Eady’s errors

Richard Desmond can take heart. Someone comes out of his disasterous libel action against Tom Bower looking worse than he does, and it’s the judge.

Eady

The Guardian reported shortly after the trial ended that Eady was criticised by the appeal judges for his decision to block certain evidence from trial (specifically, a tape of Desmond telling a hedge-fund manager with whom he was in dispute that he would be “the worst fucking enemy you’ll ever have” three days before a defamatory article appeared in the Express). This week’s Private Eye (1242) gives the case in more detail, and it sounds even more like a near-disasterous example of judicial mishandling.

From the Guardian:

One of them, Lord Justice Pill, said: “In this case it appears to me that, with respect, the decision of Mr Justice Eady in context was plainly wrong.”

Lord Justice Hooper went further: “Unless the court interferes, the jury will not hear evidence, the absence of which in my view might lead to a miscarriage of justice.

“In my view, this is not a case of interfering with a case management decision or interfering with some discretionary decision of the judge. It is taking steps to ensure that a possible miscarriage of justice does not occur.”

Lord Justice Wilson also agreed the tape should be heard: “The risk that, without access to the tape, the jury might reach a false conclusion about the existence of a grudge and the genesis of the article relating to Pentagon [Omid’s fund] is substantial.”

Guardian, “Judge rebuked by court of appeal during Richard Desmond libel case”

The Eye adds that Eady excluded the word “pornography” from the courtroom, making it easy for Desmond (who apparently resents being associated with the word) to deny that he took any offence to a Telegraph article on his porn interests. (In the end, Bower’s QC got Eady to allow the p-word to be mentioned.) The discontent of the appeal judges is also explained: Eady ignored original guidance that the tape should be admitted and then attempted to exclude it on the grounds of avoiding “delay” before getting the ultimate telling-off.

However, even when forced to admit the evidence, Eady’s conduct remained unimpressive. The Eye continues:

If [the appeal judges] had found otherwise, Bower would have had strong grounds for appeal, since Eady’s summing-up was littered with misrepresentations and mistakes. At one point, perhaps in a fit of absent-mindedness, he even read out to the jury a passage from a witness statement by Conrad Black which he himself had ruled inadmissable.

Private Eye, “Desmond v Bower” (issue 1242, p. 6)

The damage to Richard Desmond’s reputation from this is minimal: the failed libel action only confirms what was already universally known about him. Eady, though, might be in greater difficulties. Private Eye concludes by wondering whether he’s due to be pushed into retirement – and there are consequences, too, for the understanding of other libel cases with which he’s been involved (including BCA v Simon Singh) which have often seemed overly-sympathetic to the plaintiff. If Eady is due to be removed, we might finally find out to what extent his judgements are down to personal caprice and error – and how far he’s simply been enacting the law.

See also: “How Judge Eady went from press villain to hero”, by me at Liberal Conspiracy (complete with erroneous promotion of Eady to “Lord”).

© Sarah Ditum, 2009

Desmond “ground into dust”: what is a proprietor’s sweep?

dust by serdalRichard Desmond’s libel case looks pretty baffling. There’s no perplexity over him losing – the passage of Tom Bower’s book over which Desmond sued is brief, factual, and (as Private Eye points out) showed that Desmond’s Express was correct in its reporting of Condrad Black’s precarious finances. What’s confusing is that he brought it at all.

Part of the motivation, according to Bower’s defence, is pride: “Mr Desmond is here because he wants to tell the world that he’s not a wimp.” (All quotes from the trial are taken from Private Eye’s brilliant report, no. 2141, p. 9.) But another motivation would be to suppress the (tacit, and you might think obviously true) assertion in the Bower book that proprietors influence content or use their papers to attack opponents.

“It’s difficult to think of a more defamatory allegation to make against the proprietor a newspaper”, said Desmond’s QC – although the evidence went on to demonstrate that both the Telegraph and the Express were heavily influenced in their editorial by their respective proprietors’ issues with each other.

Testimony from Express media columnist Anil Bhoyrul made it clear that Desmond’s likes and dislikes were imposed more-or-less directly on the newsroom. “Every Sunday the column would come out and I would speak to Martin [Townsend, Sunday Express editor]  usually on a Tuesday, and he would tell me ‘Richard liked the column this week’ or didn’t like it. […] I got a pretty good feel for who, you know, to be positive about and who to be negative about.”

The business of the newspaper business is (mostly) newspapers – so it seems intuitive that proprietors and managers would be at least passingly concerned with what they’re printing. Why, then, is it so easy for an organisation like News International to shrug off the phone hacking issue as a low-level newsroom hiccup? Or, more pertinently for Desmond, for the PCC to convict the Scottish Express of a breach “so serious that no apology could remedy it”, and yet for management to be untouched?

It’s axiomatic that Richard Desmond is a “rogue propietor” and a disgrace to Fleet Street. But in using his newspapers to further his own personal and business interests, he’s doing nothing that’s out of step with his peers. It’s obvious from the libel case that Conrad Black was doing the same; the Murdoch papers’ willingness to hound the Beeb and pimp out Sky is another, less cackhandedly executed, example of people acting in their own best interests (or of employees acting in their own immediate interests by acting according to their employer’s preferences).

Desmond is unpopular. He doesn’t hide his unpleasantness, and he’s made a lot of money out of ladyflesh. But it’s a self-serving fiction for other papers to pretend that he’s worse in kind rather than degree.

© Sarah Ditum, 2009. Photo by Serdal, used under Creative Commons.

The Mail in “against libel” shock

Any support for the Sense About Science campaign to prevent libel laws from being used over issues of scientific evidence must be a good thing. Only, in the case of the Daily Mail championing Simon Singh, it’s not totally clear whether they’re backing his cause, or recruiting him to their own.

mail singh portrait

When I blogged at Liberal Conspiracy about libel and privacy laws, I suggested that Mr Justice Eady was enjoying a moment of grace with the press. That moment is over now, as far as the Mail is concerned:

Justice Eady’s critics accuse him of creating, almost single-handedly, a privacy law in Britain as a result of his interpretations of the 1998 Human Rights Act, in which he invariably seems to give more weight to privacy than to freedom of expression.

Most notably, Justice Eady ruled in a case involving Formula One boss Max Mosley that it was wrong for the News of the World to expose his liking for sadomasochistic orgies with paid ‘ professional dominatrices’, saying: ‘I accept that such behaviour is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the claimant.’

In another high-profile case, he stopped a cuckolded husband selling his story to the Press about a sporting celebrity who had seduced the husband’s wife. Adulterers, said the judge, deserve privacy like anyone else.

Via a succession of such rulings, the judge has built up a formidable body of case law upon which public figures can rely when they wish to gag newspapers or publishers.

Daily Mail, “Back ‘cures’, a brave scientist and an epic court battle: How Britain’s libel laws are threatening free speech” (1 July 2009)

What’s really interesting is how the Mail bend Singh into their own ongoing narratives. Before you even get into the body copy, just in the headline, Singh has been labelled as the “brave scientist” going up against an implaccable system – just as Andrew Wakefield was a “brave scientist” when the Mail was generating vaccine terror. The medical evidence is presented in standard ‘debate’ style: the chiropractors claims are balanced with a neutral “However, many in the traditional medical profession view the therapy with deep suspicion.”

And the Mail is careful to keep this within the limits of free speech rather than evidence or public interest: Singh, the article says, “won’t stop until he has guaranteed that the principle of free speech  –  which is something about which judges such as Justice Eady seem remarkably nonchalant  –  remains at the very heart of our British way of life.” They’re on the right side for now. But this isn’t a watershed in the Mail’s commitment to accurate journalism and responsible medical coverage. The medical pages today contain the usual mix of wonder drugs and alarmism, and when Singh’s case is over, they’ll be ready for their next Wakefield.

New post on Liberal Conspiracy: How Judge Eady went from press villain to hero

I’ve got a new post up at Liberal Conspiracy, where I ramble speculatively about the way Mr Justice Eady’s decisions on media law seem to be acting in combination against scrutiny at all levels of reporting: the sex scandal, science coverage, and anonymous whistle-blowing:

It’s not unusual for public figures to experience severe reversals of reputation, and the distance between “nation’s sweetheart” and “national disgrace” can be as short as a few column inches. But Mr Justice Eady’s recent rehabilitation in the eyes of the press is a remarkable one – for the swiftness with which some editors have shifted position, and for what it suggests about the future possibilities for scrutiny in the media.

Read the rest here…

Edit: I accidentally gave Eady a peerage, so I’ve fixed that here.