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The Truth: Kelvin MacKenzie is wrong about Hillsborough headline

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Sometimes one can only think the tabloid press will disappear into the black hole of its self-created paradoxical backside. Surely the moment has arrived with Kelvin MacKenzie demanding an apology from the police for giving him information that led to the notorious “The Truth” headline in his Sun blaming fans for much that went wrong in the 1989 Hillsborough disaster.

His argument is that other papers used the same police information but he is the only editor in fear of heading towards the north-west lest he suffer vilification or worse.

The issue at the heart of this is whether information from the police, in the middle of an investigation, can be treated as “the truth” for the purpose of relaying it to readers. And here’s the crashing, ironical paradox. This is what Kelvin’s view was last year when the Guardian took too literally something the police had told them about his former employer’s role in the Millie Dowler phone hacking affair:

So the cops in Surrey told you [the reporter] the story was true – or so you claim. The cops at the Yard told you it was true – or so you claim. Every aching bone in your reporter’s anti-Murdoch body told you it was true. But there was a problem – as we all now know today. The Milly Dowler story that led The Guardian on that fateful day back in July was untrue: there is no evidence to show that the News of the World deleted Milly’s voicemails.”

There was no such evidence – except for what the police suspected (and possibly even believed to be true) and had suggested to the Guardian, which accordingly printed it. Later everyone rowed back and an apology was issued (MacKenzie says it was unintelligible – but that’s the Guardian for you.)

MacKenzie gives a reason why the Guardian wanted to believe the police’s comments – it hates News International. He does not explain why “every aching bone” in his own editorial body wanted to believe that Liverpool fans urinated on police officers resuscitating the dying and stole from the dead. He does not explain why all the lies used to obscure official failings during the disaster were to be treated as “The Truth”.

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UK riots sentencing: will the rioters be home by Christmas?

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As the UK riots wane, a new battleground is opening on the issue of “soft sentences” for the rioters.

“I’m looking to our courts to give the kinds of sentences that will make them quiver and weep in the dock,” declaimed journalist and polemicist Kelvin MacKenzie on Newsnight. In reality, of course, he is ostentatiously setting himself up to be disappointed so he can later fulminate against the lily-livered fops who preside over our criminal courts sending the criminals and thugs home with the lightest of pats on the wrists.

One judge has got his defence in first. District judge Tim Devas told Nottingham magistrates’ court:  “If there are any criticisms of sentences handed down by the courts, if you want anyone to blame, then go and speak to the government. Do not blame the judges or the magistrates who do their jobs professionally and abide by the guidelines set down.”

It’s worth looking at the sentencing guidelines issued to magistrates – if only to massage down Kelvin’s overheated expectation of what the full rigour of the law will entail.

The document notes that since 2008: “For the first time, there is a statutory obligation on every court to have regard to this guideline in a relevant case and to give reasons when imposing a sentence outside the range identified.” As Judge Devas says, magistrates’ courts are bound by the guidelines.

The powers of magistrates’ courts are limited to issuing a range of fines, community sentences and no more than six months’ detention. Generally only half the sentence is served so most rioters will be out by Christmas – by which time, all being well, the shops they helped to trash will have replenished their shelves. The courts can consider a further one third off for guilty pleas. It all adds up to something rather less than quiver-inducing for the average hardened thug or criminal.

For most of the cases arising out of the riots, if magistrates feel their powers of punishment aren’t sufficient they can send the worst offenders for trial or for sentencing before a judge at the crown courts. But there will be no great move to get lengthy crown court proceedings going except in the most serious cases since the court system is already showing the strain with only 1,000 or so arrested. Defence lawyers are likely to advise their clients to plead guilty before magistrates and then pile on the mitigating factors – perhaps variations on: “The prime minister says I’m living in a sick society; what do you expect?”

Riot: “Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot” – Public Order Act 1986 S. 1 (1)

The offence of riot itself is an indictable offence so is heard at the crown court and carries a maximum 10 years. It would be extremely difficult to prosecute and would tie the courts up for long periods. Those involved in the riots are more likely to be dealt with for lesser offences that can be heard in magistrates’ courts, for example “violent disorder” (Public Order Act S. 2), which involves three or more people. It carries a maximum six-month sentence on summary conviction (ie at the magistrates’ court) in “rare cases involving minor violence or threats of violence leading to no or minor injury, with few people involved and no weapon or missiles”. Otherwise it is up to five years on indictment.

Many of the “looting” cases will be dealt with as “burglary of a building other than a dwelling” in which:

“having entered any building or part of a building as a trespasser he [the offender] steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm” – Theft Act 1968, S 9  (1) (b).

The guideline says: “The starting points and sentencing ranges in this guideline are based on the assumption that the offender was motivated by greed or a desire to live beyond his or her means.” The papers are packed and the blogosphere bulging with attempts to explain the “motivations” of the riots, but as far as magistrates are concerned, greed is good enough.

The loss to the owner and the impact of that loss is more important than the value of the items. “This may be particularly important where the value of the loss is high in proportion to the victim’s financial circumstances even though relatively low in absolute terms.” This leaves open the possibility of coming down harder on those people who have destroyed the livelihoods of small shopkeepers than those who looted JD Sports or Swarovski – unless a level of criminal professionalism was shown in stealing easily saleable items.

Furthermore “harm in the form of public concern or erosion of public confidence” should weigh against the offender – certainly a big issue in the riots.

Offenders may, however, appeal to the magistrates’ kindlier side since “the fact that an offence has been committed in desperation or need arising from particular hardship may count as personal mitigation in exceptional circumstances”. So those found carrying out big bags of rice or their weekly shopping at Iceland might offer “desperation” as a mitigating factor.

The guidelines then suggest a medium level community order as a starting point for items worth up to £2,000 or 18 weeks’ custody for more expensive items up to £20,000. Anything more and it’s straight to the crown court where 10 years would be the maximum prison sentence.

There will be a number of arsonists caught, one hopes, and arson is one of those legendary capital crimes (especially in HM dockyards). Even now it can carry a penalty of life imprisonment when tried at crown court, especially when life is put at risk – but in less serious cases it can also be tried by magistrates and hence hit the six-month ceiling. Moderate damage for a first offender? You’re looking at between 12 weeks to the full six months in custody.

Damage to emergency equipment or “public amenity” could push up the penalty – but if the perpetrator was simply being reckless, that will pull it down. If affray, violent disorder and putting people in fear were involved – all very likely in these cases – then it will be off to crown court with life sentences on the cards.

There is no doubt that the public will be out for blood in the next few months. The few examples here show how far magistrates’ courts are limited in what they can do – and how complex working out sentences is. And that’s without even taking account of the fact that many cases will be heard in juvenile courts with their own levels of complexity – and to some, inadequate punishment.

The disappointment that Kelvin MacKenzie and his followers will doubtless feel as the sentences come through may well be a springboard for reassessment of the sentencing structure. But what is driving government policy now is deficit reduction. UK prime minister David Cameron is standing firm on money-saving police cutbacks. Although we hear little of Ken Clarke’s “50% off for a guilty plea” proposals any more, it seems unlikely that the government will do anything that involves costly increases in prison stays for rioters or any other criminals.

A reassessment of the issues in this posting in the light of more recent events is here

The Guardian is publishing constantly updated data on the court cases and sentences here 

An analysis of how the guidelines were used to arrive at a six-month sentence for stealing a bottle of water is here

Privacy, human rights, horizontality and the issue of judicial underwear

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Former Sun editor Kelvin MacKenzie has a simple explanation for why judges are so keen on privacy and issuing injunctions and super-injunctions to protect it: they must all be wearing silk knickers.

There are, of course, a few lady judges (a very few) whose choice of underwear cannot be impugned. But Kelvin is worried about the men. They have something to hide, he believes, so they are constructing a law on privacy out of the European Convention on Human Rights to help them hide it. David Cameron too has complained about judges creating privacy law illegitimately: “What’s happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so.”

Nothing could be further from the truth, said the Lord Chief Justice, Lord Judge, welcoming the Neuberger report on injunctions. “Contrary to some commentary, unelected judges in this country did not create privacy rights. They were created by Parliament. Now that they have been created judges in this country cannot ignore or dispense with them.”

So who is right? The issue is one of “horizontality”. (No, Mr Mackenzie, we are still not talking about the private lives of judges). Horizontality is embodied in the Human Rights Act 1998, Section 6 which says:

“Acts of public authorities: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
… (3) In this section “public authority” includes – (a) a court or tribunal …”

The provisions of the European Convention on Human Rights (which the Act allows to be directly accessed in UK courts) apply directly only to governments and the public authorities that are regarded as offshoots of governments. They pass “vertically” between the European Court of Human Rights interpreting the convention and national governments. So you cannot go to the court to “get your human rights” against peeping Toms – or even, on the face of it, newspapers, though long-established UK laws may cover their more undesirable activities.

Article 8 (1) of the Convention says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” This is clear and direct as far as privacy vis a vis the state is concerned. But judges have utilised Section 6 of the Human Rights Act to make it operate horizontally too. The Act says courts, along with all public bodies, must not operate incompatibility with the convention – so judges, it is argued, can, indeed must, introduce its provisions into the private sphere through their judgments – horizontally.

The convention makes an assertion: that private and family life must be “respected”; the Act insists on a double negative: that public authorities should not act incompatibly with the convention. From this judges are creating a positive right to privacy for all people (who can pay) against all organisations and individuals – not just against the state.

There was a certain reluctance to apply horizontality in some earlier privacy cases, such as the 2003 high court case of Douglas and Others v Hello! Ltd, (the Catherine Zeta-Jones wedding photos) where the issue was bundled into one of confidentiality (where there is a long-standing English law tradition), and A v B plc, in 2002 a typical errant footballer case (B being the Sunday People newspaper). The doctrine of confidence, given a bit of backbone by Article 8, provided sufficient remedy in these cases. In finding for plaintiffs on the basis of confidentiality, the judges felt they had satisfied the requirement not to act incompatibly with the convention.

In Campbell v MGN Baroness Hale said: “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.” This means a claim of confidentiality will be viewed in the light of Articles 8 and 10.

In Douglas, Sedley LJ nevertheless stated that “by virtue of s.6 [of the HRA] the courts of this country must themselves act compatibly with” the convention. He did not use the double negative of the Act itself, implying perhaps that plaintiffs could indeed “get their human rights” against private individuals or organisations.

A European Court of Human Rights case in 2004, Von Hannover v Germany, makes this explicit to the extent of requiring the state to pass laws that extend human rights into the private sphere:

‘The Assembly [ie court] points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media’

It added: “The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy”. In Britain, of course, such legislation has not been forthcoming, but since Von Hannover it is noticeable that judges have become more confident in issuing their injunctions and super-injunctions as if such legislation does exist, founding their judgments in the convention – or elsewhere.

In a recent injunction case, (March 2011) ETK v News Group, Lord Justice Ward sought his legal principles not only in Article 8 of the Convention but also various other extra-national documents to which Britain is signed up: the United Nations Declaration of the Rights of the Child 1959, the Convention of the Rights of the Child 1989 (UNCRC) and the European Union’s Charter of Fundamental Rights. (The argument was that the children of an adulterous man in the public eye would be bullied if his indiscretions became public.)

Playground bullying is increasingly used in such cases to protect exposure of fathers’ sexual behaviour, a matter of concern, no doubt, to newspapers wishing to expose those hiding behind a “family man” persona. Newspapers may also worry that the law is being created out of interim injunctions as in ETK rather than substantive cases in open court. Often they do not make it that far, as Liberal Democrat MP for Birmingham Yardley, John Hemming, pointed out the Commons: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” (See previous Alrich blog on super-injunctions)

The answer would, of course, be for Parliament to legislate. It is obliged to as a signatory to the convention – just as judges feel obliged to fill the gap, however unsatisfactorily, if it doesn’t. The legal world has got its knickers in a twist – whatever fabric they might be made of.

A new judgment from the ECtHR, Von Hannover v Germany, February 2012, upholds press rights. Read it here. Also see Axel Springer v Germany here, released on the same day.

Note: There is further discussion of privacy law in light of the Leveson phone-hacking inquiry here

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