UK Media Law Pocketbook Second Edition published 30th November 2022
By Tim Crook
Online chapter
Public inquiries have provided an important forum for inquisitorial investigation and inquiry into events and issues that cannot not be accommodated in the legal system.
Key case histories on qualified privilege, anonymity restrictions, multimedia broadcasting of the proceedings and media access to the evidence taking and inquiry documents.
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Bullet points summarizing key aspects of the media law of covering public inquiries:
- Public inquiries provide a unique forum for journalistic coverage offering protections and access to information often denied by the judicial and political systems of government. These are known as public inquiries into matters of ‘national concern.’ (See House of Commons research briefing ‘Statutory public inquiries: the Inquiries Act 2005’- https://researchbriefings.files.parliament.uk/documents/SN06410/SN06410.pdf);
- The Parliamentary research paper explained: ‘Public inquiries play a prominent part in public life in the United Kingdom. When major accidents or disasters occur, or when something goes seriously wrong within government or a public body, calls are often made for “a public inquiry” to be held. Inquiries into matters of public concern can be used to establish facts, to learn lessons so that mistakes are not repeated, to restore
public confidence and to determine accountability.’ The report also said: ‘they provide legal powers to compel witnesses to give evidence, provide legal safeguards, and can set limits upon the Government’s discretionary control of an inquiry’; - The UK Covid-19 Inquiry set up under statutory terms is expected to be the most important held in the country’s modern history since it will be examining the UK’s response to and impact of the Covid-19 pandemic, and learn lessons for the future. This had been a pandemic event involving a disease which has been recorded on 226,977 death certificates. Chaired by retired Court of Appeal judge Baroness Heather Hallett, it provides live broadcast streaming of submissions and evidence as well as a continually updated online platform of documents and information in multiple languages. See: https://covid19.public-inquiry.uk/ and ‘About the Inquiry’ at: https://covid19.public-inquiry.uk/about/
- Some recent examples of full public inquiries commissioned under the 2005 Inquiries Act include ‘the Independent public inquiry to investigate the deaths of the victims of the 2017 Manchester arena terror attack’ chaired by Sir John Saunders (https://manchesterarenainquiry.org.uk/ ) and ‘The Grenfell Tower Inquiry … created to examine the circumstances leading up to and surrounding the fire at Grenfell Tower on the night of 14 June 2017.’ (https://www.grenfelltowerinquiry.org.uk/) 72 people lost their lives in the fire. Chaired by Sir Martin Moore-Bick, this inquiry has disclosed over 320,000 documents to core participants, received over 1,600 witness statements, and held more than 300 public hearings;
- The Manchester Arena Inquiry has demonstrated how this process can receive and challenge important evidence from the intelligence agencies such as the Security Service MI5 and issue critical reports on behalf of the victims of the terror attack. (See: “MI5 missed ‘significant opportunity’ to prevent Manchester Arena bombing. Report into atrocity concludes failure to act on intelligence means ‘realistic possibility’ to stop plot was missed” at: https://www.theguardian.com/uk-news/2023/mar/02/realistic-possibility-manchester-arena-attack-could-have-been-prevented and the Report itself at: https://files.manchesterarenainquiry.org.uk/reports/2023/MAI-Final-PDF-Volume-3.pdf);
- Another poignant public inquiry taking place and expected to report its findings in 2023 is The Infected Blood Inquiry- ‘This is an independent public statutory Inquiry established to examine the circumstances in which men, women and children treated by national Health Services in the United Kingdom were given infected blood and infected blood products, in particular since 1970.’ Some idea of the scale of its public interest significance is that it has heard evidence that 3,000 people have died as a result of receiving infected blood via British health service provision. (See https://www.infectedbloodinquiry.org.uk/);
- The judge led Undercover Policing Inquiry was constituted by the Home Secretary in 2015 under the 2005 Inquiries Act to ‘get to the truth about undercover policing across England and Wales since 1968 and provide recommendations for the future.’ (https://www.ucpi.org.uk/about-the-inquiry/ )
- The terms of reference (https://www.ucpi.org.uk/wp-content/uploads/2016/06/Terms-of-Reference.pdf) for the Undercover Police Inquiry with Sir John Mitting as chair included the power to ‘examine and review all documents as the inquiry chairman shall judge appropriate’, and ‘receive such oral and written evidence as the inquiry chairman shall judge appropriate’;
- As a result an inquiry costing at least £54 million as of January 2023 has published over 3,200 documents and files, held 26 days of public evidence hearings and investigated 54 years of undercover policing. The inquiry has succeeded in putting into the public domain several Metropolitan Police Special Branch and MI5 Security Service files (with redactions) concerning staff and students at Goldsmiths, University of London which several FOI First Tier and Upper Tribunal hearings and a judicial review application at the High Court failed to achieved;
- The inquiry has succeeded in obtaining more than one million pages of documents from the Metropolitan Police, resolving and finding solutions to challenging issues such as the ‘approach to deceased children’s identities’, ‘officer anonymity rulings’, securing an amendment to the Rehabilitation of Offenders’ Act, and anonymity for Special Demonstration Squad officers so they could provide evidence. The Inquiry has released the cover names of 70 undercover officers from the Met Police Special Demonstration Squad (SDS). This is to enable members of the public to determine whether they were affected by undercover policing and come forward with evidence;
- These inquiries provide inquisitorial adjudication in public, often live-streamed online with audiovisual and documentary archiving of transcripts and source papers combined with adversarial cross-examination of witnesses;
- Statutory public inquiries are the remedy and recourse for the victims of grand-scale injustice which trump and delay inquest and police investigation and can also retrospectively reinvestigate police, inquest and judicial failures, miscarriages of justice, and even failures of public inquiries from the past;
- Various acts of parliament provide local authorities the power to convene routine inquiries preliminary to decision making impinging on the rights of individuals or public authorities, and these can be in public or with the discretionary option to convene in private sessions;
- Examples include the appointment of an inspector by a government minister to investigate planning developments. Health trusts and local authorities have statutory powers to constitute ad hoc inquiries into issues that may be of local or national concern with the discretion of deciding whether these are investigated by public proceedings or conducted privately;
- Many inquiries are commissioned on a non-statutory basis and this means they do not have any legal powers to compel witnesses to give evidence. However, the flexibility allows the inquiry to gain fuller cooperation from individuals and organisations that would not be possible with full public examination;
- The inquiry into the abduction, rape and murder of Sarah Everard by former Met Police officer, Wayne Couzens, who committed his crimes when he was a serving officer and using his warrant card, was established in 2021 on a non-statutory basis after his conviction and sentencing to a full life-term of imprisonment; (https://www.angiolini.independent-inquiry.uk/ ) The Home Secretary indicated that it could be changed into a statutory inquiry if the inquiry head, Lady Elish Angiolini KC thought this would be necessary;
- Independent inquiries investigated by senior lawyers and judges by private, corporate and public bodies also produce reports addressing huge public interest issues and engage the shield of qualified privilege in libel, but are not immune to potential risks of media law infraction;
- Examples of these kinds of inquiries include Rebecca Tuck KC’s Independent investigation into allegations of antisemitism within the National Union of Students (NUS) which reported in January 2023. See: https://assets.nationbuilder.com/nus/pages/108/attachments/original/1673471780/Independent_Investigation_into_Antisemitism_Report_NUS_12_January_2023.pdf?1673471780 And independent inquiries commissioned by the BBC such as Lord Dyson’s investigation into the circumstances around the 1995 Panorama interview with Diana, Princess of Wales and the conduct of journalist Martin Bashir. (https://downloads.bbc.co.uk/aboutthebbc/reports/reports/dyson-report-20-may-21.pdf ) Both were conducted without public hearings;
- Public inquiries constituted under legislation, the Inquiries Act 2005 for England and Wales and Northern Ireland, and the Inquiry Rules (Scotland) 2007 carry absolute and qualified privilege for defamation in respect of public hearings. This is absolute when reported contemporaneously and qualified (without the subject to explanation or contradiction obligation) when reporting past evidence or proceedings. Journalists should always be aware that their reports of anything provided in private session to public inquiries would not carry any privilege as is the case with information journalists obtain about court hearings held in private;
- Media law in these circumstances protects the inquiry protagonists and participants and the professional media reporting it. The Inquiries Act 2005 legislation under Sections 19 and 20 gives both the commissioning Minister and the inquiry’s chair power to restrict access (by way of private or public hearings) and to restrict the disclosure and publication of an item of evidence or documents, or of the identity of a witness;
- The restriction can be specified as temporary, but otherwise continues indefinitely, unless varied or revoked. The grounds on which such a restriction can be imposed are the same as those which can restrict attendance;
- The Saville public inquiry reported in 2010 (https://www.gov.uk/government/publications/report-of-the-bloody-sunday-inquiry) into the deaths of 13 young men in Londonderry, Northern Ireland in 1973, commonly known as ‘Bloody Sunday’ and established the right of witnesses for anonymity should there be compelling evidence of a threat to life and wellbeing under Articles 2 and 3 of the European Convention of Human Rights. The Saville Inquiry was constituted by the 2005 Inquiries Act precursor legislation, the Tribunals of Inquiry (Evidence) Act 1921;
- 17 former soldiers succeeded in persuading the Divisional Court and Appeal Court Civil Division in 1999 to overrule the Saville Inquiry which had decided they should be named. See: (https://www.bailii.org/ew/cases/EWCA/Civ/1999/3012.html) The Divisional High Court had ruled that the Inquiry had reached a ‘flawed’ conclusion when it gave precedence to the need for an open inquiry and had failed to give proper weight to the human rights of the men, mainly from the Parachute Regiment, who feared revenge attacks by Irish republican terrorists;
- While public inquiries often afford journalism greater access to information than would normally be allowed by judicial proceedings, government body disclosure and FOI requests, the Inquiries Act 2005 inherited from its predecessor legislation certifying powers to ask the High Court to order up the delivery of information that it seeks for its information and this includes summary penalties for refusing to provide evidence;
- Section 35 legislates for a summary offence for failing to obey an order made by the a public inquiry to provide evidence and there is a maximum sentence of imprisonment of 51 weeks. Brendan Mulholland of the Daily Mail and Reg Foster of the Daily Sketch, refused to reveal their sources to the Radcliffe public inquiry set up in 1963 to investigate the John Vassall spy scandal (https://media.nationalarchives.gov.uk/index.php/scandalous-case-john-vassall/ ) of the previous year. They were jailed for contempt of court by Lord Radcliffe who sentenced Mulholland for six months and Foster for three months;
- Lord Saville, Chair of the Bloody Sunday public inquiry, threatened the journalists Alex Thomson and Lena Ferguson of Channel 4, and Toby Harnden of the Daily Telegraph – with contempt of court certification over their refusal to name the sources of stories about the killings. The Appeal Court in Northern Ireland ruled in 2003 that the contempt proceedings brought against Harnden were criminal in nature (https://www.bailii.org/cgi-bin/format.cgi?doc=/nie/cases/NICA/2003/6.html);
- By June 2004 Lord Saville decided to drop the contempt proceedings because he was satisfied that the journalist would never have revealed the identity of “Soldier X” he had interviewed for a newspaper article and the soldier’s identity had been established through other means. (https://www.irishexaminer.com/news/arid-30151686.html ) No action was taken against the Channel 4 journalists;
- Reports of public inquiries held under the Inquiries Act 2005 have, under section 37, the same privilege ‘as would be the case if those proceedings were proceedings before a court’;
- This means that, as regards proceedings held in public, absolute privilege applies under section 14 of the Defamation Act 1996 to contemporaneous reports and qualified privilege applies under Part 1 of Schedule 1 to the 1996 Act to non-contemporaneous reports if the respective requirements of these defences are met, including that the reports fairly and accurately reflect the proceedings;
- When the inquiry’s findings are published, under the Defamation Act 1996: a fair and accurate media report of such findings, when they have been officially published by a government or legislature anywhere in the world, is protected by qualified privilege under Part 1 of the Act’s Schedule 1 (paragraph 7); and a fair and accurate media report of findings officially published by a local authority anywhere in the world is protected by qualified privilege under Part 2 of the Schedule (paragraph 9);
- There are other sections that determine media and members of the public attendance e.g. section 18 says that any recording and broadcast of an inquiry’s proceedings must be sanctioned by the chair;
- Neither the Inquiry nor the media would be considered liable for libellous statements made by witnesses. Witnesses themselves are protected by the Defamation Act privilege;
- There is only one case history where a High Court judge decided malice being proved in relation to a local government inquiry invalidated qualified privilege. This is because some of the gravest false allegations of child abuse imaginable were included in the publication of the inquiry report;
- This was the case of Lillie & Anor v Newcastle City Council. Full ruling of Lillie & Anor v Newcastle City Council & Ors [2002] EWHC 1600(2) (QB) (30 July 2002) (available online at https://www.bailii.org/ew/cases/EWHC/QB/2002/1600.html ) The two care workers subjected to the allegations had to go into hiding for their own protection and collected £200,000 each in libel damages from the local authority in subsequent litigation. Mr Justice Eady said the arrangements for the inquiry had been a shambles, ‘natural justice seemed to have fallen by the wayside’ and ‘has cost a vast amount of money for the citizens of Newcastle and I have no doubt years of unnecessary heartache for many of those directly involved. Unhappily, the Council has only itself to blame’;
- As explained in Chapter 14 on reporting inquests where matters of national security and sensitivity prevent the securing and provision of public evidence in relation to the investigation of controversial and sudden deaths, there is an option to hold a public inquiry under the Inquiries Act 2005;
- The Azelle Rodney Inquiry (https://webarchive.nationalarchives.gov.uk/ukgwa/20150406091509/http://azellerodneyinquiry.independent.gov.uk/ ) replaced the earlier inquest which could not proceed because there was certain intelligence material which the coroner was not permitted to be privy to. The Litvinenko Inquiry, which reported in January 2016, (https://webarchive.nationalarchives.gov.uk/ukgwa/20160613090324/https://www.litvinenkoinquiry.org/report ) was necessary because only closed evidence and closed hearings could access evidence from the UK’s intelligence agencies. There was no mechanism by which closed hearings could be held in the course of an inquest and the effect of upholding the claim to public interest immunity was that the material in question would be excluded from consideration in the inquest;
- Media Law had a substantial impact arising out of the 2005 Inquiries Act commissioned public inquiry by Sir Brian Leveson into the culture, practices and ethics of the press which reported at the end of 2012. (See executive summary and recommendations- https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/229039/0779.pdf);
- It can be argued that the shift of virtually default privacy anonymity for crime suspects prior to charging, the elevation of the Information Commissioner as an additional statutory regulator of digital journalism practice in data processing, the diminution in protection of sources case law for journalists and, in particular, their sources, with criminal prosecution jeopardy using the common law of misconduct in public office, the complexity and legal jeopardies arising out of Press Charter endorsed regulation underpinned by legislation are the developing consequences from this inquiry.
Links
Inquiries Act 2005
https://www.legislation.gov.uk/ukpga/2005/12/contents
Inquiries Act 2005- Explanatory Notes
https://www.legislation.gov.uk/ukpga/2005/12/notes/contents
House of Commons research briefing 2022- ‘Statutory public inquiries: the Inquiries Act 2005’
https://researchbriefings.files.parliament.uk/documents/SN06410/SN06410.pdf
The UK Covid-19 Inquiry- The UK Covid-19 Inquiry has been set up to examine the UK’s response to and impact of the Covid-19 pandemic, and learn lessons for the future.
https://covid19.public-inquiry.uk/ and ‘About the Inquiry’ at: https://covid19.public-inquiry.uk/about/
Independent public inquiry to investigate the deaths of the victims of the 2017 Manchester arena terror attack’ chaired by Sir John Saunders
https://manchesterarenainquiry.org.uk/
‘The Grenfell Tower Inquiry … created to examine the circumstances leading up to and surrounding the fire at Grenfell Tower on the night of 14 June 2017.’
https://www.grenfelltowerinquiry.org.uk/
The Infected Blood Inquiry- ‘The Inquiry will examine why men, women and children in the UK were given infected blood and/or infected blood products; the impact on their families; how the authorities (including government) responded; the nature of any support provided following infection; questions of consent; and whether there was a cover-up.’
https://www.infectedbloodinquiry.org.uk/
The Infected Blood inquiry has also archived video recordings of evidence and submissions and this has included questioning of past Prime Ministers and Secretaries of State for Health.
https://www.youtube.com/@InfectedBloodInquiry/videos
Undercover Policing Inquiry ‘get to the truth about undercover policing across England and Wales since 1968 and provide recommendations for the future.’
https://www.ucpi.org.uk/about-the-inquiry/
The terms of reference https://www.ucpi.org.uk/wp-content/uploads/2016/06/Terms-of-Reference.pdf
The non-statutory inquiry into the abduction, rape and murder of Sarah Everard by former Met Police officer, Wayne Couzens, who committed his crimes when he was a serving officer and using his warrant card.
https://www.angiolini.independent-inquiry.uk/
Rebecca Tuck KC’s Independent investigation into allegations of antisemitism within the National Union of Students (NUS) which reported in January 2023
Lord Dyson’s investigation into the circumstances around the 1995 Panorama interview with Diana, Princess of Wales and the conduct of journalist Martin Bashir.
https://downloads.bbc.co.uk/aboutthebbc/reports/reports/dyson-report-20-may-21.pdf
17 former soldiers succeeded in persuading the Divisional Court and Appeal Court Civil Division in 1999 to overrule the Saville Inquiry which had decided they should be named.
https://www.bailii.org/ew/cases/EWCA/Civ/1999/3012.html
Radcliffe public inquiry set up in 1963 to investigate the John Vassall spy scandal
https://media.nationalarchives.gov.uk/index.php/scandalous-case-john-vassall/
Leveson Inquiry – Report into the culture, practices and ethics of the press- published in four volumes 29th November 2012:
An inquiry into the culture, practices and ethics of the press: Volume 1
An inquiry into the culture, practices and ethics of the press: Volume 2
An inquiry into the culture, practices and ethics of the press: Volume 3
An inquiry into the culture, practices and ethics of the press: Volume 4
House of Commons Research briefing. Press regulation after Leveson Friday by John Woodhouse 27 July, 2018
The Saville public inquiry reported in 2010 into the deaths of 13 young men in Londonderry, Northern Ireland in 1973.
https://www.gov.uk/government/publications/report-of-the-bloody-sunday-inquiry
The Appeal Court in Northern Ireland ruled in 2003 that the contempt proceedings brought against a journalist refusing to reveal his sources to the Saville Inquiry into the 1973 ‘Bloody Sunday’ fatalities from gunfire by British soldiers were criminal in nature.
https://www.bailii.org/cgi-bin/format.cgi?doc=/nie/cases/NICA/2003/6.html
Full ruling of Lillie & Anor v Newcastle City Council & Ors [2002] EWHC 1600(2) (QB) (30 July 2002) The two care workers subjected allegations in a local authority inquiry report had to go into hiding for their own protection and subsequently collected £200,000 each in libel damages in subsequent litigation. Mr Justice Eady ruled that the local authority lost its qualified privilege defence to libel because of a determination of malice.
https://www.bailii.org/ew/cases/EWHC/QB/2002/1600.html
The Azelle Rodney Inquiry ‘to ascertain by inquiring how, where and in what circumstances Azelle Rodney came by his death on 30 April 2005 [as a result of the discharge of a fiream by a Metropolitan Police officer] and then to make any such recommendations as may seem appropriate.
The Litvinenko Inquiry into the death of Alexander Litvinenko who died from acute radiation syndrome on 23 November 2006, three weeks after drinking tea containing polonium-210 in the hotel bar in central London’s Mayfair.
BBC news report: ‘Litvinenko inquiry: Key findings’
https://www.bbc.co.uk/news/uk-35371344
Secondary Media Law Codes and Guidelines
IPSO Editors’ Code of Practice in one page pdf document format https://www.ipso.co.uk/media/2032/ecop-2021-ipso-version-pdf.pdf
The Editors’ Codebook 144 pages pdf booklet 2023 edition https://www.editorscode.org.uk/downloads/codebook/codebook-2023.pdf
IMPRESS Standards Guidance and Code 72 page 2023 edition https://www.impress.press/wp-content/uploads/2023/02/Impress-Standards-Code.pdf
Ofcom Broadcasting Code Applicable from 1st January 2021 https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code Guidance briefings at https://www.ofcom.org.uk/tv-radio-and-on-demand/information-for-industry/guidance/programme-guidance
BBC Editorial Guidelines 2019 edition 220 page pdf http://downloads.bbc.co.uk/guidelines/editorialguidelines/pdfs/bbc-editorial-guidelines-whole-document.pdf Online https://www.bbc.com/editorialguidelines/guidelines
Office of Information Commissioner (ICO) Data Protection and Journalism Code of Practice 2023 41 page pdf https://ico.org.uk/media/for-organisations/documents/4025760/data-protection-and-journalism-code-202307.pdf and the accompanying reference notes or guidance 47 page pdf https://ico.org.uk/media/for-organisations/documents/4025761/data-protection-and-journalism-code-reference-notes-202307.pdf
UK Media Law Pocketbook Second Edition 