Wednesday, July 18, 2018

Appealing ?

Sir George Anthony Mann - better known in court as Mr Justice Mann - has made it very difficult for the BBC to appeal against the decision he's handed down against them (and South Yorkshire Police) in the case brought by Sir Cliff Richard.

The BBC's Director of News, Fran Unsworth, says the judgement, in what was a civil case, 'effectively makes it unlawful that anyone under investigation can be named, unless the police do so'. 

I think the judge is being more ring-savvy than that. He explicitly says he is not making new case law, but applying a balance between Section 8 of the European Convention on Human Rights (incorporated into UK law) which talks about privacy rights, and Section 10, which protects freedom of expression, whether or not founded on public interest. In the case of Sir Cliff, he found there was no public interest in knowing it was Sir Cliff's flat that was being searched, except to 'gossip-mongers'.  He's not making publication of the names of those under investigation 'unlawful'; his decision means that hacks wishing to name individuals will have to produce a public interest defence, if they get sued.

In his full judgement, he found that the BBC asserted it was in the public interest to name him, but didn't really make a strong case to support it, or tie the decision to name Sir Cliff back to their own editorial guidelines.

His judgement makes several references to precedents in Gulati v MGN, when a certain Mr Justice Mann awarded punitive damages to a number of celebrities whose phones had been hacked at the behest of Mirror Group papers. Among the celebs - Alan Yentob. 

Listings

Those who thought Mr Justice Mann called it wrong (so far)

Tony Gallagher (Editor of The Sun)
The Society of Editors
The BBC's 'legendary' World Affairs Editor John Simpson
The Guardian
The Guardian's Roy Greenslade
The Voice of The Mirror

Those who think Mr Justice Mann might be right or wrong

Roger Mosey, Master of Selwyn College, and former BBC Editorial Director

Those who think Mr Justice Mann is right

Richard Bacon, recovering TV presenter
Steve Richards, former BBC Political Correspondent
Former BBC Chairman Lord Patten
LBC's Iain Dale
Janet Street-Porter

More updates as we get them....

See-saw

Mr Justice Mann's balancing act.

"I have come to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression. This is an overall evaluative exercise which is not a precise scientific measuring one.....

"Last under this head I deal with a very broad point raised by Mr [Gavin] Millar[BBC QC]. He submitted that the case against the BBC raised “issues of great, arguably of constitutional, importance for the freedom of the press in this country.” If Sir Cliff’s claim were successful it would undermine the long-standing press-freedom to report the truth about police investigations (respecting the presumption of innocence), and if that freedom is undermined then that should be a matter for Parliament and not the courts.

"I think that Mr Millar may have been overstating the constitutional importance of this case a bit. I agree that the case is capable of having a significant impact on press reporting, but not to a degree which requires legislative, and not merely judicial, authority. The fact is that there is legislative authority restraining the press in the form of the Human Rights Act, and that is what the courts apply in this area. That Act will have had an effect on press reporting before this case because of Article 8, and the balancing exercise between Articles 8 and 10 is done by the courts under and pursuant to the legislation. The exercise that I have carried out in this case is the same exercise as has to be carried out in other, albeit less dramatic, cases. If the position of the press is now different from that which it has been in the past, that is because of the Human Rights Act, and not because of some court-created principle."

On the £190k general damages: "I have borne in mind that awards of damages are not to be such as to have a chilling effect on the right of freedom of expression. I do not consider that an award of that amount should have a chilling effect of the kind which is to be avoided. A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose. I do not consider that it requires any modification on the footing that such figures would have a chilling effect on the exercise of a newspaper’s right of freedom of expression. It is not an excessive figure; there is no punitive element; it is a genuine compensatory figure; the reason that the story existed as a story was because information was acquired in breach of a right of privacy in the first place, and then confirmed by less than straightforward means by the BBC’s reporter; and it was entirely the decision of the BBC to present the story at all, and then to present it as it did. One of the main motivations of the BBC was the excitement of its scoop. None of that requires any modification of damages otherwise properly payable to Sir Cliff on the basis that responsible journalism would be disincentivised (chilled). "

On the extra £20k: "The submission of the broadcast for an award (which it did not win) does properly fall for separate treatment. It is quite understandable that a broadcasting organisation which first infringes privacy in this way, and then promotes its own infringing activity in a way which demonstrates that it is extremely proud of it, should cause additional distress (which it did), both by demonstrating its pride and unrepentance and to a degree repeating the invasion of privacy with a metaphorical fanfare. Ms Unsworth expressed the view that it was not a good idea to have submitted the broadcast, and she was right about that (she was not asked for her views at the time), and I think it right that this very unfortunate event should be treated as aggravating the damage caused (which it did). It should attract a claim for aggravated damages which I treat separately and in respect of which I award an additional £20,000."

Invasion of privacy 'in a big way'

Mr Justice Mann really didn't like the coverage of the South Yorkshire Police raid on Sir Cliff's apartment in Sunningdale....

"The coldly stated facts of the content and form of the broadcasts appear in the narrative set out in this judgment. That narrative does not really do justice to the quality of the broadcasts. They were, as I have said, presented with a significant degree of breathless sensationalism. The story was the main point in the news - there was nothing wrong with that in itself, but it did lend a certain urgency to the report. In some broadcasts it was accompanied by a ticker running across the bottom of the screen emphasising the story and maintaining its presence throughout the bulletin. Mr [Dan] Johnson, and in some broadcasts another journalist, were broadcasting from outside the property. There was an attempt to lend drama to the broadcast by showing cars entering the property, and the helicopter shots added more, somewhat false, drama. In evidence there was an attempt by Mr [Gary] Smith to justify the use of the helicopter as providing evidence as to what was going on inside, as if some form of verification was necessary or appropriate. I find that that was a spurious justification. The helicopter shots did not verify or evidence anything particularly useful or controversial that needed evidencing. They were moving pictures of the property, of seven or eight people in plain clothes walking to a building, the same people walking back to their cars and fuzzy shots of two or three people in Sir Cliff’s flat. It may have made for more entertaining and attention-grabbing journalism. It may be justifiable or explicable on the footing that TV is a visual medium and pictures are part of what it does. It did not, however, add any particularly useful information. Mr [Jonathan] Munro also referred to the helicopter shots as being justifiable on the basis that it enabled the public to see a police operation going on, in relation to which there was a genuine public interest. That is more of a justification, but I still consider that the main purpose of utilising the helicopter was to add sensationalism and emphasis to the scoop of which the BBC was so proud. The BBC viewed this as a big story, and presented it in a big way. This was also manifested in other aspects of the coverage - the coverage from Portugal, pointless though it turned out to be, lent an urgency to the presentation of the story.

"In short, and insofar as it is relevant under this head, the BBC went in for an invasion of Sir Cliff’s privacy rights in a big way."

Naming

Mr Justice Mann's judgement in Sir Cliff v The BBC quickly ditches the BBC claim that the public had a right to know whose flat was being searched.

"It does not follow that, because an investigation at a general level was a matter of public interest, the identity of the subject of the investigation also attracted that characterisation. I do not think that it did. Knowing that Sir Cliff was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area. It was known that investigations were made and prosecutions brought. I do not think that knowledge of the identity of the subject of the investigation was a material legitimate addition to the stock of public knowledge for these purposes."

Chopper issues

Mr Justice Mann's judgement in finding for Sir Cliff Richard v The BBC, on the helicopter shots of police searching his Sunningdale apartment:

"I consider that the filming into Sir Cliff’s flat was an infringement of his English law privacy rights but I do not propose to dwell on it because in the context of the reporting itself and the disclosure of his investigation and the search it is rather overwhelmed in its significance in this action. It adds to what I find to be the somewhat sensationalist nature of the coverage, and that is its main significance. It is unnecessary to accord it any further separate treatment.

"Mr Rushbrooke (Sir Cliff's QC) made much (at least in cross-examination) of an assertion that the helicopter trespassed in relation to the property when it flew and did its filming. I find that there was no trespass by the helicopter vis-à-vis Sir Cliff. Sir Cliff did not (as far as I know) own the freehold of any part of the property, and without the freehold I do not see that he had any possessory rights that could be infringed by overflying. I assume that he held his apartment via a lease and not with the benefit of the freehold, so it is unlikely that he had any rights to the airspace above it which could found a claim in trespass. If there was a claim in trespass it would add nothing material to the privacy claims in any event; and it is not pleaded. The alleged claim was used to challenge BBC witnesses as to their cavalier approach to the question of the correctness of the overflying, but not surprisingly they were not in a position to say anything about the law of trespass in that context. Even if Sir Cliff owned a potentially relevant land interest, and even if the helicopter over-flew that land, it is not clear to me that the current state of the law of trespass by over-flying would entitle him to make a claim. I do not think that trespass adds anything to this claim."

The email

Mr Justice Mann's full judgement in the Sir Cliff v The BBC attaches "significance" to a private email written by BBC UK News Editor Gary Smith to BBC North of England bureau boss Declan Wilson and Entertainment News Editor Matthew Shaw the weekend after the police raid.

"Thursday and Friday were very full on with Cliff. Fantastic world exclusive from Dan. But… there are some issues about exactly how his relationship with SYP developed. Things got VERY heated on Thursday evening when they took exception to a Danny Shaw 1800 piece (that arse [individual named] mixing it as ever) which accused them of seeking maximum publicity, and said they'd have to answer for their actions. (a piece partly motivated by Danny's continuing bitterness about not being allowed by his bosses to be first to name Rolf Harris, but that's another story). In a series of angry conversations with Matthew [Shaw] on Thursday evening SYP ended up accusing Dan of blackmail. (Yes they used the word blackmail). They said he came to them with loads of detail on their investigation and they felt their only course of action to protect their enquiry was to cooperate totally with him. This suggests to me extreme naivete on their part. But it also suggests (and Dan doesn't entirely deny this) a rather heavy-handed approach by him. He seems to have been nailing them to a wall, saying if they didn't give him a guarantee of an exclusive tip off on the search operation, he’d broadcast a story in advance. (Which of course we would never have done). One part of me is hugely impressed with his tactics. But it wouldn't look pretty if it came out – and it nearly did yesterday.

Anyway, the point of this long email is to warn you that Dan's had both a very successful and very bruising time, and we will need to talk to him further about his part in the bigger BBC. He just didn't get that – annoying and strange as it might be – BBC News has to report on itself in stories like this. And we'll need to talk through with him what's okay and what's not in getting exclusives.

I suggest we take him out for dinner on our Thursday night in Newcastle at the end of September. Either that or lunch on the friday.

In the short term, it's worth you repeating to him the message I tried to hammer home on thursday and friday – he should talk to nobody (apart from us) inside or outside the BBC about the genesis of this story.

There may be fallout this coming week (e.g. if cliff richard directly accuses the BBC of invading his privacy which he hasn't done yet.) So Dan may be called on by fran (who knows about some but not all of this) to explain the sequence of events. If this happens, he'll need a lot of guidance and support.…"

Any help with [individual named] much appreciated !

Evaluating the witnesses

From the full judgement of Mr Justice Mann, in Sir Cliff Richard v The BBC...

"Sir Cliff gave evidence of how it was that he came to hear of the search of his property and the police investigation, and the effect that the events of this case had on him. He was a compelling witness, and was not accused of any exaggeration. I accept his evidence in full."

On the evidence of Carrie Goodwin, head of Corporate Communications at South Yorkshire Police: "I am satisfied that she was a careful and reliable witness, and an honest one. It is necessary to make that last point because part of the case of the BBC involves allegations that she fabricated notes of meetings and conspired to present a false story to the world when SYP and the BBC came under criticism after the search. Based on my impression of her in the witness box, the probabilities and the rest of the evidence, I find that she was not guilty of such dishonesty."

On BBC reporter Dan Johnson: "Mr Johnson was the reporter whose investigations started the whole ball rolling in this case, so his evidence was central to the BBC’s case. He was, at the time, a relatively junior member of the news gathering team, covering the north of England, though he was not without experience. He was, like any responsible reporter, anxious to get knowledge of, and become involved in, big stories, and in my view was anxious to make a bit of a name for himself by getting this story and bringing it home. I do not believe that he is a fundamentally dishonest man, but he was capable of letting his enthusiasm get the better of him in pursuit of what he thought was a good story so that he could twist matters in a way that could be described as dishonest in order to pursue his story. Thus in the present case, as will appear, he was happy for SYP to be under the false impression that he had a story to broadcast and was in a position to broadcast it when that was not true; and he was also prepared to give another false impression to Miss Goodwin, again, as will appear below. That sort of attitude has caused me to consider more carefully than I would have wished his evidence in respect of the main issues in this case on which he gave evidence. In saying that I am in no way characterising him as a generally dishonest man. I am sure he is not. It is just, to repeat myself, that I considered he was capable of letting his enthusiasm for his story get the better of his complete regard for truth on occasions."

On BBC News' North of England bureau chief Declan Wilson: "Mr Wilson was in effect Mr Johnson’s superior at the BBC, being the then manager running the BBC’s North of England Bureau. He gave evidence of how it was that Mr Johnson originally came to him with the story, what he was told about what Mr Johnson had been told, what he passed on to his superior (Mr Gary Smith) and (principally in cross-examination) what passed between him and Mr Johnson after the 14th August when he saw Mr Johnson on his (Mr Wilson’s) return from holiday. I found various aspects of his evidence unsatisfactory, which is significant in this case because his evidence as to what Mr Johnson told him about how he dealt with his informant and SYP would, if accepted, be important corroboration of Mr Johnson’s important primary evidence on those points. Mr Wilson’s evidence of his post-search conversation was particularly unsatisfactory. The totality of his evidence needs to be approached with caution."

On Gary Smith, at the time BBC UK News Editor - now Head of News and Current Affairs, BBC Scotland: "Mr Smith was the BBC’s UK News Editor. In terms of the command structure, Mr Wilson reported to Mr Smith. Mr Smith received news of the story from Mr Wilson and made arrangements for background research to start. He was responsible for keeping the story alive within the BBC, and in due course briefed Ms Unsworth (see below) about the possible police search. He remained closely in touch with the pursuit and development of the story, arranging for a helicopter to be put up to cover the search, and participated in the final decision to broadcast and name Sir Cliff in the broadcast. He was, in my view, one of the employees of the BBC who became very concerned (I am tempted to use the word “obsessed”) with the merits of scooping their news rivals and that probably affected some of his judgment at the time, and gave rise to a certain defensiveness in relation to his later conduct (in particular his participation in internal BBC email traffic after the search). I consider that Mr Smith was unduly defensive, and to a degree evasive, in much of his evidence, particularly in relation to post-search email traffic. That was probably to try to defend the BBC’s position on what happened at the July 14th meeting, because some of that traffic was significantly inconsistent with the BBC’s case. I regret that I felt I could not always rely on him as a reliable witness.

On Jonathan Munro: "Mr Munro was Head of Newsgathering at the BBC at the time in question. He reported to the Director of News, Mr James Harding whose deputy Ms Unsworth was. Gary Smith reported to him. He first knew of the story when it was “red flagged” internally on or about 31st July, but had little involvement until after the search. He did not take any part in the decision to broadcast and most of his evidence concerned the aftermath. I thought he was a thoughtful man and a thoughtful witness, although he was overly guarded when the content of certain parts of the BBC’s Defence (on which he signed the statement of truth) were compared with his emails, almost wilfully failing to acknowledge inconsistencies and refusing to acknowledge the plain effect of some of the emails in the case. "

On Fran Unsworth, at the time Deputy Director of News, who made the decision to go ahead with the broadcast: "I considered Ms Unsworth to be a careful, thoughtful and conscientious witness. In my view she was honest in all that she said in the witness box. There is one respect in which I do not accept her evidence, a respect which I consider to be tinged with wishful thinking and a bit of ex post facto convenient rationalisation, but that does not detract from her honesty. Mr Rushbrooke criticised her for poor recollection of detail in several respects, but I do not consider her failure to recollect some details such as timing to be at all surprising or to reflect on the more positive evidence that she did give. Her evidence was straightforward. Her acts and thinking on the day, like the acts and views of others, were affected by the desire to protect the scoop, though perhaps less than others."

On using the helicopter shared with ITN to hover over Sir Cliff's apartment, without telling ITN the story as usually obliged: "Mr Rushbrooke (for Sir Cliff) described the BBC’s conduct in this respect as “disgraceful”. I do not think that I need to apply that label, but it was hardly commendable."

Justice says....

From Mr Justice Mann's judgement against the BBC in the privacy case brought by Sir Cliff Richard.

First, he takes the South Yorkshire Police view of how the information about the search was obtained by the BBC: "I have found that SYP did not merely volunteer the material for its own purposes; it provided it because of a concern that if it did not do so there would be a prior publication by the BBC, a concern known to and probably fostered by the BBC’s reporter, Mr Dan Johnson."

"So far as the main claim in this case is concerned, I find that Sir Cliff had privacy rights in respect of the police investigation and that the BBC infringed those rights without a legal justification. It did so in a serious way and also in a somewhat sensationalist way. I have rejected the BBC’s case that it was justified in reporting as it did under its rights to freedom of expression and freedom of the press."

Mr Justice Mann has awarded £190,000 to Sir Cliff in general damages, whilst rejecting most of the singer's claims for aggravated damages. "The exception is the claim arising out of the BBC’s nominating its story for an award at the Royal Television Society Awards as the “Scoop of the Year” (which, incidentally, it did not win). I have found that that merits aggravated damages which I have assessed at £20,000. Thus Sir Cliff recovers £210,000 by way of general damages."

And on the split of liability between the BBC and South Yorkshire Police, the BBC comes off worse, having to pay 65% of damages where the responsibility is shared.


Decision day

The BBC legal team, led by QC Gavin Millar of Matrix Chambers, has taken a bloody nose from Mr Justice Mann, losing in the privacy case brought by Sir Cliff Richard.

The BBC must to decide whether or not to appeal (and risk a level of public opprobrium), or find an appropriate level of resignations. Scary times.

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