Tuesday, July 17, 2018

The Law is an Ass

by Anastasia (writer), London, June 07, 2011

Credit: Leslie Ward.
Joseph William Chitty, a nineteenth century English judge

Have you heard of super-injunctions? It's the law that dare not speak its name. :-)

I imagine just about all of the people who read BrooWaha believe in free speech and a free press, just as they believe in the right of individuals to protect their privacy. But what happens when the two things come into conflict, when the public’s right to know stands against an individual’s desire to prevent it from knowing? Well, in England if you are rich enough, famous enough and influential enough you can apply to the courts for something called a ‘super-injunction.’

Perhaps some of you who are not English have heard of these infamous legal devices? If so it’s likely to be as a result of the attempt by Ryan Giggs, a footballer who plays for Manchester United, to prevent the press reporting that he was having an extra-marital affair. A super-injunction not only stops the press from reporting, it prevents it from reporting that it has been prevented. In other words it’s a gagging order of the most complete kind.

In the case of Giggs the whole thing was blown open by the anarchy of Twitter, where thousands of people, beyond the reach of the English courts, were happily revealing the identity of the offender, making a mockery of him and an ass of the law. In resorting to a super-injunction Giggs amplified a not very important story out of all proportion, one that otherwise would have come and gone in a matter of days. Now it has merged into a much wider debate over the nature of privacy and freedom.

Personally I could not care less about the sexual exploits of Giggs or any other celebrity where there is no public interest element involved, where it’s all so much ephemera and tittle-tattle. But the super-injunction is a blunt weapon that can be used, and has been used, to cast a blanket of night and fog over matters of genuine public interest, in a way that is not compatible with a free press and a free society.

There was an infamous case a few years ago concerning a company called Trafigura, which deliberately dumped toxic waste off the Ivory Coast in Africa. Thousands of local people were effected, a number dying in consequence of the resulting pollution. The company originally claimed that the waste was non-toxic, knowing full-well that it was. Eventually, after much stalling, it agreed to pay compensation to over thirty-one thousand people.

Prior to this, in an attempt at news management, the company employed Carter-Ruck, a London legal firm specialising in the law of liable. To prevent the Guardian newspaper publishing details, the lawyers applied for and were granted one of these super-injunctions, the law not being done or seen to be done, but the law in secret preventing the reporting of a secret. Lost? Yes, I understand; not even Franz Kafka could make this up.

Carter-Ruck also turned its guns on Private Eye, a satirical magazine published in London, in a similar attempt at gagging. That’s when the whole things started to become more than ridiculous, gagging orders followed by farcical threats, even so far as Parliament. Ever since Private Eye has been engaged in its own guerrilla war with Carter-Ruck, calling them…well, I don’t think I need to say, do I?

The whole thing is such a mess, this conflict of human rights and public rights, that even David Cameron, the British Prime Minister, has said that the position is “unsustainable.” British judges, never known for their public sensitivity, are now more isolated and out of touch than ever, looking increasingly foolish in their high-handed interpretation of the law, in their willingness to stop the flow of information. Now Parliament itself is looking into the mess of English privacy laws, which can be used and abused in such a cavalier fashion.

About the Writer

Anastasia is a writer for BrooWaha. For more information, visit the writer's website.
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6 comments on The Law is an Ass

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By TonyBerkman on June 07, 2011 at 11:44 pm

Fun read and a fascinating topic. I'm curious what does it take to get a super-injunction in England or does it come down to getting great legal representation?

In the USA everyone is supposedly given the right to a fair trial and the right to legal representation. That's not the case in the UK is it? If not how does the ordinary man afford legal representation as hiring a barrister from what I remember is not an inexpensive affair.

In reality the system in the U.S., assuming if what I said above is true, is no different as the difference between the quality and influence of an expensive top trial lawyer and a public defender is the difference between having legal representation and in most cases simply being able to claim that you have legal representation. My guess is that most people would do better in the US if they represented them selves. Is this another distinction between the 2 legal systems. i.e. in the UK you are required to have a barrister who cannot practice in front of the Judge and the barrister then has to have a Solicitor present the case?

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By Anastasia on June 08, 2011 at 06:54 pm

Tony, it simply involves firms like Carter-Ruck applying to the court on their client’s behalf. The matter would then be decided – in camera – on its particular merits, though what the merits or demerits are I can’t be sure.

Yes, in theory, everyone has equal access to the law. In reality, when it comes to civil law, the rich are at a far greater advantage than the poor. People of modest means could not afford the services of Carter-Ruck, not available on legal aid.

No, it’s the barristers who are the aristocrats of the profession, especially those who are enrolled as QCs – Queen’s Counsellors. Barristers can appear before the highest courts, on both civil and criminal matters, whereas solicitors can’t. Barristers are instructed by solicitors, and solicitors can be present, but they are only able to present cases in lower courts.

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By Anastasia on June 08, 2011 at 06:55 pm

Firkroy, are there no independent sources?

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By Anastasia on June 09, 2011 at 07:47 pm

Thanks for that, Firkroy. It’s certainly true that much of the independent media in England is controlled by individuals or consortia but there is still a high degree of editorial independence, the principle being that editors know what sells, rather than proprietors. Here politicians are bound by law to declare any commercial interests.

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By Tiffany Sanders on June 12, 2011 at 01:33 pm

@Tony - even the theoretical equal access to justice in the US really only applies in criminal cases. There is no right to legal representation in civil cases and there are a huge number of legal issues that go unredressed (some studies have estimated 80% of civil legal needs of the poor and lower-middle class) simply because the person in question can't afford representation and lacks the capacity to pursue the matter without counsel.

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By TonyBerkman on November 16, 2011 at 12:06 am

Tiffany, that's a point that didn't cross my mind. It's pretty sad.

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