Tuesday, 18 November 2008

I won't name Baby P

I haven't named Baby P. Others have and I doubt that they are wise to have done so. Although it is highly unlikely that any of us have read or been served with a court order preventing him and two of his abusers being named, we are on notice that such an order has been made because it is mentioned in newspaper, television, radio and online reporting from the main news media.

There are usually only two reasons why such an order is made. The first is to prevent any siblings of the dead child becoming the object of prurient interest and the other is to ensure that any further court proceedings are not prejudiced by what happened to Baby P. I believe other proceedings are pending against Baby P's mother and her boyfriend, perhaps the order will be lifted once they have been concluded.

It is often difficult to tell whether an order that someone should not be named will have a real effect on a subsequent case. The judge or jury hearing that case will have to decide it on the evidence called during that trial and it is common for arrests to be reported in serious cases without the disclosure of the identity of the arrested person prejudicing his trial a few months down the line. Of course there is a risk of the jury being affected by what they read in newspapers or saw on the television, but even in the most serious and widely publicised cases they are able to draw a clear distinction between what they heard before going to court and the evidence called from the witness box. Indeed, it is the very nature of news reporting that only a summary can be given and even that is rarely based on full knowledge of the facts, once the full story is heard it becomes clear that news reports were far from comprehensive so they can readily be put to one side by a jury. In the few cases I was involved in that were the subject of newspaper or television reports there was so much cherry-picking of juicy bits and quoting of attention grabbing soundbites out of context that it was hard to see how they could have affected the court in any way.

One relevant factor is the time lapse between conviction for one gruesome offence and trial for something else. Where one trial follows hot on the heels of another there is a greater risk of prejudice so the court would be a little more inclined to make a gagging order, but even then such orders are rare. Of greater importance is the need to protect any other children from becoming objects in a media circus. It is not uncommon to find other children of homicidal parents being taken into care and placed with foster families or for adoption. For those children the arrangement is a new start and, in some instances, a first opportunity to live in civilised surroundings with people who will care for them properly. It is not their fault that they were born to unmitigated scum and if they are to have a true fresh start the last thing they need is unwarranted intrusion reminding them, and informing those around them, of a past that should be left behind forever.

The reason it has been possible for some to name Baby P, his mother and her boyfriend is that their identities were disclosed in news reports shortly after his death. Some of those reports have remained accessible through the BBC website (and others) although they are not on open display. It takes someone with far greater knowledge than me of matters computery to find the reports, but for those in the know it is a simple task. The information is available for all to see in back issues of newspapers and anyone who wishes to do so can identify the people concerned by spending an afternoon in the local library. At first sight this might appear to make a gagging order utterly futile, but in real life very few would bother to scour the papers in order to find information they are not at liberty to dissipate without being in contempt of court.

Of course the question does arise whether it really is a contempt of court to disclose information which is already in the public domain. As I understand the law, the mere fact that information is available does not provide an absolute defence, it all depends on the particular circumstances. Where the purpose of an embargo is to prevent information being disclosed for the first time, the fact that it is already generally available will render the embargo pointless and any breach would not normally be found to be a contempt of court. It is different where the purpose of the embargo is to prevent information that is available to a limited extent being spread further. In order to justify an order of this type being made there would normally have to be a strong reason for seeking to prevent further publication. In the case of Baby P the reasons would appear to be protection of siblings and prevention of unfair prejudice at subsequent court proceedings. Without knowing a lot more about the circumstances I cannot begin to assess whether the judge's order could be challenged.

And that, in a nutshell, is why I am not prepared to name Baby P, his mother or her boyfriend. To seek to put my judgment, based as it is on limited knowledge, ahead of that of the judge in order to satisfy a desire to ensure that the great British public knows the full story would be to make a decision I am not qualified to make. I simply do not know enough about it. Even if I felt I did know enough about it and that the gagging order was not made on solid grounds, it is not for me to take the law into my own hands. An argument I have read from one of those who did make the disclosure on his blog is (and I paraphrase) that he did so because it is wrong for Baby P to be referred to anonymously when he was a human being and should be entitled to the dignity in death he was not afforded in life. It is a view with which I have great sympathy and I am sure the time will come when those with greater knowledge of the case than me will feel it appropriate to lift the embargo. But it is not for an anonymous blogger to make that decision when there could be repercussions which cause harm to other innocent people.

There is also a wider issue, one which has also been in the news recently. More than one cabinet minister has made noises about censoring blogs or requiring them to be licensed or supervised in some way. Of course the ministers say this is for the benefit of the public when it is actually to seek to suppress criticism of the government. To have an anonymous blogger apparently taking it into his own hands to ignore a court order in a sensitive case seems to provide just the sort of ammunition the government would need to justify its plan for censorship.

Those who argue against any control or regulation of blogs use the most powerful argument of all, namely that bloggers are subject to the law already and further regulation of content is as inappropriate as it would be for the government to dictate what newspapers are allowed to print. To adopt a vigilante approach to reporting one case on a blog is to assert that the rule of law does not extend to that blog and, by implication, to blogs generally. It is an unsound position to take and should be resisted. Let the rule of law apply to everyone. If you claim it doesn't apply to you, you can hardly complain when the government acts as though it doesn't apply to them.


1 comment:

scala said...

The "protect the other kids" argument falls down when you consider that a mother arrested for soliciting or shoplifting does have her name published -no doubt her kids too get teased in the playground. The fact that this anonymity is only sought for child victims of abuse and their relatives does imply that the kids are somehow to blame, just as anonymity for rape victims suggests they should be shamed of what happened.