Sandy "up on charges" Ezekiel and what we can or cannot say

After Thanet Waves removed it's article about Sandy Ezekiel for fear of the law I took the time to find out what this law actually says.

Simon and friends have been recorded as suggesting that discussion of Sandy's arrest and trial on social media, forums and blogs would land people in hot water. This is a little cynical in my opinion as they are painting with overly broad strokes.

That we cannot discuss the case is, for the most part, utter hogs wash. The particular lie is that talking about Sandy would damage his trial and get us all arrested due to a 2009 law called sub judice. This law does two things prevents http://www.parliament.uk/site-information/glossary/sub-judice/Parliment from talking about live cases and media from publishing sensitive information that could damage the outcome of an otherwise fair trial.

Keep reading as I show you the over-reaction over this.

There are two parts to the sub judice rule: statutory contempt and common law contempt none of these apply in most cases Simon has fearmongoured over.

1. statutory contempt of court under the Contempt of Court Act 1981, which criminalises the publication of material which creates a substantial risk that the course of justice in the relevant proceedings would be seriously impeded or prejudiced; and
2. common law contempt, which targets any other action which is intended to interfere with the administration of justice, including interfering with pending or imminent court proceedings.

Let's look at that in every day English shall we.

Statutory Contempt and Sub Judice

Statutory contempt is addressed only at media outlets. This law bans media outlets from publishing or broadcasting, including on the internet, any comments or information that might seriously prejudice active legal proceedings, in particular criminal proceedings heard before juries say the Independent Producer Handbook.

So in other words Simon seems to have been saying that we bloggers are in danger when having a bit of a sound-off about Sandy thus they are also saying:

1. That we bloggers are legitimate news media. (thank you for final standing up for us guys).

2. That reporting what the newspapers say and poking fun at sandy (whom none of us especially liked politically) is somehow going to actually change the outcome of the court case. How? I mean, come on, seriously Simon, are you that dumb?

There is no way that any serious jury member that is Googling for Thanet blogs honestly expects to remain impartial. Given the huge volume of material about Sandy and his less than gentlemanly behaviour, accusations of impropriety over visits to China and slaps on the wrist from the standards board already exist all over our blogs. These are far more damning of Sandy than us taking the proverbial out of the guy for a bit of apparent karmic justice.

I would be surprised if anyone can show good historic evidence of a blogger taking the razz impacting on a court case, ever!

What they did not say is that there are several cases where it is permitted or explicitly permitted to write about court cases.

Common Law Contempt and Sub Judice

This basically covers things like approching witnesses, filming in the court room, making widely known details that would be unknown to jury members etc. Paying these people for information or otherwise truly screwing up the court process.

This can include publishing information to break an injunction for someone else, naming witnesses whose names are being kept secret for whatever reason or naming children in a family case.

Where not to go with Sub Judice

There are a couple of areas that we as blogger should really not go and as Simon Moores, Dave X and Chris Wells seem to being a touch unclear on this subject I will spell it out for all of us.

Sub Judice take home point: No speculating on guilt

That is all.

What was stopping Simon or anyone else pointing out that speculating on guilt is not allowed? Really that is about the long and short of it for us in Thanet. Why was it too hard for Simon to tell Thanet Waves Hey guy, you might want to stop speculating on the outcome of this case? Would that have been too hard?

On that topic I do owe Dave X an apology he clarified a bunch of points and got some heavy sarcasm from me which in retrospect was unwarranted. He was basically trying to say that talking about the outcome of Sandy's case is a bad idea. We may or may not all want to damn him already but even Sandy deserves a fair trial.

What is safe to say with sub Judice?

To protect my own backside here I'll just point out that I am not a legal expert and this article is based on research that anyone could carry out. That said in my personal opinion I think all of the following (and more) are perfectly safe to cover.

Discussion of public affairs

It is acceptable to publish material as part of a discussion of public affairs which in the case of a former leader of the council is the case for every Thanet blog, newspaper, radio and other media outlet. As well Simon Moores and Chirs Wells should know.

(more after this caption contest image from 2010)

Contemporary report of the day's legal proceedings

You are also allowed to give a report on the events in court on a given day as many newspaper and TV stations do with high profile cases that might interest the public.

Anything a newspaper has already published

Let's be honest here. Most papers should have a good legal team and are unlikely to breach the law on these subjects. If they do they will do so knowing they can fight or pay and still make a profit from sales.

If in doubt don't just cite your source as normal but make it totally clear that you are reporting on their reporting.

Made in innocence

This does not apply to us. This defence applies only when we had no way of knowing that the proceedings were still active. The case of Sandy being active is what makes it interesting so not knowing seems unlikely.

Freedom of expression

This is not a defence or protected area for editors to use to publish but it provides a counter balance. (Especially) when a case is pending there is a fine line between calling for a prosecution and damaging the same. Out-law.com says that there is [...]a fine line between pressing for prosecution, which is acceptable, and influencing public perception of an individual who is about to be prosecuted, which is forbidden.

A judge would have to balance Article 10 of the European Convention on Human Rights (Which makes a stand for freedom of expression) against the needs of the case. Combine this with the service our blog brings (to inform and entertain on Thanet issues), our own rights to have a debate and express feelings and opinions and the contemporary reporting safe harbour and we have quite some scope to discuss things.

Reflecting public opinion

When it is unlikely that opinion will be changed by reporting on current opinion it could be argued that doing so would make no difference to the case.

Reasonable audience

When it comes to satire the litmus test is weather a reasonable person would take what was written seriously. If they would not then once more we have a safe harbour in that no influence would have been exerted. How close to the edge you want to skate on this one is entirely your own look out.

Reasonable expectation of reach

It would not be reasonable to expect a jury member from Thanet to start out impartial in the case of Sandy the leader of Thanet's council. Therefore it coul be argued that a blog with readership which is 99% to 100% Thanet based should not expect to ever make a difference in a trial whose main participants are going to be from outside the area.

The reasonable expectation is that the publication will be read by others already biased towards the outcome. I've little idea how well this would stand up in court as this has never been tested but that a well formed defence exists in theory would meant hat a prosecutor would have to not only take us bloggers seriously (something the press department does not do at Thanet District Council) and then find the money to prosecute in the face of a well formed defences risking setting a president that could weaken sub judice.

Reasonable Influence

The prosecutor would also have to ague that the one or two hundred loyal readers most of us have constitute any real influence in the world. The magic word here is scope. The scope of our publication is limited as to any damage. That does not grant us freedom to break the law but it does protect us against extreme edge cases.

No New information

Furthermore it would be hard to prosecute someone for publishing that they think Sandy is a tit when they have been doing just that for years. This is not new information and is widely available. Reporting what is already publicly known would not cause undue influence. The exception might be if a big paper published a hitherto little known fact.

This picture could be argued to be a comment about the case were it not ages old and part of a caption competition I ran in 2008.

Commenting on the fairness of a trial

It is our duty, I think, to speak up if a person is unlikely to "enjoy" a fair trial. Any law that says otherwise is wrong. See also article 10...

Any case not in this country

If it is not in this country then the case is not covered by the law. So you can chatter until the cows come home about a case in say, South Africa.

Cases that are closed

If the case is close then it is not considered to be inactive in which case go for it. (Normal caution applies.)

Non cases

If it is not a case then this alw does not apply. For example this picture of Chris Wells is not subject to Sub Judice at this time.

Conclusions and responses

There is far more we can say and be totally safe than things we could say and be at risk.

If simon is so concerned about us bloggers suddenly then perhaps he would like to write a large cheque to establish a training centre for bloggers?

What do you think about Simon and friends' approach to "helping" bloggers? Is is well intentioned blundering or darker and more cynical?

Had you ever heard of Sub Judice before today?

Does it change anything for you now that you have?

Is this a big deal worth making a fuss over?

Whatever your opinion (share it here right now) please have a great day and blog and comment safely.