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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Cabinet audit: what does the appointment of Andrea Leadsom as Environment Secretary mean for policy?

The political and policy-based implications of the new Secretary of State for Environment, Food and Rural Affairs.

A little over a week into Andrea Leadsom’s new role as Secretary of State for Environment, Food and Rural Affairs (Defra), and senior industry figures are already questioning her credentials. A growing list of campaigners have called for her resignation, and even the Cabinet Office implied that her department's responsibilities will be downgraded.

So far, so bad.

The appointment would appear to be something of a consolation prize, coming just days after Leadsom pulled out of the Conservative leadership race and allowed Theresa May to enter No 10 unopposed.

Yet while Leadsom may have been able to twist the truth on her CV in the City, no amount of tampering will improve the agriculture-related side to her record: one barely exists. In fact, recent statements made on the subject have only added to her reputation for vacuous opinion: “It would make so much more sense if those with the big fields do the sheep, and those with the hill farms do the butterflies,” she told an audience assembled for a referendum debate. No matter the livelihoods of thousands of the UK’s hilltop sheep farmers, then? No need for butterflies outside of national parks?

Normally such a lack of experience is unsurprising. The department has gained a reputation as something of a ministerial backwater; a useful place to send problematic colleagues for some sobering time-out.

But these are not normal times.

As Brexit negotiations unfold, Defra will be central to establishing new, domestic policies for UK food and farming; sectors worth around £108bn to the economy and responsible for employing one in eight of the population.

In this context, Leadsom’s appointment seems, at best, a misguided attempt to make the architects of Brexit either live up to their promises or be seen to fail in the attempt.

At worst, May might actually think she is a good fit for the job. Leadsom’s one, water-tight credential – her commitment to opposing restraints on industry – certainly has its upsides for a Prime Minister in need of an alternative to the EU’s Common Agricultural Policy (CAP); a policy responsible for around 40 per cent the entire EU budget.

Why not leave such a daunting task in the hands of someone with an instinct for “abolishing” subsidies  thus freeing up money to spend elsewhere?

As with most things to do with the EU, CAP has some major cons and some equally compelling pros. Take the fact that 80 per cent of CAP aid is paid out to the richest 25 per cent of farmers (most of whom are either landed gentry or vast, industrialised, mega-farmers). But then offset this against the provision of vital lifelines for some of the UK’s most conscientious, local and insecure of food producers.

The NFU told the New Statesman that there are many issues in need of urgent attention; from an improved Basic Payment Scheme, to guarantees for agri-environment funding, and a commitment to the 25-year TB eradication strategy. But that they also hope, above all, “that Mrs Leadsom will champion British food and farming. Our industry has a great story to tell”.

The construction of a new domestic agricultural policy is a once-in-a-generation opportunity for Britain to truly decide where its priorities for food and environment lie, as well as to which kind of farmers (as well as which countries) it wants to delegate their delivery.

In the context of so much uncertainty and such great opportunity, Leadsom has a tough job ahead of her. And no amount of “speaking as a mother” will change that.

India Bourke is the New Statesman's editorial assistant.