15 May 2012 at 16:31 BST

Trials of the media

As the Leveson Inquiry trundles on, the media is now entering unchartered territory.

The trials and tribulations of media

Rebekah Brooks, former CEO of News International and before that editor of the News of the World and The Sun, brought a busy week at the Leveson Inquiry to a close, last Friday.  Her evidence touched on the independence of the press, the relationship between editors, proprietors and publishers, and even the choice of abbreviation used by the Prime Minister to sign off his text messages.  This week, she remains in the spotlight, being one of those mentioned in a televised and much-discussed CPS statement this morning.  The announcement of charges for conspiracy to pervert the course of justice against her and others will mean that issues of media law continue to be observed with a great degree of fascination.  For her part, Brooks condemned the decision, saying (in a joint statement with her husband and co-accused, Charlie Brooks) that the decision to charge was 'weak and unjustified'.

Parallel processes

There are at least four parallel processes that have emerged from initial allegations of phone hacking - civil actions by victims of phone hacking, investigations by parliamentary committees, the Leveson Inquiry which is currently sitting in London, and now at least one proposed criminal trial; there are multiple criminal investigations in progress, with titles like Weeting (hacking) and Tuleta (computer misuse). The trial is not about interception of communications or corrupt payments per se, but allegations of concealing evidence and removing files in relation to those matters.  Its impact  is significant, though, for a number of reasons: press freedom, contempt of court, and the Leveson Inquiry itself.

The public interest

Obviously, criminal charges against those who work in the media are a very sensitive topic, because of the importance of the freedom of expression under British and international human rights law.  In general, there is reason to approach such charges with caution.  However,  the CPS statement today underlines that the prosecutor determined that it would be in the public interest to proceed to trial, and of course the CPS acts independent of Government and of the courts.  We are in uncharted waters here, and the ramifications of the original conviction of one journalist in 2007 continue to unfold.  It is safe to say that the relationship between the press, the public and the law will not be the same again.

Contempt of Court

However, it is also important that the conditions for a fair trial are in place.  As the press knows well, after recent convictions for contempt of court in relation to the Sun, Daily Mail and Daily Mirror, commentary around the time of arrests and charging, as well as trial coverage, can constitute contempt of court, where there is a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced.  I might be so bold to suggest that some of those I follow on Twitter could do with a brief consultation of the Contempt of Court Act – although proceedings have been active for some time, so ongoing caution is desirable.  The #popleveson tweets have been most amusing, and the coverage of the Inquiry generally very useful, but there are some matters less suited to the format.  What are the chances, for example, that potential jurors are among those judging guilt and innocence in 140 characters?

Ongoing matters for the leveson Inquiry

And what will it mean for the Leveson Inquiry’s ongoing assessment of the culture, practices and ethics of the press?  The Inquiry will no doubt continue its caution in avoiding discussion of matters under criminal investigation, although that was already due to be in a second phase, and there is some doubt on whether that investigation will ever take place.  The evidence given by Brooks last week was already constrained by the existence of a police investigation.  Speaking today, Lord Justice Leveson attempted to clarify the procedures and remit of the Inquiry, in response to discussion in the House of Commons on whether matters should be considered before it or before the Inquiry.  This exchange was a result of recent evidence on the News Corporation / BSkyB merger, particularly in relation to the conduct of politicians and their advisers.

Reforming media law

The result of all of this is that the question of reforming media law cannot be answered in one go.  Today’s announcement means that we may learn more, through the courts, about what happened last July – the month when the News of the World was closed, Brooks resigned, and many more controversial events took place. But firm conclusions may take longer, as might an agenda for the legal and political changes that are deemed necessary. Nonetheless, the regulation of the British media, and the relationship between politicians and the press, will hardly be the same again.

Dr. Daithí Mac Síthigh is a lecturer at the UEA Law School, University of East Anglia.  He gave his own evidence to the Leveson Inquiry in December 2011; his blog is www.lexferenda.com and he can be found on Twitter at @macsithigh



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