Rebekah Brooks can’t get a fair trial? Tell it to the judge

It would be enough to make a Sun leader writer’s blood boil. If a gang embarked on illegal activities (allegedly); if it had at the centre of it (allegedly) a heartless flame-haired “criminal-in-chief” (as a former associate put it) allegedly linked (according to a deputy assistant commissioner of the Metropolitan Police no less) to “a network of corrupted officials” within an alleged “culture of illegal payments”; if this happened and they all got off on the basis of a loophole in the law, think how the Currant Bun would fulminate. You couldn’t make it up!

Unfortunately someone has, let’s say, been somewhat free with the legal actualité, throwing into doubt the chances of former Sun editor Rebekah Brooks (for it is she allegedly*) and her colleagues ever receiving a fair trial for their (alleged) misdemeanours in the (so-called) hacking scandal.

The issue is that there has been “huge, dramatic and sensational” press coverage of the hacking story and particularly of the Leveson inquiry at more or less the same time as police have been stumbling towards the conclusion (one hopes) of their investigations into the matter. Anyone reading that coverage will be seriously prejudiced against Brooks et al. There is no jury in the land that would be able to give them a fair trial. This is the argument of Stephen Parkinson, Brooks’s solicitor. 

There is, of course, one jury that might have missed the “huge, dramatic and sensational” coverage: one made up from the many millions of good men and true (and women too) who read the Sun, since its coverage has been rather modest, restrained and unsensational. But leaving that aside, given the Leveson inquiry, can Rebekah Brooks get a fair trial?

Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.”

Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?

But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story:  “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”