The following was originally published on October 5th 2013 on Journalism Now for my MA Journalism.
The recent Mail on Sunday and Daily Mail articles covering the ideology of Ralph Miliband, Ed Miliband’s father, have again called into question the morality and ethical standards of our 21st Century media. http://www.dailymail.co.uk/debate/article-2439593/Why-father-loved-Britain-Ed-Miliband.html
To contemplate this issue further we need to understand the legal framework in which our media operate. Will their modus operandi change in light of The Leveson Inquiry recommendations and could we be less enlightened as a consequence?
Sources of law
Parliament passes acts which are known as statutes. For enactment, primary legislation requires Royal Assent following debate and approval in the House of Commons and approval in the House of Lords. Another form of Parliamentary based law is secondary legislation where a Parent Act enshrines general principles but the actual power to make the specific law is delegated to, typically, a departmental Minister. Statutes can replace or modify the common law which can be viewed as the ancient law of the land, having evolved from the historical decisions of judges as they administered the law and societal custom of the realm. These case decisions are documented and guide decision making in future case via a process called legal precedent. The decisions of a higher court typically bind the decisions of lower ones with the intended consequence being certainty within the legal system. A hotly contested and historically burgeoning source of law is that of European law. Such law intends to bind all member states to ensure that no member state can gain a trade advantage. The European Court of Justice facilitates the interpretation of EU legislation as member states are responsible for deciding how EU directives will be enacted.
The structure of the English and Welsh courts and the tribunals system of England, Wales, and in some cases Northern Ireland and Scotland http://www.judiciary.uk/Resources/JCO/Images/Layout/courts_structure.pdf
Criminal v civil
There exists a main division in law between criminal and civil. Civil law relates to the relationships between individuals and/or organisations and is a legal way by which aggrieved parties can bring a claim or claims against another party or parties. Civil law distinguishes itself from criminal law in this regard as it requires an individual’s initiation and provides remedies (e.g. financial damages) to disputes (torts) rather than punishment. There are a multitude of civil law aspects, contract and property to name but two. Such cases are referred to by the two party’s names e.g. Smith v White. One party (the claimant) sues the defendant. The level of proof required is lower than in a criminal case, namely ‘on the balance of probabilities’. A civil case seeks to determine liability.
Criminal law, a key aspect of a functioning society, focuses upon behaviour the state considers to be intolerable and in need of control. The state, via the Police, enforces the law. Our duty as citizens is to comply with the law. Criminal cases are brought by the Crown Prosecution Service and cases are referred to as e.g. R (=Regina, Latin for Queen) v White. Criminal law encompasses the notion of a defendant or accused being prosecuted. The prosecution has to prove that the accused is ‘guilty beyond reasonable doubt’ or they must be found not guilty and acquitted.
Significant figures in the field of law
The current Lord Chancellor and Secretary of State for Justice is Rt Hon Chris Grayling MP. Historically the role of Lord Chancellor, which does not require the politically appointed person to have held any prior judicial office, has been debated in relation to its perceived or real contravention of the separation of powers. The Lord Chancellor’s recently altered remit within the Ministry of Justice is wide, focussing as it does on criminal, civil, family justice and democracy and rights matters. The Ministry of Justice (formed in 2007) is responsible for courts, prisons, probation and reforming the criminal justice system for the purported good of the public.
The Director of Public Prosecutions (DPP) heads the Crown Prosecution Service whose central task is to independently determine if there exists enough evidence to charge a suspect. This is a complex task as demonstrated by the Michael Le Vell case http://www.dailymail.co.uk/news/article-2418240/We-right-charge-Le-Vell-Director-Public-Prosecutions-tells-MPs-Keir-Starmer-responds-witch-hunt-allegations.html The current role holder, Keir Starmer QC, will be replaced on 1st November 2013 by Alison Saunders CB (see http://www.bbc.co.uk/news/uk-23420460)who was appointed by the Attorney General.
The role of the Attorney General is multifaceted given he or she acts as politician, government member in the form of their chief legal advisor and minister of the crown. The current incumbent, Rt Hon Dominic Grieve QC MP, serves to ensure government respects the rule of law, which is considered to be a characteristic of civilised democracies. The importance of the rule of law was articulated in Lord Bingham’s 2006 speech at The University of Cambridge; http://www.cpl.law.cam.ac.uk/past_activities/the_rt_hon_lord_bingham_the_rule_of_law.php
The central principles of said rule, as enunciated by Victorian jurist AV Dicey, are that no person is above the democratically passed law, which we must all obey, and that the populace should have the protection of the law.
The Attorney General can also refer certain sentences to the Court of Appeal for reconsideration and has contempt of court jurisdiction. This jurisdiction was demonstrated with the initiation of strict liability contempt against The Mirror and The Sun for articles covering Chris Jefferies arrest http://www.5rb.com/case/Attorney-General-v-(1)-MGN-Limited-(2)-News-Group-Newspapers-Ltd
The notion of legally active.
To mitigate the chances of jury prejudice there exist a number of automatic reporting restrictions which are in section 8 of the Magistrates’ Courts Act 1980. These restrictions apply when a case becomes legally active for example when an arrest warrant has been issued, a magistrates’ summons has been issued or when a person has been charged. The variance in how the media report can be seen with the recent Caroline Lucas anti-fracking story. For a report on the day of her arrest http://www.theguardian.com/environment/2013/aug/19/caroline-lucas-arrest-balcombe-anti-fracking For a report on the same story when the CPS announced they were charging her http://www.theguardian.com/politics/2013/sep/25/caroline-lucas-charged-anti-fracking-protest
When a case becomes legally active journalists can only report:
the name of the court
the names, addresses and occupations of the parties, including the defendant(s), and of witnesses, and the ages of the defendant(s) and witnesses
the full or summarised charge
the solicitors’ or barristers’ names
if so, the date and place of adjournment
any bail arrangements
if legal aid has been granted
the fact that reporting restrictions are in force
The tacit rule of law aside, these overt restrictions show that journalists do need to abide by laws. However as we have seen with The Leveson Inquiry there are many ethical and moral issues that, in the public’s opinion, should be occupying a journalist’s mind.
Against the backdrop of public anguish over the tabloid press hacking Milly Dowler’s phone, the inquiry was commissioned in July 2011 by the Prime Minister, David Cameron. Two fold in its remit, it was to examine the role of the press and the police in the phone hacking scandal. Its aim was to (contentiously) draw recommendations regarding press regulation and governance and oversight systems. Existing media regulatory systems include BBC Trust, Ofcom, the Information Commissioner and the self-regulatory and now publicly and politically derided Press Complaints Commission (PCC).
Lord Justice Leveson was appointed as the chairman. Part one looked at the culture, practices and ethics of the press and specifically their relationship with the public, police and politicians. From reporter to celebrity and politician to police, an abundance of witnesses (over 630) were heard, remotely and in person.
The central question being examined was, ‘Who guards the guardians?’ The guardians (journalists) should operate in accordance with the law given legal restrictions such as libel and contempt and Article 8 of the European Convention on Human Rights (right to respect for private and family life). Potentially weighing against this is article 10 of that Act (Freedom of expression).
Leveson concluded part one by lambasting the PCC and espousing the need for change. He stated that government and politicians should not be involved in regulation and that there was a need for some changes in law. He said there was a need for an independent and effective system of self-regulation. http://www.levesoninquiry.org.uk/about/the-report/
Part two of the inquiry, largely focussing on unlawful or improper conduct within media organisations and the police’s relationship with News International, cannot commence until the conclusion of on-going criminal proceedings. These involve David Cameron’s former communication guru, Andy Coulson, and former News International chief executive, Rebekah Brooks. Their trial has been adjourned until 28 October 2013. But first we await next week’s Privy Council decision regarding which new regulatory system awaits us. Will this new system eradicate unethical journalism? What price could we pay in this new dawn and are we willing to pay? I wonder where your guardians are…