Tuesday, 28 August 2012

Unlucky For Some - Section 13

A new piece from a regular contributor.

Today's Independent reports that Lord Justice Leveson has started sending out his requisite Section 13 letters.  These notification letters must be sent to any who may be criticised in the Inquiry's final report. (Don't get me started on the arguments about what legally constitutes 'a person'....)

Rule 13 provides:
The Chairman may send a warning letter to any person:
a. he considers maybe, or who has been, subject to criticism in the inquiry proceedings;
b. about whom criticism may be inferred from evidence that has been given during the inquiry proceedings;
c. who may be subject to criticism in the report, or any interim report.
The timely mail shot allows those in receipt of a Section 13 warning letter to raise objections, factual inaccuracies and so on. No doubt their legal advisors will be busy formulating responses.  But the defensive strategies to Section 13 warnings started long before letters starting dropping onto expectant doormats.

For example, way back in October '11, anticipation of severe criticism loomed large in the unsuccessful Surrey Police application  (pp1-16) for Core Participant status for Module 1 - before the Inquiry had even started to take any witness evidence.

In May, the Metropolitan Police Service (MET) submitted "that all individual criticism of any sort is outside Part 1 and inconsistent with the Terms of Reference" - Part 1 being the evidence-taking, up to Leveson's Final Report.  The MET submission was unsuccessful for the legal reasons given by Leveson in his Application of Rule 13 of the Inquiry Rules 2006 in Relation to the Metropolitan Police Service.

Another example of a preemptive strike was that of the Closing Submission of Module 3 Core Participant, Rebekah Brooks.  Fearful lest other's evidence to Leveson (including the MET's Deputy Assistant Commissioer Sue Akers) might have generated a negative impression, Rebekah warned
... the Inquiry should be mindful of the fact that her character and credibility will be a very significant issue in her trial (or trials), and that any conclusions affecting either are therefore likely to be significantly prejudicial to her case,.. she should not be made the subject of direct criticism.
Lord Justice Leveson however had already anticipated the debate on Section 13:
...it is very important that any Inquiry does not prejudice either the police investigation or any potential prosecution to such extent as thwarts the investigation or renders a prosecution so unfair as to constitute an abuse of process. That does not mean that there can be no mention of any person under investigation...
He also countered:
As a matter of fairness, as I have sought to protect the names of those who have been arrested from being linked with specific allegations of criminal conduct, so I have not thought it right to allow those who have not been arrested to be named as guilty of crime, even where I anticipate no prospect of a criminal investigation
Viz-a-viz his Report, Leveson also pointed out that:
... much more relevant than anything I say will be the underlying evidence which has been presented to the Inquiry; that will be available for any criminal trial
As will the evidence given to the Culture, Media and Sport Select Committee, Privacy and Media Intrusion 2003, Self-Regualtion of the Press 2007, Press Standards, Privacy and Libel 2010, Home Affairs Select Committee,  Unauthorised Tapping Into or Hacking of Mobile Communications 2011 and Culture, Media and Sport, News International and Phone Hacking 2012.

All of these have been widely reported nationally and internationally, so (like pictures of Prince Harry's bum) there is little chance that 'collective amnesia' can be induced on such a wide scale that all such evidence could be conveniently forgotten.

Lord Justice Leveson is obliged to support his considerations in his Section 13 letters with EVIDENCE - evidence given to his Inquiry, which has so carefully avoided prejudicing criminal proceedings.

No doubt that is exactly what he will do.  Unluckily for some...

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You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com

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