The gagging of justice
Published by The Mail on Sunday (6th November, 2016)
A ‘very wealthy’ businessman has won a legal injunction to stop The Mail on Sunday from revealing that he is under investigation for possible involvement in serious financial crime.
The man, who can now be identified only by the fake initials ERY, was questioned by police under caution.
The company he works for, which was said in court to offer services to the public, was in business with a second firm that was raided by a large force of police who made a number of arrests.
Both company offices were raided and the police operations reported in both local and national press. But ERY has been able to convince a judge his rights to privacy outweigh this newspaper’s rights to report on a matter of significant public interest.
The suppression of reporting was ordered originally in an interim injunction made by a judge on the telephone just minutes before the newspaper went to press three weeks ago. It was upheld in the High Court on Friday by Mr Justice Nicol.
ERY was represented in court by barrister David Sherborne, whose celebrity client list includes Hugh Grant, Kate Moss and both Cherie and Tony Blair.
Mr Sherborne has been known to claim fees of up to £10,000 for just a few hour’s work to obtain a temporary injunction. ERY’s total claimed costs in this case are estimated at up to £80,000.
Mr Sherborne told the court his client had rights to privacy under Article 8 of the European Convention on Human Rights. He said ERY’s nursery school-aged child might be damaged by bad publicity about their father and that ERY himself had health issues that could be made worse if the story was printed.
The full text of the anonymised judgment is published on the website of Mr Sherborne’s legal chambers, 5RB, which also promoted the result on social media.
This newspaper’s lawyer, Andrew Caldecott QC, said the newspaper had offered not to mention the interview under caution but argued more generally there was a public interest in knowing the police were investigating financial crime in the industry in which the company trades.
Mr Caldecott also argued that ERY’s application was concerned to protect his reputation rather than his privacy. But the judge ruled that the law did not support the newspaper’s arguments. His judgment noted that officers from a police force outside London had searched the premises of both companies. The raids were reported locally.
A further article said the arrests had been on suspicion of financial crime and the investigation was supported by the National Crime Agency.
ERY’s public relations representative provided a statement for the press. The Times newspaper and Mailonline published further articles.
Then a Mail on Sunday reporter learned that ERY had been invited to a police station for interview ‘under caution’.
The businessman had attended with his lawyer David McCluskey, a partner at solicitors Taylor Wessing. They were taken to a waiting room out of public sight and then to the interview room, where the voluntary interview took place.
ERY was told he was not under arrest, could leave at any time and that his attendance would be kept confidential.
On October 15 the paper contacted ERY’s public relations man to check facts and invite comment. ERY immediately instructed another firm of lawyers, Lee and Thompson.
A hearing by telephone conference call was arranged that evening and Mr Justice Dove granted the temporary injunction just minutes before the paper went to press.
The case has damaging repercussions for investigative journalism. It places protection of the rich and powerful over a long-held British tradition that the public has a right to know about people being investigated or questioned over serious crimes.
There have been scores of cases in the past, including probes into historic sex offences, in which similar reports published in the press have aided police inquiries by encouraging more witnesses to come forward.
The judgment was questioned last night by Richard Drax, Tory MP and former television journalist. He said: ‘I am very uneasy at what appears to be increasing use of courts to curb the press. I’m concerned at use of the law to stop the press from reporting what is accurate and fair.
‘Clearly the better off are better able to defend themselves in this way.’
This latest alarming restriction on press freedom follows a series of cases in which rich, famous and powerful figures have used privacy arguments to avoid stories from harming their reputations.
It comes just days after many MPs backed a controversial attempt supported by lobbyists to force newspapers to accept imposition of a new state-approved regulator with potentially ruinous powers.
The case illustrates the tightening of restrictions on media rights to inform the public about serious police investigations and to expose misdemeanours, and shows the courts’ current approach to privacy rights. Sherborne, who specialises in privacy cases, also helped Max Mosley in his action against the News Of The World after the now-defunct paper revealed that he took part in sado-masochist orgies.
Mosley has become a ferocious anti-press campaigner who seeks to muzzle newspapers.
His family trust has given millions of pounds to help fund a new press watchdog called Impress, which has just been sanctioned by a government quango called the Press Recognition Panel. Many politicians, of course, have reason to dislike the press, from the revelations over their appalling abuse of expenses to more personal run-ins with newspapers.
So it was unsurprising to see many Labour and Tory MPs back the idea of imposing tough penalties on papers refusing to join this politically-motivated body during a debate last week in parliament.
A ten-week consultation period has just begun over these alarming new proposals that threaten to shackle British newspaper journalism. Under possible legislation, even newspapers not agreeing to join the regime would have to pay costs of both sides following a complaint, regardless of whether the objection is rejected or not.
Tim Crook, professor in media and communications at Goldsmiths University of London, said publishers faced being ‘bullied’ under threat of punitive damages to ‘submit to state sponsored regulation that is effectively bankrolled by Max Mosley’.
Supporters of a free press, unshackled by politicians, argue that its core principles are far too precious to be jettisoned over a few bruised egos and red- faced stars.
Tom Tugendhat, Tory MP for Tonbridge and Malling, said: ‘Freedom of the press is essential for a functioning democracy because it holds the powerful to account.’
Yet once again we see the law restricting the right of newspapers – in this case The Mail on Sunday – to publish something clearly in the public interest.