Freedom of speech could be in the hands of one tough judge
Raymond Snoddy says those who believe in freedom of speech should be concentrating their efforts on defending and improving self-regulation rather than trying to appease judges by offering up statutory baubles…
Anyone reading the accounts of how the Appeal Court dismissed most of the attempts to overturn the drumhead justice meted out to England’s rioters would have noticed an awesomely familiar name.
No not the Facebook two – Jordan Blackshaw and Perry Sutcliffe-Keenan – the self-styled “monumentally foolish” pair who were each given four years in prison for variously trying to foment a riot, or a riot and criminal damage using Facebook.
The name that leaps out of the page is that of Lord Justice Leveson.
If we didn’t know it before we know now – freedom of speech in this country could be in the hands of one tough judge, however avuncular, reasonable and open-minded he may appear in public.
Leveson, one of the three judges hearing the appeals yesterday, obviously backed the court’s overarching view of the cases that they had been dealing with “utterly shocking and wholly inexcusable” levels of lawlessness that required deterrent sentences.
Of course the summer riots were totally inexcusable but society might not have collapsed if Lord Leveson and his legal chums had been capable of showing a tad more mercy.
Would civilisation have been under any greater threat if the sentences of Blackshaw and Sutcliffe-Keenan had been reduced to two years in prison given that no riot occurred and no criminal damage or theft actually happened as a result of their ridiculous Facebook messages? In fact they were beyond ridiculous because anyone using Facebook can be easily identified.
It was, however, almost as if their Lordships wanted to demonstrate their grasp of all this social media malarkey.
While agreeing that the pair had not gone from door-to-door stirring up mayhem, the Lord Chief Justice, Lord Judge observed that “modern technology has done away with the need for such direct communication.”
As the Lord Justices were delivering their verdicts Dick Costello, chief executive of Twitter insisted that his site would continue to be freely available during periods of disturbance and that Twitter would resist any attempts from police or intelligence agencies to demand information about their users.
The appeal verdicts came the day after Lord Leveson also upheld the judgement of Prime Minister David Cameron that there was no need for anyone with experience of tabloid, mid-market, local, regional or online publishing on his panel of six assessors.
Taking, as you might expect, a legalistic point of view, Lord Justice Leveson pointed out dryly: “I note no legislative requirement that assessors should represent each and every interest at an inquiry or indeed that they represent important interests at an inquiry.”
Indeed but wouldn’t you think that rather than sitting on legalistic niceties Lord Leveson would, at least in a spirit of intellectual inquiry, want to benefit from the private advice and judgements of at least one representative from three quarters of the industry he is now about to judge. It is believed that some of his Lordship’s assessors may indeed have suggested to him that a wider range of experience to draw upon might have been a good idea.
The newspaper industry may be dealing here with not just a tough judge but also a stubborn and unbending one.
The role of the assessors, however imbalanced, is a curious one. They are there to help Lord Leveson but are they there to actually assess anything in that their assessments will necessary count for anything?
Think for a moment of a quite plausible scenario. At the end of the process Lord Leveson decides that the Last Chance Saloon days are finally over, that newspapers should be brought under statutory control. The three former journalists on the panel of assessors, Sir David Bell, George Jones and Elinor Goodman, all disagree.
They are joined by Shami Chakrabarti, head of the human rights pressure group Liberty, a body which has a strong commitment to freedom of expression. So a clear majority against statutory interference but they are only there to advise Lord Leveson so presumably he can ignore them and sail straight ahead.
Will dissident assessors – in this case the majority – be allowed to publish their views contradicting those of the Lord Justice – something that could seriously undermine his findings?
At least after the recent public seminars, before an invited audience at the QE2 Centre including most national newspaper editors, Lord Leveson ought to have a new appreciation of the complexity of his task.
Mark Twain once said of a previous era – “never pick a quarrel with those who buy their ink in barrels.” He might have had Kelvin MacKenzie in mind. The former Sun editor decided that hand-to-hand combat was the thing and went straight for the jugular:
“God help me that free speech comes down to the thought process of a judge who couldn’t win when prosecuting counsel against Ken Dodd for tax evasion and more recently robbing the Christmas Island veterans of a substantial pay-off for being told simply to turn away from nuclear test blasts in the 50’s. It’s that bad,” said Kelvin with his trademark understatement.
Earlier Daily Mail editor Paul Dacre performed a more rational and effective demolition of everything that the Leveson inquiry stood for and the political expediency that led to its setting up. Then just when it was time to say three cheers for the Daily Mail – something that doesn’t happen every day of the week – Dacre stumbled and lost his way.
The Daily Mail editor suggested that alongside the Press Complaints Commission there should be an Ombudsman, possibly a retired judge, with the power to investigate and summon journalists. It would also have in “the cases of the most extreme malfeasance” the power to levy fines.
But what exactly would be “the most extreme malfeasance” involve? Bribery, corruption, phone-hacking are all already covered by the law not forgetting contempt and libel. What is left? And anyway fines would change the nature of the operation and bring in the lawyers by the coach load.
Those who believe in freedom of speech should be concentrating their efforts on defending and improving self-regulation rather than trying to appease judges by offering up statutory baubles.