Category: Communications and Media & Law and Policy

The Crown and the Media – from phone hacking to the Dyson report

22nd May 2021

If anyone doubted the often indirect power of the crown in the public affairs of the United Kingdom then this week’s media news about the Dyson report is a useful reminder.

A reporter fabricated documents so as to engineer an introduction to a member of the royal family and then lied about it.

This sort of ‘blagging’ – as  some of those in the media would call it – was one of what was once euphemistically described as the ‘dark arts’.

And as a result of the exposure of this dishonesty, the future of the BBC (itself founded by royal charter) is now uncertain.

To throw the future of the United Kingdom’s state broadcaster into doubt requires a significant intervention.

It is an example of how the presence of a royal element to a story can electrify things.

And it is not the first time.

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The phone hacking scandal – which affected the press in a way that the Dyson report may affect the BBC – also came about because it had a significant royal element.

In short: the telephones of the royal household were hacked – just as the telephones of celebrities and newsworthy non-celebrities were hacked.

(Hacking was another of those ‘dark arts’.)

But because the target was the royal household, a different part of the metropolitan police became involved instead of those parts of the metropolitan police that the press then had a close (and mutually advantageous) relationship.

This in turn led to a police raid of a private investigator’s office, and the documents then seized in turn were a media-legal time-bomb which exploded when disclosed about the time of the Millie Dowler murder trial.

The story is set out in this thread by James Doleman, who reported on the trials (and with whom, I must add, I disagree on other issues):

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Had the mobile telephones of the royal household not been hacked then it is plausible that – even now – we would not know anything about the real extent of telephone hacking.

Such is the indirect power of the crown in our public affairs.

*****

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The Daniel Morgan independent panel in effect tell the Home Secretary: ‘you have no authority here Priti Patel, no authority at all’

20th May 2021

Yesterday’s post was about the home secretary making an extraordinary intervention that would delay the long-awaited publication of report of the independent panel on the death of Daniel Morgan.

And then came further news that the panel were refusing to give the report to the home secretary:

This is a splendid and spirited response from the panel to what is an unconvincing attempt by the home secretary to intervene.

And alluding to that infamous parish council meeting, one wag caught it perfectly:

(Though, of course, in that other instance, the recipient of that comment was the one in the right, as this blog then explained.)

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The move by the home secretary may not only fail – it may be counter-productive.

Last week those who followed the Daniel Morgan case were wondering whether the impending publication of the independent panel report would get any press or public attention.

And then our clumsy bullying Home Secretary sought to clumsily bully the independent panel.

Well.

 

Such PR is priceless.Without her intervention, the report may have generated little interest beyond those who had an interest anyway.

Now there is far more interest.

And as someone was quoted in the news report:

“There are no national security issues involved. There are national embarrassment issues.”

If this is correct (and I have no idea) then, thanks to the home secretary, more people will now be aware of this.

Before attempting to intervene, the home secretary should have read the terms of reference of the independent panel – read them, and understood them.

**

(With apologies to the great Jackie Weaver)

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The Post Office scandal: as the problem was about non-disclosure, then logically an inquiry with powers to compel evidence is required

1st May 2021

The Post Office scandal is being described fairly as one of the most widespread miscarriages of justice in legal history.

One of the fundamental problems that led to this scandal was non-disclosure.

The managers (and presumably the lawyers) knew information about the reliability of their Horizon software but did not disclose it.

Had that information been disclosed then (depending on the timing of the disclosure) prosecutions would not have taken place, or defendants would have been found not guilty, or convictions could have been more speedily appealed.

And so, given this fundamental problem of non-disclosure, it is remarkable that the government’s response is an inquiry that cannot compel the disclosure of evidence.

Just think about it.

The government’s non-statutory inquiry has its own web page and terms of reference.

And if you read through the documents on the page, what is said is fine as far as it goes.

But it does not go far enough.

For example, one of the terms of reference is expressly in respect of obtaining information:

‘[to b]uild upon the findings of Mr Justice Fraser, by obtaining all available relevant evidence from Post Office Ltd, Fujitsu and BEIS to establish a clear account of the implementation and failings of Horizon over its lifecycle’.

Yet, as where there is blame there will be claims, the various entities mentioned will have reason to not disclose anything which could lead to civil or even criminal liability.

They will have engaged lawyers to advise them on their obligations in respect of the disclosure of information for the inquiry – and that advice would give them legal cover to refusals to share information.

And what goes for documentary evidence goes to witness evidence too, as this tweeter well observes:

What we therefore face is one problem that was caused by non-disclosure being followed by another problem caused by a different type of non-disclosure.

There is no good reason why the inquiry into the Post Office scandal does not have statutory powers to compel evidence.

And, given that non-disclosure was at the heart of the miscarriages of justice, every good reason why it should.

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Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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Further thoughts on the Post Office Horizon case

24th April 2021

Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.

(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)

The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.

The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.

It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.

Paragraph 929 is a judicial classic.

The judge is a credit to the judiciary.

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But.

That civil judgment is from late 2019.

The criminal convictions were quashed yesterday.

And the wrongful convictions date back to 2003.

This means there has been a wait of, in some case, nearly twenty years for justice.

However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.

Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.

Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.

But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.

And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.

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One or two people have complained about the the legal fees in this case.

It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.

To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.

That the lawyers who did this successfully were remunerated should not be controversial.

And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.

Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.

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There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.

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It is time for lobbying to return to the lobby – why transparency is more important than more rules

18th April 2021

Consider the following two statements :-

‘There should be a law against it.’

‘It has not broken any laws.’

Both of these statements are common utterances in political conversation, and they are both possibly said by any of us on depending on circumstance.

Both statements seem to be different.

Yet both these statements are about the same situation: (a) a wrong has happened and (b) no law has been broken.

The difference between the statements is the attitude of the person making the statements, whether ‘something should be done’ or ‘there is nothing to see here’.

No principle or substance separates the two statements, only political expediency.

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The prompt for the observations above is, of course, the unfolding lobbying scandal in the United Kingdom.

The former prime minister David Cameron and certain former officials have been shown to be doing things which, in the view of the many if not the few, they should not have been doing.

But, as this blog and others have averred, the individuals concerned have not broken any rules because (it would seem) there are no rules to break.

A cynic would say that a this is the reason why the current prime minister has ordered an investigation, as it will be inevitable that the individuals will be ‘cleared’ of any rule-breaking.

But being ‘cleared’ of any rule-breaking is not the same as being exonerated of any wrong-doing.

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The alternative response to the current situation is to call for more rules.

This in part stems from the view – almost a surviving form of magical thinking – that a thing will not happen because there is a rule against it.

Laws as spells.

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But what seems to be needed here is not so much more prohibitions, and more codes to (creatively) comply with, but more transparency.

There will always be lobbying – and there is nothing inherently wrong in a democracy with any person seeking to influence those with power.

The important thing is that it is not hidden from view.

That the public can see, if it wishes, the influences being exerted on public policy.

That there are public processes in place for those approaches and exchanges to take place.

In a word: a lobby.

Think about the word, which the internet tells us is defined as:

‘a room providing a space out of which one or more other rooms or corridors lead, typically one near the entrance of a public building’.

And this is the source of the word ‘lobbying’.

Lobbying took place in a lobby: a public or at least quasi-public space.

The time has perhaps come for the practice of lobbying to go back to its root – and for there to be a formal (and, if need be, virtual) lobby where there these exchanges happen and can be seen to happen.

It is perhaps time for the return of the lobby.

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Colin the Caterpillar and the Art of War – why it is sometimes sensible not to enforce your legal rights

17th April 2021

Marks and Spencer has decided to add to the gaiety of the nation by issuing a legal claim in respect of Colin the Caterpillar, a chocolate cake.

The actual legal claim does not appear to be publicly available, but the news reports are that the action was launched in the last week at the high court.

Marks and Spencer is quoted as saying:

“Love and care goes into every product on our shelves. So we want to protect Colin, Connie and our reputation for freshness, quality, innovation and value”. 

It must have seemed a good idea at the time.

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Hilarity has ensued.

The respondent to the claim, Aldi appears not to be taking the legal threat seriously.

And nor are many people on Twitter and other social media.

This mash-up of our old friends at Handforth parish council stood out in particular:

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This has all the signs of a publicity disaster for Marks and Spencer.

So why did Marks and Spencer issue the claim?

And what should the company have thought about before bringing the action?

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There is no doubt that Colin the Caterpillar is valuable to Marks and Spencer.

The product has recently celebrated its thirtieth birthday.

And Marks and Spencer have been long aware of competitors’ selling similar products, with the store itself telling us this on its dedicated Colin the Caterpillar page:

“We were the first to retailer to sell a caterpillar, with many supermarkets since trying to emulate this crowd-pleasing cake”.

Colin also has his own Wikipedia page.

And not only does he have these pages, he also has registrations on the trade mark registry.

(Trade mark has two words, by the way – we are not Americans, thank you.)

From a quick (no-exhaustive) search, it would appear that the term ‘Colin the Caterpillar’ was registered in 2009 – though given it had been on sale previously it may have had other intellectual property protection beforehand.

 

This search also showed that last year in 2020 there was a further registration for Colin’s packaging:

The happy news can also be revealed that Marks and Spencer has also registered the term Connie the Caterpillar – though not her packaging.

All three registrations are in respect of class 30:

These registrations in practice and in principle confer a commercial monopoly in products within that class.

(Please note: although I have general knowledge of trade mark law, I am not a trade mark specialist, and there will be things I will have missed – and I am happy to hear from any trade mark specialists in the comments below.)

Here it is important to note that what is protected with these registrations is the name and the packaging of the cakes – and not the cakes and their ingredients themselves.

Colin the Caterpillar and his box are protected, not the concept of a chocolate roll with a happy face on it.

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One of the problems with trade mark law and practice is, in very general terms, that if a protected thing becomes too generic, you can lose the legal protection.

That is why trade mark holders often seem over-vigilant in asserting their legal rights.

Disney for example will assert their rights fearlessly, despite the ridicule and opprobrium.

Readers of a certain age will also remember letters to the press from Portakabin.

No doubt Aldi itself has its own trade mark lawyers who will send out stiff letters to infringing competitors.

(Indeed there are marks registered to various Aldi entities that presumably they would want respected.)

And as Marks and Spencer itself admits on its own website, there are other stores seeking to ’emulate’ the Colin cake.

One tweeter helpfully provides us with examples:

As does another:

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So: the commercial predicament of Marks and Spencer was as follows.

The company had a popular, valuable and distinctive well-established product.

This was a product that took expense to make and also to promote.

The product was protected with registered trade marks for both its name and its packaging (as well as, no doubt, other intellectual property protections such as ‘passing-off’.)

The company faced competition from other stores with similar products.

Some of these rival chocolate caterpillars had similar names and packaging.

What was a company in that position do?

*

Here we come to the old distinction between having a legal claim and asserting it.

In essence: just because you have a legal right, it does not necessarily follow that it should be asserted or enforced.

And if a decision is made to assert and enforce a legal right, you have to think through the implications and reactions.

Some companies like Disney will know there is a negative reaction to their enforcement of legal rights – but in such cases the cost-benefit analysis is that the rights are too valuable to lose to the public domain.

And such a robust approach is common in industries where the commercial value is largely in intellectual property.

A cartoon mouse and a portable cabin are not especially complicated things – so what is bought, sold and licensed is often the intellectual property of thing, rather than the thing itself.

And much the same can be said of a long chocolate roll decorated with sweets and icing.

One can imagine how the commercial and legal teams at Marks and Spencer knew that competitors with products with similar names and packaging was creating a commercial and legal risk.

It may well be Cuthbert today, but tomorrow it could be Colvin, and before they knew it there would be Colin the Caterpillars everywhere in every store.

And Colin the Caterpillar’s registration renewal was coming up in 2028. 

What else could they do?

#SaveColin

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But.

They should have thought it through.

Presumably there had already been pre-action correspondence between the parties – it is rare for a company to issue a claim in the high court without setting out the case first in correspondence, and there are costs implications if a party does.

And presumably Aldi had denied the claim in correspondence.

Aldi thereby knew what was coming – and not only its commercial and legal departments, but also its media teams and external PR advisers.

Marks and Spencer do not appear to have issued a press release about the claim, but somehow, some way the media soon knew about the claim.

Perhaps this was because of a vigilant court watcher, or a tip-off from somebody, or even part of a media strategy: who knows.

But once the claim was issued at the high court, the dispute went from one set out in private and confidential correspondence between the parties – and into the public domain.

In essence: you lose control of the story.

And when the story is as media-friendly as about chocolate caterpillars called Colin and Cuthbert then there is a high probability that the media will become aware.

But from the news reporting it seems that Marks and Spencer have been caught unawares – while the Aldi press office is having a party with social media generally.

So the question has to be asked: was/is protecting the Colin the Caterpillar name and packaging worth it?

Unlike a cartoon mouse or a portable cabin, Colin the Caterpillar does not go to the heart of Marks and Spencer.

Had Aldi promoted an own-brand range of goods called, say, St Michelle then that would have been different.

And – and I defer here to trade mark lawyers – it may have been perfectly possible to renew the trade mark in 2028 even taking the (current) challenge of Cuthbert at its highest.

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A view had to be taken on the risk of litigation against the risk of not litigating.

As the Art of War showed (and that is still the best practical guide to civil litigation) being able to attack is not the same as it being a good idea to attack.

Here one can ask McDonalds about McLibel – or the British Chiropractic Association and its illiberal and misconceived claim against Simon Singh.

And if the decision is made to litigate then a claimant must be prepared for what can happen next – in terms of commercial and media matters, as well as at law.

This is not to say that people and companies should not assert and enforce their legal rights – indeed, that is what legal rights (and lawyers) exist for – but that the decision to do so is always distinct and separate from being able to do so.

**

Declaration: as the blogger ‘Jack of Kent’ I helped co-ordinate the defence campaign in British Chiropractic Association v Singh and I practise in media law as a solicitor, although not in respect of chocolate caterpillars or supermarket stores.

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Access to decision and policy-making is a right but not a privilege: David Cameron, lobbying, and regulation

13th April 2021

Let us start with one proposition, so as to see if it is sound or not.

The proposition is: that in a liberal democracy there should be no closed class of those who can seek to influence public policy.

Just as – in theory – any person can go to the lobby of the house of commons or write a letter to a member of parliament, any person can also attempt to speak to a minister or protest outside a ministerial office.

If this proposition is sound, then there is nothing, in principle, wrong with any person seeking to lobby any parliamentarian or minister.

And if that is a correct statement of principle, then it follows that the principle can be asserted by persons one disagrees with or disapproves of – including finance companies and former prime ministers.

Framed in this way there is a certain superficial plausibility to the contention that the former prime minister did nothing wrong in seeking to influence ministers about a company in which he had a personal interest.

Any wrongdoing would, it can be contended, be at the ‘supply-side’ of ministers and officials who wrongly were influenced by such lobbying, not the ‘demand side’ of the person seeking to obtain influence.

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Let us now look at rules.

As the estimable Dr Hannah White explains in this informative and helpful article, it would appear that the issue of Cameron’s lobbying is not about whether rules have been broken but that there appear to be no rules to be broken.

And so we have a gap.

https://twitter.com/davidallengreen/status/1381610539147726853

*

But.

There is something wrong.

It may be that there are no rules that have been engaged, still less broken.

And it may well be that one can (just about) aver that the general principle of openness means that any person from you to Cameron can seek to lobby a minister.

But it still seems wrong.

Yet a general sense of wrongness is not the same as effective regulation.

What can be done, if anything can be done?

*

Part of the problem is indeed with the ‘supply side’ – any approaches by any person, former prime ministers or otherwise, should be reported and logged, and those approaches must be spurned unless there is absolute transparency.

It is not enough that we have the ‘good chaps’ theory that, of course, no minister or official would be (wrongly) influenced.

The general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean such approaches should be cloaked – the quality of openness that attends the former carries over to the latter.

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Switching to the ‘demand side’ of seeking political or policy influence, the general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean that there has to be an ‘anything goes’ approach.

Just as everyone has the ‘right’ to dine at the Ritz – but it an empty right when one cannot afford it – a right to lobby those with power is an empty right if one does not have connections or the know-how about making such access effective.

Unless lobbying is regulated then there will be a natural tendency for those with money – such as a finance company – and those with the best connections – such as a former prime minister – to have far more effective access and influence than others.

This then undermines if not negates the rights of others, as influencing decision-making, rule-making and policy-making becomes the preserve of those with better connections.

It is the right of the privileged, but one masquerading as a a general right of openness.

Any company should have the right to make representations to the government – but only on the same terms as as any other company.

This would mean that it is the merits of the representation that makes a difference, rather than the extent of the access.

And any lobbyist – of whatever background –  should not have a greater right of access than any other lobbyist.

This means by implication that there are certain individuals – such as former ministers and former senior officials – who if they are to be permitted to approach their former colleagues, should only do so under the full glare provided by absolute openness and transparency, and in accordance with published procedures.

And if such absolute openness and transparency and procedural certainty is not feasible, then they should not be able to directly approach ministers and officials at all – even if it is in respect of their personal interest (as opposed to on behalf of a paying client, which is a gap Cameron was able to exploit).

They can write a letter to a member of parliament, or wave a placard on Whitehall, like anyone else.

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Do ‘Appeals for Calm’ work?

8th April 2021

Another evening of disturbances in Northern Ireland.

And so another round of ‘appeals for calm’.

Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.

But do such appeals actually work?

Does this – almost ritualistic – reflexive speech act ever have the intended effect?

And if so, how?

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A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.

As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.

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But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:

And from my home city of Birmingham:

https://twitter.com/ArghZombies/status/1379923278739992576

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So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.

But the ‘appeal for calm’ has another important function.

And this is that it will be significant when the expected speech act is not made by a particular individual.

Here we have an example from just three months ago:

Silence as a signal.

As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.

This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.

An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.

Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.

Words matter, but so does silence.

***

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Government communications – another departure from the notion of serving the public?

1st April 2021

There is controversy in the news today about central government communications

In particular, there is – correct – criticism that government press offices are generally unhelpful to those from the outside making the enquiries and too motivated by serving the political interests of the ministers of the day.

This, sadly, is nothing new – though it does appear to be getting worse.

This is, of course, a subjective and personal perspective – other commentators and journalists may have less frustrating – indeed happier – experiences.

But if the current criticisms – as affirmed by my own experience – are valid then the most likely explanation is akin to the view adopted by that police officer the other day.

You will recall the officer who insisted that the police were crown servants as distinct from public servants.

Press offices, ditto.

(Also freedom of information offices – but that is for another post.)

Government press officers seem to see their role as actively not providing information to the public and the press, but instead seeking to withhold information and misdirect media attention.

Unless a journalist has an already good relationship with a press officer, there is little or no point asking for anything useful from a press office.

This is why, for example, I prefer to work with public domain and open source information – and to spot connections and identify discrepancies.

Harder, slower work – but worthwhile.

This means I usually only go to government press offices in two situations.

First, if there is genuinely no other way I can obtain the information from public domain or open source material.

Second, if I need some specific thing verified (or rebutted) before publication – where I have worked that thing out by other means.

This approach means that there is little scope for a government press office to shape my writing and commentary – only to influence it, if at all, at the margins.

My approach here is not unique – and it is because government press offices are so adept at being (ahem) gatekeepers that they sometimes pay the price by not being involved in reports and commentary, other than perhaps to provide a statement or not.

Tight media management can only achieve so much.

This is not the only way government press officers are being avoided – as ministers and ministerial special advisers build up their own direct trusted relationships with political journalists.

And so government press offices – although they seem to be expanding in size – are also being squeezed in substance.

Employing more and more people to say less and less.

Government comms disappearing into a hole of its own creation.

And in the meantime, the notion of a government press office being there to serve and inform the public becomes a smaller and smaller speck in the law and policy sky.

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