27 Censors in the Courtroom

TWICE IN THE course of my life in the law I have indulged my literary appetite as an inveterate scribbler. I wrote two books (strictly speaking, they were little more than pam­phlets or booklets, since both were short in length, crisp in style and aimed at an intelligent audience that could be persuaded by critical commentary).

The first case was that of James Hanratty, separately treated in this volume, who was convicted of the murder of Michael Gregsten and the rape of Valerie Storie, at Bedford Assizes in 1962. The inci­dent took place in a cornfield in rural Berkshire where Hanratty encountered the courting couple in a stationary car. At gunpoint he made Gregsten drive the car and while on a stretch of the A6 high­way he ordered the car to stop, whereupon the violence took place. Hanratty’s appeal against his conviction was refused and he was duly executed. My book, entitled The A6 Murder; the semblance of truth^[240] was a critique of the English system which I explained was conducted adversarially - the prosecution has to prove its case beyond reasonable doubt - and was not an exercise in seeking to establish the truth, other than inferentially, about a criminal event. I concluded that on the admissible evidence, Hanratty should not have been convicted, and he should certainly have been reprieved. I did not conclude that Hanratty was innocent of the crime. I was much criticised by certain left-wing journalists (eg Paul Foot, Bob Woffinden et al) for implying that Hanratty was guilty.

The second case was the Birmingham Six trial, arising out of ter­rorist bombs planted in a public house in the centre of Birmingham in November 1974. Six men (one other was acquitted) were con­victed of the murders of 21 people at Lancaster Crown Court in August 1975. Their appeal was unsuccessful. In 1978 their case was referred back to the Court of Appeal (Criminal Division), but after an exhaustive hearing the appeal was dismissed. The judgment of 159 pages contained two passages of note. Early on in the judgment Lord Lane, the Lord Chief Justice, said that quite apart from the written admissions to the police and some forensic evidence, there was still a strong case against the Six on a mass of circumstantial evidence. This passage was not quoted in press reports, but the peroration to the judgment was widely quoted, and has remained a focus of hostil­ity towards an outstanding Lord Chief Justice. He said that the longer the case lasted, the more convinced the court was that the jury’s ver­dict was safe and satisfactory. In 1991 the case was again sent back to the court: this time the convictions were quashed and the Six were freed after 16 years in prison. Thereafter they loudly and persistently proclaimed their total innocence, as they were entitled to do.

My book, The Birmingham Six: Victims of Circumstance,^[241] was published in 1997. Its publishers subsequently went into liquida­tion and did not stay to fight the libel proceedings that ensued.

If you are looking for a modern example of an injustice propa­gated by members of the judiciary, you need look no further than the Supreme Court of Ireland. On 8 October 2009 five justices of that court, led by the Chief Justice, Mr Justice Murray, in effect burnt a modest book of legal scholarship. Without any reasoned judg­ment, the Supreme Court ordered that the case should be sent back to the High Court to continue the proceedings for libel. Subsequently, the case was amicably settled. Miscarriages of justice have long been a threnody among dissidents with political agendas, but their hymn sheets are often overlooked by courts - the fact is that justice can miscarry both ways. The wrongly convicted may not have been wrongly arrested and tried before a judge and jury. The dissidents are rarely accorded any acknowledgment of the rival arguments about the guilt and innocence of convicted offenders.

A court trying an action for defamation should nowadays (since the passing of the Human Rights Act 1998) instantly strike a bal­ance between freedom of expression and the protection of reputa­tion. There is no longer any primacy in favour of the reputation of a defamed individual; it takes its place alongside a competing free­dom. The case law from Strasbourg has definitively accepted a person’s right to protection of his or her reputation as encompassed by Article 8 as being part of the right to respect for private life, and simultaneously balanced it against the right to freedom of expres­sion under Article 10.^[243] And in March 2012, in the decision in Flood v Times Newspapers Ltd,^[244] the President of the UK Supreme Court, Lord Phillips of Worth Matravers, pointed out that the rights intro­duced into our domestic law as a consequence of the 1998 Act require that approach:

Publication is permitted, even though this may involve publishing alle­gations that are clearly defamatory. The balance in respect of the report­ing of such proceedings is heavily weighted in favour of freedom of speech. The public interest in favour of publication is firmly established... In developing the common law the courts as public authorities are obliged to have regard to the requirements of the Convention.^[245]

It is noteworthy that the judgment of Bean J, in Bento vBedfordshire ChiefConstable,^[246] proceeded upon the basis of the established frame­work of common law principles relating to the defence of qualified privilege.

The facts in Bento were straightforward, if slightly unusual. The claimant for libel had been charged with the murder of his erst­while girlfriend with whom he had been cohabiting. At his trial at Luton Crown Court his defence was that he was innocent of any crime, and that the victim’s death was the result of suicide. Her body had been recovered on 24 January 2006, after her disappear­ance on 13 December 2005. She had drowned in a local lake shortly after having been seen near the lake and was caught on CCTV, appearing to be carrying her familiar type of handbag. That had been a crucial piece of the circumstantial evidence that implicated the claimant, and to that fact there had been crucial evidence from a forensic video analyst. If the expert’s evidence was reliable, that the bag belonged to the dead girl - ‘she can be seen carrying her favourite handbag’ - the claimant was implicated because the bag was later recovered by the police in premises to which the claimant had access. The claimant was convicted by the Luton jury. He appealed to the Court of Appeal (Criminal Division). On the footing that the defence desired to call fresh evidence from an expert, to deal with the uncontradicted evidence of the Crown expert at trial, the Court of Appeal gave leave to appeal, quashed the conviction and ordered a retrial. Subsequent to the order of a retrial, the Crown’s expert died; he had committed suicide.

Bedfordshire Police were told by the Crown Prosecution Service [on] Tuesday evening that the case against Nico Bento has been discontinued.

We are extremely disappointed on behalf of Kamila’s family, for whom this reopens a devastating chapter in their lives. The police conducted the most thorough and ethical investigation in this case and did their utmost to secure justice for the family.

The role of the police in cases such as these is to assemble the availa­ble evidence and present it to the CPS. In this case the evidence initially presented resulted in a conviction at the Luton Crown Court where the decision of the jury was unanimous.

The CPS have now taken the view that confusion in regard to the expert evidence in this case means there is no longer a realistic prospect of conviction.

The police investigation found no evidence whatsoever that Kamila killed herself. Therefore, as with all unresolved murder investigations, this case will not be closed and will be continually kept under review in an effort to discover new evidence and build a stronger case.

The defence to the libel action was twofold: justification and tradi­tional qualified privilege (old-style - that is pre-Reynolds). Mr Justice Bean’s examination in detail of the circumstantial evidence that led to the conviction for murder - minus, presumably, the evi­dence no longer extant in the expected retrial - predictably found that it could not be substantiated. Despite the jury’s verdict Mr Justice Bean concluded:⁹

⁹ ibid [91] and [92].

Either of these scenarios is possible. But the suicide scenario is by far the more probable of the two. That far greater probability is not outweighed by the circumstantial evidence, even of the flowers incident. My conclu­sion is that while it is possible that Mr Bento killed Kamila, the balance of probabilities is that he did not and that she committed suicide. The defence of justification therefore fails.

On the separate issue of qualified privilege Mr Justice Bean thought that that too failed to measure up to the required standard of proof. The defendant could have limited his defence by issuing a modified statement that would have protected its own interests without implying that Bento was guilty of murder or that he probably killed her. The judge awarded Bento £125,000 damages. The Bedfordshire Police decided not to appeal the decision; apparently their insurers declined to continue the litigation.

The recent development in the jurisprudence of the English courts came in the classical judgment of Lord Nicholls in Reynolds v Times Newspapers Ltd, which ushered in the concept of responsi­ble journalism as a development of the defence of qualified privi­lege, to the point where Lord Hoffmann and Lady Hale in the later case of Jameel v Wall Street Journal Europe SPRL^{[248] [249] suggested that the law of defamation is now poised to adopt a new jurisprudential creature of responsible journalism. It is worth pointing out that the responsible journalism defence is not the sole preserve of the media. As Lord Phillips said in Flood v Times Newspapers Ltd,}

Reynolds privilege is not reserved for the media, but it is the media who are more likely to take advantage of it, for it is usually the media that publish to the world at large... The importance of the public interest in receiving the relevant information has to be weighed against the public interest in preventing the dissemination of defamatory allegations.¹¹

Mr Justice Bean’s judgment records the various arguments advanced by counsel for the defence, for demonstrating that the duty to pub­lish and the interest or right to receive information was applicable to the statement made by the Bedfordshire police.^[250] Strangely, throughout this detailed attempt to argue for an apparent broaden­ing of the Reynolds privilege, not a word appears in the judgment about the Flood case, which was decided by the UK Supreme Court on 21 March 2012 (the trial of Bento v Chief Constable of Bedfordshire Police took place in April/May 2012; judgment was

reserved on 9 May 2012 and delivered on 1 June). What is the more surprising is the omission of any reference to another pertinent pas­sage in Lord Phillips' judgment in Flood. Referring to the nature of ‘reportage' as an example of the Reynolds privilege, he said:

There is a danger in putting reportage in a special box of its own. It is an example of circumstances in which the public interest justifies publica­tion of facts that carry defamatory inferences without imposing on the journalist any obligation to verify the truth of those inferences. These circumstances may include the fact that the police are investigating the conduct of an individual, or that he has been arrested, or that he had been charged with an offence.^[251]

In short, the police issuing, on request from a journalistic source, a press release for public information, following the decision of the Crown Prosecution Service, might well be regarded as an adjunct or auxiliary to the privilege accorded to the media, post-Reynolds.

The nub of Mr Justice Bean's rejection of the defence of qualified privilege (or, if you like, a defence of reportage or technique of jour­nalistic reporting incidental to the media coverage) is contained in a single paragraph. I quote the paragraph verbatim:

I accept that there is a high public interest in maintaining confidence in the criminal justice system. That public interest underlies much of my working life and that of any judge who sits in the criminal courts. But I do not accept that that public interest is served by encouraging the police to issue statements indicating their opinion that the decision of the CPS not to pursue a prosecution (or, for that matter, the decision of a judge that a defendant has no case to answer) is wrong because the individual concerned is or is probably guilty. On the contrary: such statements reduce confidence in the criminal justice system, as well as seriously damaging the right to reputation of the individual.^[252]

What conceivable evidence is there of the nature and extent of pub­lic opinion about criminal justice? And what empirical evidence (as opposed to judicial opinion) is there that a press statement from the police in the case of Bento would ‘reduce confidence in the crimi­nal justice system'? Apart from pure judicial surmise, or even the informed guess of a seasoned practitioner in the criminal courts (for what this is worth as evidence of the social situation), it is an open question whether, and if so, what degree of confidence the public has in the criminal justice system - and that is assuming an overall view of criminal investigation, the powers of arrest, the charging of a criminal offence and the process of a fair trial with an appropriate appellate system. The plain fact is, as criminologists point out, that as a society we know precious little about what the public thinks about crime and justice. What little we do know is gleaned almost entirely from unreliable (in the sense of extremely limited research) opinion polls and largely irresponsible media coverage of criminal­ity. There is undoubtedly a ‘high public interest’ in the criminal justice system (whether it carries public confidence or not), and that is a factor properly taken into account in assessing the balance between Articles 10 and 8. But we need to be informed publicly of the functioning of criminal trials.

Whatever the constitutional status of the criminal justice system, its emanation finds ample expression in Article 6 of the European Convention on Human Rights, obliging a Member State to provide its citizenry with a fair trial in full gaze of the public. Just as Article 10 may trump any Article 8 right, so Article 6 is surely supplemen­tal to the guaranteed ‘sunlight of publicity’ provided in criminal proceedings. Lady Hale in Jameel^[253] described ‘the general obliga­tion of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information’, and added: ‘There must be some real public interest in having the infor­mation in the public domain.’ Lord Phillips in Flood commented:^[254] ‘I doubt if this formulation could be bettered.’

The Bedfordshire Police press statement of 9 July 2009, by way of response to the announcement of the Crown Prosecution Service that it had decided to discontinue its prosecution of Bento in a sec­ond trial, as ordered by the Court of Appeal, was a report of a court proceeding, in that it brought to public attention the ending of the extant prosecution; it indicated that the homicidal event would be subject to any future prosecution only on the basis of fresh evidence sufficient to invoke the reversal of the rule of double jeopardy under section 76 of the Criminal Justice Act 2003. The court hearing to quash the conviction would not have indicated the state of any fur­ther criminal investigation. The public was entitled to be informed about the prosecutorial consequences of the decision of the Crown Prosecution Service.

If both the media and other public commentators have immunity (whether absolute or qualified privilege) from defamatory action, they are entitled in the exercise of that right to be wrong, just as much as the Crown Prosecution Service may have taken a wrong decision not to pursue a second trial, for which, incidentally, it was susceptible to judicial review. Together, the Bedfordshire Police as the investigators of the crime and the CPS as the prosecuting author­ity were subject to public scrutiny. If the Bedfordshire Police was in breach of policing ethics, it or its officers could be disciplined administratively. Mr Justice Bean further observed^[255] that the Bedfordshire Police ‘could perfectly well have issued a statement saying any or all of the matters short of suggesting, defamatorily, that Bento killed the victim who did not commit suicide’.

Why should it be assumed that the press statement of the Bedfordshire Police of 9 July 2009 would reduce the confidence of the community in the Bedford area - and beyond, in the country? It might actually enhance its reputation, in that the reasonable reader of the press statement might have felt that it was only the misfor­tune of the death of the Crown’s expert that had upset the verdict of a local jury. We do not know, and cannot even sensibly guess, at the public reaction to the press statement. It might actually have been ‘a very wholesome act’.^[256] Judges in any event should not engage in guesswork about social responses. That requires hard evidence.

There was hard evidence directed to the issue, which of the alter­native scenarios was the right answer. Mr Justice Bean was amply entitled (after a lengthy excursion through the evidence on the issue of justification) to conclude that the more probable cause of the drowning was suicide and not culpable homicide. But whatever the preferred finding - suicide or culpable homicide - might be in the libel proceedings, that in itself cannot, for the purposes of assessing public opinion, negate the findings of the jury in the earlier criminal proceedings. Public opinion might, or might not, prefer the verdict of the jury, even though it was quashed on appeal, with an order for a re-trial. The public is free to choose which of the two scenarios it is inclined to view as the more likely. And the press statement of 9 July 2009 was one piece among much other informa­tion in the public domain that could properly be taken into account. The problem for the modern democrat in assessing Bean J’s deci­sion is that one man’s Article 8 right (to protect his reputation) was allowed to eclipse the Article 10 rights, not just of the Bedfordshire Police, the populace of Bedfordshire and its environs, but also of the victim’s family^[257] and friends, and all of us serious scribblers in England and Wales. So much for the striking of a balance!

CODA

From the point of view of social policy and free speech, the most disturbing consequence of the Bento decision is that the claimant in the libel proceedings may proclaim publicly and with impunity his exculpation from inflicting any harm on the victim who drowned in the lake at Bedford. No one sensibly would wish to deny Bento his desire publicly to declare his innocence of any crime; after all, the criminal justice system has declared him legally - but, it should be noted, not factually - innocent. It is a common misunderstanding that there is a ‘presumption of innocence’ for everyone at all times. The ‘presumption’ arises, however, only as and when a person faces a criminal charge. The ‘presumption’ is a rule of evidence; nothing more nor less than a valuable procedural safeguard to an accused in a criminal trial. It is inapplicable to the rest of us, even where there are public allegations of criminality. But at the same time as Bento declares his innocence - for good measure, he may even assert that his deceased cohabitee committed suicide - the rest of us are disen­titled from speaking publicly on a matter of high public interest (a murder trial) to a contrary view under the threat of an action for libel. The legal system has effectively muzzled us, so long as Bento is alive. The demonstrable inequality in the rights to freedom of expression is a plain denial of such a right under Article 10 of the ECHR; it is discriminatory, if nothing else. Civil liberties demand equality of arms as between disputants, at least on matters of opin­ion - Bento and the police should be entitled to express rival views as to his criminality.

If the Bento judgment accurately reflects the result of the law, so be it. But I protest. No one (least of all this commentator) would wish to stifle anyone’s claim to his or her reputation among associ­ates and fellow citizens. But a civilised society should not perpetu­ate such a disparity of treatment on its citizenry. The rest of us should be free to state publicly that Bento is wrong, and why we think he is wrong, as perhaps also was the Crown Prosecution Service (which the Bedfordshire Police evidently thought). Others may argue forcibly that Bento is factually innocent. We all need to adhere - unswervingly, I assert - to the principle proclaimed a hun­dred years ago by Justice Oliver Wendell Holmes in Abrams v US²° that ‘the best itself of truth [for completeness and clarity, I would add ‘on matters of public interest’] is the power of the thought to get itself accepted in the competition of the market... It is an experi­ment, as all life is an experiment.’

²⁰ 250 US 616 (1919).