Jonathan Coad

At the end of the Leveson Inquiry, at which only a small proportion of the serial institutional wrongdoing committed by the press was brought to light, the industry was presented with a straight choice. It could take account of the clearly expressed aspirations of the general public and its elected representatives and create a genuinely independent regulatory body compliant with the reasonable and moderate recommendations of Sir Brian Leveson.

Alternatively, it could continue to ignore the aspirations of the public and create a new regulatory body which lacked both independence and independent oversight; a fourth incarnation of press regulation which, in terms of building public confidence, was the equivalent of rearranging the deckchairs on the Titanic.

However hard Sir Alan Moses tries to obscure the fact, the press chose the latter; and he does the public interest no good by being a highly paid deckchair mover.

In Sir Alan’s speech to the Media Lawyers Resource Centre Conference [pdf] he claims that not all elements of the press were damned by the revelations of the Leveson Inquiry: “It is idle to say that the cruel and criminal behaviour of some should be laid at the door of all”. However this illegal activity was well known to hundreds within the press industry – probably thousands – as the subsequent revelations criminal trials now inform us. For many years no one in Fleet St. apparently thought it necessary to report it to the regulator or any other official body. When it was reported to the Press Complaints Commission they dismissed that activity as the work of one rogue journalist; a conclusion based merely on writing to the paper concerned and accepting the inevitable false assurance that they received in response.

The reason that a Nelsonian eye was directed by the then regulator at this wrongdoing was the press as a whole that had for years previously insisted, mendaciously, that the PCC was independent and would ensure compliance with ethical standards. The PCC however was never independent and so did nothing to expose the massive serial wrongdoing of the News International titles and (as we now know) the Mirror titles. There is no credible basis to claim that those were the only Fleet St. titles to have engaged in the illegal activity brought to light during the Leveson Inquiry – as Greg Miskiw has now confirmed. All of Fleet St, bar the courageous Guardian (and to a lesser extent the Independent), was however complicit in covering up its monumental abuse – even hacking each other.

Dealing with those who expose wrongdoing

In order to both to perpetuate and cover up its crimes Fleet St also has a particular methodology of dealing with those that defend its victims and expose its wrongdoing. Anyone who has risked the wrath of the press by representing its victims via the courts knows the manner in which it treats those who have the temerity to stand up to it. This is an organisation which routinely threatens, intimidates, victimises and lies about its critics. An institution that makes shrill demands that one of its most trenchant critics (Tom Watson) must apologise to individuals who the press say Mr Watson has wronged; and yet will maintain its omerta silence in the face of the appalling treatment meted out to Tulisa Contostavlos by News International which has never been acknowledged in the form of an apology. In Sir Alan Moses the press has found a kindred spirit who will criticise others for failings of which he is demonstrably guilty.

My experience of what it is like being the victim of press abuse is therefore by no means untypical. For example I fought a long battle against Associated Newspapers on behalf of a stalking victim whom that organisation treated with a cruelty and ferocity over a period of many months which rendered much of the activity on the part of News International exposed by the Leveson Inquiry as tame. The woman pleaded with the Daily Mail (in my hearing) not to publish the story of her experiences as stalking victim because she was petrified that the stalker would avenge himself on her and her elderly parents. When her pleas fell on deaf ears I sought an injunction against the paper, and there followed litigation in which the Daily Mail’s tactics included both trying to introduce the violent stalker (who had beaten his female victim senseless) into the litigation, and brow-beating a medical expert over a period of months into changing his evidence. Associated Newspapers then tried to wreak vengeance on me for standing up for that victim both of abuse from a stalker and the Daily Mail’s hubris by seeking a “wasted costs” order against me which would have bankrupted me and ended my career – an application which was thrown out by the first judge to adjudicate it with an indemnity costs order against the paper.

By way of a second example; News International, whom I had irritated in my capacity as one of Tulisa’s champions against them, breached PCC confidentiality rules by sending my PCC correspondence on her behalf to a third party against whom I was litigating on Tulisa’s behalf, mounted a complaint against me to the Solicitors Regulation Authority, then threatened to judicially review any exoneration of me by the SRA – which complete exoneration inevitably followed.

Needless to say I have never received an apology from either Associated Newspapers or News UK (as it is now styled). News UK and Associated Newspapers are the primary architects of IPSO and demand the right to regulate themselves – a demand which Sir Alan clearly endorses.

Double Standards and Lack of Independence

I know from personal experience that the complaints made by Sir Alan Moses about the tonality of IPSO critics comprise breath-taking hypocrisy. I sat in his office, a model of courtesy though in great earnest in raising inconvenient truths both to him and his Chief Executive on behalf of victims of press abuse for whom I had acted, only for him to indulge in a fit of pique at my concern at being told that the IPSO Commissioners were not interested in what I had to say on my clients’ behalf. He then oversaw his Chief Executive frogmarching me out of his office. He nonetheless has the temerity to say this; “The press has not hitherto believed that it is in their interest tobelong to a regulator assessed by a body appointed to administer the Charter requirements for recognition, and the vituperation and the anger which that failure has engendered is hardly likely to persuade them to do so”. Nor did his vituperation and anger persuade me that Sir Alan is anything other than a gross and culpable hindrance to effective press regulation.

It is difficult therefore to take seriously anyone who will accuse opponents in a public speech of the sort of wrongdoing of which he is a prime culprit. That commitment to double standards however appears to pervade his chairmanship of IPSO. He is an ex-Lord Justice of Appeal; a job which presumably he took on because he recognised that any effective tribunal system needs an independent means of appeal against aberrant first instance judgments. Despite this, and despite the fact that he must presumably have read the founding regulations of IPSO which bans any such a fundamental safeguard, he advocates support for an organisation whose fundamental institutional flaws such as a lack of a substantive appeal are not a product of mere chance but rather of the press’s controlling hand over IPSO.

Sir Alan later says of his ex-colleagues in the Court of Appeal that “no former colleagues should begin to criticise the conscientious work of analysis, the pithy and decisive Judgments speedily delivered by former colleagues”. Nobody could possibly characterise Sir Alan’s IPSO speeches as either “pithy” or “decisive”. Sir Alan officiates over a quasi-legal regulatory system which forbids any substantive appeal process while praising the work of the Court of Appeal. As to not criticising former colleagues, he pejoratively and sarcastically refers to Sir Brian Leveson as “the blessed Brian”.

Sir Alan then makes this further claim about IPSO; “I (and that organisation) make decisions and act independently free from the control of those who decided that it was in their own interests to create such a body”. He repeats this dismal propaganda in this sentence; “No-one tells us how we should reach our decisions or what those decisions should be”.

These claims of independence are untrue for a number of reasons. Firstly (and I am grateful to Matt Tee for drawing this to my attention); IPSO is not free to make decisions and act independently because its founding regulations prevent Sir Alan from creating for IPSO an appeal safeguard which he presumably would regard as essential to the genuinely independent system of regulation for which he previously worked. Secondly Sir Alan appears to have forgotten when making this statement that his independence is delimited by the terms of the PCC Code which IPSO administers, which was written exclusively by the press and which he has no power to alter.

Shortly after those demonstrable untruths comes another; “For the first time ever, a Regulator has a legally enforceable power to rule on breaches of the Editors’ Code and compel a publication to publish a correction in the terms IPSO dictates”. As Sir Alan must know, the terms of the correction are not drafted by IPSO at all. It is invariably drafted by the newspaper in a way that best suits the purposes of the newspaper and least accords with the interests of the general public or the complainant.

Creation of IPSO and failures to listen

In describing the birth of IPSO Sir Alan says this; “The creation of…IPSO, was the product of the Press’s belief at the time of Leveson…that it was in their own interests to establish such a body.” This is a disingenuous attempt by Sir Alan to distinguish the circumstances of the creation of IPSO from those of its predecessor in his efforts to mischaracterise IPSO as regulator untainted by the repeated failures of the press to create one that was fair and effective. The PCC was created at a time when the press perceived it to be in its best interests to feign some form of effective independent regulation because of the threat of statutory regulation created by the emergence of its gross wrongdoing. The circumstances in which IPSO was created are identical.

Sir Alan feigns deference to those who are victims of press abuse by saying this; “I started as the first Chairman of IPSO by attempting to listen and learn from those who had suffered press abuse”. He cannot have listened too intently to them or he would not now be ignoring their aspirations by heading up a non-Leveson compliant regulator – directly contrary to their wishes.

However those were not the people from whom he was going to learn anything of value about the failings of IPSO’s predecessor – important though it was that he did hear from the victims of both press abuse and the failure of the PCC to curtail it. He needed to learn from people who had actual experience of dealing with the PCC’s complaints process and who therefore knew why it had failed. His reaction to my recounting my experiences of dealing with the PCC was however firstly to deny their relevance and then bring the communication to him of such inconvenient truths to an abrupt halt by ejecting me from his office.

IPSO and Public Opinion

However perhaps the most offensive elements of his speech were his regular allusions to public opinion feigning respect for the aspirations of the public for a press regulator. Early in his speech Sir Alan said that one of his difficulties is “because people want so many different things from their press”. “…And as for the public, they will assert that they want to be informed by a reliable source – but they too want their preconceptions to be reinforced,…” He later went into some length about the difficulty in identifying the proper objectives of the press regulator and accusing the public of exhibiting “a traditional but persistent ambivalence”. He goes on to describe a further difficulty being; “in the uncomfortable reality that the public appears to abhor the method used but approves of the outcome”. He later says; “I doubt whether one can measure success [for IPSO] by opinion polling”.

As the blessed Alan (whose powers appear to include a divine understanding of what the public want and do not want akin to that of the press itself) would learn from all the polling which has been conducted – a methodology much favoured by the press itself on most other issues; the public wants a Leveson-compliant Press Regulator, and they want corrections and apologies to be published with no less prominence than the offending article. Sir Alan has however added his own two fingers to that of the press to public opinion – and to the victims of press abuse he had met with.

The reason why the PCC was able to perpetuate its destructive existence throughout the known period of phone hacking was that titled individuals who should have known better were prepared to do the press’s bidding by trotting out disingenuous propaganda on its behalf. Sir Christopher Meyer (then chairman of the PCC) appeared before the Cultural, Media & Sport Committee, and told it vehemently that corrections should be at least as prominent as the offending article. The practice of the PCC however under his Chairmanship was precisely the reverse. Baroness Buscombe (Sir Christopher’s successor) both libelled and had to pay substantial damages to one of those who had the temerity to suggest that the industry which she regulated was guilty of serial wrongdoing. Sir Alan has used this speech both to create the completely misleading impression about the work and legitimacy of IPSO, and hypocritically attack its critics.

This is despite the fact that he met some victims of press abuse, and must have known that his predecessors (such as Sir Christopher Meyer and Baroness Buscombe) had been complicit in the cynical abuse suffered by these individuals because rather than performing a true public service and exposing the PCC for what it was, they colluded with the press in characterising the PCC as what it was not; an effective and independent regulatory body. They thereby secured the PCC a much longer life than it should have had; and so added substantially to the casualty list of press victims.

Conclusion

So it will be that a new generation of victims of press abuse will emerge for whom Sir Alan is responsible; just as Sir Christopher Meyer and Baroness Buscombe bore their part of the responsibility for the experiences of those who gave evidence at the Leveson enquiry. This will also be true of the worthy but apparently myopic members of the IPSO Board, as it was the PCC Commissioners. Their apparent indifference to the plight of press abuse victims emerges from the fact that they have not even taken the trouble to meet any of them (at least so far as I know), and nor have they met any of those that acted for them in PCC complaints and who could teach them why the PCC failed as ISPO’s predecessor. Yet they rub shoulders with representatives of the body that callously inflicted such misery on them such as Mirror Group Newspapers and News UK and doubtless freely imbibe the well-rehearsed self-justification for IPSO’s counter public opinion existence. It is therefore perhaps unsurprising that Matt Tee told me that the members of the Board were not interested in what I had to say; presumably because I was one of those who had represented those victims and were going to tell them things they did not want to hear.

One of the victims of failure of the PCC that I represented – and one of thousands whose story was not told to “the blessed Brian” – was so distressed by the intrusion in breach of the PCC Code that he suffered from one national newspaper (The Mirror) that he made a determined but mercifully unsuccessful attempt to take his own life. While he was in hospital unaware if he would live or die the story of his attempted suicide was then sold to another national newspaper (The Sun) by a police officer, and he learned while in intensive care that the Sun was going to publish the story the following day. These were the consequences of the wrongdoing not only of the press, but its highly paid apologists, such as Sir Christopher Meyer and Baroness Buscombe. Let us hope that there is no victim of Sir Alan’s misguided leadership of the PCC’s successor that makes a successful suicide bid.

Jonathan Coad is a partner in the Media Brands and Technology Group at Lewis Silkin LLP and acts for both Claimants and Defendants.

This is re-posted with the kind permission of Inforrm where it first appeared.