Half Time at the Phone Hacking Trial

Below is a reprint of my article for Independent Australia which appeared today, links and video courtesy of them. 

AT THE BEGINNING of the phone hacking trial in London, which began nearly four months ago, the judge, Justice Saunders, said:

not only are the defendants on trial, but British justice is on trial.”

He could have added, given the nature of the charges and the defendants, so too is the British media, which is second only to Australia in the English speaking world in its heavily concentrated ownership.

Now that we’re at a half time mark at the central criminal court of the Old Bailey, with the prosecution having made its case, and the seven defendants – including former CEO of Rupert Murdoch’s News International, Rebekah Brooks, and British Prime Minister David Cameron’s former press supremo, Andy Coulson – about to mount their defence, how has the legal struggle in court been reflected in the aerial warfare of the newsstands, airwaves and internet?

From the gangs of TV cameras and paparazzi outside the Old Bailey, to the full seats in the press annex, the first few days of the trial, as the prosecution set out its case, definitely attracted most attention, with four guilty pleas from former News of the World employees; the revelation of an affair between Brooks and Coulson; graphic emails, texts and secret recordings. But, with the exception of celebrity appearances, or news on the hacking of the Royal princes Harry and Will, the press pack has dwindled as the jury have settled down to a  rising mountain of legal bundles filled with timelines of phone call data, cell site analysis and payment schedules.

While the public and the press understandably couldn’t follow all these matters in detail, it’s worth noting that all the counts the seven defendants face (which they all deny) are conspiracy charges — conspiracy to intercept voicemails (phone hacking), commit misconduct in public office (bribing officials), and perverting the course of justice (cover-up). In a conspiracy charge, the evidence often hinges more on the state of mind of the defendants than the alleged guilty act.

As James Doleman pithily puts it in The Drum, the core of the prosecution case led by Andrew Edis, QC, is:

‘… who knew what when’.

The defence will begin their reply tomorrow (Wednesday 19 February), starting with Rebekah Brooks, since her name occurs first on the indictment sheet.

She faces the most number of charges — four: one for conspiracy to phone hack, one for conspiracy to bribe public officials and two charges of conspiracy to hide evidence from police. Since the trial has been estimated to last until mid-May, she’ll probably spend a couple of weeks in the witness box.

Unlike Coulson’s defence lawyer, Timothy Langdale, QC, who has already made an opening statement about the ‘blizzard of emails’ he had to deal with when editor of the News of the World, there have only been hints as to Brooks’ defence strategy by her barrister Jonathan Laidlaw, QC.

When it came to evidence that Brooks, while editor of the Sun, approved nearly £100,000 of payments to a Ministry of Defence employee, Bettina Jordan-Barber, Laidlaw meticulously went through the published stories, correlated them with official MOD press releases and noted when the stories often concerned bullying, or lack of kit for British soldiers.

Meanwhile, as Langdale cross-examined Daniel Evans – the former NOTW reporter who alleged he was hired by Coulson for his phone hacking skills – Coulson’s counsel focused on other sources for the Sunday tabloid’s scoops and splashes, including inquiry agents, trace experts, other NOTW journalists, and human sources.

That was the key defence issue when Jude Law appeared in the witness box, and was handed a note by Langdale giving the name of a close family member who had talked to the News of the World. The actor said he already knew the close relative had passed on personal information, but looked shocked when told this person had been paid for it.

Dan Evans’ appearance was one of the dramatic highlights, as the prosecution case came to a close two weeks ago, but it wasn’t easy to report. Because this current trial is the first of five already scheduled for this year and several other police investigations and crown prosecution decisions are in the works, much of the trial is heavily blanketed with reporting restrictions.

Perhaps this explains why The Times decided to front page the story of Jude Law’s personal betrayal by a relative, rather than the other allegations Dan Evans made against the NOTW. More egregiously, the Daily Star ran another splash about an affair that came to light during evidence about the hacking of James Bond star, Daniel Craig, without emphasising that it was obtained  illegally. It almost seemed like the original privacy intrusion had been repeated.

Whether employed by the BBC or News UK, the journalists who cover the hacking trial are, without exception in my experience, dedicated and diligent reporters who file everything substantive from the court. The prominence given to their reports is, however, decided at an editorial level.

I constantly get complaints in my Twitter timeline that the story is being ‘buried’ by the mainstream media. No doubt, given that six of the seven defendants worked for Britain’s biggest newspaper group, there is some embarrassment for new organisations — you don’t want to appear too anti, or too pro. Journalists are also wary of reporting on journalism, in case it seems too narcissistic and self-absorbed. There are also personal and corporate reputations at stake. In summary, it’s a minefield — and that’s before you even get to the legal restrictions.

Britain’s tough Contempt of Court laws expressly forbid any prejudicial comment, and given the high profile of the case, many normal vocal commenters and politicians have judiciously chosen to keep quiet until the jury reach a verdict. There are also good reasons for the extensive reporting restrictions. They are designed to ensure any future cases are not prejudiced for a potential juror by something read in the papers, online or heard on TV. As a signatory to the European Convention on Human Rights, British law places the right to a fair trial above that of freedom of expression.

One of the paradoxes of this trial of journalism is that it shows the legal system scrupulously avoiding trial by journalism.

All of which makes the Old Bailey a particularly tense place from which to report. As someone one described undercover policing – it’s a mix of tedium and terror.

This is the first major trial I’ve attended continuously and it’s only when I ask veteran court correspondents about this trial that I realise how unique it is. Though the hacking trial lacks the high stakes of a murder or terrorism case, those are usually discrete and take a matter of weeks. This trial is more like a long-running serious fraud case, lasting probably seven months, with a plethora of detail.

But there’s one big difference.

So central was the now defunct News of the World to British public life that every day at the hacking trial can bring some new revelation about Fleet Street practices, celebrity affairs, the private lives of the royal family or senior politicians, or indeed the defendant’s friends and contacts. Lawyers, senior police officers, footballers, pop stars and prime ministers float by in evidence.  Some lie buried in a Mulcaire notebook, some passing email or text message, can have an impact on lives, careers, reputations. Maybe this is a tribute to Rupert Murdoch’s amazing newspaper and business acumen in making one paper so central to a country’s discourse — or a warning about the dangers of newspaper monopolies.

Whatever the outcome (and to repeat ALL the defendants deny all the charges), this trial is already having a direct effect on how the British media conceives, reports and imagines itself.

The trial continues on Wednesday…

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