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Journalists and miscarriages of justice

Lecture delivered by Brian Thornton

1. Who are investigative journalists?

2. The olden days – i.e. journalism’s greatest hits

3. Why we are now confused


1. Investigative journalism – BEING DIFFICULT


Some definitions:


  • Why is this lying bastard lying to me?


  • News is what somebody, somewhere, wants to suppress. Everything else is advertising.


Lord Leveson (the judge brought in to clean up journalism after the hacking scandals) sees these tendencies as a public good: “Without investigative journalism, and the ability of the press to scour hidden places, the domain of the powerful, for potential wrongdoing, our democracy would be severely impoverished.  [Leveson report, volume one, pg 89]


It is from the journalists’ position, as the unofficial Fourth Estate – the eyes and ears of the public – that they gain legitimacy.


Seen in another way, this particular type of journalist is often seen as a malcontent, a troublemaker. The likes of Veronica Guerin (Irish journalist murdered by gangsters) made a point of pursuing the story to the point of obsession, until her quarry knew that they would have to kill her in order to stop her.


The Guardian journalist, David Leigh believes investigative journalists wear the badge of being “cantankerous” with pride.



2. A history of being difficult – THE OLDEN DAYS



Arthur Conan Doyle (Sherlock Holmes etc) attempted to find justice for a young man called George Edalji.


Half-blind, with a striking physical appearance, Edalji was singled out by a community which was suspicious of his mixed race heritage.

When livestock in the area was subjected to a series of slashings – Edalji was arrested and then convicted as the perpetrator.


Doyle took a radical approach, one which the police has chosen to ignore, namely “following truth rather than any preconceived theory” (Doyle: 26).


Such as he was nearly blind and the attacks all happened at night.


The articles he wrote on the case established at least the principle that mistakes in law can and do happen.


He also established investigative journalists had the ability to introduce a force that had the potential to be even more powerful than a judge – the reading public:


“Now we ask the public of Great Britain whether this thing is to go on.”  Doyle hit his readers right between the eyes – these are the facts of the matter, are you happy with it, it this how things should be?


The Court of Criminal Appeal was created in 1907, largely as a result of public pressure over the cases of and George Edalji and another case – that of Adolf Beck (Doyle also involved in this case). This was a very big deal – because there still remains the idea that juries don’t make mistakes…


It is interesting to note that in order to avoid such miscarriages again Doyle recommends nothing less than a “reorganization of the Staffordshire Constabulary from end to end”.


Staffordshire Constabulary and Kevin Nunes case http://www.guardian.co.uk/law/2012/mar/08/kevin-nunes-murder-convictions-quashed

And no officers will be charged: http://www.bbc.co.uk/news/uk-england-stoke-staffordshire-25863846


The original/ and greatest miscarriage


While the Edalji case created a template for subsequent journalistic involvement in miscarriages of justice, it was another case in France, which became the defining case of miscarriage of justice around the world.


The tragic case of Alfred Dreyfus exposed terrible fault lines across France and throws into the spotlight the other great player in miscarriages of justice; politicians.


Newspaper article by Emile Zola J’accuse was a seminal moment in the history of journalism.


In the open letter to the president, Zola says:


“I accuse Major Du Paty de Clam as the diabolic workman of the miscarriage of justice..” and he goes on to accuse all the men and organisations he believes to be guilty of wrongly convicting Dreyfus.

Zola was forced to flee to England, but his intervention in the affair was crucial although it was years before Dreyfus was free – bizarrely pardoned rather than exonerated by a French establishment too proud to admit its mistakes.


Two purposes (maybe three) for investigations

The individual case – reforming the law – (and circulation)


Lord Leveson said that the “British press has a strong tradition of holding power to account”. [Leveson report, volume one, pg 64]



Changing the law:


Doyle – Beck case – Court of Appeal


John Wilkes – qualified privilege in parliament


W T Stead – age of consent (13 to 16)

(muckraker, Yellow Press) – age of consent

Stead credited with being Britain’s first investigative journalist.

His investigation into the buying and selling of children for sex in Victorian London shocked and appalled the reading public.

Stead’s article was written explicitly to support a bill aiming to raise the age of consent from 13 to 16.


It is, to misquote Marx, that up until this point, journalists had only interpreted the world, but the point however was to change it.



1970s & 80s – the golden age of disco and investigative journalism



“I believe the force that shook the long-standing and entrenched bastions of the law was the power of investigative journalism.” (Mansfield, 2012: 9)


The reason that the names of the Birmingham Six and Carl Bridgewater are known largely because of investigative journalists like Chris Mullin and Paul Foot.


Pre PACE (Police and Criminal Evidence Act 1984) and the full implementation of HOLMES (Home Office Large Major Enquiry System) in the wake of the calamitous Yorkshire Ripper case, British policing was not the envy of the world as many at the time believed.

One only has to read any of the accounts of the victims of miscarriages of justice – (Conlon, 1990) (O’Brien, 2008) – to know that police were regularly using torture and techniques such as officers overhearing fictitious confessions.


“The legal system, in other words, provided the opportunity, even the necessity for investigative journalists to investigate.” (De Burgh, 2000: 247)


The emerging broadcast media which was moving away from its subservient depiction of events to a more complex and combative approach.


The first Rough Justice was aired in 1982 and within months the Conservative government agreed to reopen cases highlighted in the programmes.


It is important to remember that this period is before the creation of the Criminal Cases Review Commission in 1997, and so anyone wishing to be granted an Appeal after failing in their first appeal had to ask the Home Secretary (specifically the C3 department) to refer their case to the Court of Appeal Criminal Division.


It took Chris Mullin’s angry and relentless book, Error of Judgement, to force the establishment to think again about the convictions of the Birmingham Six.


Dismissing their claim that they had been tortured by police, Lord Denning could not be more explicit that, above all else the integrity of the system must be protected. In the judgment in the case in which the six men claimed that police officers physically abused them, Lord Denning said:


“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. That would mean the Home Secretary would either have to recommend they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: It cannot be right these actions should go any further.’” (Mullin, 1990: 216)


Remember that the media is a broad church – The Sun declared open season on those who had campaigned for the Birmingham Six case to be re-opened. The Sun’s front page headline the next day read, LOONY MP BACKS BOMB GANG. An editorial said, ‘If the Sun had its way, we would have been tempted to string ‘em up years ago.’” (Mullin, 1990: 310)



3. Why we are now CONFUSED



One problem: It takes ages – blame the lawyers


One aspect of investigative journalism, which is often overlooked by non-practitioners, is the enormous amount of time which must be devoted to an investigation.

In reality such investigations are therefore very expensive – and potentially ruinous for a media organization.


This is due to the legal dangers that are present.

For these reasons and for other challenges faced by journalists – which are vigorously outlined in Nick Davies’ Flat Earth News – it is being argued that investigative journalism has become a luxury which few media outlets care to indulge.


Other problem (or solution): The CCRC


“Concern with miscarriages of justice is an obsessive pursuit.  The creation of the CCRC, however, was seen as the nationalization of zeal, the taking of fevour into public ownership.” (Jessel, 2012: 17)


Lord Runciman: “I would be very disappointed to be told that there were still people in the media who were sufficiently confident that the CCRC was not doing a good job that they thought it worthwhile to mount a whole long expensive investigation of their own into a suspected miscarriage of justice.”


Professor Zander: “The media which was active before commission naturally drew back after the commission was set up.”


Richard Foster: “We are born out of campaigning. But we are not campaigners. We weren’t set up on that basis. That is the paradox.”


“Press coverage doesn’t make a great deal of difference to us. It doesn’t raise the chances of a reference if there has been a strong publicity campaign,” CCRC Commissioner Angela Flower.


“The investigative journalists packed up their bags in 1997 and the circus moved on.” (Poyser, 2012).


But while this argument undoubtedly has merit I think it largely misses the point – it was not the advent of the CCRC which ended journalism’s involvement in miscarriage of justice investigations, it was rather the end of the C3 department located in the heart of politics most turbulent ministry – the Home Office – that broke the direct link between the press and the political elite.


A Home Secretary in an under pressure administration facing an election is vulnerable to pressure – an independent, statutory body is not.


What role for the journalist now?


Very interesting idea from David Rose that journalists can be very effective in getting the CCRC to investigate, but not refer.