party MPs, Scotland’s First Minister Nicola Sturgeon booted the prospect of a second independence referendum into the heather. 

In a statement at Holyrood, Sturgeon said she felt her responsibility as First Minister “is to build as much unity and consensus as possible” and that she had consulted “a broad spectrum of voices” on independence.

She said she had noted a “commonality” among the views of the majority, who were neither strongly pro or anti-independence, but “worry about the uncertainty of Brexit and worry about the clarity of what it means”. Some “just want a break from making political decisions”.

This, she said had led her to the conclusion that there should be a referendum reset. Nevertheless: "It remains my view and the position of this government that at the end of this Brexit process the Scottish people should have a choice about the future of our country." 

This "choice", she suggested, was likely to be in autumn 2018 – the same time floated by SNP insiders before the initial announcement was made. 

The Scottish Lib Dem leader Willie Rennie responded: “The First Minister wishes to call a referendum at a time of her choosing. So absolutely nothing has changed." In fact, there is significance in the fact Sturgeon will no longer be pursuing the legislative process needed for a second referendum. Unlike Theresa May, say, she has not committed herself to a seemingly irreversable process.

Sturgeon’s demand for a second independence referendum was said to be partly the result of pressure from the more indy-happy wing of the party, including former First Minister Alex Salmond. The First Minister herself, whose constituency is in the former Labour stronghold of Glasgow, has been more cautious, and is keenly aware that the party can lose if it appears to be taking the electorate for granted. 

In her speech, she pledged to “put our shoulder to the wheel” in Brexit talks, and improve education and the NHS. Yet she could have ruled out a referendum altogether, and she did not. 

Sturgeon has framed this as a “choice” that is reasonable, given the uncertainties of Brexit. Yet as many of Scotland’s new Labour MPs can testify, opposition to independence on the doorstep is just as likely to come from a desire to concentrate on public services and strengthening a local community as it is attachment to a more abstract union. The SNP has now been in power for 10 years, and the fact it suffered losses in the 2017 general election reflects the perception that it is the party not only for independence, but also the party of government.

For all her talk of remaining in the single market, Sturgeon will be aware that it will be the bread-and-butter consequences of Brexit, like rising prices, and money redirected towards Northern Ireland, that will resonate on the doorstep. She will also be aware that roughly a third of SNP voters opted for Brexit

The general election result suggests discontent over local or devolved issues is currently overriding constitutional matters, whether UK-wide or across the EU. Now Brexit talks with a Tory-DUP government have started, this may change. But if it does not, Sturgeon will be heading for a collision with voter choice in the autumn of 2018. 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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