04 May 11 | News and features
After an inquest finding that Ian Tomlinson was unlawfully killed, solicitors Sarah McSherry and Louise Christian examine the barriers to justice in cases involving the police
In circumstances where a man’s assault and death were played out on our television sets, the obstacles faced by the Tomlinson family in their battle for justice undermine public confidence in the system intended to hold police officers to account. Had Tomlinson’s assault been carried out by an ordinary member of the public, there is no doubt that the police would have acted within the six-month statutory time limit for common assault and pursued a manslaughter charge in the knowledge that any conflict in the expert evidence obtained by the investigation would be tested in court. A verdict would then have been reached by a jury, which would have considered the credibility of the experts’ explanations, bearing in mind the professional reputations of the experts. This is exactly what happened at the inquest, where the standard of proof for an unlawful killing verdict was the same as in the criminal court.
This case highlights a number of the failures that are unfortunately so common in the context of our work. These include: failures to adequately supervise and manage officers and to conduct adequate, effective and independent complaint investigations that give rise to disciplinary proceedings, as well as failures to bring about prosecutions and/or appropriate penalties and/or to change police policy or practice to prevent a recurrence of the conduct investigated. These failures foster a culture of impunity amongst officers and allow culpable officers to remain in a position to inflict further harm on unsuspecting members of the public. The Crown Prosecution Service will now review its decision with regard to a potential prosecution of the officer involved, PC Harwood; MPs are considering disciplinary proceedings. But what of those who, in breach of their code of professional standards, witnessed but failed to report Harwood’s conduct? Disciplinary action should be instigated against those officers too, given that had the video footage of his last moments not been released, the cause of Tomlinson’s death may have never come to light.
Finally, this case gives rise to serious questions about the use of kettling as a “containment” tactic. Indeed, last month the High Court ruled that the Metropolitan Police broke the law when they kettled protesters at the G20 demonstrations in 2009, during which Ian Tomlinson died. It is clear that the use of kettles enforced by aggressive policing places members of the public at risk of significant harm. We represent Alfie Meadows, who suffered brain injury as the result of a baton strike to the head by a police officer during the 9 December 2010 protest about tuition fees. Luckily for Alfie, he is able to pursue his own quest for justice. Tomlinson was not so fortunate and his family have been forced to take up that struggle on his behalf. Let’s hope their campaign is nearing its rightful conclusion.
Sarah McSherry is equity partner, head of actions against the police, Christian Khan Solicitors and Louise Christian is head of public law, Christian Khan Solicitors
03 May 11 | News and features
Last month, the high court ruled that the Metropolitan police broke the law when they kettled protesters at the G20 demonstrations in 2009. Josh Moos, one of the activists involved in the landmark case, considers the lessons to be learnt
As Hannah McClure and I celebrated our legal victory over the Metropolitan police we simultaneously struggled with the media’s emphasis on possible compensation claims. Our goal in bringing the case against the Met was not damages. In fact, the idea that serious infringements of protest rights can be properly compensated for with money is pretty offensive. People protest to draw attention to what must change for the benefit of everyone in society. Making a police force’s insurance company hand over money to protestors whose rights have been compromised changes very little.
Our goal was to bring the police to account. While the police have a long history of violence against protestors such as Blair Peach back in the 1970s, I found it distressing how they were able to detain thousands of climate change protestors and passers-by for five hours and then make orders that force could be used to compress the protest into a much smaller space and ultimately end it. Much of the force used, especially the use of shields as weapons, was filmed and is disturbing to watch even two years on. The court certainly thought so and was highly critical of shield strikes. The fact that senior police officers could make these decisions and hand down such orders without being reprimanded was, to me, obscene. This “over-zealous” approach can be seen in the current Ian Tomlinson inquest.
In response to the question “Does your training tell you if someone is not a threat to you or any other person it is acceptable to baton them? Is that your training?” PC Harwood, the officer who struck Tomlinson before he died, replied “Yes.” This kind of unaccountability had to be challenged. Kettling, a tactic that has become so much part of the everyday protest experience, similarly had to be challenged.
Our case was not simply about the G20 camp. It was about protest in the UK as a whole. The police should not be able to treat climate change protestors, or anyone else, however they wish and get away with it. However, Sir Hugh Orde, head of the Association of Chief Police Officers (ACPO), seems to think otherwise. In early 2011, after previously claiming that the Met had learnt its lessons after the G20 Climate Camp protest, Orde stated that the police could use more extreme tactics against protestors. He defended kettling and claimed that horse charges could be “very useful”. This was in response to the wave of protests that gripped the country following the savage cuts by the Con-Dem coalition.
In the course of these protests there were multiple examples of unreasonable uses of police force, accompanied by an apparent belief on the part of the police in their own immunity. In December 2010, Jodi McIntyre, a cerebral palsy sufferer, was dragged from his wheelchair by police officers on two occasions. An officer justified having done so, claiming that it was “for [Jody’s] own safety”. The previous month had seen tuition fee protestors, as well as children and pregnant women, charged by police on horseback. Despite the Met’s claims to the contrary, a video was posted on Youtube clearly verifying that the crowd had been charged.
After the Kingsnorth Climate Camp in 2009, ministers claimed that 70 police had sustained injuries at the hands of protestors and used this evidence to justify the operation. It later emerged from police records that the injuries comprised sun stroke, bee stings and hands slammed in car doors. In reality, four police officers were injured through contact with climate change protestors, categorised at the lowest level of seriousness. Subsequently, parts of the police operation at Kingsnorth were found by the courts to have been unlawful.
During protests, police do not and will not act in the interests of the people. They are there to maintain the status quo. To do this, the police will use and manipulate any power they are given to its very limits. The police may claim to have “learnt their lesson”, but such statements are undermined by the fact that they have already decided to appeal this most recent judgment. The police learn their lessons not out of choice, but because they are forced to do so. This is why I was part of the team which took out this case against them.
Josh Moos is an activist and campaigner for Plane Stupid
21 Apr 11 | Uncategorized
The Daily Mail are angry about injunctions issued by “amoral judges” to protect “celebrity secrets”. Developments in court have been reported on the Daily Mail’s front page on successive days, while inside the paper Stephen Glover has argued that a series of rulings have left Britain “not many steps away from a police state”.
The people behind these injunctions, who tend to be identified by letter codes, appear to be a banker, an actor, a couple of television personalities and several professional footballers. They have had affairs while married, or have paid prostitutes for sex, and I think in one case there is a child born out of wedlock. The injunctions are keeping these stories, and the identities of those involved, out of the Mail and other papers.
Here is a general observation: other people’s sex lives are not my business. I may find the stories interesting and I might gossip about them, but I don’t believe I have a right to know about them. On the contrary, I think people should be allowed to keep such things private.
The Mail calls these people “wrongdoers” and “miscreants” and says they are “shameless”. This is probably a minority view. Adultery and divorce are common and — even if it is only through television documentaries or dramas — most of us have some idea that these things are complex and painful. Name-calling and crude blame have fallen from favour. Paying for sex also seems common. Again, the Mail clearly thinks it is wrong, full stop, but the law has long taken the view that, as with adultery, it should generally be regarded as a matter between consenting adults.
The Mail is obviously entitled to express its distaste for adultery and prostitution, but disapproving of something doesn’t automatically confer a right to breach the privacy of people who do it. If the paper could show that exposure was in the public interest, then perhaps. Are any of these people engaged in public moral judgement, telling others how to behave? I don’t know, but that might be an argument. Can any of these people be shown to have failed in some public duty as a result of their relationships? That too might be an argument.
Glover tells us the footballers are role models. In other words, because they play football for high salaries, these people can have no privacy in the bedroom. By extension, then, they have no entitlement to privacy at all; their entire lives — money matters, friendships, families, pastimes, tastes, opinions, holidays — are public property, to be scrutinised at any time to ensure they always set a good example. That is a difficult case to sustain.
Other people are involved in these stories and it is clear that in some cases they don’t want privacy; they want to tell their stories. That certainly complicates matters and it is hard to see an alternative to involving judges, since no privacy law is ever going to lay down rules that cover every eventuality. If judges feel the need for elaborate rulings, as the Mail complains, my guess is that this is often because they know the elaborate lengths to which newspapers will go to subvert them.
Which brings us to what is in it for newspapers. Partly, of course, (mainly, I would suggest) they want these stories because sexual scandal sells. That is why they will devote page after page to the detail of activities they claim to deprecate.
But the Mail argues on a higher plane. It says the sex lives of errant footballers and television presenters need to be exposed as a warning to the rest of us. As Glover put it: “The point is that fear of shame or disgrace acts as a restraint on all sorts of wrongdoing.”
This is the newspaper wishing to act as a public pillory in matters of sexual morality. To put it another way, the Mail wants the right to hang the scarlet letter “A” around the necks of those it considers adulterers because, it says, this will deter others from straying.
Glover’s boss, editor Paul Dacre, made the same case more fully in a speech in 2008, mainly with reference to the Max Mosley case.
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.
What do you think of that?
Brian Cathcart teaches journalism at Kingston University London and tweets at @BrianCathcart
21 Apr 11 | Uncategorized
This article first appeared in the Guardian
Two cheers for Ed Miliband. In calling for an independent review of the way newspapers behave he is taking a big political risk, opening the door to concerted hostility from media magnates. He also happens to be right on the principle that freedom of expression and holding truth to power are not synonymous with dodgy journalistic practice. He might deserve a third cheer if it were not for the brazen opportunism he and his party are showing by taking on Rupert Murdoch only now that the love is lost.
Before the caveats and the cavilling, credit should be given where it is due. Miliband is seeking to take on the good work carried out two years ago by the cross-party Commons select committee on culture, media and sport. When the MPs issued their report they correctly identified and separated out three related strands: the need for libel reform; issues of privacy; and press standards.
Their inquiry looked at the media in the round, but also at some egregious cases of abuse. This included the hounding of Gerry and Kate McCann, and the bugging of telephones of politicians and celebrities by the News of the World – which News Corporation is only now, drip by drip, beginning to admit.
The MPs made a point that should be blindingly obvious to the media profession – that legitimate investigation is vital to keeping checks on the powerful, but that intrusion into people’s lives, particularly through subterfuge, is not.
Seen from one level, the British media are forced to operate under considerable constraint. Until now England and Wales have been global pariahs, sporting some of the most restrictive libel laws in the developed world. It is a tribute to all political parties, but mostly the coalition, that the Libel Reform Campaign led by Index on Censorship and its partners has produced draft legislation that goes some way to removing the chill on free expression and investigative journalism. Sure, the bill is not perfect, but the great should not be the enemy of the good. After all, this is the first serious attempt in 70 years to tackle the problem.
Privacy is the thorniest problem. Hypocrisy should be exposed. What about the celebrity who parades their private life in choreographed photoshoots for glossy magazines but then wishes to hide from public view when things go awry? That is a moot point. Assuming you are a public figure but you make no pronouncements on lifestyles or ethics and you do not parade your life in the glare of the cameras, surely you are entitled to privacy? You are, thanks to the Human Rights Act. But as ever, our suspicious judges are interpreting the legislation in a manner hostile to a free media.
Ranged against the long lens is the epidemic of the super-injunction. The master of the rolls (the second most senior judge in England and Wales) is due to report on an issue that serves as a perfect example of rich man’s justice. The very idea that the media should be gagged and that the public is prevented from knowing that such an order exists is more in keeping with a dictatorship.
This brings us back to media standards. One of the biggest hindrances to strong investigation is cost. Editors and the bean counters who oversee them are reluctant to invest in long-term projects that might prove fruitless. The democratic deficit in the demise of investigative journalism is immense. But gossip, spleen and prurience are no substitute, and no remedy for budget cuts and falling sales.
As for dodgy practice, this is where taste meets the law meets expediency. Chequebook journalism? Secret recordings? Fine, one might think, if properly authorised and if in the public interest. Where should the line be drawn?
To take a few famous recent examples: the Telegraph’s use of young and attractive female reporters to trap Vince Cable into making indiscreet remarks about Murdoch and other public figures (dubious but compelling); the same publisher’s use of a stolen computer disc to reveal MPs’ expenses (now seen as triggering a clear-out of parliamentary sleaze); or the Guardian’s publication of unauthorised US state department data, otherwise known as the WikiLeaks affair or Cablegate. Everyone has their own view about the ethics behind these incidents and more.
The News of the World phone-hacking scandal is of a different order. Allegations of illegal practices are being investigated. Its pond might be considerably murkier, but nobody’s is entirely free of weed. Nobody has come out of the Screws affair well – least of all the police or the Press Complaints Commission. The commission has still to apologise for, or learn from, its supine approach to the affair. As the last hope for self-regulation, for keeping politicians and meddling judges away from the Fourth Estate, the PCC is under scrutiny as never before.
The commission gives frequent assurances that it really doesn’t work as a shop steward for the industry but as a protector of free speech and of fairness, accuracy and standards. Its appointment of three senior and respected figures to its board bodes well, but there is a long way to go.
Miliband, in his interview in the Guardian, said he had no grand plan for a review into print media – while making clear it should be fully independent of government “and from those involved in the day to day running of newspapers”. He added: “I think that would help the industry. There has to be a sense that the future is not going to be like that past. Wider lessons have to be learned.”
He is entirely correct but selective in drawing his conclusions. For more than a decade New Labour was slavish to the Murdoch empire, and initially too to the Daily Mail and Associated Newspapers. Tony Blair did everything – including flying around the world to an Australian island – to ingratiate himself with Rupert Murdoch. It was only after the empire had dumped Gordon Brown in favour of David Cameron that Labour ministers such as Peter Mandelson began to bleat about media cross-ownership and assorted injustices.
Would Miliband now be making these same noises if he had not been left out in the cold by the omnipotent Antipodean? Of course not, but that does not make him wrong. Free speech is not threatened by good practice. It is defended.
