Leveson Costs Incentives, Cries of Foul from the Dirtiest Players on the Pitch – Jonathan Coad

Howls of outrage from the press led by Lord Black have apparently persuaded the government to withdraw its statutory stick in the form the Crime and Courts Act 2013 which was passed by our elected representatives to prevail on the press belatedly to join the democratic community and be independently regulated.

The mischaracterisation by the press of this process would leave any Martian visitor thinking that the press languished under the jack boot of the state.

The Martian would, however, be seriously misled (as was the purpose of the press’s co-ordinated campaign against the statute) because the reality is that the jack boot of the press remains firmly planted on the torso of the general public by its imposition on us of the non-independent and ineffective self-regulator, the Independent Press Standards Organisation (IPSO); and it is the attempt by the public and those that represent it to remove that jack boot which is the subject the hand-wringing by the press at a sanction imposed for refusing to being subject to truly independent regulation.

The press omerta starts to break down

C.S. Lewis said this in his wonderful “Screwtape Letters”;

“The greatest evil is not now done in those sordid “dens of crime” that Dickens loved to paint. It is not done even in concentration camps and labour camps. In those we see its final result. But it is conceived and ordered (moved, seconded, carried, and minuted) in clean, carpeted, warmed, and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice.”

So far as I know CS Lewis did not visit the offices of a tabloid newspaper but Graham Johnson would be able to be able to identify with the phenomenon described by the great Christian philosopher. Johnson was the only charged journalist to have been given supportive witness statements in mitigation by Hacked Off, who represent victims, and by The Guardian’s Nick Davies, who exposed the hacking scandal.  The former Sunday Mirror investigations editor was given a two-month suspended sentence for phone-hacking. He says of his peers who were charged; “They were hypocritical, they were full of shit and they got themselves into a lot of trouble.”

This courageous omerta-breaking and therefore true journalist puts most of his peers to shame with both his candour and contrition. He says this of his time at the Sunday Mirror;

“…the most stressful part of my life was working at the Sunday Mirror when all you’re doing is lying all day.  You’re bullshitting the people you’re turning over.  You’re bullshitting your bosses.  And you’re bullshitting everyone.  And it becomes really stressful and it can’t be restrained.”

He says this of his time as an employee of Mirror Group Newspapers (MGN), one of IPSO’s chief architects:

“My big problem is corporate culture and office culture in tabloids.  When I was working in tabloids – especially after 2001 – they were driven by bullies.  And we’re getting a glimpse of that now – if you believe [Sun journalist, charged with, and cleared of, corrupt payments] Chris Pharo’s evidence – but for years that was an omerta.  Nobody could speak about this horror which occurred in tabloid newsrooms: really on-top editors who held your fate in their hands.

They were bullies, either physically and verbally abusive, but also they were corporate bullies because they used this weird form of corporate passive aggressiveness to make you know that if you fuck up, or if you don’t deliver, or if your face doesn’t start to fit, then we’re going to give you a hard time and get you out.”

The press cannot even tell the truth about Leveson

Speaking at the launch of a pamphlet called Leveson’s Illiberal Legacy, Telegraph Media Group executive director Lord Black said that the Leveson Inquiry was “biased from the start…Its processes were unfair.” Lord Black was one of the directors of and apologists for the failed Press Complaints Commission and might therefore have been expected to maintain a contrite silence on the subject of press regulation. His comments on Leveson however caused me to wonder if he had attended a different enquiry from the one that I did.

One of the features of the Leveson Inquiry which many will not be aware of (but Lord Black undoubtedly is) is its constitution.  Picture the scene in the court room where Lord  Justice Leveson’s inquiry heard evidence.  On his right was a junior barrister (David Sherborne) and a solicitor who, alone, represented the entirety of the victims of press abuse.  He and his small team took up a tiny percentage of the Court space (roughly proportionate to the size of corrections published by the press when they publish untruths). Ranged against him was a vast cohort of the most senior and expensive QCs in the country who work in the media field, along with an even larger cohort of junior barristers and very expensive London solicitors’ firms.  There will surely never have been a UK court hearing where there was less equality of arms between one “side” and the other.

Despite this phalanx of brilliant legal minds representing the press ranged against the miniature team representing the victims of press abuse, the Leveson Inquiry is portrayed by Lord Black and others as an abuse against the press industry when in fact nothing could be further from the truth.  The conclusions drawn by Lord  Justice Leveson’ took account of one of the most eloquent, informed, and well-resourced legal army that was ever mustered in a British public inquiry.  It is for that reason that the recommendations made by Lord  Justice Leveson’were moderate and fair – some think overly indulgent of an industry whose visits to the last chance saloon were so numerous that the bar staff know them all by name.

After this lengthy and very one sided legal process, those representing the general public via our democratic system were given the opportunity to speak on the subject of the Leveson recommendations. The legislation to which the press now takes such violent objection was the result of lengthy and considered debate at which the very powerful lobbying powers of the press were deployed to their full.  One of the things which emerged clearly from Leveson is the ability of the press to impose their will on the democratic process; a process to which the press invariably object when they are unable to bend it to their will.

The hatred of the press for Leveson (or “the blessed Brian” as IPSO’s Sir Alan Moses dubs him)

The first reason for the ire of the press is the Leveson Inquiry is that in its world it should be free from any process whatsoever whereby they are held to account. In the rogue empire of Fleet St its real mind set is that it should have to answer to nobody – not politicians, not judges, and especially not the general public.

The press also hated Leveson because for the first time it provided the public a glimpse of their true nature. This included (less anyone think it only concerned the tabloid element) hearing from the lawyer for a broadsheet paper who had apparently lost the ability to recognise wrongdoing when it stared him in the face – the fate of many lawyers who work in that industry. The former Times lawyer Alastair Brett, whose evidence to Lord Justice Leveson left him visibly astonished at what he was being told, perhaps might have thought a dignified and contrite silence was appropriate concerning press regulation.

However he was also vocal at the launch event  against the sanction by which the government seeks to establish a truly independent and effective press regulator Brett, who was found guilty of recklessly misleading a court to cover up the wrongdoing of his newspaper employer which led to the wrongful free-speech chilling exposure of a fellow journalist, warned of the impending coming in to force of the statute: “The elephant in the room is the judiciary.  We don’t know what’s going to happen in November when the judiciary could go bonkers and start doling out exemplary damages come what may.” The elephant which has escaped his notice is that if he and his legal peers in Fleet St had done their job in ensuring that their employers acted lawfully rather than trying to cover that wrongdoing up and/or enable them to escape the consequences of it at the expense of the victims the Leveson inquiry would not have been necessary.

Lest anyone forget, the Inquiry was prompted by incomplete revelations of serial and cynical illegal activity on the part of the press to the detriment of the very public which the press is supposedly tasked with serving. The press hate judges with particular venom because unlike politicians over whom they wield power, the press wields none – and nor should they – over courageous judges like Lord Justice Leveson and Mr Justice Mann (who made the damages awards against the Mirror); apart from the ability to mispresent them as they do frequently. The court room should at least be a truly level playing field – unlike politics where the press can bully and lie about its opponents and thereby exercise its power by skewing the democratic process. The press does however have the power of money which it can wield in the courts – as it did in Leveson.

I explained in my previous article Leveson brought to light only the tip of the iceberg of the wrongdoing of which the press is guilty.  Consequently, Lord Justice Leveson came to his careful and reasoned conclusions based on very incomplete evidence about the extent to which the press are institutionally guilty both of wrongdoing and covering up that wrongdoing.  He had no idea (for example) of the industrial phone hacking undertaken at the Mirror titles because at the time Mirror Group Newspapers was denying having acted illegally. The same goes for those participating in the parliamentary process so criticised by the press and the opinion polling so ignored by the press which followed Leveson.

After losing the debate at Leveson despite hiring a legal cohort, the press loses the public debate despite having near exclusive use of the microphone

The press also hated the inquiry because of its outcome, which was a set of proposals so obviously reasonable and fair that to oppose them was going to prove to all, save our Martian observer, that the press were determined to retain the licence to chill the rights to those who they claim to serve. The press now take to their soapbox because they object to being confronted with the options of truly independent regulation or paying a higher price for their past and present wrongdoing.

Since Leveson there has been the opportunity for the general public to speak via opinion polls.  Despite the rote repetition of the utterly false press mantra that they are being wronged by a cynical political class determined to impose state censorship on every occasion the public have made clear their support for the Leveson proposals.  This then leaves the press in no doubt whatsoever as to the aspirations to whom they feign service.

The press were therefore confronted with an extraordinary degree of unanimity represented by the outcome of a legal process in which they were disproportionately well represented, a democratic process in which their needs and aspirations were thoroughly advocated, and an expression of public opinion in circumstances where the press wield the most enormous power to ensure that the public usually come to the conclusions which the press want them based on the highly selective and misleading information which the press disseminate when their own interests are engaged.

All of those constitutional and democratic processes have been completed and the press have refused to take account of any of them and continue to defy the directly expressed will of the general public. The press therefore now also demand the right to do so without any sanction.  If the press had in the past shown any degree of responsibility then there might conceivably be a justification for its stance.  However, it has not.  Their failure to self-police is spectacular and complete.   IPSO is the fourth incarnation of self-regulation, and as my previous articles have explained it has been set up to fail the public no less comprehensively than its predecessors.

The perspective of the extra-terrestrial                                              

The authors of the press-sponsored publication attacking the Act which Lord Black was commending at its launch appear to have all characteristics of a visitor from another planet.  How otherwise can they criticise a statute which merely expresses the frustration of the general public at the absolute refusal of the press to abide by norms and principles which are accepted by everyone else in the country (who are not recent Martian migrants).

Lord Black says “….I can certainly think of no other country…[where such iniquity is visited on the press]”.  Where else has it been necessary to set up a judicial process to expose the monumental wrongdoing of the press which it had previously vigorously denied?  What other national press has been shown to behave like the British press?  What other press has been guilty not only of institutional and serial illegality and abuse of the general public which it is tasked to serve, but then has engaged in obfuscation, mendacity, threats and intimidation to cover that wrongdoing up?

As for Lord Black, a Martian might not be aware that he was once the Director, and later owner, of the PCC.  He therefore not only presided over a third incarnation of press self-regulation which because of its complete lack of independence and fundamental flaws could only fail in its purpose, but spent his time as Director and then owner proclaiming its effectiveness and worth.  Given the spectacular failure of the PCC to do its job, and the huge casualty list that resulted from that failure, anyone other than a Martian would know not take account of anything that Lord Black has to say on the subject of press regulation.

Some facts for the Martian

The unfortunate Martian is being asked by Lord Black to accept that the press should preserve its exclusive right to self regulate entirely free of any democratic sanction despite these facts:

1. The press have insisted on the right to self-regulate for well over 60 years. All three first incarnations failed spectacularly, and the fourth incarnation not only bears all the same vices as its predecessors but also some new ones.
2. The third incarnation was the PCC which was originally given 18 months to prove its effectiveness but because of its disingenuous apologists (such as Lord Black and Alistair Brett), whom the press therefore equipped with megaphones not available to its critics, allowed the PCC to limp on for around twenty-two years until its demise in 2013, despite the 18 month examination (the second Calcutt Report) giving it an F for Fail.
3. The consequence of this is that the press have for decades abused their freedoms to an extent about which we can still only make an informed guess because it had devoted its enormous resources to cover up its wrongdoing while insisting on the unfettered right to accuse others of wrongdoing.
4. Having defied every previous call for an effective form of regulation, in the face of the only the most recent but also the most substantial exposé of its wrongdoing, the press now insist that their refusal to accept any form of external accountability should pass without sanction.
5. They do this despite the fact that the broadcast media has long been regulated by a statutory entity (OFCOM) which has not impinged on its enjoyment of it Article 10 rights, or its ability to hold the powerful to account, in the slightest and the increasing convergence of the media eroding the justification for any disparity in regulation between the various parts of the

Lord Black and the press may win the Martian’s vote. They will however gain terrestrial support in their campaign to resist genuine accountability only from their own kind, the mercenary, the myopic and the naïve.

Free speech is too precious a commodity to be left in the hands of those who have systematically and cynically abused it for over 60 years. The press have been given numerous opportunities to regulate themselves fairly and effectively and have not failed to do so by mistake, but by design. It is now somebody else’s turn.

Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.