Thursday, October 22, 2009 

A very much precendented case of newspaper hyperbole.

Last night Keir Starmer, the head of the Crown Prosecution Service, gave his usual annual lecture to the public prosecution service. It was a typical lawyerly sermon, touching on both human rights and the independence of the prosecutors. Those who were there and awake probably didn't give it a second thought; Starmer gave a decent defence of the Human Rights Act, but hardly the strongest and most detailed one ever. The Telegraph however thought that this was somehow worthy of a splash. "An unprecedented attack", it bellowed, and since then the usual Tory suspects, the two Davies', have added their voices at this apparent broadside at Conservative policy.

Starmer, as it happened, didn't so much as mention the Conservatives, probably because he wasn't just attacking the Tories but also Labour. Here is what he did say:

However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

While the Tories have promised to repeal the HRA and introduce a "British" Bill of Rights in its place, without of course providing any detail whatsoever as to what these rights would be and which might be different to those enshrined in the HRA, Labour has also continued to talk about a bill of Rights and Responsibilities, even though it has been shelved for now. These Rights and Responsibilities, Jack Straw hoped, would give a British feel to the HRA. It doesn't matter that, as Starmer points out, the European Convention of Human Rights, on which the HRA is based, was mainly drafted by us Britishers, because it's "European" in origin this somehow infers that it's a foreign creation imposed on us. The Sun, the main campaigner for a repeal of the HRA, has so often mistakenly referred to the ECHR as being a construct of the European Union when it is not and is entirely separate from it that it's difficult to believe it isn't being done deliberately.

The main flaw with any plan to repeal the HRA, something which Starmer doesn't mention, is that it's difficult to believe that we would also then leave the ECHR in its entirety, something we would have to do to make sure that the "criminals' charter" doesn't interfere with our law in any way, shape or form. All repealing the HRA will do is mean that breaches of the ECHR will not be able to heard in our own courts; instead those seeking redress will have to go to Strasbourg, and wait potentially years for their case to be heard, such is the backlog which has built up there and continues to mount. As Starmer argues, it's absurd that rights which the rest of Europe has never had any problem with should "stop in the English Channel". After all, even Russia is signed up to ECHR, even if it isn't as proactive in falling into line with its rulings as the more democratic nation states of Europe are. The closest Starmer gets to really attacking those who wish to do away with the HRA is this line:

And it would be to this country's shame if we lost the clear and basic statement of our citizens' human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.

It doesn't really help the Tories' cause that Starmer is entirely right. The main reason why the Conservatives want to get rid of the HRA is not because it's a criminals' charter or any of the other things which its critics say it is, but because from the very beginning the press, and especially the Sun and the Daily Mail, have been worried about its implications for their business model. Article 8, the right to privacy, has meant that the tabloids can no longer be certain that their celebrity stories and sex scandals will get into the papers unmolested, or if they do, that they won't then be brought up before the beak afterwards. There is, it must be noted, potential for abuse of Article 8, but this is slight when compared to the overall benefits which the legislation as a whole brings. In any case, the real threat to press freedom is not Article 8 but our libel laws and the tenacity of the libel firms and their pursuit of "super-injunctions", as last week's assault by Carter-Fuck on behalf of Trafigura showed. The supposed "madness" which the HRA has brought is partially dealt with by Starmer, although not fully:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence.

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many.

Some of these I've touched on before, but it's indicative of the misinformation which surrounds the HRA that the Telegraph in its report repeats the myth that Learco Chindamo, murderer of headteacher Philip Lawrence, couldn't be deported back to Italy when he finished his sentence because of the HRA. It was in fact because of the EU's 2004 directive on citizenship, but as usual the initial myth has become fact.

Has Starmer though strayed into politics with his pronouncements, something that the head of the CPS shouldn't be doing? Despite the Telegraph's suggestion, the previous head of the CPS, Ken Macdonald, did something rather similar in a speech to the Criminal Bar Association, where he made clear his view that terrorists should always be treated as criminals, and that there was no such thing as a "war on terror", something uncontroversial now, but rather more heated back in 2007 when the attempt to ram through 90 days without charge was fresh in the memory. Macdonald also made clear on a number of occasions that he felt 28 days detention without charge for terrorist suspects was sufficient, something which was hardly popular with the government, and which was definitely straying into politics. Few now object when the police demand new powers, although they should; why shouldn't the head of CPS express his view that the Human Rights Act shouldn't be abolished? Is it that it's only when it's the government that it's critiquing that it's OK, when if it's (perhaps) the opposition that it isn't?

The Tory plan to repeal the HRA has always struck me as something which they're likely to forget about once they actually do get in power. Labour has thrashed around hopelessly with the Rights and Responsibilities idea, and if you really believe that the Tories are more suited to constitutional change for the better, I don't think you've been paying enough attention. It's true, as Henry Porter has argued repeatedly, that the HRA has not prevented this government from its attacks on civil liberties, but the key to that is not more legislation, but better governance in general. It seems just as unlikely we will get that from the Tories.

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Tuesday, June 23, 2009 

Scum-watch: So, farewell then, Rebekah Wade...

Good riddance then to Rebekah Wade (or, according to the Graun, Rebekah Brooks, as she is now apparently calling herself since her recent wedding), who will be moving "upstairs" in News International in a long mooted move and one that she herself has long been lobbying for.

This isn't the place as yet for a long consideration of her time as editor of the biggest selling newspaper in the country, but it remains the case that for the most part Wade proved to be a less controversial editor than her time at the News of the World suggested she would be. The main bungles which did happen during her watch, which included her "BONKERS BRUNO LOCKED UP" front page splash, to say nothing of the time she was arrested after drunkenly slapping her former husband are not much to write home about when you consider the Sun's history, especially while Kelvin MacKenzie was editor.

That's not to say that Wade was a non-entity as editor, far from it. She kept up her campaign for "Sarah's law", legislation which children's charities themselves oppose as either unproved or potentially putting them further at risk as paedophiles head even further underground. Other campaigns have included almost yearly rages against the Human Rights Act, which it has repeatedly lied about and slandered, repeated demands that the detention limit for "terrorist suspects" be extended, whether to 90 or 42 days, with the paper the first time round denouncing those who voted against as "traitors", constant moaning that sentences are not long enough and that more prison places are essential, even when Labour has vastly lengthened and expanded both, and more recently, hysterical scaremongering, both about knife crime and Britain being "broken", as well as a horrendous campaign "for" Baby P, which resulted in two of those involved in his case considering suicide. That isn't to mention other quite wonderful journalistic successes, such as the claim back in January that "radical Muslims" were targeting Jews such as Alan Sugar, which led to legal action being taken, or last year's "IVF twins were dumped because they're girls", which was untrue on almost every count.

All this said, the Sun has certainly become to an extent more liberal during Wade's tenure. Whether this is down to her or because in general society is becoming more tolerant is unclear, but the paper which not so long back was leading campaigns against the possibility of Julian Clary becoming host of the Generation Game because of his sexuality, or which asked on its front page whether the country was being run by a "gay mafia" has moved on. During the Big Brother racism scandal it ran a front page, which although somewhat hypocritical, was the sort of thing it would have never done only a few years ago. It still loathes asylum seekers, failed or otherwise, but that's hardly unique in the tabloid world. Both the Daily Mail and Express are far more reactionary than the Sun on almost all of these matters.

The Sun still matters most though because of its sale and its influence. While the Mail may be catching up, or even caught up, the Sun is still courted by politicians looking for the nod of approval from Rupert Murdoch. He is, after all, the real power behind the throne, and any editor of any of his papers is only following the rules put down by him. His recent comments about David Cameron, that he has to be a second Thatcher if he's to gain his full approval, showed just how politicians have to portray and present themselves to get support. It should be remembered that this is a man who has no vote in this country, who has in the past made it his task to pay as little tax in this country as possible, and who is fundamentally unaccountable to anyone other than himself. Whoever becomes the next editor of the paper, and no one seems to have any idea who it's likely to be, the real power will not lie with he or she.

Update: Stan points out the in comments that I forgot about the Alfie Patten non-story, which also should go down as one of her worst moments.

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Monday, March 23, 2009 

Rights and responsibilities in a policy vacuum.

2009 is turning out to be an incredibly strange year as far as politics is concerned. By any measure, Labour ought to be doing far far worse in the polls than it currently is - most showing a Conservative lead of around 12 points, which if repeated at the ballot box would give Cameron's Tories either a very slim majority or result in a hung parliament. Labour would suffer major casualties, but still not have been wiped out to anything like the extent to which the Tories were in 1997. It's uncertain why despite the recession that Labour's support is holding up, even if reports claiming that if the recession bottoms out before polling day that Labour could still pull it back seem optimistic at best. Brown's constant repetition of two points, firstly that the economic crisis is global, which is true, but doesn't acquit him especially as far as banking regulation goes, and secondly that the Conservatives are the "do nothing" party, which is far less accurate, might be having some effect, but it also seems to be as others constantly witter, that voters like Cameron but don't like his party or trust them.

At the same time, there seems to be an almost complete deficit of policy discussion coming from all the main parties. This is to be expected when all thoughts turn towards the economy, and should it ought to be remembered what so many of us bemoaned for long periods - that when the differences over how to run economy went the major differences between the political parties also went. This doesn't excuse however the almost complete lack of discussion about anything other than taxes, havens and bail-outs, which has become increasingly glaring, entertaining as the Tories bickering internally over tax is. After years of discussing Iraq, we seem to want to blot all talk of Afghanistan out, a war which has never been explained in anywhere near the detail that Iraq was and continues to be. Everyone knows the supposed reasons why we went into Iraq, yet if you asked the same question about what we're doing in Afghanistan shoulders would be shrugged uniformly. We've gone from politicians wanting the troops to leave without firing a single shot to an average of around one body a week returning home, all without anything approaching a reason from a minister as to why such blood and treasure is being spent on such an apparently endless conflict.

As well as the recession, this is also partially down to the election being probably only just over a year away, and we're either at the beginning of the phony war or fast approaching it. Labour's legislating instinct has also somewhat fallen away under Brown, with the resulting dullness of Westminster except over the continuing fallout over expenses not helping. Into all this greyness, Jack Straw seems to want to inject a bit of colour, by finally getting round to publishing the green paper on "rights and responsibilities", much delayed having being trumpeted since Brown's ascension to the throne, as it were, as part of his agenda for constitutional reform. It soon becomes clear why it has been repeatedly kicked into the long grass - even by New Labour's standards, this is a document of such woe and potential pitfalls that it's quite something that it has finally come to light at all.

Fundamentally, you have to approach this knowing two things: firstly, that Labour quite rightly finally got round to introducing the European Convention on Human Rights, largely drafted by us, into our own common law, negating the need for claimants to have to go to Europe to gain recompense. Secondly, that despite its British origins, the tabloids and others have long regarded the ECHR and the HRA as foreign entities, enshrining rights that are beyond the pale, such as the right to life, right to a private family life, right against inhuman and degrading treatment etc, making the HRA appear to be a charter only for terrorists and criminals, and also one which very sadly might well threaten the tabloids' business model, bringing hated ideas of European privacy to our media and stopping the scandal sheets from splashing on the latest strumpet to shag a star. Since then Labour has always deeply regretted introducing it, and has at best put up a shallow defence of it, although Jack Straw, having introduced it, has put in a better one than others. Also to be noted is that the HRA has done very little to prevent the same government from drastically reducing actual civil liberties, given the lengths of time it takes for appellants to go all the way to Strasbourg and challenge things such as the DNA database, our own courts having not seen things the same way as the European one eventually does.

Straw's cherished bill of rights and responsibilities is then at best an attempt to make up for the unpleasantness surrounding the HRA. Straw has tried to cover this up by noting the "interesting times" in which we are living, suggesting that turmoil has often led to constitutional reform, and at the same time somewhat insultingly given the proposals bracketing the "R 'n' R" he has developed with the likes of the American declaration of independence, the subsequent constitution and the French 1789 declaration of the rights of man and the citizen. This might have worked if Straw's bill was a relatively recent idea, but it dates back to before the start of the credit crunch, if we have to call it that. It hence takes on a very different tone, one far more associated with that of New Labour - one of control.

The obvious point to make is that rights protect us, whether from the state or from other individuals or corporations. Responsibilities, on the other hand are the unwritten rules, or indeed, actual written laws which we already know we have to abide by, and which we don't need informing about. Straw actually seems to want to take it even further than this though: he seems to want to extend responsibilities into the territory of norms and values, into outright conformity with the state. The argument that the green paper makes is that some of these existing responsibilities are "arguably so central to our functioning as a society that they deserve an elevated constitutional status...". This argument might be more convincing if the responsibilities which Straw is thinking of were either breaking down and being ignored or if they weren't already being treated with respect. Yet it's a list of essential banalities which Straw wants to enshrine: treating NHS staff with respect, caring properly for children, "participating in civic society through voting and jury service", assisting the police, paying taxes, obeying the law. Yes, seriously, Straw wants potentially to enshrine obeying the law as a responsibility. While these are banalities, there's also something far more sinister lurking underneath them, especially when it comes to voting and assisting the police: neither are legally required, although you can be charged with perverting the course of justice for deliberately obstructing the police in the course of their investigations. This seems to be New Labour setting down on an elevated constitutional status at least two things which should always be personal decisions: the right not to vote especially should be as important as the right to vote.

Before we get too carried away, we ought to note that the chances of this becoming law still seem pretty slim, and the green paper itself acknowledges that the rights in the ECHR and HRA "cannot be legally contingent on the exercise of responsibilities". In others words, even if we do this, we know full well that we cannot in any way enforce them. All they're destined to be is pretty words, a sop to authoritarian opinion whilst also underlining our own far from libertarian attitudes. Even with this in mind, it bears comparison to the great aforementioned documents - nowhere in the American constitution does it outline how those in society are expected to behave whilst wielding their right to bear arms and arm bears and everything in-between, elevating them above normal status because of their utmost importance in ordering society. It smacks of a government that has become so mad with power that it no longer knows how or where to wield it; it just has to do it, and even something as important to the state as the constitution is not out of bounds to the wackiest thinking when it comes to trying to win favour with some of the nation's media. If this is the stuff to fill the policy vacuum, perhaps we want things to remain lifeless for as long as possible.

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Monday, November 10, 2008 

The Daily Mail in the flesh.

Andrew Neil once wrote that if you want to know what Rupert Murdoch thinks, you should read the Sun's editorials. Not the Times', the Sun's; Rupert doesn't really do subtlety. It's much the same with Paul Dacre. The Daily Mail after all couldn't really be a person writ large, could it? There's too many contradictions, too much foaming hatred, so much casual cynicism combined with values that went out with rationing. No one could be like that, could they?

Dacre's latest extended utterances prove drastically otherwise. Having previously, and somewhat hilariously, delivered the Cudlipp lecture, the late great editor that Dacre doesn't deserve to even lick the boots of, railing against the "subsidariat" and the BBC, he was given the lectern at the Society of Editors bash. Clocking in at just over 7,500 words, it covers more or less everything that Dacre and by extension the Daily Mail loathes. First though he goes through what originally inspired him:

Hugh Cudlipp’s “Publish and Be Damned”, and Arthur Christiansen’s “Headlines All My Life” were my much-thumbed bibles. All those glorious memoirs by James Cameron, that brilliant reporter, were my text books.

And yet you still turned into the man you are today.

Before we've even got anywhere, he's straight in with the out and out bullshit:

I am, however, delighted, over the years, to have made my own small contribution to the chattering classes’ dyspepsia with the Rothermere press – but then no day is too busy or too short not to find time to tweak the noses of the liberalocracy which effectively run Britain.

Ah yes, the "liberalocracy" which effectively runs Britain. Fact of the matter is, like with Murdoch, no government could ever be right-wing enough to satisfy Dacre or the Mail, just as there'll probably never be a government left-wing enough to satisfy me.

How Dacre became the man he is today:

At university, I edited the student newspaper. I’m afraid I took a product that looked like the then Times on Prozac and turned it into a raucous version of Cudlipp’s Mirror complete, I shudder to admit, with Page 3 girl students whom I dubbed “Leeds Lovelies”. 

We mounted an undercover investigation, complete with photographers, into seemingly respectable pubs that were putting on strip shows. Family entertainment it wasn’t.

His hypocrisy then was already fully in action. Leeds Lovelies on one page, investigation into strippers doing the same thing on the next. Brilliant!

Open sentimental twaddle about the old Sunday Express follows:

So what was the editorial formula identified originally by the brilliant Scottish editor John Gordon and followed with ruthless will by John Junor? Firstly, the paper never, ever, forgot who its readers were and what interested them and their families. Secondly, it told everything through the prism of people. 

Page 3 of the Sunday Express said it all. The lead article under the title “Meeting People” was an interview - not with the kind of half-baked trollop who passes as a celebrity these days, but with, say, the mother of a newly chosen British Nobel Prize winner.

 Next to it was a large cartoon by Giles whose genius for clean, gloriously warm family humour is matched today only by the Mail’s magnificent Mac. Why this genre of cartooning - which combines superb draftsmanship with a timeless universal humour that often contains great truths - is dying out is a subject for another speech. Anyway, underneath was the “You the Lawyer” column addressing the problems of every day life such as fencing disputes and dog bites. What paper today would have such a low-key, non-newsy page 3. Yet all human life was on that page.

All human life, as long as it was suitably middle class, obviously.

Skipping a whole load of nonsense about the good ol' days, how columnists these days don't know their born, how it's all the fault of the state and some justified poking at Richard Desmond, he gets to the start of his main points.

Donning my hat as Chairman of the PCC’s Editors’ Code Committee, I would like to talk to you a little about where we are on regulation and press freedom issues. 

About 18 months ago, I, Les Hinton of News International and Murdoch MacLennan of the Telegraph, had dinner with the Prime Minister, Gordon Brown.

How very cosy. Ignoring the first two concerns he raised, which were reasonably noble, it's his last two which are the interesting ones:

Thirdly, there were the very serious financial implications for newspapers of the Conditional Fee Arrangement, the no win, no fee legislation. Introduced as a well-intentioned measure to help the poor have access to the courts, it was being ruthlessly exploited by unscrupulous lawyers who were ramping up their costs in media cases. Publishers were being faced with huge bills, sometimes running into millions, to defend even the most simple, clear-cut cases.

 Costs in CFA cases, as many of you here know, can be almost infinite with lawyers entitled to “success fees” of up to 100% on top of their actual bills. This gives them a positive financial incentive to take relatively straight-forward cases, worth just a few thousand pounds, and run them as long as possible. Adding insult to injury, CFA claimants can take out very expensive ATE (after the event) insurance policies to protect themselves against costs. If they win, the paper has to pay the claimant’s premium, but if they lose - and this is the cynicism of it all – the insurer rarely enforces the charges because the claimant invariably cannot afford to pay. 

Let me give you an example: Martyn Jones, an utterly inconsequential MP, sued the Mail on Sunday over their claim that he had sworn at a Commons official. The Mail on Sunday believed it had rock-solid witnesses and decided to fight the case. In the event, they lost and were ordered to pay £5,000 in damages. The MP’s lawyers claimed costs of £388,000 – solicitor’s costs of £68,000, plus 100% success fees, barrister’s costs of £63,000, plus 100% success fees, VAT and libel insurance of £68,000. Associated’s costs were £136,000 making a total of £520,000 costs in a case that awarded damages of just £5,000 in a dispute over a simple matter of fact.

 Can it really be right for a QC in a libel case to be paid £7,000 for a day in court whilst the same QC, prosecuting or defending a serious case at the Old Bailey, may receive less than £600 a day – less than a tenth?

Perhaps predictably, Dacre leaves some crucial facts out of this recounting of the libel case involving Jones. The trial was held in front of a jury, although Justice Eady was the judge in charge, and it reached a majority verdict in favour of Jones. The Mail on Sunday claimed that he had told a House of Commons security guard to "fuck off"; Jones claimed that he had in fact said to the security guard that "I don't give a shit what you are, you should know who MPs are." The jury sided with Jones, and presumably also with the claim from Jones's lawyers that there were "at least a dozen untrue assertions" made which had been "cranked up, spiced up and sexed up" so that it became a "grotesque distortion" of what really happened. Perhaps if the MoS had settled it might not have had to pay such costs, hmm? In any event, what Dacre is describing is extraordinarily rare. As has been well documented, only the rich and famous can usually afford to bring libel cases, with there being very few law firms that will contest cases on a no-win no-fee basis. Jones was lucky; the MoS was not. Boo hoo, isn't the world awful?

The result is that today, newspapers – even wealthy ones like the Mail – think long and hard before contesting actions, even if they know they are in the right, for fear of the ruinous financial implications. For the provincial and local press, such actions are now out of the question. Instead, they stump up some cash, money they can’t afford, to settle as quickly as possible, to avoid court actions – which, if they were to lose, could, in some case, close them. Some justice!

Dacre wilfully exaggerates. Even costs of £520,000 to the Mail group are relative peanuts, and that was about as most extreme a case as you can imagine. The reality is that most who think they have been treated unfairly go to the Press Complaints Commission - where their treatment is often not much better.

The fourth issue we raised with Gordon Brown was a truly frightening amendment to the Data Protection Act, winding its way through Parliament, under which journalists faced being jailed for two years for illicitly obtaining personal information such as ex-directory telephone numbers or an individual’s gas bills or medical records. This legislation would have made Britain the only country in the free world to jail journalists and could have had a considerable chilling effect on good journalism.

 The Prime Minister – I don’t think it is breaking confidences to reveal – was hugely sympathetic to the industry’s case and promised to do what he could to help.

 Over the coming months and battles ahead, Mr Brown was totally true to his word. Whatever our individual newspapers’ views are of the Prime Minister – and the Mail is pretty tough on him - we should, as an industry, acknowledge that, to date, he has been a great friend of press freedom. 

Again, Dacre exaggerates completely. The amendment to the DPA was to stop the sale to journalists via private detectives of information obtained from companies' and sometimes government databases. This information was and is hardly ever, if ever, used to uncover genuine scandals, and even if it was, the journalists in those cases would be protected as usual under a public interest defence. What the DPA amendment would have helped put a lid on was the casual obtaining of information on anyone who crosses the media, almost always either celebrities or those accused of crimes outside the realm of the political sphere. At the trial of Stephen Whittamore, the prosecution alleged that some of the material they delivered to journalists was on two actresses then in EastEnders, the family of Ricky Tomlinson, and a former Big Brother contestant. Quite a chilling effect the amendment would have had on good journalism, I'm sure you'll agree.

In any event, the government quickly backed down, especially in the face of private lobbying by Dacre, Hinton and MacLennan, as Dacre goes on to boast:

Thirdly, there is to be action on the “scandalous” greed of CFA lawyers. That adjective is not mine, by the way, but Justice Minister’s Jack Straw’s in a recent speech on the subject. For following Number 10’s intervention all those months ago, there have been many constructive meetings between the industry and the Ministry of Justice on what to do about CFA.

A few weeks ago, I, Rebekah Wade and Murdoch MacLennan saw Jack Straw who assured us that, in the next few months, he is set to unveil proposals to reform CFA, including capping lawyers’ fees.


It was agreed that the Data Protection Act should be amended so that journalists would have the right to seek out protected information if they had a “reasonable belief” that their actions were in the public interest.

 And, more pertinently, the Act was amended so that the jailing clause cannot now be implemented unless the Secretary of State seeks approval from Parliament to activate it.

That they already had that "reasonable belief" obviously didn't matter. With the jailing clause unimplemented, the industry can carry on in exactly the way it was doing before.

So that is where we are. The industry has been warned. We must make sure our house in order. Under the auspices of PressBoF, we have produced a guidance note on DPA that has been sent to every paper in Britain. Now it is up to all of us to ensure that our journalists are complying with the Act. At Associated, we are holding seminars on the subject and have written compliance with the Act into our employment contracts. 

At the Editors Code Committee, we are considering whether the current provisions of the Code on data protection and our Guidance Notes, as well as the wording in the Editor’s Codebook, can be strengthened.

Why is it that I don't believe a single word of this? Probably because it was the Mail itself, without even including the MoS, that made the most use of Whittamore, with over 952 transactions. Dacre must have known and sanctioned every single one of them, and then he is one of those responsible for updating the current PCC code! The same newspaper which rages against misuse of government data and the loss of it broke the law in numerous instances and has got away with it. No wonder Dacre is so triumphant.

The parts on Justice Eady now come into view:

But there is one remaining threat to press freedom that I suspect may prove far more dangerous to our industry than all the issues I have just discussed.

 Put to one side the United Nations’ recent attack on Britain’s disgracefully repressive libel laws that have made London the libel capital of the world – something that should be a bitter source of shame for our judicial system. Concentrate instead on how inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

Here then is Dacre's thesis. He doesn't really care, when it comes down to it, about who he and his friends in the media expose in three-in-a-bed sex romps; what he cares about is that the exposing of the rich and the famous is in his view what makes people buy newspapers. Without it, the industry will be further damaged, and the state will have to step in. To suggest this is nonsense would be to give it too much respect: it is crap of the highest order. The Sunday tabloid press, which delivers the scandals and the sex in spades, is already falling of a cliff circulation wise. By contrast, the broadsheets, both daily and weekly are holding up fairly well. The tabloids have to face up to the fact that their readers are increasingly being lost to the internet, where no holes whatsoever are barred. The broadsheets on the other hand are doing OK because they rely on their quality: something which the tabloids simply do not provide, and that includes Dacre's paper, which most agree is the best tabloid regardless of the politics. Would a privacy law further heighten the drops? Probably, but it probably wouldn't make much difference.

In any event, we are not having a privacy law developed in front of our eyes - yet. That might depend on the verdict in the upcoming trial involving Sienna Miller and the Big Pictures photo agency. Just to emphasise how the tabloids don't learn, the Sun and News of the World today settled with her over the publication of nude photographs, awarding £35,000 plus costs, or a pittance as it is to News Corp. Miller has been serially offended against: the Star paid her £15,000 in September over similar photographs and the Sun and News of the World paid her £37,500 last December over, you guessed it, naked photographs. Some will hardly be predisposed to Miller because of her alleged behaviour, but surely the right not to be effectively stalked by paparazzi to the extent where you fear for your life, which is what Miller has been, is one which the law should recognise.

This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man. 

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places. 

Two cases in particular underline this threat. 

Two years ago, Justice Eady ruled that a cuckolded husband couldn’t sell his story to the press about another married man – a wealthy sporting celebrity – who had seduced his wife. 

The judge was worried about the effect of the revelations on the celebrity’s wife. Now I agree that any distress caused to innocent parties is regrettable but exactly the same worries could be expressed about the relatives of any individual who transgressed which, if followed to its logical conclusion, would mean that nobody could be condemned for wrongdoing. 

But the judge – in an unashamed reversal of centuries of moral and social thinking – placed the rights of the adulterer above society’s age-old belief that adultery should be condemned.

Because Dacre cannot dispute Eady's rulings in a legal sense, he instead turns to morals to try to traduce him. The problem with this is obvious - the country has moved on. Unless hypocrisy is involved, or those involved are mega famous, no one really cares any more. We still disapprove of adultery, but we don't think those involved should be shamed just because they're famous. Dacre however thinks this is exactly the way it should be, that shame is what newspapers are meant to provide, but it isn't. They're supposed to inform, educate, and entertain. Shaming celebrities does none of those things.

The other problem is that the Mail is hypocrisy on stilts itself. The paper is wholly immoral - it thinks nothing of accusing innocent people of terrible crimes with no evidence, such as Robert Murat, who unsurprisingly doesn't warrant a mention in this speech, not to mention Colin Stagg. While it defended the McCanns to the hilt, because they were "its people", the second that Fiona MacKeown came to public attention in a similar plight she was smeared, her home broken into and pictures taken of her dead daughter's bedroom, and attacked by the same columnists who cried fake tears of sympathy for Kate McCann. It ran the most vicious and mendacious campaign possible against the MMR vaccine, now responsible for increased cases of measles up and down the country. It breaks the law with impunity, as we have seen. And then it imagines that it has the right to deliver lectures on what is and what is not moral, as Dacre goes on to do:

Recently, of course, the very same Justice Eady effectively ruled that it’s perfectly acceptable for the multi-millionaire head of a multi-billion sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him. 

The judge found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World contested, though for the life of me that seems an almost surreally pedantic logic as some of the participants were dressed in military-style uniform. Mosley was issuing commands in German while one prostitute pretended to pick lice from his hair, a second fellated him and a third caned his backside until blood was drawn. 

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”. 

Nor in his mind was there anything wrong in a man of such wealth using his money to exploit women in this way. Would he feel the same way, I wonder, if one of those women had been his wife or daughter? 

But what is most worrying about Justice Eady’s decisions is that he is ruling that - when it comes to morality - the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral".

Dacre then is the only one who can decide what is and what is not moral. The whole point of the Mosley case was that the News of the World claimed it was a Nazi orgy; it was not, as Eady painstakingly pointed out. If it had been a Nazi orgy, the News of the World would have had a public interest defence; it wasn't, so it didn't. Fact is, Dacre thinks that what goes on in other people's bedrooms is his business; it isn't, and it is no business of the government's either. If Dacre really thinks that some mild BSDM is "unimaginable sexual depravity" he has a very very poor imagination. As for his comments about the way Mosley "exploited" the women who were more than willing to take part and who subsequently testified for his defence, with him suggesting that Eady might have been more concerned if they had included a daughter or his wife, that says far more about Dacre's own insecurity than it does about anything else.

In the sporting celebrity case, he rejected the idea that adultery was a proper cause for public condemnation. 

Instead, he declared that because family breakdown was now commonplace, there was a strong argument for “not holding forth about adultery” or, in other words, attaching no greater inherent worth to marriage than to any other lifestyle choice. 

Thus no moral delineation was to be made between marriage and those who would destroy it, between victim and victimiser, between right and wrong.

We're talking about three people's private affairs here, not the breakdown of society as we know it. One person's infidelity is not about to bring this country down; Dacre's sophistry has to be seen to be believed.

In the Mosley case, the judge is ruling that there is no public interest in revealing a public figure’s involvement in acts of depravity.

 What the judge loftily calls the “new rights-based jurisprudence” of the Human Rights Act seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards.

Except Mosley was not a public figure. He was not a hypocrite. He was just someone who the News of the Screws could make money out of. They couldn't care about the morals involved, as you'd expect; that was the excuse, just as it is here with Dacre. Or perhaps it isn't; maybe he really cares about morals whilst being completely immoral himself.

But most worrying is that when it comes to suppressing media freedom, the good Justice Eady is seemingly ubiquitous.... 

It was he who was going to preside in Tesco’s libel case against the Guardian, which was, in the event, recently settled out of court. 

It was the same Justice Eady who, in Lord Browne versus the Mail on Sunday, ruled that BP’s shareholders had the right to know that Browne had lied to the court – but did not have the right to know details of his conversations with his boyfriend, despite the paper’s case that they had serious public-interest implications. 

Again, it was Eady who found in favour of a Canadian folk singer called Loreena McKennitt, who had objected to the publication of a book about her by a former adviser, Niema Ash. Ms McKennitt did not claim that the book was in any way untrue, merely that it infringed her right to privacy. Never mind Ms Ash’s right to freedom of expression.

Except Eady was more than fair to the Guardian, despite his reputation. Browne's case is difficult, but in the main he came down on the side of the media. In the case of McKennitt, Eady's original ruling was then backed by both the Court of Appeal and the House of Lords. Hardly all the blame can be placed on his shoulders in that instance.

And it is Eady who, almost unnoticed here, has the distinction of having provoked the US Congress – in what’s dubbed the Libel Tourism Bill – to consider making English libel judgments unenforceable in America. This follows the judge’s decision to allow a Saudi banker to sue a New York author in the London courts even though she hadn’t published her book in Britain. Not for the first time, it seems that our colonial cousins can teach us a thing or two. 

But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door.

Dacre makes about his only salient point here. This was a disgraceful decision by Eady, but is all about our libel laws, not the unwritten laws on privacy. The best course of action would be a re-writing of both: removing only the rich and famous from being able to sue for libel, whilst ensuring London cannot be used to silence critics worldwide, whilst protecting individual privacy against press intrusion. Neither though is about to happen, as, although newspapers complain about both, for the most part they are thoroughly happy with the situation. Their belief in freedom only extends as far as their wallets.

English Common Law is the collective wisdom of many different judges over the ages. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression.

This is another fair enough point, but it's not as if Eady is purely making it up as he's going along: he's drawing extensively on past rulings and interpreting Articles 8 and 10 of the HRA; if he wasn't, he would be subject to far more criticism than just from those concerned with libel tourism and tabloid editors.

I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge. 

If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one Judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen. 

All of those adjectives, apart from corrupt, could be applied to Dacre just as much as they could those he attacks. He describes what Gordon Brown would have to go through, but he doesn't mention another trial he'd have to pass: the opprobrium of the media, and that is not covered by public scrutiny. Put simply, the unaccountable media with all its power would not accept it, and they would ensure it would never pass, even though their actions have led to its effective creation. Here exposed then is why the likes of the Mail and Sun so hate the HRA; not because it's a criminals' or terrorists' charter, but because it directly affects their business models. They have to remember that the HRA was passed by parliament, that they had the opportunity to oppose it then and failed, and that it was the HRA that has helped to establish the Reynolds defence.

All this has huge implications for newspapers and, I would argue, for society. Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.

This may as well be Dacre's justification for the witch-hunt against Jonathan Ross and Russell Brand. It doesn't matter that the Mail has its own individual view of what public standards of decency are, as long as people keep buying the papers that justifies support. This is abject nonsense - people buy the newspaper they do for numerous reasons, not just for its political or moral outlook. This is simply the fig-leaf which those who think they have a right to decide what's right and what's wrong cover themselves with.

Put another way, if mass-circulation newspapers, which, of course, also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

This is nothing more than blackmail covered with eye-watering cynicism. The same person who goes on to lionise the press and how wonderful it is is here suggesting that the gutter press needs scandal to survive. Nice little free press you've got here, be a shame if something was to happen to it. The proles need scandal, whilst we provide them with the finest news coverage in the world at the same time. What isn't there to like?!

Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand.

Did Paul Dacre just claim to have ethics? No, seriously, Dacre's taking an ethical stand? If he ever genuinely did, the ethics would snap beneath him in an instant. Not satisfied with descending into parody, Dacre then further suggests just how completely mad he is:

Why does not half an hour go by that the high priests of the subsidariat, the BBC, can’t resist a snide reference to the popular press, again blissfully oblivious that all too often they are following agendas set by those very popular newspapers whose readers pay their salaries.

Yes Paul, the BBC is always sneering at the "popular press". Please, keep taking the medicine.

He warms to this further theme by attacking Flat Earth News and Nick Davies without so much as mentioning the name of either:

Again, blissfully oblivious to the need for self-criticism of their own papers – the sine qua non of such pages is, by and large, that the liberal media can do little wrong while the large-circulation press is invariably scurrilous, malign and beyond all salvation. 

There was, of course, that recent book that savaged the behaviour of virtually every national newspaper. The book, which began with a presumption of guilt, was itself a pretty sloppy piece of journalism, full of half-truths, anonymous sources, gossip and urban myths presented as facts, and the very selective reporting that it accused papers of employing. And heaven forbid that its author should have observed the basic journalistic nicety of checking those facts with the parties concerned.

Could it possibly be because the liberal media is that which is also the least complained about, the least likely to have to settle damages out of court, and the least likely to be taken to court, and when it is, it's also more likely to win, as the Guardian did twice during the 90s? The tabloid press meanwhile continues to show itself invariably up as it is, as during the Mosley trial: unaccountable, lazy, disreputable, and downright nasty. It would be nice also if Dacre bothered to bring up examples of just where Davies was wrong in Flat Earth News, although I suspect it's because the book dedicated a whole chapter to the Mail, whilst the Mail itself has mentioned it twice, and that was prior to actual publication, even while the "liberal" press which he so disdains discussed and argued about its findings at some length. Half of this is because the tabloid press presents itself as infallible; the broadsheet media does not.

Fair enough. Newspapers should be constantly criticised. If you dish it, you should take it with bells on. The problem, I would argue tonight, is that this unrelenting and corrosive drip, drip, drip of criticism of the press does huge harm to our standing in the eyes of the politicians, the regulators, the judges, the public and, most pertinently, I suspect, to newspaper sales.

 In good times, such a poisoning of the well is unhelpful, to say the least. Today, with large parts of our industry fighting to stay alive, it is damnably, unforgivably and depressingly damaging. 

I am not a Jeremiah. I passionately believe that Britain has the best newspapers in the world and – indeed, our papers today are as good as they’ve ever been. Nostalgia be damned.

Gosh, anyone feel deja vu after Hazel Blears' similar rave last week? It couldn't be that the tabloid press gets everything it deserves could it, when it demands accountability at the BBC over authorised comedy pranks and then no one resigns when dozens of stories about Robert Murat result in huge payouts? In Dacre's eyes though there's nothing wrong with it, and after all, who are we to argue? He's the Daily Mail in the flesh, and the Daily Mail can never be wrong.

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Wednesday, October 01, 2008 

Scum-watch: Watching the Sun on the fringe.

Cross-posted at the Sun Lies

Being one of the supposed politics editors on the Sun Lies blog is difficult for one short reason: the paper very rarely actually "does" politics. This doesn't mean that the Sun doesn't feature political stories; that it does. Rather, the Sun presumes that its readers aren't interested in politics as reported by say, any of the ex-broadsheets, but they are interested in policies, albeit ones which the Sun pre-decides they should be interested in and that have already been defined by the editorial team themselves. Hence the Liberal Democrats hardly receive any coverage at all, except when they're mocked or insulted; they are an irrelevance. When it comes to crime and law and order however, that's something the Sun knows its readers deeply care about. They deeply care so much about what their readers think about law and order that they provide the exact remedy which they themselves think would solve all our problems in a flash. Whether the readers actually agree or not is something entirely different.

It's therefore well worth pointing out that this year, for the first time ever, the Sun newspaper has been holding fringe events at the Labour and Conservative party conferences. These have long been dominated by the broads, holding stiflingly boring meetings with stiflingly boring politicians, never meeting a real actual person except the delegates themselves who turn up and become stiflingly bored as a result. They deserve something approaching credit for this, because the Guardian for example has been holding truly dismal sideshows where politicians make the case for their greatest ever respective member. No surprises to learn that Labour voted for Keir Hardie while the Tories chose Margaret Thatcher.

The theme of the events, in case you couldn't guess, is "Broken Britain", the Sun's now long-running theme on how the country bends over backwards to allow every armed chav to knife crime your son/daughter/husband in the face while the police and judiciary doing everything in their power to instead persecute the victims. I exaggerate slightly, but only slightly. There's no dispute that we have endemic, deep problems, especially in some of our inner cities, with gangs, crime, drugs and poverty, both of aspiration and wealth. The toll of teenage lives in London is undoubtedly sickening. There are however no quick solutions to any of these things, and the constant demands for immediate action, of which the paper never supplies any real point plan except to rip up the Human Rights Act and install zero tolerance only increases the chances of bad policy being made on the hoof. Politicians shouldn't give in to such demands, it's true, but the relationship between the media and the government has become so essential to the management of every day life that now those in powers have little choice but to take heed.

The first of these meetings, at Labour's conference last week, did not actually go especially smoothly from the Sun's point of view. Only one member of the actual panel - Michael Gove of the Conservatives - unsurprisingly considering the party's own views, agreed with the Sun that the country is "broken". Just so that the argument was not completely lost, the newspaper took the precaution of arranging for the relatives of those recently involved in some of the most notorious murder cases to be in attendance. Perfectly acceptable, of course, but what is not is the idea that this was their first opportunity to speak out or speak to politicians, nor was it all thanks to the Sun. It also distorts the true picture of crime, which almost everyone agrees has now fallen for the past decade, with rises in certain offences, but with the chances of becoming a victim of crime actually the lowest since the early 80s. The Sun never though has any intentions of being representative.

I've written previously about the tyranny of grief, the power of emotion and how it is almost unanswerable without coming across as ill-feeling or not grasping the full scale of what has happened to the individual - and the Sun knows this perfectly well. Politicians can do nothing but spout platitudes, pretend to feel their pain, and all it does is come across as false, which is because it is. It is impossible to know how they feel without having experienced a similar tragedy. Overwhelmingly though, emotion and anger are not good starting points to make policy from. This is obvious when you read what some of these traumatised individuals want to be done:

In an impassioned plea she called for tougher sentencing, more police patrols and earlier action to identify potential yobs.

Brooke [Kinsella, whose brother Ben was stabbed to death], who later met Prime Minister Gordon Brown, added: “We need to get through at the grassroots. We need to get these kids before they even think about committing a crime.”

And just how exactly do you do that? Without exactly the kind of nanny statism and surveillance which is so decried, especially by the Sun, how are you meant to identify those likely to commit crime before they even think of doing it?

Apart from back-slapping, about the only real controversy at the Labour meeting was that Cherie Blair and Jack Straw clashed over why George Michael had only received a caution for possessing crack cocaine.

More stormy was yesterday's at the Conservative party conference. Like at the first, there was the outpourings which if anything suggest that some of those still involved ought to be attempting to move on:

Marcia Shakespeare – whose daughter Letisha, 17, died in Birmingham gang gunfire – said: “The police try their best but what about the rights of victims? I don’t get answers to my job applications because I am stigmatised as the mother of a murder victim.”

I'm not sure that the government can be blamed for someone continuing to in effect stigmatise themselves.

The headline though was the merely inscrutable:

VIOLENT thugs who kill and maim should forfeit their human rights, The Sun’s crime summit was told yesterday.

Grieving Paul Bowman – dad of murdered model Sally Anne Bowman – called for a shake-up of Broken Britain’s liberty laws at the Tory Party conference in Birmingham.

Paul, joined by Sally’s mum Linda, told the meeting: “In this country animals have animal rights and a dog has every right to be treated well and kept healthy. If that dog decides to act outside what we regard as acceptable – for instance bites a child – its rights are taken away and it is destroyed.

“When somebody decides, like the perpetrator of the crime against Sally, to go out armed with a knife to murder, leave it till the coast is clear and then rape, bite and desecrate the body of an 18-year-old girl, I believe that man’s human rights should be waived to a degree."

“I think there should be an amendment to the Human Rights Act where someone, if they step outside being a human being and commit an inhuman act, then the Human Rights Act does not apply.”

When then should someone lose their human rights? When they're accused of the crime? After they've been convicted? After a number of appeals? And what exactly is an inhuman act? How will we define it? The Human Rights Act has never affected the Sally Anne Bowman case in any shape or form: Mark Dixie is appealing against his conviction, but considering that the case against him was almost as straight-forward as they come, he's hardly likely to succeed. With a minimum sentence of 34 years passed, he'll be 70 before he can apply for parole. It sometimes has to be asked: how much more do they honestly expect the state to do? Bowman supports the death penalty, but you only have to look to America to see that it is no deterrent, especially against crimes such as those committed by Dixie, and it simply is not going to be brought back, however much a minority would like it to be.

There also seems to be a complete lack of perspective of what prison life is actually like, especially for those who commit crimes like Dixie:

Paul blasted the “worry-free” life brutal offenders can lead in jails.

If worry-free is getting beaten up, excrement and spit put in your food and being in constant fear, then you have to wonder what sort of regime would be preferred. It hardly seems like Dixie will flourish in prison - the police officers who arrested him after an altercation in a bar were surprised he was crying over such a minor incident, until the DNA results came back.

It was again though the involvement of Blair which made headlines outside the Sun, with Cherie quite rightly calling the Tory MP Chris Grayling "specious" for offering the ripping up of the HRA as some sort of solution. The Tory pledge to bring in a British bill of rights has always been a joke, as all repealing the HRA would do is mean that applicants would have to appeal to the European Court of Human Rights rather than a British court, as the Tories would hardly be likely to withdraw from that institution also.

The Sun's job though had been done. It's presented, via those who have suffered the most from indiscriminate violence which can almost never be wholly prevented, the same simplistic solutions which it has been pushing from the very beginning. It points to Bill Bratton and his success in bringing down violent crime in New York and Los Angeles without mentioning that the number of murders in both those cities is far higher than the toll in London. It doesn't mention that part of what helped bring down crime in those cities, apart from zero tolerance, was the crime mapping that has just been recently introduced in London. He's quite right about the targets which do burden the police, and possibly about local accountability, but that also raises the spectre especially over here of the BNP effectively seizing control of neighbourhood policing. It also completely ignored the aspects of the debate which it rather wouldn't present to its readers, such as Blair's strong defence of the HRA, and Jonathan Aitken, along with Charles Clarke, robustly denouncing the Titan prisons plan which the Sun supports, as it does any prison enlargement. This is how the Sun's politics works: it comes to a predefined conclusion and sells at as if that was the one that was came to naturally. And that's partly why the newspaper has such control over politicians as a whole.

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Thursday, August 07, 2008 

Scum-watch: Europe and Hamza, sitting in a tree..

There's nothing the Sun loves better (other than big tits, Our Boys, attractive missing little girls and Sky, naturally) than attacking Europe, both as a whole and as in the political union. Add in one of the Sun's other favourite pantomime villains, the almost too good to be true Abu Hamza, and you have the latest outrage about which something must be done:

Euro clowns let Hamza off the hook

EUROPEAN judges yesterday halted Abu Hamza’s extradition to the US on terror charges after the cleric claimed it would breach his human rights.

If this is meant to give the impression that the European judges have ruled that he can't be extradited, then the Sun's job has been done. It's only four paragraphs later that the Sun explains further:

They ruled the extradition be put on hold until they are able to consider the case.

In other words, all the court has decided is that there's potentially a case to answer and that Hamza should not be deported until the court considers its decision. The European Court of Human Rights is the last court which Hamza has recourse to appeal to, having decided not to apply to the House of Lords after the High Court ruled his extradition should go ahead.

Quite why the Sun is getting so excited about this is a mystery. Hamza isn't going anywhere, as he's still serving his sentence for stirring up racial hatred and inciting murder at Belmarsh, and is unlikely to be released even if he completes it before the ECHR makes its ruling. It feebly attempts to suggest that this will be another £50,000 of "benefits" going to Hamza, but this is legal aid which he'll never so much as touch. The chances of him succeeding are also negligible: he doesn't face the death penalty, so the precedent set by Soering v. the United Kingdom doesn't apply, and he hasn't in his appeal to the ECHR claimed that the evidence against him is the product of torture, as he had previously done.. Just as pathetic is its final remarks that the judges are from countries unlikely to be "targets in the war on terror":

They are Giovanni Bonnell, 72, from Malta, David Björgvinsson, 52, of Iceland, Paivi Hirvelä, 53, of Finland, Nebojsa Vucinic, 55, of Montenegro, Mihai Poalelungi, 45, of Moldavia (sic), Jan Šikuta, 47, of Slovakia, Ljiljana Mijovic, 44, of Bosnia Herzegovina, Ledi Bianku, 37, of Albania and Lech Garlicki, 61, of Poland.

This is ignorant in two ways. Firstly because these are the judges of just one of the sections, section IV, which just happened to be the ones chosen in this case to rule on Hamza's request. The president of the court, for instance, is French, a nation which has dealt with Islamic terrorism for far longer than we have, while one of the vice-presidents is a Brit. Additionally, one of the section presidents is Danish, another country which has found itself in the eye of the storm recently. Additionally, while the majority of those countries may not have suffered or been targeted in the "war on terror" (yet), Bosnia was certainly one of the places of interest to al-Qaida in the 90s, and Poland has deployed troops in Iraq, most certainly making them a potential target.

It's the Scum's leader that as usual lets loose with the both barrels:

YOU won’t have ever heard of 72-year-old Giovanni Bonnell from Malta. Or Ledi Bianku, 37, from Albania.

But yesterday these two — plus seven other judges on the European Court of Human Rights — STOPPED the extradition of hate preacher Abu Hamza to the US.

They haven't stopped it - they've ruled that it should it be postponed while they consider the matter. There's quite a big difference between saying they can't extradite Hamza and saying that they shouldn't whilst they consider the case.

Their intervention is an outrage.

British courts ruled Hamza must face justice in America.

That decision has now been put on hold so Euro judges can hear the twisted fanatic’s appeal.

Bonnell, Bianku and their chums all come from obscure countries that have never faced Islamic terrorism.

This is just the latest example of how Europe rides roughshod over the UK. It’s time we stood up and said enough and no more.

Hamza’s fate is a decision for British judges — and British judges alone.

Time for a history lesson. The Sun loves to pretend that it's Europe that's always imposing itself on Britain - when in this case it was Britain that had a major rule in the setting up of first the Convention on Human Rights and then the court itself. Sir David Maxwell-Fyfe oversaw the drafting of the document, which was ratified in 1953. The Court itself was first established in 1959, and as one of the founding members of the Council of Europe (a completely separate entity to the European Economic Committee which became the European Union), which oversees the court and the convention, we have been party to it since the beginning. The Sun is therefore claiming that Europe has been riding roughshod over us since the early 50s, or rather, that we've been more or less riding roughshod over ourselves.

The Sun of course never corrects the completely faulty impression that this is something to do with European Union, and has indeed in the past wrongly claimed that it is part of the European Union. Hence the commentators screaming for us to get out of Europe now. Even if we were to leave the European Union, it seems doubtful that we would also exit the Council of Europe, and besides, the European Convention of Human Rights is already now British law as the Human Rights Act. Hamza's appeal to the ECHR is simply his final throw of the dice and one which shouldn't be use to attack Europe in such a disengenuous manner.

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Thursday, July 24, 2008 

Eady lays down the law.

Some, when hearing that the privacy suit brought by Max Mosley against the News of the Screws was to be heard in front of Mr Justice Eady, were confident in predicting that Mosley would be the victor, purely on the grounds that Eady has been one of the judges at the forefront of creating a privacy law through the precedents set by various rulings, especially since the introduction of the Human Rights Act, with its right to a private life having to be balanced against the right to freedom of expression. It's certainly true that his rulings involving Khalid bin Mahfouz are deeply worrying, concerning as they do information which has in no real sense even been published here, leading to the introduction in the United States of the Free Speech Protection Act, so angered they have been by Eady's rulings that have prevented legitimate investigations into Mahfouz's links to terrorist funding from being published.

Ratbiter (who may or may not be Nick Cohen, if anyone knows for certain please drop a comment in) in yesterday's Private Eye opened his piece by mocking Eady's supposed impartiality. However deserving of criticism Eady is for some of his other work, reading in full his judgement today (PDF) ought to show that he had no option other than to rule in Mosley's favour.

It's indisputable, going through, to come to any other conclusion than one which involves the News of the Screws being deeply in the wrong and that their defence was a complete shambles from the get go. When first contacted by Woman E's husband, the prostitute who filmed the S&M session for the Screws, there was absolutely no mention made of any Nazi connotations. Simply, the husband had a story about Max Mosley. Neville Thurlbeck, rang the husband back later in the day without ever making a recording or notes of his meetings with either Woman E or her husband, which is undoubtedly bad journalistic practice to begin with. Woman E's husband regaled Thurlbeck with how Mosley had been involved with his wife, who was a dominatrix, for the best part of year. All of this is recalled from paragraphs 148 onwards, but this one (152) is worth quoting in full:

Mr Thurlbeck asked Woman E’s husband when she would be likely to be attending another of the S and M parties and whether she would be prepared to wear a hidden camera. The original intention was to expose in the News of the World the Claimant’s interest in sado-masochism and his use of prostitutes and dominatrices. There had up to that point been no mention of a Nazi or concentration camp theme. The husband enquired whether there would be “something in it for us” and Mr Thurlbeck indicated that the News of the World would make sure he was paid. No discussion of actual amounts took place at that stage.

It was only afterwards, in a second call, that Thurlbeck claims that Woman E's husband told him there was to be a Nazi theme at the next session with Mosley and the four other women. Again, he didn't make any note or recording of this, but his statement to the court ran like this:

“[The husband] said that this was fascinating because [his wife] had told him that the Claimant had ordered a German theme, that there would be a German-speaking dominatrix at the sex party (in addition to [his wife]) and that the dominatrices had been asked to wear military uniform. [His wife] had been told all of this by a woman whose name was [Woman A] who [the husband] told me was the senior prostitute/dominatrix. From speaking to [the husband], it was apparent that it was [Woman A] (rather than [Woman E]) who liaised directly with the Claimant regarding his instructions for the sex parties. [Woman A] then arranged the parties and their themes."

As Eady later notes:

It is perhaps curious that, at this stage, when giving his account of what he had been told previously, Mr Thurlbeck should omit any reference to a “Nazi theme”. Again, it rather suggests that “German” may have simply been glossed into “Nazi”.


I am prepared to accept that Mr Thurlbeck and Mr Myler, on what they had seen, thought there was a Nazi element – not least because that is what they wanted to believe. Indeed, they needed to believe this in order to forge the somewhat tenuous link between the Claimant and his father’s notorious activities more than half a century ago and, secondly, to construct an arguable public interest defence. ... The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached “in the round”, as Mr Thurlbeck put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered.

When Mr Myler was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of “mocking”
concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with “responsible journalism”.

While disregarding that there was a public interest argument in Mosley being exposed for variously, the allegations of criminality, i.e. that the level of the S&M was such that Mosley himself was being assaulted, dealt with from paragraph 110 onwards and "depravity and adultery", from 124 onwards. He does however agree that if there had been a Nazi theme then it would most certainly have been in the public interest for Mosley to be exposed, which he sets out in 122 and 123.

In case you missed the Screws' original publishings of the allegations against Mosley, they're summarised from paragraphs 26 onwards. In the Screws' hyperbolic style, they don't pull any punches whatsoever, describing Mosley as a "sex pervert", and in the next week's paper as a "vain deviant with no sense of truth or honour."

Eady's decision might have been different had Woman E given evidence. She however, for the supposed reason that she was "mentally and emotionally unfit" to do so, did not appear. Neither, as a result, did her husband, who just happened to work for MI5, from which he has since resigned. If she had, she may well have contradicted to a believable extent the evidence given by all the other dominatrices involved, as well as Mosley himself. As Roy Greenslade argues, Eady may well have been justified in halting the hearing there and then, such was the weakness of the case and the evidence given by the Screws' editor Colin Myler, and the reporter, Neville Thurlbeck. Instead, piece by piece, and devastatingly, Eady picks apart the idea that there was a Nazi theme, beginning from paragraph 44 onwards. Some choice parts are:

There was a suggestion that some of the women were wearing Nazi clothing, but Mr Thurlbeck himself ultimately recognised in a memo, after publication, that what was worn was simply “foreign uniform and ordinary blazer”. He had been addressing in the same email the rather incongruous possibility of a “Nazi blazer”. As the Claimant himself pointed out, if there had been a desire to create a Nazi scenario it would have been easy to obtain Nazi uniforms online or from a costumier. The uniform jacket worn by Woman E had been in her possession before either the 8 or 28 March gatherings were organised and had not been obtained specifically for that purpose. It was there to be seen in a photograph on her website which Mr Thurlbeck inspected.

In the first scenario, when the Claimant was playing a submissive role, he underwent a medical inspection and had his head searched for lice. Again, although the “medical” had certain unusual features, there is nothing specific to the Nazi period or to the concentration camps about these matters. Moreover, no German was spoken at this stage – not least because Woman B appeared later, in time only for the second scenario.

Mr Thurlbeck also relied upon the fact that the Claimant was “shaved”. Concentration camp inmates were also shaved. Yet, as Mr Price pointed out, they had their heads shaved. The Claimant, for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation. He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter”. I naturally could not check from the DVD, as it was not his face that was on display.

The first scenario begins with the words “Welcome to Chelsea” and the Claimant uses
the nom de guerre “Tim Barnes”. One of the “guards” is referred to as “Officer Smith”. These factors lend no support to the Nazi role-play allegation; indeed, they would appear to be inconsistent with it. Moreover, the use of the word “facility” is neutral. It is after all an English and/or American word and has no especially Nazi connotations.

In the second scenario, the young women “victims” wore horizontally striped pyjamas. That may loosely suggest a prison uniform but, yet again, there is nothing to identify the clothing as of the Nazi era. Photographs were introduced by Mr Price, for what they were worth, to show that the uniforms worn in concentration camps tended to have vertical stripes. Pictures were also produced to show a group of people running in the recent London Marathon wearing “prison” costumes. These too had horizontal stripes; yet no-one would imagine that they were in any way making reference to concentration camps or “mocking” their victims (as the News of the
World alleged of the Claimant). I was also referred to the invoice for those particular costumes which were obtained for £11.91 each from a “joke” supplier. I did not find any of this evidence especially helpful, since what matters is the simple fact that prison uniforms worn for S and M role-play do not in themselves echo concentration camps or involve “mocking” the victims.

The use of German on 28 March, in the second scenario when the Claimant was playing a dominant role and Woman B was also present, was said to be largely to please Woman D rather than at the Claimant’s request. Odd though it may seem to many people, as does much fetishist behaviour, I see no reason to disbelieve Woman D’s explanation. In any event, she had been interviewed on a weblog at the end of February when she made exactly the same point. So it was plainly not made up for this litigation. In any case, it is clear that the Claimant threw himself into his role with considerable enthusiasm.

Although Mr Thurlbeck thought the use of German highly significant as one of the Nazi indicia, it is noteworthy that neither he nor anyone else thought it appropriate to obtain a translation before evaluating the material for publication. It contained a certain amount of explicit sexual language about what the Claimant and Woman B were planning to do to those women in the submissive role, but nothing specifically Nazi, and certainly nothing to do with concentration camps.

There was, of course, plenty of spanking, and references to “judicial” penalties, but the only passage which is relevant for this purpose relates to an occasion when one of the women was lying face down on the sofa while being given intermittent and rather lack-lustre strokes with a strap. There seems to be some sort of game involving rivalry between blondes and brunettes. At one point, the dark-haired woman lying on the sofa raises her head and cries out “Brunettes rule!” Within a moment or two, a voice from off-camera can be heard (accepted to be that of Woman A, who is indeed blonde) gasping out words to the effect “We are the Aryan race – blondes”.

Not surprisingly, this has been fixed upon by the Defendant as being a reference to
Nazi racial policies. It is said that the reference to “Aryans” cannot bear any other interpretation.

When asked about this, the Claimant said that he had no recollection of any such
remark being made and, indeed, that it was perfectly possible that his hearing aids would not have picked this up in all the excitement. This naturally invites a certain degree of scepticism, although there is no doubt that the Claimant is a little deaf (as emerged during the course of his evidence) and does wear hearing aids.

What is clear, however, is that the remark was unscripted and that it occurred amid a
good deal of shouts and squeals (of delight or otherwise). One had to listen to the tape several times to pick out exactly what was going on and indeed nobody had spotted “Brunettes rule!” until the middle of the trial. It is also clear that there was nothing spoken by the Claimant on this occasion which reflected Nazi terminology or attitudes. There is no reason to suppose that it was other than a spontaneous squeal by Woman A in medias res.

It is probably appropriate at this point to address another remark from time to time used by Woman B. She uses the term “Schwarze” when she is acting out a dominant role in relation to one or more submissive females. The suggestion was that she was pretending that they were black and racially abusing them. She explained, however, that in German the word is used to refer to a dark-haired woman (or brunette) – such as herself. She said “I am a Schwarze”. It had no racial connotations, so far as she was concerned. Although Mr Warby invites me to reject this, since the German word could also refer to a black person, I see no reason to disbelieve her. It seems more natural to interpret her remark in context as referring to the woman’s dark hair (which she had) rather than to dark skin (which she did not). Mr Warby also submitted that
the references by the two women to blondes and brunettes are not connected. Since they occurred within seconds of each other, I believe that is unrealistic. In any event, it could hardly be suggested that the blondes were accorded any more respectful treatment (as “Aryans”) than the brunettes. One of them is abused as a “dumb ass blonde” (in German) and the spanking is indiscriminate in this respect.

All of this is of a piece with how we know the News of the World operates. Truthfulness and accuracy coming second to huge splashes. Just in the last few months the paper has paid out damages to Cherie Blair, Katie Price and Peter Andre and Robert Murat, all for inaccurate or completely untrue stories. For years it's given not just house room but the front page on numerous occasions to Mazher Mahmood, who has now also on numerous occasions been exposed as being a fantasist, who uses entrapment to snare his victims before ruining their lives. His splashes on the Victoria Beckham kidnap plot were of his own imaginings, while the same was true of the so-called "red mercury" plot, in which all of those on trial were acquitted.

As for Neville Thurlbeck, as yesterday's Private Eye (1215) made clear, his history is less than spotless also, having tricked Colin Stagg, having promised him £20,000 if he took a "truth drug" which showed he had not carried out the killing of Rachel Nickell, or lied on oath or to the police. He passed with flying colours for the reason he was completely innocent - but the NoW seized on a minor discrepancy, splashed with "I LIED ABOUT RACHEL" and denied Stagg a penny. He also completely made up a story about a naturist B&B being a brothel, claiming that the wife of the couple who owned it had offered him a "full sex session with me and my husband for £75". In fact, he offered them £75 to have sex while he watched, and seeing an easy way to get some extra cash out of a spotty moron, they accepted. Thurlbeck claimed in the subsequent story that he had declined the offer, when in actuality, as the couple's security tapes showed, he had not only watched them, but masturbated while doing so.

It comes as little surprise then to learn that Thurlbeck attempted to blackmail two of the other women involved. As Eady writes:

In order to firm up the story, therefore, Mr Thurlbeck decided that he would like to publish an interview with at least one of the participants and, if possible, contributions from all of them.

In pursuit of this objective, therefore, he sent a number of emails. On 2 April he sent identical emails to Women A and B in these terms:

“I hope you are well. I am Neville Thurlbeck, the chief reporter at the News of the World, the journalist who wrote the story about Max Mosley’s party with you and your girls on Friday.

Please take a breath before you get angry with me!

I did ensure that all your faces were blocked out to spare you any grief.

And soon, the story will become history as life and the news agenda move on very quickly.

There is a substantial sum of money available to you or any of the girls in return for an exclusive interview with us. The interview can be done anonymously and you[r] face can be
blacked out too. So it’s pretty straight forward.

Shall we meet/talk?”

He became more insistent the following day:

“I’m just about to send you a series of pictures which will form the basis of our article this week. We want to reveal the identities of the girls involved in the orgy with Max as this is the only follow up we have to our story.

Our preferred story however, would be you speaking to us directly about your dealings with Max. And for that we would be extremely grateful. In return for this, we would grant you
full anonimity [sic], pixilate your faces on all photographs and secure a substantial sum of money for you.

This puts you firmly in the driving seat and allows you much greater control as well as preserving your anonimities [sic] (your names won’t be used or your pictures).

Please don’t hesitate to call me … or email me with any thoughts.

Regards and hope to do business.

Neville Thurlbeck, chief reporter, News of the World”

This would appear to contain a clear threat to the women involved that unless they cooperated with Mr Thurlbeck (albeit in exchange for some money) their identities would be revealed on the following Sunday. He was as good as his word and attached photographs and also some extracts from their websites. This was obviously to bring home to them the scale of the threatened exposé.

The threat was then reinforced the same day with a further email to Women A and B:

“Ok girls, here’s the offer. It’s 8,000 pounds for an interview with one of you, with no name, no id and pixilated face. And we pixilate all the pics I send through to you this morning.

BUT time is running out for us and if you want to come on board, you need to start the ball rolling now. Call me … if you want to.

Best, Neville”

Perhaps to their credit, the two women concerned resisted these blandishments and
thus risked the further exposure he had threatened.

This is a pure example of how the journalism practised not just by the News of the World, but by the entire Murdoch stable works. You might recall that last year the sex blogger Girl with a one track mind was threatened in almost the exact same fashion by the Sunday Times, that supposed august organ, stooping to the same level as the red-top tabloids to expose her actual identity.

It's therefore completely impossible to have any sympathy for the News of the World whatsoever. They created this story from the get go, not with any great public expose in mind, but with the pure intention of making money out of someone else's private life. There can't even really be any defence provided by the fact that the women were prostitutes, because again, as Eady notes:

Another argument thought up by the Defendant, or rather its legal team, was that the Claimant had been keeping a brothel. This would not bear close scrutiny and is certainly not consistent with the evidence. By the time of closing speeches, this line of argument had been abandoned. It seems clear from the authorities that for premises to fall within the definition of a brothel it is necessary to show that more than one man resorts to them for whatever sexual services are on offer. The only man enjoying the activities in this case was the Claimant himself. He paid for the flat and Woman A arranged parties there with various dominatrices for his (and apparently also their) enjoyment. This was not a service offered to men in general. He was the only one paying, although I was told that it was a standing joke among some of the regulars that they had so much fun that they ought to be paying “Mike”. There was never any question of a business being carried on there or the Claimant taking a cut of the proceeds.

As it happens, some of the women were rather reluctant to accept the description “prostitute”. (For the purposes of the Sexual Offences Act 2003, the term is defined by reference to providing “sexual services” in return for payment: s.51(2) of the Act.) Several of them offer a variety of services on their website (usually spanking or being spanked in various guises) but expressly warn that they do not offer specifically sexual services. They apparently made an exception in “Mike’s” case and threw in a bit of sex, as it were, as an “extra” between friends. Indeed, sometimes they were not paid at all. As they liked the premises and found the atmosphere relaxing and congenial, things developed from there, Indeed, although the Claimant’s sexual
activity as revealed in the DVD material did not seem to amount to very much, some of the women stayed on after the party was over and indulged in same sex action purely for their own entertainment.

Indeed, quite apart from Mosley paying the women, what seems to have united them against Woman E is both that they thoroughly enjoyed what they did with him, and also that she had broken one of the unwritten rules of the S&M scene in which they were part: that no one talks about it to potentially disapproving ears, and they certainly do not sell their stories. Woman E has apparently been ostracised from the community since as a result.

The last remaining fig leaf some will bring up is the moral issue itself. After all, Mosley was cheating on his wife, and she apparently, despite the potential slight injuries he might have suffered as a result, never had an inkling that he enjoyed being spanked and dominated. Does the exposing of it to his wife, while not justifying it any means by law, justify it in a moral sense? Some will obviously come to different conclusions on that. That his wife has apparently accepted it, and is also apparently supporting him though seems to suggest that even she might secretly be devastated, she is not to such an extent that she is thinking of leaving him.

The reality is that this has been coming for a long time. For far too long the tabloids in this country have been allowed to get away with blatant intrusions into others' privacy where there is absolutely no public interest whatsoever. Again today Sienna Miller is launching an action against the Sun and News of the World for publishing naked photographs of her, despite last year winning damages after they published, you guessed it, naked photographs of her during filming for a movie yet to be released, presumably on what was a closed set. The implication is obvious: that they simply don't care about the consequences when it potentially boosts sales as a result, or in the new digital world, leads to more one handed online clicks to their website. The Mosley case is just one particular new egregious example. No one thought the Screws was going to win, but everyone tomorrow and already online is screaming that this means the end of investigative journalism as we know it.

It's nonsense of course. These are the last wounded cries of a few select hacks and partisan publishers that know that at long last the great game may be coming to an end. This is half the reason why the tabloids so loathe the Human Rights Act: it's not because it's a criminals or terrorist's charter, it's because it has the potential to damage their business model once and for all. The facts are that they have brought it all upon themselves. Eady himself denies that this case sets a new precedent or is landmark in any way:

It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.

Sir Smacks Mosley may not have been the figure we would have liked to have triumphed over the Screws in such a way. It is nonetheless a completely warranted and welcome victory.

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