Opinion: Leveson – Do we need a new Court of Appeal?

It looks like we are going to get a new Code of Practice and a system of voluntary self-regulation by the press. But is that all we need? Shami Chakrabati wrote an instructive objection to the concept of “legal underpinning” and has subsequently said she “would rather leave the question of whether the tests are met to the courts and not to involve a quango . . .” (such as Ofcom). As one of the six advisors to the commission and an expert in Human Rights Law, she is in a good position to comment. What is needed are not changes in the law regarding press freedom but changes in the practice of law enforcement.

As the tragedy of Jacintha Saldanha has all too dramatically shown, it is thoughtless irresponsibility as much as investigative or sensationalist journalism that needs to be changed. Victims need the protection of the law from abuses of the law by the press and media. The problem is that recourse to the law is too often denied to ordinary members of the public without the knowledge or the funds to proceed with a legal case and even if they do the timeframe and process can be even more damaging than the original intrusion.

We need to change the way the law operates. In the UK, we have Family Courts with special rules and procedures for handling the sensitive cases and issues surrounding family law. I suggest there needs to be a new Media Court of Appeal. The present court procedures are too slow and in many cases the courts lack the necessary powers to encourage and enforce compliance.

The new Court must have the ability to act quickly. It should have the power to issue injunctions of restraint as well as the power to order a police enquiry into any specific case where there is a grave cause for concern that a criminal act may have been committed by a journalist, photographer, Editor or member of the public. The Court should have power to subpoena witnesses and even exceptional powers, such as for example, the right to have evidence heard in secret or give immunity to identification or prosecution of individuals in order to protect media sources. We do after all wish to encourage whistle blowers and others to bring matters of legitimate public interest into the public domain.

This has to be a balanced system that works in the public interest and does not hinder the press in exposing unlawful conduct by others. It should be a powerful incentive for media organisations to sign up to voluntary regulation by being able to impose punitive fines on those who do not.

The new Court should also provide protection in cases of abuse through broadcasting and the electronic media. It should have the power to order that the authors of content published electronically be identified by their service providers.

In any action the appellant would have to demonstrate, as did Lord McAlpine, that they were the subject of an unwarranted and unjustifiable abuse of their freedom or damage to their reputation. This is not to be a means of protecting celebrities or others with secrets to hide.

It should not only be the Lord McAlpines of this world that can afford to take action against his libellous abusers on Twitter etc. Conditional fee agreements between solicitors and claimants would ensure that solicitors are willing to act for a legitimate victim.

A new voluntary scheme of regulation will only be good enough for a limited period of time. As Leveson has pointed out, the pressures for standards to slip are ever present. We need to improve the speed and effectiveness of law enforcement too because the Courts today do not provide adequate protection.

Parliament is responsible for the law and its operation and it should move to establish a Media Court of Appeal. This is not so much an under-pinning as an over-sight of a robust free press operating within the existing laws of the land under its own voluntary code of self regulation.

* Mike Biden is an Executive ordinary member in Winchester. A lifelong supporter of the Liberals, he has become an activist since his retirement. His career saw him in senior corporate positions in Sales & Marketing and as a Chief Executive.

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2 Comments

  • “In the UK, we have Family Courts with special rules and procedures for handling the sensitive cases and issues surrounding family law. ”

    Oh boy. Wait till John Hemming sees that!

    I don’t see what powers your giving this new court that the existing courts don’t already have. Or why this new court will be able to act quicker than the existing ones. Certainly where issues of media intrusion are concerned the courts can act quickly when it comes to injunctions and the like

  • Alex Matthews 11th Dec '12 - 10:10am

    Well the idea that having a new court, similar to the one used for family cases or the one used for construction cases does sound nice in practice, but we should not forget that these two courts deal with specific closed cases and that is why they can be quick and effective in many cases, and often those involve want to time as little time in court as they can and wish to end the case in a mutually beneficial manner. However, defamation cases can involve anyone defined as a legal identity and so I think we could end up with the same problem the COJ has, it will quickly become flooded with cases of people wanting their 5 minutes of moan, wanting to crush their foes or superfluous cases. Also we should not forget that many involved in family cases/construction cases are quite balanced in terms of power, but in these cases you have one or two people going head to head with massive corp’s, which is quite a daunting task. I think the advantage of independent regulators is that people feel they are more approachable than the courts.

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