Mitchell to Sue the Sun for Defamation

Ex-cabinet minister Andrew Mitchell has confirmed that he is suing the Sun over claims he swore at police officers outside Downing Street and called them plebs.

The former minister denied the claims a number of times, but later resigned as chief whip of the Conservative Party on 19 October 2012, a month after the claims initially surfaced.

Mitchell later acquired CCTV footage of the incident which appeared to cast doubt on the officers’ claim that a number of members of the public had witnessed the event. He claimed the officers had lied about the event and that he had been framed. Three police officers and another individual were later arrested in connection with the incident.

The Crown Prosecution Service (CPS) has now received police files concerning the incident and will decide if any charges should be brought against the arrested individuals.

Defamation Law

Defamation is a complex area of law. The following is a brief outline of the law.

In essence, a defamatory statement makes an allegation about a person which injures their reputation. That is to say, it is a statement which lowers the estimation of a person in the minds of right-thinking members of society. The statement must be communicated to at least one other person apart from individual that the statement is about. Defamatory statements could include, for example, an accusation that an individual is a criminal, or insane, or dishonest, or immoral.

English law divides defamatory statements into two groups: libels and slanders. Libel refers to statements that are in a permanent form, such as newspaper articles, or that are broadcast on screen. Slander on the other hand refers to statements made in a temporary form, such as in conversation.

A claim for libel can be made even if an individual suffers no damage beyond loss of reputation. However, in the case of slander a claim can only be made if there is actual damage beyond loss of reputation, unless it is an accusation of criminal conduct that is punishable with imprisonment, an allegation that the individual is suffering from a serious contagious or infectious disease, an allegation that a woman is unchaste or adulterous, or an allegation that an individual is unfit in business.

There are various defences to defamation claims. These include, but are not limited to:

• proving the statement to be true (this is called ‘justification’);
• that the statement is fair comment on a matter of public interest;
• the statement was not made (denial);
• the words used did not have any defamatory meaning;
• the making of the defamatory statement was innocent and an offer of amends has been made; and
• the statement was spread by an individual, but not made by them, and the individual had no reason to believe it was a defamatory statement (called ‘innocent dissemination’) (for example a newspaper seller who spreads a defamatory statement by selling a newspaper with a defamatory article within it, but who does not author the article, or have reason to believe there was such an article within it, has a defence).

When a defamation claim is successful, damages can be awarded to compensate for loss of reputation and any other loss flowing from the defamatory statement. An individual can also seek an injunction (court order) preventing the republication of the statement. Alternatively, if an individual knows a defamatory statement is about to be made about them (for example, an individual becomes aware of an approaching news article) they can seek an injunction to stop publication in the first place.

An interesting feature of defamation claims is that the burden of proof is reversed. Burden of proof simply means who is responsible for proving their case. Normally, the individual bringing the claim must prove their case on the balance of probabilities (i.e. 51% or more). In defamation, this burden is reversed and it is for the defendant to show the statement they made was not defamatory on the balance of probabilities.

CRB Checks to be Relaxed

The Home Office has today announced plans to relax CRB checks. Thousands of job applicants will consequently no longer have their criminal past disclosed to employers.

The announcement follows a Court of Appeal ruling in January that blanket checks for certain positions did not comply with human rights laws. It was initially thought that the government would appeal the ruling.

Criminal record checks are carried out on new employees for certain positions by the Disclosure and Barring Service (DBS), previously known as the Criminal Records Bureau. For particular positions, such as those involving work with children and vulnerable adults, all of an individual’s previous convictions must always be declared, even if they are very old, very minor and irrelevant to the individual’s new job.

It was this part of the law that the Court of Appeal found incompatible with human rights. It held that the checks were incompatible with an individual’s right to a private life under Article 8 of the European Convention on Human Rights. For the original article on the Court of Appeal ruling, see here.

Under the proposed legislation, convictions resulting in a non-custodial sentence will be filtered from CRB checks after 11 years for adults. For young offenders the period will be five and a half years. Cautions will be filtered from CRB checks after 6 years for adults and 2 years for young offenders.

However, serious violent and sexual offences and those offences resulting in a custodial sentence will always be disclosed as part of a criminal record check. A previous conviction will also not be filtered if an individual has other previous convictions.

The new system is expected to be implemented within weeks.

The Home Office article on the new changes can be read here.

The Law and CRB Checks

The Rehabilitation of Offenders Act 1974 (and other laws) creates a system which allows an individual to treat certain convictions and warnings as ‘spent’. That is to say after a certain amount of time an individual can treat themselves as having never committed an offence. They do not need to tell most employers about their offending and cannot be refused employment because of it. A ‘standard CRB check’ would not show spent convictions.

However, for certain positions, many of which involve working with children and vulnerable adults, the law requires all previous offences and warnings to be declared. For these positions a conviction never becomes spent. An ‘enhanced CRB check’ would show all previous convictions, cautions and warnings. It was this part of the law that the Court of Appeal found incompatible with human rights. When the new law is in force, certain convictions and cautions will be filtered from all CRB checks (including enhanced checks), as detailed above, so that the concerns raised by the Court of Appeal are answered.

Attorney General Rejects Call to Refer Huhne and Pryce Sentences

The sentences imposed on Chris Huhne and Vicky Pryce will not be referred to the Court of Appeal, the Attorney General has confirmed.

In a letter to David Burrowes MP, the Attorney General, Dominic Grieve, rejected the MP’s call to refer the sentences to the Court of Appeal for being ‘unduly lenient’.

Huhne and Pryce were sentenced to eight months each in prison, following their convictions for perverting the course of justice after swapping speeding points. Further details on the sentences and the convictions can be found in this article.

The MP had asked the Attorney General to use his power to refer cases to the Court of Appeal where it is thought the sentence is unduly lenient. The Court of Appeal can then increase the sentence if it agrees.

In his response the Attorney General explained that his power to refer cases was ‘exceptional’ and to be used only where the sentencing judge falls into ‘gross error’. The Attorney General concluded, after reference to the sentences given in similar cases, that the sentences passed on Huhne and Pryce were not ‘characteristic of the gross error required’ for a referral to the Court of Appeal. The sentences will therefore remain the same.

The Attorney General’s letter can be read here.

For the original article on the referral by David Burrowes MP, see here.

The Law on Appealing Unduly Lenient Sentences

Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to refer certain sentences to the Court of Appeal (Criminal Division) if he or she thinks a sentence is ‘unduly lenient’. The Attorney General must obtain the leave (permission) of the Court of Appeal to make a reference to it. Leave must be applied for within 28 days of the sentence being passed. If the Court of Appeal grants leave it will then review then sentence. It can then pass a sentence that it regards as appropriate, extending it if necessary.

Press Regulation Explained: Should We be Concerned?

This week a decision has finally been made on how to implement the recommendations of Leveson Inquiry in to press standards. There has been much debate about what form of regulation is acceptable and what form it should take. This has generated considerable confusion about the whole topic. In a somewhat longer than usual piece, LawScape will now attempt to set out why regulation has been demanded, what was proposed, what has been accepted and whether we need to be concerned about it.

Why is Regulation Necessary?

The Leveson Inquiry (‘the Inquiry) into press standards was set up following the large scale wrongdoing of sections of the national newspapers. This included phone hacking and treatment of certain individuals in wildly unacceptable ways. The Inquiry found that parts of the press had ‘wreaked havoc with the lives of innocent people’ and that change was therefore necessary. The Inquiry recognised that much of the behaviour was criminal, but found that often this behaviour was undetectable and therefore prosecutions alone are simply not the answer. The Inquiry concluded a new regulatory regime is necessary in view of all press failures and the failure of the current regulator, the Press Complaints Commission.

What Did the Inquiry Recommend?

The Inquiry recommended the establishment of a new body to regulate the press. The Inquiry said the press could set up its own body as long as it meets certain standards.  This self-regulatory body would have to have an ‘Independent Board’ (so that it could not be influenced by governments or the press). Members of this Board would, among other things, have to be chosen by a fair and open process and would not be allowed to be a serving editor of a paper or a serving politician. The Board would have to be made up of a majority of individuals who are independent of the press.

Members of the Board would be appointed by an appointment panel. Members of the appointment panel would be appointed in an independent, fair and open way. The appointment panel would contain a substantial majority of members who are independent of the press and could include no more than one current editor.

This self-regulatory body would need to be validated by another body; this body would oversee the self-regulatory body to ensure it is operating correctly. The Inquiry suggested this body could be Ofcom, or, alternatively, another body.

The self-regulatory body would produce a standards code (through a ‘Code Committee’) which members would be expected to follow. The body could hear complaints about breaches of the code and would have the power to order apologies and fines of up to £1 million.

The Board would also provide an arbitration process where legal proceedings are likely so that potential claims might be settled before proceeding to court.

Press publications would not be required to sign up to the new regulatory regime, however incentives would be provided for those that do. For example, the normal rule in legal proceedings that the loser pays the winner’s costs could be reversed, so that for those publications who have not signed up to the new regime they would have to pay the other side’s legal costs even if they win. The rationale is that legal action could have been avoided had the publication been part of the regime and a complaint or arbitration been possible.

All of these procedures would be laid down in statute. Therefore an Act of Parliament would allow the creation of the body and could provide powers for it, but would not directly set it up or direct what the press could or could not do.

The Inquiry’s recommendations can be found in the Inquiry’s Executive Summary.

What Has Been Agreed?

The Inquiry’s report was largely received well. However, considerable concern was expressed about a statute being used to lay the foundation for a new body. Arguments were made that a free press holds governments to account and that to allow government to lay down a law affecting the press could threaten the freedom of the press to hold governments to account.

In response, the government has decided that a new body will be catered for by a royal charter, not a statute. Royal charters are normally used to establish bodies such as universities and charities.

The new Royal Charter (‘the Charter’) provides that there will be a ‘Recognition Panel’ which will have the power to recognise a new self-regulatory body. The Charter does not, therefore, follow the recommendation of the Inquiry to use Ofcom as the body which can oversee a new self-regulatory body. The Recognition Panel will have a board which shall conduct the business of the Recognition Panel.  To ensure independence from governments and the press, members of the Board will, amongst other things, not be allowed to be or have been an editor, or be a politician.

Members of the Board will be appointed by an ‘Appointments Committee’. Members of the Appointments Committee can, amongst other things, not be an editor or a politician.

The new self-regulatory body (the ‘Regulator’) itself will also have a board. The Board will comprise a majority of people who are independent of the press and, to ensure independence, will not include any serving editors or politicians.

Members of the Board of the Regulator will be appointed by an appointment panel. This appointment panel will have a majority of members who are independent of the press and will be independent of governments, but may include one current editor.

The new Regulator will produce a standards code (using a ‘Code Committee’) which members of Regulator will be expected to follow. The Regulator will be able to hear complaints about breaches of the code and will have the power to order apologies and fines of up to £1 million.

The Regulator will also provide an arbitration process where legal proceedings are likely so that potential claims might be settled before proceeding to court.

Press publications will not be required to sign up to the new regulatory regime, however incentives will be provided for those that do. Statute will be used for this limited purpose and is likely to provide that those publications which do not sign up to the new Regulator will face larger costs and damages in future legal action.

Finally, statute will also be used to ensure that the Charter cannot be easily changed. Law will provide that the Charter can only be altered if there is a two thirds majority in each of the Houses of Parliament

The draft Charter can be read here.

Discussion

Despite the move away from a statutory foundation for the new regulator there has still been a great deal of criticism of the new Charter. Some politicians and journalists still contend that a royal charter potentially affects a free press as it is still laid down by the government, even if it is not a statute. So do the press need to be concerned? Indeed, does the public need to be concerned? For if the freedom of the press is being threatened then we should all be concerned as they hold our organs of power to account.

The answer, for me at least, is the press and the public do not need to be concerned. Even if statute was to be used there is no need for concern. What is being proposed, whether it is in statute or a royal charter, is not regulation of what the press can or cannot do. It is quite simply establishing a framework within which the press can regulate itself in an independent way.  Suggestions that the proposals regulate what the press can do or provide discretion for this type of regulation are, quite frankly, misleading. A statute or royal charter setting up this framework poses no risk to the free press at all. It poses merely the same risk as the risk of government deciding tomorrow that it will pass law determining exactly what can or cannot be published by the press. A statute or royal charter of the nature proposed takes us no where nearer to press restrictions than we are currently and is not the start of a slippery slope to press regulation. It is merely a framework to allow the press to regulate itself and nothing more.

In addition, suggestions that the proposals in some way cross a line previously not crossed are also false. The reality is this country already regulates what the press can say by statute. The Human Rights Act 1998 incorporates Article 10 of the European Convention on Human Rights which limits what the press can say. While Article 10(1) sets out the right to free speech Article 10(2) sets out the restrictions on free speech (and therefore the free press). Article 10(2) says that free speech may be restricted, as necessary in a democratic society, for purposes including national security, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others and the preventing the disclosure of information received in confidence.

It is clear then that as the proposals seek to go no further than we already have the press and the public should not be concerned with what is being proposed. The free press is not being endangered.

One interesting point, however, is the apparent protection of the Charter by requiring a two thirds majority vote in each of the Houses of Parliament to alter the Charter. This measure is largely ineffective. Such is the nature of parliamentary law that it is very difficult to bind future governments and parliaments. It would be perfectly possible, for example, to remove the requirement to have a two thirds majority vote if a parliamentary majority (i.e. 51%) voted to remove it. Moreover a future parliament could simply pass a law that operates completely oppositely to the two thirds majority vote and then our courts would treat that original requirement as repealed (revoked) by implication, under the doctrine of ‘implied repeal’. The requirement for a two thirds majority vote does not, therefore, legally protect the Charter from change at all.

In conclusion then, to answer the question asked in the title to this piece, the answer is we should not, and nor should the press, feel concerned about this intended press regulation.

What are your thoughts on the intended regulation? Do you think it should be of concern to us?

Finally, do remember that LawScape now features a glossary of terms, which may aid understanding of this article. 

British Men Plead Guilty to Terrorism Offences

Today three British men have pleaded guilty at the Old Bailey to preparing for terrorism acts overseas.

Jahangir Alom (a former police community support officer), Imran Mahmood and Islamic convert Richard Dart all pleaded guilty ahead of their expected trial. They will be sentenced at a later date.

The three men were charged last year, following their arrest in London in the weeks before the Olympic Games, with engaging in preparation for acts of terrorism by travelling to Pakistan for training between July 2010 and July 2012 and by advising acts of terrorism by providing information about how to go to the country for the same purpose. Their precise activities have not yet been disclosed.

The Offence

Section 5 of the Terrorism Act 2006 (which can be read here) provides that a person commits an offence if he engages in any conduct in preparation of his intention to commit an act of terrorism or assist others to commit terrorist acts. The offence is indictable only, which means that it is so serious that it can only be tried in the Crown Court before a judge and jury.

Sentencing

The maximum penalty for the offence under section 5 is life imprisonment. As the defendants have pleaded guilty they can expect to receive a discount off their sentences. It is common practice to discount an offender’s sentence when they plead guilty. This is to reflect the fact that this prevents the need for witnesses to go through the stressful experience of giving evidence and prevents the need for a costly trial. When a defendant pleads guilty at the earliest opportunity they can be given one third off of their sentence. When a defendant pleads guilty after the trial date is set they can be given up to one quarter off of their sentence. If a defendant pleads guilty just before the start of a trial or after the trial has started they can be given up to a tenth off of their sentence. Here, the defendants have pleaded guilty after their trial date has been set and could therefore receive up to a one quarter discount off of their sentences.

Huhne and Pryce Sentences Referred for ‘Undue Leniency’

The sentences imposed on Chris Huhne and Vicky Pryce have been referred to the Attorney General for being ‘unduly lenient’.

The former cabinet minister and his ex-wife were sentenced to eight months’ imprisonment on 11^th March for perverting the course of justice, after Pryce accepted Huhne’s speeding points in 2003. For more information on the sentences given, see this article.

The Conservative MP David Burrowes has referred the sentences to the Government’s senior law officer, the Attorney General, for being ‘unduly lenient’. In a letter to the Attorney General the MP argues that the sentences do not reflect the ‘seriousness of the offence and the need for it to be exemplary and provide deterrence’.

The Attorney General will now have to decide whether to apply to the Court of Appeal for leave (permission) to appeal the sentences for being unduly lenient. While there are no sentencing guidelines for perverting the course of justice, the Attorney General can look at the sentences given in other cases to help him decide whether or not he believes the sentences to be unduly lenient. If the Attorney General does decide to apply to the Court of Appeal, and it agrees to review the sentences, it could increase their length. We will now have to wait to see whether the Attorney General will apply to have the sentences reviewed.

The Law on Appealing Unduly Lenient Sentences

Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to refer certain sentences to the Court of Appeal (Criminal Division) if he or she thinks a sentence is ‘unduly lenient’. The Attorney General must obtain the leave of the Court of Appeal to make a reference to it. Leave must be applied for within 28 days of the sentence being passed. If the Court of Appeal grants leave it will then review then sentence. It can then pass a sentence that it regards as appropriate, extending it if necessary.

What do you think of the length of the sentences?

Huhne and Pryce Jailed for Perverting the Course of Justice

Former cabinet minister Chris Huhne and his ex-wife Vicky Pryce have been jailed for eight months each for perverting the course of justice.

The pair were jailed after she took driving licence penalty points for him after he was caught speeding near Stansted in 2003.

Huhne had previously pleaded guilty to the offence just before his trial began. He was given a 10% discount off his sentence for his plea of guilty. Otherwise he would have been sentenced to nine months.

Pryce, however, pleaded not guilty and claimed the defence of marital coercion, arguing that Huhne forced her to accept the points on his behalf. The jury at her first trial were unable to make a decision but a second jury found her guilty after twelve hours of deliberations.

The judge, Mr Justice Sweeney, told the pair that the only good that had come out of the process was that they had now both been brought to justice for their joint offence. He told them that ‘[a]ny element of tragedy is entirely your own fault’. He said that Huhne had lied ‘again and again’ and had fallen from a ‘great height’. The judge described Pryce as ‘controlling, manipulative and devious’ but said that Huhne was ‘more culpable’ for the offence.

Huhne and Pryce were told by the judge that they would serve half of their eight-month sentences, unless they were released earlier under supervision.

Meanwhile, the CPS has said that the cost of Huhne’s prosecution was £79,015 and Pryce’s was £38,544, totalling £117,558. It is seeking to reclaim those costs. The CPS is also seeking to recover a further £31,000 from Huhne for costs resulting from his attempt to have the case stopped.

For the original article on this case, see this article.

For discussion of Ms Pryce’s first trial and the issues surrounding the jury, see this article.

For the article on Ms Pryce’s conviction, see this article.

Some Notes on Sentencing

It is common practice for defendants who plead guilty to be given a ‘discount’ on their sentence. This is to reflect that a guilty plea prevents witnesses from having to go through the stressful experience of giving evidence and that a guilty plea saves the need for a costly trial. When a defendant pleads guilty at the earliest opportunity they can be given one third off of their sentence. When a defendant pleads guilty after the trial date is set they can be given up to one quarter off of their sentence. If a defendant pleads guilty just before the start of a trial (as Huhne did) or after the trial has started they can be given up to a tenth off of their sentence.

Most prisoners are eligible for release after serving one half of their sentence. But this depends on the circumstances. Some prisoners are also eligible to be released before they have served one half of their sentence, and will be subject to a curfew and electronic monitoring (known as ‘tagging’). Again, this depends on the circumstances.

What do you think of the sentences? Were they too long? Alternatively, do you think they were too short?

Pryce Guilty of Perverting the Course of Justice

Today the ex-wife of former cabinet minister Chris Huhne has been found guilty of perverting the course of justice for accepting his speeding points.

Vicky Pryce, 60, was convicted at Southwark Crown Court in London. The jury accepted the prosecution’s case that Ms Pryce falsely accepted Mr Huhne’s speeding points back in 2003 so that he would avoid prosecution. Mr Huhne already had 9 penalty points on his licence and faced losing it if he accumulated 12 points. Mr Huhne previously pleaded guilty to the offence in February, after initially claiming he was innocent.

Ms Pryce had adopted the little used defence of marital coercion at her trial, claiming that Mr Huhne coerced her into accepting the points and was present at the time when she accepted them. The jury rejected this, however. The court had heard that Ms Pryce wanted to expose Mr Huhne after he admitted an affair. In an email to a Sunday Times journalist, Pryce had said she wanted to ‘nail him’. For more information on the facts of this case and the defence of marital coercion, see this original article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-and.html

The verdict came after 12 hours of deliberations. This was a retrial of the offence after the first trial was stopped when the jury failed to reach a decision. The judge, Mr Justice Sweeney, had expressed concern about the first jury’s ‘fundamental deficit in understanding’ of the trial process. For more information about the first trial and the concern about the jury, see this article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-again-can.html

The Crown Prosecution Service (CPS) has said that costs in the case amounted to £100,000. It said that Chris Huhne challenged the prosecution and then pleaded guilty at the last minute, which was expensive. The CPS has said it intends to apply for the costs of the case to be ordered to be paid by Huhne and Pryce.

The judge has told both Pryce and Huhne that they should be under ‘no illusions’ about the likely sentence they will receive. Perverting the course of justice is a serious offence and it is often punished with imprisonment. The pair will be sentenced at a later date. In the meantime they both remain on bail.

What sentence do you think Huhne and Pryce should be given? Do you think accepting speeding points for another person is a serious offence? Should the pair be given harsher sentences because of their high profile positions? 

Contempt proceedings started for ‘Bulger killer images’

The Attorney General has confirmed that contempt of court proceedings have been begun against a number of individuals who posted photographs online said to be current images of one of the killers of James Bulger.

There is an injunction (court order) in force which bans anyone from publishing anything which identifies the killers, Jon Venables or Robert Thompson, or which might lead to their identification.

Venables and Thompson were 10 years old when, in 1993, they abducted James Bulger, aged two, and savagely attacked and murdered him. They were released from prison in 2001 and given secret new identities and addresses.

The Attorney General’s Office has said that those breaching the injunction risk a fine or imprisonment. It explained that the terms of the order mean that if a picture claims to be of Venables or Thompson, even if it is not actually them, then the order is breached. It added that there are many images on the internet claiming to be Venables or Thompson which could potentially lead to innocent individuals being incorrectly identified as one of the killers and thereby placed in danger. The Attorney General’s Office therefore says that the order protects not only Venables and Thompson but also those who have been incorrectly identified as one of them.

The Injunction

So why exactly are the identities of Venables and Thompson protected? In 2001, before they were released from prison, they brought legal proceedings against three news groups arguing that the reporting restrictions which had been ordered after their trial in 1993 should be continued indefinitely. The news groups had argued, essentially, that the right to freedom of expression meant that details about the killers should be permitted to be published.

The High Court agreed that freedom of expression was important but said that it could be restricted if it was ‘in accordance with the law’ and a ‘proportionate’ response to a ‘pressing social need’ (as set out in Article 10 of the European Convention on Human Rights, which deals with freedom of expression). The Court held that the killers’ new identities and personal information were confidential and that there was a very real possibility that they would be physically harmed or killed if their new identities became known. It also held, following cases from the European Court of Human Rights, that there is a duty to protect an individual’s right to life where there is a known risk to it. The Court therefore held that it was proportionate to restrict free speech and granted an injunction indefinitely against the whole world preventing the publication of information about the killers’ identities.

The judgment that originally ordered the injunction can be read here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2001/32.html&query=venables+and+v+and+news+and+group&method=boolean

The injunction itself can be read here: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/venables-order-butler-sloss-july2010.pdf