As the Inforrm blog noted yesterday, the Lord Chief Justice, Lord Judge, has joined the debate about press reform with a speech warning of the risk of throwing the baby of freedom of expression out with the bathwater of cruel and unfair journalism.
Things are not as bad as they may seem, he implied. Self-regulation in the form of the Press Complaints Commission has not failed, though it “might be strengthened”. The really serious problems, where they arise, can continue to be left to the law.
The plea for freedom of expression was eloquent and clearly heartfelt, though hardly controversial. Is there any serious participant in this debate who does not believe in the value of freedom of expression, or anybody who believes it should be placed at hazard when addressing the problems before the Leveson inquiry? Here, Lord Judge is pushing at an open door.
His arguments about the status quo, by contrast, are largely wrong-headed. Two stand out. The first is that the courts are successful in restricting serious wrongdoing and the second relates to the role and faults of the PCC. Let us look at them.
Lord Judge says this:
First, crime is crime. If and when crime is committed by reporters with or without the support and encouragement of an editor, it should be investigated, and if on the available evidence there is a reasonable prospect of a successful prosecution, he or they are prosecuted. We do not say that the General Medical Council and self-regulation have failed when, as sometimes happens, a doctor sexually molests one or more of his patients, or like Dr Shipman murders them.
Later he repeats the point:
We must remember, that whatever lies ahead, the ordinary law of the land will continue. Crime will be crime.
The Lord Chief Justice is saying that we can rely on the courts to deal with serious wrongdoing perpetrated in the name of journalism, just as it delivered justice and deterrence in the case of Harold Shipman. But can we? What if the courts had convicted and sentenced Shipman and he had emerged from jail to commit the same crime again? And what if, after a second conviction, he reoffended a third time? We would wonder then about the effectiveness of the courts.
This is what is happening in relation to the most cruel and unfair journalism we see today. In the cases of Robert Murat, Kate and Gerry McCann, the so-called Tapas Seven and Christopher Jefferies, victims of the grossest press cruelty went to court and won, yet the same group of papers went on to commit the same offences again, and again, and again. The law is not preventing this.
For another example, look at the libel record of the Express newspapers as compiled by Roy Greenslade and listed here. It is, as he remarks, an inglorious inventory, and the offences just go on and on.
Why is this serial offending happening? It is partly that the punishments available are no deterrent. The Express papers paid the McCanns £550,000 for well over 100 libels. That is around £5,000 each. Eight papers are reported to have paid Christopher Jefferies around £500,000 for three days of outrageous character assassination: that is some £20,000 per paper per day (in the otherwise quiet New Year weekend). At these prices libel is good business.
To say that the ordinary law of the land will continue, as Lord Judge does, is therefore no reassurance for future victims of false, cruel and unfair journalism. Crime may be crime, but for the tabloid press this crime pays, and for the victims (just ask them) the scars remain forever.
Turning to the PCC, the Lord Chief Justice points out in his speech:
Membership is not obligatory. The Commission has no investigative power. In reality it has no disciplinary power. When it works, as most of the time it does, it is because the press itself is prepared to comply with its rulings, not because it is under legal compulsion to do so. Its main role, and I do not seek to diminish it with faint praise, is to provide a sort of ombudsman/mediation service between the newspaper and an individual group which is aggrieved by an article. It cannot award compensation. To criticise the PCC for failing to exercise powers it does not have is rather like criticising a judge who passes what appears to be a lenient sentence, when his power to pass a longer sentence is curtailed.
The problem here is not with the critics but the advocates. The press has always characterised the PCC as a regulator or self-regulator, even though, as Lord Judge says, it has never fulfilled that function. Editors and proprietors have made this claim repeatedly over the years because they want the public to believe the industry is regulated when it is not. This is a confidence trick, a trick which has helped to shelter the kind of newsroom culture that gives us serial libelling by the Express and the hacking of the voicemails of Milly Dowler, Sara Payne and Shaun Russell.
It is true that the PCC does valuable complaints work and that whatever new dispensation emerges after Leveson, someone will need to do that work. It is also true, however, that the leadership of the PCC over the years has been complicit in the confidence trick and those people have some responsibilities to acknowledge.
Here it is worth noting a factual error made by Lord Judge. He cannot be blamed for the error because it is a common one, which the PCC has never been at pains to correct. In fact the PCC commissioners do have investigative power; they just choose not to use it. Article 53.1A of the PCC Articles of Association states:
It shall also be the function of Commission to consider and pronounce on issues relating to the Code of Practice which the Commission, in its absolute discretion considers to be in the public interests.
That is a clear mandate to examine infringements of the code without waiting for a complaint by a directly affected party — a mandate the commissioners failed to fulfil, for example, throughout the whole year of the Madeleine McCann affair, as flagrant breaches of the code occurred every day. It is a depressing and revealing irony that when, in a very rare instance, they did exercise this power, in the case of phone hacking, they used their authority to exonerate the News of the World and turn the blame on the Guardian.
An important point which also does not seem to be understood by Lord Judge relates to what happens after something goes wrong. Any regulator worthy of the name will conduct post mortems to establish the facts, where responsibilities lie and what lessons should be learned. If the press had been regulated, or effectively self-regulated, such post mortems would have occurred after each of the scandals listed above, with the consequence (one would hope) that the later scandals might not have occurred. As a result, the burden on Lord Judge’s courts might have been lighter and their relative impotence in newspaper libel matters less exposed.
The PCC, while it does good but limited mediation work, has never done this kind of work. Instead it has functioned as a figleaf for press misconduct. It has had no obvious impact on ethical standards in the national tabloid press and it stood by as an unregulated industry slid into its present state of disrepute.
Lord Judge say he would prefer press self-regulation with a “strengthened” and “more powerful” PCC that is not a “toothless tiger”. It must be “all-inclusive”, with authority “over the entire newspaper industry”. And like everybody else he does not want political interference or censorship. How to square these circles is a difficult problem with which Lord Justice Leveson, his panel and many other interested parties are already wrestling. Welcome to the debate, your lordship.
Brian Cathcart is professor of journalism at Kingston University and former media columnist at the New Statesman. He was a journalist at Reuters and the Independent.