Tuesday, 14 December 2010

Courts and Reporting

In common-law jurisdictions, such as the UK, Canada and New Zealand, an indictable offence is one where the most serious kind of crime has been committed, such as rape, theft and murder. These types of offence are too serious to be dealt with in the Magistrate’s Court, and so they must go to Crown Court, which is the ‘higher court of the first instance’ because they must be tried in front of a jury.

If a defendant has pleaded not guilty at their committal hearing (this takes place at the magistrates’ court) then the case is sent to trial at the Crown Court. The facts of the case are presented to the 12 people of the jury by both the prosecution and the defence, and any witnesses involved are questioned. This process can vary in time from 1 day for small cases to several weeks if the crime is particularly serious or if there are a large of witnesses to go through.

If the jury find the defendant guilty, then they will come back at a later date for their sentence. A typical sentence could be either serving time in prison, receiving a fine or community service, depending on the nature of the crime. Before sentencing, both the prosecution and defence barristers will argue a ‘plea’, each one stating their case on why the defendant should or should not get a lesser or greater punishment. The judge will then deliberate and decide on the appropriate sentence. The sentencing process is also the same for those who have pleaded guilty straight away.

Contempt of Court and Prejudice - This most affects journalists when reporting on a crime and publish material that may have an effect on a trial. Publishing prejudicial material may make a juror more likely to either find a defendant guilty or innocent.

Prejudice- Where publication of certain material may effect the way in which the defendant is treated, for example if the jury already know the defendants previous crimes.

Contempt - When material is published which are in breech of the rules of crime or court reporting.

there are 4 stages if processing and reporting a crime.

1. The crime has just been reported. The journalist has arrived at the scene of the crime. The police are out looking for the perpetrators. At this point the reporter is free to report with no risk prejudice.

2.The case becomes legally active, the police have made an arrest or say someone "is helping with inquires". Reporters must be careful what they say here as they may be at risk of prejudice. Be especially careful when reporting on descriptions of suspects.

3. The police lay charges. This means that there will be a trial. So anything you say now can not effect they way the defendant will be treated in court. You may only report on certain facts that you know wont be in contempt of court. Report on feeling, colour and emotion.

4. Magistrates court hearing, now you are very limited to what you can say -

  • Names of defendants, ages, addresses, occupations
  • Charges faced or a close summary
  • Name of court and magistrates names
  • Names of solicitors or barristers present
  • Date and place to where case is adjourned
  • Bail (only whether granted or not) and bail arrangements
  • Whether legal aid was granted

Breach Of Confidence

As defined in Mcnaey's - Breach of confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it.

Governments use breach of confidence in order to protect certain information which they believe to be a secret. Individuals use it for the same reasons and also to protect privacy and this use of breech of confidence received strong support when the Human Rights Act was implemented in 2000.

Mr Justice Megarry said there are three main parts in a breach of confidence;

1. The information must have 'the necessary quality of confidence'

2. The information must have been imparted in circumstances imposing an obligation of confidence; and

3. there must be unauthorised use of that information to the detriment of the party communicating it.

The Quality of Confidence

So the law of breech of confidence is to safe guard information obtained in confidential circumstances. However information which is either factual or trivial does not count as being confidential such as a companies canteen menu or if information is already in the public domain.

The official Secret act

This is simply to protect state secrets such as military or intelligence. Publishing what is regarded as sensitive military images or or photographs is an criminal offence. A good case study to look at here is David Shayler. He is a British journalist and former MI5 security officer who became widely known after being prosecuted under the official secret act for passing on secrets documents to The Mail on Sunday in 1997. He suggested that MI5 were paranoid and that Labour party ministers such as Tony Blair had previously looked into it. At the trial Shayler claimed that the Official Secrets Act was incompatible with the Human Rights Act and that "it was not a crime to report a crime" although these arguments were ruled out by the court with the latter being ruled irrelevant. Shayler's defence attempted to argue that there were no other paths to pursue his concerns with the service. The judge ruled that while this was true it was irrelevant and therefore Shayler was found guilty under the Official Secret act and was sentenced to 6 months imprisonment.

Commercial Confidentiality - Normally between an employee and employer. For example a kebab shop worker couldn't tell the rival kebab shop over the road any financial information which may affect the company.

In a way lectures and students have a degree of confidentiality. If a student was to talk to a lecturer in private, the lecturer would not be allowed to repeat this information to other colleagues or students. However, if a lecturer was asked to provide a reference for a student, they would have almost a duty to say anything they feel may affect the outcome. If the reference was for a job that student was applying for, and the lecturer knew a good reason to why the student should not get the job, then like I said they have a duty to say so.


An good case study in breech of privacy is the Max Mosley case. He won £60,000 in his privacy action against The news of the World who had incorrectly accused him of having a "sick Nazi Orgy" Although the allegations may have been true, it was not in the public interest and therefore a breech of privacy.

Mr Justice Eady said that Mosley had a "reasonable expectation of privacy" in relation to his sexual activities no matter how "unconventional".

He found no evidence of Nazi themes in the orgy and said Mosley's life had been "ruined".

"I found that there was no evidence that the gathering on March 28 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes. Nor was it in fact. I see no genuine basis at all for the suggestion that the participants mocked the victims of the Holocaust," Eady said. "There was bondage, beating and domination which seem to be typical of S&M behaviour.

"But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website – all of this on a massive scale." (gurdian.co.uk)

Copy Copyright

Copyright: Exclusive rights granted to the creator of original work, allowing them print or publish and give others the right to do the same. Its purpose is to protect intellectual property.

As soon as an idea is given physical form such as a piece of writing, a film or a photograph it is automatically protected by copyright. You do not need to register your work as it is protected upon creation. This still applies even if the work is unpublished.

Fair Dealing

"the use of copyrighted material in such a way that it does not infringe on the copyright of that material. The Copyright Act provides that "any fair dealing" with a work for the purposes of private study or research, or for criticism, review, or news reporting is not an infringement. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author's, performer's, sound recording maker's or broadcaster's name if known." (http://guides.library.ualberta.ca)

A good example of this is something that I as production editor of WINOL experienced. We had an interview with the one and only Chesney Hawkes. We wanted to use a clip of to introduce the interview of Chesney singing his number one "The one and Only". We found a clip on the internet which was owned by FMI music. We wanted to use the clip under the "fair dealing" rules. Although the clip it's self was 5 minuets long, we would only be able to use 5 seconds under the fair dealing terms. We also had to talk over the clip and credit the creator of the work itself. I feel that this is a good example of fair dealing.

For your information...I mean.....Freedom of information

Freedom of information as defined by UK definitions;

"The Freedom of Information Act 2000 is an act of the United Kingdom (UK) Parliament defining the ways in which the public may obtain access to government-held information. The intent is to allow private individuals and corporations reasonable access to information while minimizing the risk of harm to any entity. The concept was first put forward in 1997, was passed in 2000 and came into full effect in 2005. A similar act was passed by the Scottish Parliament in 2002."

Although FOI is extremely popular especially amongst journalists it is not so widely appreciated by MPs due to its restriction on privacy. Tony Blair when interviewed by Andrew Marr expressed his regret at installing the Freedom of Information Act, referring to himself in first person:

"You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."

He described it as dangerous saying that governments need to be able to discuss matters with a reasonable level of confidentiality and blamed Journalists for using it as a 'weapon'. But now with the FOI anyone can request almost any information they want on a public body. In Tony went on to say

"If you are trying to take a difficult decision and you're weighing up the pros and cons, you have frank conversations... And if those conversations then are put out in a published form that afterwards are libel to be highlighted in particular ways, you are going to be very cautious. That's why it's not a sensible thing."

A February 2008 Freedom of Information Act request for the release of details of MPs' expenses claims was allowed by an Information Tribunal exposed the parliamentary expenses scandal. This was a massive story on what Mp's were claiming millions of pounds on. This was all leaked by the Daily Telegraph which began publishing details in daily instalments from 8 May 2009.

Should we get rid of the FOI act? in my very humble opinion certainly not. If they were to abolish it information like the the expenses scandal would never have been released or even known. So although it may be annoying and inconvenient for MPs, it is certainly not an inconvenience for us journalists!

Libel Qualified Privilege


A false and malicious publication printed for the purpose of defaming a living person.

If you make a defamourty statement you;

-Lower someone in the estimation of right thinking members of the public.

-Causes someone to be shunned or avoided

-Disparages someone in their business, trade, office or profession

-Exposes someone the hatred, ridicule or contempt.


Justification - Its true....you have evidence or you can prove it

Fair or honest comment - if it is an honest opinion based on facts or privilege matter, and comment must be of public interest.

Absolute Privilege

Qualified privilege (read further down)

Reynolds Defence - you are allowed to publish when the matter is in the public interest. It must also meet the ten points on Nicholls' list. (read below)

Definition as defined by the British Columbia Court of Appeal;

"The essence of the defence (of qualified privilege) is a duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it."

Qualified Privilege is one of the defences against libel
. It allows a reporter to publish defamatory statements under certain circumstances. There are two types of qualified privilege.

Common Law Qualified Privilege
It is ok to make a defamatory comments provided it is in public interest. This does not mean that it is simply interesting. The allegation made when reporting must be fair, accurate and without malice.

Statutory Qualified Privilege

Journalists can attract this QP in many places such as public meetings, council meetings etc but the main two places would be court and parliament. As long as the journalist reports fast accurate and fair in order to avoid malice then they are in no danger of any libel action. The report must also be balanced. So here you must give the accused a chance to deny the allegations made towards them. This must be included in the same report, i.e "he denies the charges" and "the case continues". If you don't do this you will lose you qualified privilege and be at serious risk of libel.


Following the resignation of Irish Prime minister Albert Reynolds, the Sunday Times published an article saying that Reynolds had lied to the Irish Parliament in order to cover a child abuse scandal. Although when challenged by Reynolds there was no evidence and they could not prove anything. However when the case came back into light in 1989 the court felt that "the Sunday Times" had a duty to publish what they knew as it was in the public interest.
So journalist now can now attract the Reynold defence so long as it passes the 10 point test made by Lord Nichols which are;

1. The seriousness of the allegation – the more serious the allegation, the more protection will be applied. If not at all serious then no protection can be enjoyed.

2. The nature of the information - is it a matter of public concern or in the public interest?

3 . The source of the information. If it is an authoritative source you may publish the statement made even if it turns out to be untrue.

4. The steps taken to verify the information.

5. The status of the information. Would need to ensure that this was not a repeat allegation.

6. The urgency of the matter.

7. Whether comment was sought from the claimant

8. Whether the article contained the gist of the claimant’s side of the story

9. The tone of the article.

10. The circumstances of the publication

And that is more or less it really that I can think of. The most important point to remember and must stress is that any report made where you wish to attract Qualified Privilege must be FAST ACCURATE AND FAIR to avoid and MALICE

Tuesday, 7 December 2010

Defamation: Not what the Doctor Ordered

Your reputation is very important to yourself and those around you. I would say it is even more important in your career. To damage your reputation in the mind of right thinking people will lead to all kind of problems. In every profession your reputation is everything, none more so than if your a doctor!

One of the most famous cases in which a doctor was defamed was that of Dr. Rahamim. He was described by channel 4/ITN as a 'Bogus Doctor'. They made the following allegations;

1. First that Mr. Rahamim was probably responsible for the death or serious injury of many of his patients including two who had died during their operations.

2. Secondly that Mr Rahamim was not competent to practice as a consultant thoracic surgeon and that he was seriously under qualified and inadequately trained.

3. Thirdly that he had fraudulently obtained his post as a Consultant by misrepresenting his qualifications and employment history.

4. Fourthly that Mr. Rahamim had dishonestly sent out letters to local GP’s in which he had falsely described himself as an FRCS.

5. Fifthly that he had dishonestly concealed from his employers the fact that as a result of injuries sustained in a road accident he was unable to operate safely.

6. Lastly that by reason of these matters the GMC ought to have Mr. Rahamim struck off.

These were serious allegations which led to multiple investigations into the work of Dr. Rahamim.

After finding no real evidence of any of the above being true, Dr. Rahmim sued in excess of £175,000.

The full statement in open court can be read here.

Whilst on the topics of Doctors and suing I have come across a couple more examples. It would seem its not always the press that we sue as I found out in this next case. in 1991 GP Dr. Smith was awarded £50,000 after a slanderous allegation made by fellow college Dr. Houston saying that Dr.Smith had groped both her and other female colleges.

So it would seem we have to be careful what we say in this world. Turns out a defame a day wont keep the doctor away!

Saturday, 29 May 2010

PART 1 - -

The election night,

So i get back to my house and put on my shirt, ready to be a TV star, or a round up guy, which ever you prefer. I made sure my hair was tidy and smart (not possible) and that my shoes were nicely polished.

So how did it all start? Well with a can of red bull to be frank. Then I was straight onto the computer gathering information, scanning for any extra information that I could add in. Frantically typing away as quick as my little fingers would allow, I altered my script preparing for the live round up. Then as the clock struck 9.55 pm I hit print...but disaster! No paper! none anywhere! so I ended up using my original script with scribbles and pen markings all over the place for the first live round up. So off I went into the MMC to go on camera. The most nerve racking part was not going on camera, but having only the length of the intro VY (8 seconds) to swap over the radio microphones. scary stuff, especially as I dropped mine on the first hand over. In a way sort of like a relay race in the fact you have to hand over the baton! sweaty hands, slippery radio mics, it was mad! After that it was back to the news room to type up my next script for the 11 o clock round up.

Not many people were in the news room. There was more milk than anything else which I must say was getting increasingly warm. This was a big concern of mine as I don't really like tea and coffee, I'm more of a milk man. However I couldn't let this distract me now, I was doing well on my second script and it was approaching the 11 o 'clock round up.

Aswas walked back into the MMC, the scent of hard work was more evident in the air. The smell of the sweat oozing out of everyone's body dominated the oxygen. I didn't want to hang around and so I didn't, I decided to suss out the gallery and see what was going on. Now I thought the MMC was bad, but when that gallery door opened I probably lost a couple of stone with the heat wave that hit me. Better than any sauna I've ever been in. Nevertheless the gallery all seemed to be in control. Everything was calm and everyone was working well as a team. So I left back to the news room where I was greeted by Tom giving a very energetic and enthusiastic live news update.