Legal profession flexes its muscles, at the expense of freedom of speech
A controversial Supreme Court ruling has given a double-murderer the chance to start his life again with a fresh identity — leaving journalists at loggerheads with lawyers about the state of the criminal justice system once again.
The case concerns a mentally ill 46 year-old man, known only as ‘C’, who was convicted of killing his ex-girlfriend and her lover in 1997. He is now living in a care home, and with a new identity.
Lady Hale — law student favourite and the only female justice on the bench — gave the one substantive judgment in the case, and made clear that open justice is one of the “most precious” principles in our law. But, putting all factors into the balance, identification would “harm the patient’s health and wellbeing”. She ruled:
He is much more likely to be able to lead a successful life in the community if his identity is not generally known. The risk of ‘jigsaw’ identification, of people putting two and two together, will remain despite the change of name.
Indeed, there has been widespread speculation on social media about C’s identity.
The case — heard by Lords Clarke, Wilson, Carnwath and Hughes, along with the Beyoncé of the Supreme Court — has sparked an angry public reaction, making it into the Daily Mail and to the front page of The Sun today.
Thursday's Sun front page:
Killer in our midst
#tomorrowspaperstoday #bbcpapers pic.twitter.com/0gOJyybjWr
— Nick Sutton (@suttonnick) January 27, 2016
Former MP John Hemming, who now campaigns for open courts, was particularly unhappy with the ruling. He said:
This man has been found to be a murderer. Part of the punishment for committing a crime is for your guilt to be known. There is also a question about the safety of other people — there are issues over patterns of behaviour.
The family of the victims are, understandably, devastated by the case’s outcome. The mother of one of the murdered victims said:
[C] has just shown contempt for us all. He has been allowed to go straight out to a new life with a new name, but I am not allowed to speak out in my own name about this – all to protect him.
She continued:
This ruling takes us back all those years to when we had to watch him in court, and it was quite clear that if he was ever released he would kill again.
And it’s not just the national press talking about this controversial case. The anonymity of offenders, and suspected offenders, is a hot topic of contention. It’s one that often prompts a barrage of comments from lawyers.
Just a few weeks ago, the acquittal of a Durham student accused of rape — whose identity was splashed all over the press — sparked talk of criminal law reform, prompting lawyers to adopt strong viewpoints on both sides of the debate.
In one corner was law blogger and anonymous advocate the Secret Barrister, who has spoken out against the “bird-brained arguments” halting defendant anonymity. In the other corner was outspoken criminal barrister Felicity Gerry QC, who thinks that defendant anonymity would be bad for justice and that law reform would be a step backwards.
Though yesterday’s Supreme Court decision has no doubt triggered debate and discontent in the media circles, there is a calm sense of unity across the legal profession.
Having spoken to a number of lawyers this morning, the resounding feeling is that the case is exceptional in its facts — and that the justices came to the right decision.
This was certainly the viewpoint of media lawyer Mark Stephens, who is under no illusion that the case was a difficult one. He applauds the court for ultimately reaching the right decision. He told Legal Cheek:
This case doesn’t set an enormous precedent, despite the furore in the Daily Mail, and I doubt we will see this happen very often.
Even Gerry — a proponent of open justice and transparency — had this to say:
It looks as though the issue related very specifically to the Applicant’s psychiatric care and treatment on release rather than restricting publicity of proceedings which I assume were public at the time.
And, staying true to his previous sentiments, the ever honest Secret Barrister told us:
[T]he attitude of certain elements of the press towards this decision — such as The Sun pumping emotive soundbites out of the bereaved families to stir up outrage — simply affirms the need for anonymity for this individual.
He continued:
This case again demonstrates the desperate need for a law prohibiting people from passing comment on anything law-related unless they have read the judgment first. A breach would be punishable by being soundly beaten with a practitioner text of my choosing.
Sorry journalists, the lawyers have won this time.