She’s just been re-arrested, but will she ever receive a fair trial?


By Kenneth Roy

I was talking on the telephone a few days ago to one of the villains of the Leveson inquiry, a man of whom a columnist in the Daily Telegraph wrote that she did not understand how such a person could live with himself. Sometimes it amazes me that columnists in the Daily Telegraph, writing the cruel things they do, can live with themselves. How much does this woman know of the case, or is she simply a regular supplier of that addictive drug, loose emotion?

The villain, Jack McLean, is unwell (I might as well say, because I don’t think he’ll mind) and still tormenting himself over the source of the distress which he caused to the family who complained to Leveson about an opinion piece he wrote for the Glasgow Herald many years ago. He was not informed in advance that his character was about to be re-arranged. Nor was he given an opportunity to have legal representation at the inquiry or to defend himself in any way.

The response of the newspaper for which he wrote as its star columnist for many years, contributing to its brilliant success at the time, was to say that he was someone who left the paper a long time ago; the implication being that this was a person of no significance with whom the newspaper had washed its hands. Only the second half of the innuendo was true.

Since the Leveson revelations, Mr McLean’s health has been poor. I won’t claim that there is any direct connection, but it would be surprising if it had not been affected in some way by the battering he took at the inquiry and in the media coverage afterwards.

I mention this because Jack McLean’s unhappy situation is part of a more general harm being done by this inquiry. When its setting up and terms of reference were announced in the wake of the telephone hacking scandal last summer, the Scottish Review was one of the few media outlets which expressed any disapproval of the timing; in fact, I cannot remember any other sceptical voice being raised. Yet the objection seemed plain enough. If it was true then, it is true with knobs on now.

There had been allegations of criminality at the heart of Rupert Murdoch’s UK media empire. So intense was public repugnance over the Dowler case, the Metropolitan Police, which had taken a relaxed view of these allegations when they first surfaced, could ignore them no longer. It was obliged to initiate an inquiry, or series of inquiries, into criminal invasions of privacy, involving not only celebrities but victims of terrorism and other crimes. We argued then, as we continue to argue, that the police investigation should have been allowed to take its course uninfluenced by external pressures.

Instead, for reasons best known to himself, David Cameron decided to set up a judge-led public inquiry, running concurrently with the police investigation, with a brief to examine the ethics of British journalism. It was a classic case of cart before police horse. The inquiry should have followed any criminal proceedings, not preceded them. The guilty parties, if any, should have been observing the progress of the inquiry from the lack of comfort of their prison cells. It would then have been an inquiry properly informed by evidence produced fairly in a court of law, and subject to cross-examination.

Ms Brooks’s solicitor, a senior partner in one of the hottest of the hot-shot practices, says that his client has been unfairly treated for months. He is right. She has.

To make matters worse – when they were quite bad enough already – the judge chosen to lead the inquiry, Lord Justice Leveson, insisted on a ‘narrative of events’. Suddenly this was no philosophical talking shop about the conduct of the press, which might or might not have led to a reform of the complaints machinery. It was now in effect a pre-trial. How could it be otherwise when Lord Leveson demanded chapter and verse on the goings-on at News International?

Rebekah Brooks, the former editor of the Sun, is one of several individuals to have been named and shamed by witnesses enjoying the protection of the inquiry. The fact that she was arrested last autumn – within the last half-hour, as we were going to press, she was re-arrested and is being held in a police station – and faces the possibility of a criminal trial on serious charges failed to inhibit the flow of potentially incriminating evidence against her as part of Lord Leveson’s ‘narrative of events’. We ran another piece challenging the use of such evidence and suggesting that it was prejudicing her chances of a fair trial. There was not much interest in these refrains from a small magazine in Scotland.

Since the evidence given recently by the Metropolitan deputy assistant commissioner in charge of the main police inquiry, the atmosphere has become a little tense. Even the attorney-general Dominic Grieve has been stirred from his complacency. He is looking into the suggestion that the deputy assistant commissioner went too far and that the reporting of what she said might amount to a contempt of court. But if Mr Grieve had been fully alert for the duration of the inquiry, he would have realised that the damage was done at a fairly early stage. Ms Brooks’s solicitor, a senior partner in one of the hottest of the hot-shot practices, says that his client has been unfairly treated for months. He is right. She has.

The extraordinary feature of this debacle is that Lord Leveson, an experienced judge, and the battery of lawyers and advisers with whom he surrounds himself, must have known that some of the evidence was highly prejudicial, and yet nothing was done to discourage it. But then this is not an inquiry noted for logic or fairness. Otherwise, why did it become so unfocussed that it allowed evidence about a column long ago by a retired Glasgow Herald journalist and renowned technophobe who would not know how to hack a telephone if he was given a month’s instruction in the subject?

Prejudicial media coverage does not always impede the progress of criminal justice. The reporting of the Tommy Sheridan perjury case was also prejudicial – as a prominent Scottish QC agreed when I sought his opinion – but the trial continued and Mr Sheridan was convicted. However, Rebekah Brooks is better placed than Mr Sheridan ever was. Despite this morning’s dramatic developments, I still find it difficult to believe that she will ever walk into a dock.

Courtesy of Kenneth Roy – read Kenneth Roy in the Scottish Review