A trial by media

The impeachment saga and Justice Leveson’s report on British media

 

The recent impeachment process conducted by the relevant tribunal was overshadowed by a parallel process of impeachment conducted by a section of the media. That rump of the media attempted to play the role, of prosecutor, witness, judge, jury and hangman all in one role.

The public were regaled by headline after headline, detailing the alleged misdeeds of the targeted individual, without any opportunity at all to make an objective assessment of the evidence, did the evidence emanate from an authorised source, was it genuine, was its veracity tested either by the cross examination of under solemn oath of the person making the allegation of evidentiary value, or if it was a document, by the Examiner of Questioned Documents. Details of matters which by law , could not be disclosed to the general public , unless under very special and controlled circumstances, such as bank account details, were the stuff of the front pages of these gutter newspapers and headlines of the radio and television.

Neither was the accused given an opportunity to present a defence. Though a so-called ban on reporting on the internal processes of the impeachment saga was reported to be in force, this was violated patently and blatantly by the gutter snipes concerned. Indeed the worldwide web and the internet was a great source of information for those who wished to learn of all aspects of the story as it unfolded and chose to analyse and filter and determine what the possible of an iota of truth, if at all, may be present in the overall fabric painted on the subject in the gutter media frenzy.

Farcical and comical

The episode by which the accused was supposedly presented with 1,000 odd pages of documents, which were not proved as genuine, in any sense of the word, nor were they established to emanate from a proper authorised source, and summarily ordered to virtually disprove them, within less than 24 hours, implying that if they could not be proved to be untrue within a certain timeframe, they would be deemed to be true and, the impeachment would proceed on the basis of them being truthful documents, since they could not be proved to be false! This is a farcical and comical reverse of the burden of proof.

Normally, in terms of the law of evidence and in any civilised environment, a person who produces a document before another and requests that it be relied upon as proof of any fact or circumstance, is under an obligation to prove, that it is a genuine document emanating from the source which legally should have the custody of documents of that nature and that the facts stated in the document are true.

Here, the documents are dumped on the accused, which has no idea who has concocted them, or from where they have been produced, with no person claiming that they are true, and within a completely unreasonable timeframe, the accused is burdened with proving that the documents are untrue!

The accused and the legal team defending the accused then withdrew from the proceedings. It was reported that taunts and insults were hurled at the accused by another bunch of gutter snipes. The gutter media thereafter goes onto insist that since the accused withdrew from the proceedings unwilling to be a party to such a parody of injustice that it must be an admission of guilt!

That part of the tribunal which was not made of politicians in Government then withdrew from the proceedings, objecting to the lack of a fair procedure among other things. After both the accused, the defending legal team and the non Government members of the tribunal had withdrawn, the tribunal, which earlier declared that witnesses would not be called, suddenly, inexplicably, about faced, according to reports, and decided to call witnesses and record evidence.

These witnesses, supposedly 16 in all, which are reported to include a Supreme Court Judge, the Secretary to the President and the Secretary to the Judicial Service Commission, were safe from any possibility of their evidence being tested, but readers may rest assured that in the furtherance of natural justice, the rump of the tribunal members would have questioned them at length and in detail. The worthy witnesses themselves, mature, educated, experienced bodies, must have realised the nature of the mockery they were willing or unwilling participants. If and when the proceedings are made public, we will no doubt see a forensic cross-examination process recorded!

Another media report says that an offer of a suitably high appointment and negation of bribery charges cases against a certain individual were made to the accuser’s lawyers by a certain high level person, if the accused gives up the fight and throws in the towel. The result of the alleged plea bargaining attempt is not yet in the public domain.

Media in the spotlight in Britain

The role of the media has recently come under the spotlight in Britain and what has happened there holds many important lessons for us. In July 2011 a muckraking journalist at the Guardian newspaper revealed that employees of the now defunct News of the World had illegally accessed the mobile phone messages of a girl who turned out to have been murdered. Further revelations in the case showed a callous disregard by the media for the rights of the victim of a crime and their families. There were also allegations of an attempted cover up of the illegal activities of the press. The British Prime Minister David Cameron demanded a Judge-led inquiry.

Lord Justice Leveson, an Appeal Court Judge, was chosen to conduct a full review of the press and recommend ways of taming its worse abuses. The Leveson inquiry has been described as a public inquiry into the culture, practices and ethics of the British press, with a remit to look into the specific claims about phone hacking at the News of the World, the initial Police inquiry and allegations of illicit payments to Police by the press and also an inquiry into the general culture and ethics of the British media.

The inquiry was legally in terms of the Inquiries Act of 2005. Justice Leveson appointed a panel of six assessors to work alongside him on the inquiry, of those with expertise on the subject, and six eminent Barristers to be Counsel to the inquiry.

The process adopted by Justice Leveson contrasts in a stark manner with the local impeachment inquiry in many aspects. The fact that the inquirer saw the need for him to be advised by those knowledgeable in the law and the related subject area, is refreshing, compared to the ‘know it all’ attitude which was manifested locally. Here the PSC seemed to know everything, laid down no procedure, stated that there will be no witnesses, then abruptly about faced and called witnesses.

Further in September 2011 Justice Leveson commissioned a series of teaching or briefing sessions to provide the Inquiry with some key factual background information material from a panel of expert presenters with an opportunity for members of the Inquiry to ask questions. Another component of the inquiry was seminars on the central public policy issues to inform the Inquiry’s terms of reference. Influential experts and key people in the areas delay with at the presentations and seminars were invited to present papers to stimulate debate amongst the invited audience of opinion formers. The content of the presentations and seminar were made available on the Inquiry’s web site and members of the public were encouraged to carry the debate on the relevant public interest issues further. The local tribunal had no process of this type at all.

The inquiry was formally opened on 14 November 2011. Justice Leveson’s opening remarks were: “The press provides an essential check on all aspects of public life. That is why any failure within the media affects all of us. At the heart of this inquiry, therefore, may be one simple question: Who guards the guardians?”

Damning indictment

Justice Leveson released his inquiry report on Thursday 29 November at London’s Queen Elizabeth Conference Centre. It has been described as a damning indictment of the culture and practices of the British newspaper industry. Justice Leveson says that press abuses have cause real hardship and wrecked havoc with the lives of innocent people.

Newspapers have never shied away from judging others. The press should have the humility to accept criticism that is justified. There is no merit in the press laying claim to be above the law. Editors and owners must not pretend to be people who choose not to be held accountable for their actions. The catalogue of abuses laid out in the report confirms that parts of the British press were clearly out of control of any rational limitations.

There are numerous examples of reckless conduct described in detail. The proverbial Fourth Estate seemed to have basked in the proverbial privileges of the harlot: Power without responsibility. However, Justice Leveson has pointed out that the task of bringing back a redress and balance to the system is primarily the task of the newspaper industry and not of the political class. The political class should be restrained from suffocating the free press through the device of trying to sanitise it.

The first task the inquiry report points out would be to fix the British newspaper industry’s clearly broken, current system of regulation, which contributed to the excesses documents by Justice Leveson. The British Press Complaints Commission has palpably failed to protect the public from newspaper excesses. It suffered from being dominated by industry insiders and serving editors.

The challenge Justice Leveson faced was to come up with a new system that has teeth while trying to avoid opening the door to State interference in the press. Justice Leveson has proposed a body which would have greater powers than the present British Press Complaints Commission and would enforce a new code of conduct. It would have serious enforcement powers, including the right to levy fines of up to one million pounds or 1% of turnover. The majority of members would be independent person and serving editors would not be eligible to serve. A regulatory body must distance itself from those it regulates. As Justice Leveson says: “Newspapers cannot mark their own homework.”

However, it is vital that people with proper professional experience of journalism are also heard. Justice Leveson proposes to encourage participation in the process of regulation through incentives, notably by offering some protection against excessive legal costs in libel actions. The functions of a regulator of this type would have to be enshrined in statute, with an extraneous entity given the power to oversee the mechanism. Justice Leveson suggests that the present British broadcasting regulator Ofcom should be given this role. To make the proposal attractive to the newspaper industry, Justice Leveson suggest that the new law would provide that the Government has a duty to promote press freedom.

Justice Leveson insists that enshrining the terms of a new regulator for print media in a statute “is not a statutory regulation of the press”. He said legislation was essential to “enshrine a legal duty on the Government to protect the freedom of the press” and to reassure the public that previous transgressions by newspapers would not be repeated.

Further to suggesting how a regulator would work, Justice Leveson made a series of recommendations about how politicians and the police should behave in the future. He suggested that members of the Government and the Opposition front benchers should publish details on a quarterly basis of all meetings with media proprietors, editors and executives, including ‘private’ meetings at their homes. A summary of telephone calls, letters, e-mails, and text messages between such parties should also be published.

The British Prime Minister Cameron is criticised by Justice Leveson for undermining public confidence in politicians by creating the impression that the Prime Minister had become too close to newspapers proprietors. Justice Leveson also recommends that senior police officers should also publish details of their meetings with the media, and should think carefully before drinking alcohol with them.

Justice Leveson is categorical in saying that: “The legislation he proposes would not give any right to Parliament, to the Government or to any regulator or other body to prevent newspapers from publishing any material whatsoever. Despite what will be said about my recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press. What is proposed here is independent regulation of the press organised by the press, with a statutory verification process to ensure that the required levels of independence and effectiveness are met.”

Justice Leveson says: “The new body should have an arbitration system to enable wronged parties to seek swift redress by ay of a prominent apology and fines, if appropriate.” Justice Leveson also recommends a whistle-blowing hotline for journalists who believe they are being put under pressure to breach the new code of conduct, combined with legal protection to prevent then being victimised for doing so.

The report recommends that Britain’s broadcasting regulator, Ofcom, should carry out reviews every two years of how the regulator is working and should act as a backstop regulator if publishers refuse to sign up to the new body. Britain’s Information Commissioner, Justice Leveson proposes, should be given greater powers to prosecute newspapers for beaches of data protection.

Journalist’s views

One senior British journalist, after reading Justice Leveson’s report, commented: “It was sickening to read the catalogue of professional malpractices which had been routinely indulged in, especially at News International, but in some degree by other newspaper groups too. Few of us have ever doubted that some titles’ executives and reporters behave like wild beasts. But it was dismaying to read in cold prose the judge’s recital of systemic indifference to truth, contempt for human dignity, about which his revulsion is entirely justified.”

But regarding Justice Leveson’s conclusion of “acquitting every other party in society’s devilish bargains with the media – politicians, policemen, public figures and readers – attributing all ills to newspapers,” the commentator has serious reservations.

He admits that the Judge has acknowledged the difficulty of policing the internet, but objects to the fact that while proposing what is described as a “draconian new regulatory regime” for what the journalist describes as “a dying industry” (print newspapers), without a hint of a remedy for the odious lies and breaches of taste and privacy that occur hourly on the internet/worldwide web.

The journalist expresses the view that “Justice Leveson writes as might the Mother Superior of a convent after investigating Amsterdam’s red light district! He wants to abolish sin, but displays a glaring lack of intellectual rigour – a quality one is entitled to expect from judges – in setting about it.”

The journalist is scathing on the recommendation that politicians should be required to log all meetings with journalists, that ‘representative groups’ as well as individuals should be able to complain to the new regulator, who should also enforce compliance with equality legislation; and the demand for a new right to privacy. However, the senior journalist expresses the view that Justice Leveson’s strictures on the huge failures of corporate governance at News International seem well merited. What took place was not only a breach of press ethics but also what can only be described as ‘sustained criminality’.

The senior British journalist laments that Justice Leveson does not deal with what he describes as “the grisliest and least defensible features of newspaper behaviour” – the ‘Proprietors Pact,’ newspapers generally collude in a deal/pact not to write about the lives of each other’s owners. They thus accord themselves a protection they ruthlessly deny to humbler folk! The journalist admits that: “Journalism, though generally a socially beneficial activity, as even Justice Leveson acknowledges, has always been an ill-disciplined and even disreputable one.”

Another magazine commented: “The report detailed how tabloid reporters and their sidekicks bullied, stole and cheated with impunity, while their bosses hobnobbed with police officers and politicians.” One lives in anticipation of what impact Justice Leveson’s recommendations will have on the venerable Fourth Estate of Governance.

Many parallels

There are many parallels to be drawn between the impeachment saga and Justice Leveson’s findings and recommendations. A trial by media was conducted by a section of the print, radio and television media. Had it been not for the worldwide web and the internet, there would have been no way of knowing what in reality transpired.

The local tribunal proceeded on a veritable frolic of its own, laying down no procedure, reversing itself completely, when the opportunity arose to do so, in the manner expected only from a seasoned hanging judge. Neither were assessors nor lawyers appointed to assist the tribunal, the tribunal was virtual prosecutor, jury and judge.

Lord Justice Leveson, notwithstanding his experience as a senior Law Lord, was humble enough to appoint experts to guide him. The Judge held public seminars on important aspects of his remit, with experts participating and making presentations, open to the public and placed on the internet – what commendable transparency.

Compare and contrast our local tribunal, the very epitome of arrogance, sitting behind closed doors, in one almighty hurry, trying to exclude the accuser’s lawyers, not setting down an agreed procedure, first saying no witnesses, then doing an abrupt about turn, allegedly taunting the accused with un-Parliamentary and boorish, male chauvinist porcine language – what a parody of due process!

The hottest news is that the President intends to appoint an independent panel to review the PSC report. Finally it seems that the understanding has dawned that the fundamental principles law are supreme and not Parliament. Parliament is also subject to law. It also transpires for newspapers reports that the President was ‘not in favour’ of the impeachment. Let us hope that the review panel takes Lord Leveson’s example of due process to heart!

(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)