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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Arsène Wenger: how can an intelligent manager preside over such a hollowed-out team?

The Arsenal manager faces a frustrating legacy.

Sport is obviously not all about winning, but it is about justified hope. That ­distinction has provided, until recently, a serious defence of Arsène Wenger’s Act II – the losing part. Arsenal haven’t won anything big for 13 years. But they have been close enough (and this is a personal view) to sustain the experience of investing emotionally in the story. Hope turning to disappointment is fine. It’s when the hope goes, that’s the problem.

Defeat takes many forms. In both 2010 and 2011, Arsenal lost over two legs to Barcelona in the Champions League. Yet these were rich and rewarding sporting experiences. In the two London fixtures of those ties, Arsenal drew 2-2 and won 2-1 against the most dazzling team in the world. Those nights reinvigorated my pride in sport. The Emirates Stadium had the best show in town. Defeat, when it arrived in Barcelona, was softened by gratitude. We’d been entertained, more than entertained.

Arsenal’s 5-1 surrender to Bayern Munich on 15 February was very different. In this capitulation by instalments, the fascination was macabre rather than dramatic. Having long given up on discerning signs of life, we began the post-mortem mid-match. As we pored over the entrails, the curiosity lay in the extent of the malady that had brought down the body. The same question, over and over: how could such an intelligent, deep-thinking manager preside over a hollowed-out team? How could failings so obvious to outsiders, the absence of steel and resilience, evade the judgement of the boss?

There is a saying in rugby union that forwards (the hard men) determine who wins, and the backs (the glamour boys) decide by how much. Here is a footballing equivalent: midfielders define matches, attacking players adorn them and defenders get the blame. Yet Arsenal’s players as good as vacated the midfield. It is hard to judge how well Bayern’s playmakers performed because they were operating in a vacuum; it looked like a morale-boosting training-ground drill, free from the annoying presence of opponents.

I have always been suspicious of the ­default English critique which posits that mentally fragile teams can be turned around by licensed on-field violence – a good kicking, basically. Sporting “character” takes many forms; physical assertiveness is only one dimension.

Still, it remains baffling, Wenger’s blind spot. He indulges artistry, especially the mercurial Mesut Özil, beyond the point where it serves the player. Yet he won’t protect the magicians by surrounding them with effective but down-to-earth talents. It has become a diet of collapsing soufflés.

What held back Wenger from buying the linchpin midfielder he has lacked for many years? Money is only part of the explanation. All added up, Arsenal do spend: their collective wage bill is the fourth-highest in the League. But Wenger has always been reluctant to lavish cash on a single star player, let alone a steely one. Rather two nice players than one great one.

The power of habit has become debilitating. Like a wealthy but conservative shopper who keeps going back to the same clothes shop, Wenger habituates the same strata of the transfer market. When he can’t get what he needs, he’s happy to come back home with something he’s already got, ­usually an elegant midfielder, tidy passer, gets bounced in big games, prone to going missing. Another button-down blue shirt for a drawer that is well stuffed.

It is almost universally accepted that, as a business, Arsenal are England’s leading club. Where their rivals rely on bailouts from oligarchs or highly leveraged debt, Arsenal took tough choices early and now appear financially secure – helped by their manager’s ability to engineer qualification for the Champions League every season while avoiding excessive transfer costs. Does that count for anything?

After the financial crisis, I had a revealing conversation with the owner of a private bank that had sailed through the turmoil. Being cautious and Swiss, he explained, he had always kept more capital reserves than the norm. As a result, the bank had made less money in boom years. “If I’d been a normal chief executive, I’d have been fired by the board,” he said. Instead, when the economic winds turned, he was much better placed than more bullish rivals. As a competitive strategy, his winning hand was only laid bare by the arrival of harder times.

In football, however, the crash never came. We all wrote that football’s insane spending couldn’t go on but the pace has only quickened. Even the Premier League’s bosses confessed to being surprised by the last extravagant round of television deals – the cash that eventually flows into the hands of managers and then the pockets of players and their agents.

By refusing to splash out on the players he needed, whatever the cost, Wenger was hedged for a downturn that never arrived.

What an irony it would be if football’s bust comes after he has departed. Imagine the scenario. The oligarchs move on, finding fresh ways of achieving fame, respectability and the protection achieved by entering the English establishment. The clubs loaded with debt are forced to cut their spending. Arsenal, benefiting from their solid business model, sail into an outright lead, mopping up star talent and trophies all round.

It’s often said that Wenger – early to invest in data analytics and worldwide scouts; a pioneer of player fitness and lifestyle – was overtaken by imitators. There is a second dimension to the question of time and circumstance. He helped to create and build Arsenal’s off-field robustness, even though football’s crazy economics haven’t yet proved its underlying value.

If the wind turns, Arsène Wenger may face a frustrating legacy: yesterday’s man and yet twice ahead of his time. 

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 24 February 2017 issue of the New Statesman, The world after Brexit