Thursday, 10 October 2013

Boring legal note

Sorry about the mystery

There was a possibility that the writer might be giving evidence in the Portuguese libel proceedings later in the month. That being the case it would have been grossly unfair to comment on or criticise witnesses for the claimants who testified before me and as a result I stopped writing about the case, without giving the reasons. I will not be giving evidence so refraining from comment is no longer necessary.

End of an Era

But there was a further reason for reconsidering the way in which we post about the case. It was obvious back in February, when the parents' attempt to settle the case failed, that a twin phase of the case was, at last, coming to an end: the phase of strangled MSM coverage in which the latter only published material favourable to Kate & Gerry McCann and that in which responsible Internet analysis of the case was continually at risk should lawyers for the McCanns choose to follow the Lord McAlpine route.

The foundation of those threats was current UK libel law and the way in which lawyers for the parents used the Archiving Summary as a formal legal summation of the case. As is well known Carter Ruck threatened commentators on the case using precisely this tactic.

Even after the Portuguese appeal court ruling, which was not reported in the UK MSM, it could still be argued in overseas jurisdictions that the Archiving Summary was a fair and above all neutral assessment of the evidence, or absence of it, against Kate & Gerry McCann. Even as late as the Bennett case the judge appears to have taken that view, at least provisionally. But then he didn't have a lawyer to correct him.

All this is now in the past. The notes to the 2013 libel act, brought in by our MPs after a long struggle by campaigners to whom we a debt of gratitude,  under the heading “Reports etc. protected by privilege”* states:

50.Subsection (1) replaces subsection (3) of section 14 of the 1996 Act, which concerns the absolute privilege applying to fair and accurate contemporaneous reports of court proceedings. Subsection (3) of section 14 currently provides for absolute privilege to apply to fair and accurate reports of proceedings in public before any court in the UK; the European Court of Justice or any court attached to that court; the European Court of Human Rights; and any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the UK is a party. Subsection (1) replaces this with a new subsection, which extends the scope of the defence so that it also covers proceedings in any court established under the law of a country or territory outside the United Kingdom, and any international court or tribunal established by the Security Council of the United Nations or by an international agreement. [my italics].

The current hysteria in the MSM is a reflection of this change, which also means that the official transcript and judgement of the libel case when it is available will have absolute privilege, including those comments, already made by the judge, judicially limiting the validity of the Archive Summary.

This won’t help people on forums who wish to propose (not purport, Gerry, please, not purport) theories of McCann guilt of their own invention: it may even make it more dangerous for them. But it does mean that the stranglehold over public interest debate and comment, including via printed books, is finished and that responsible public examination of the investigation of the case and the parents' role in it, as long as it uses truthful evidence, will be protected, whatever the result of the Scotland Yard inquiry.

Much to think about for the way we go about things in future but the main thing is – hooray!

"Absolute privilege" means that accurately quoted material from an absolutely privileged source cannot be defamatory.