Friday 15 March 2013

Daft Arrest: The day of judgement

Mark James (left) passes on the good news outside the High Court this morning

This morning saw the publication of the judgement in regard to last month's six day hearing of the libel actions between @caebrwyn, the Welsh blogger Jacqui Thompson, and Mark James, the Chief Executive of Carmarthenshire County Council. You can read the full judgement here:

For Jacqui Thompson, the findings of Judge Tugendhat are the worst possible outcome: he concludes that she was "engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other Council officers". He has awarded damages to Mr James of £25,000.

Mrs Angry sat through all but one morning of the six days of this trial, in the Royal Courts of Justice, and arrived this morning, shortly after 10.30, to pick up a copy of the judgement. A mere handful of copies of the judgement, weighty documents, were slung casually on one of the wooden benches outside Court 14. 

The following post is Mrs Angry's personal view, and is of course a subjective assessment of the course of this trial. In the interests of balance, and fairness, you may wish to read the statement given today by Carmarthenshire County Council here . Mr James commented:

“Councils and other public bodies accept that they are open to legitimate criticism, but this cannot extend to malicious and unlawful harassment and unfounded allegations of wrongdoing by its officers.

The Judge has found that Mrs Thompson has been engaged in a vindictive campaign of unlawful harassment, intimidation and defamation against officers in revenge for the refusal of planning applications.

In the course of this long-running campaign, spanning 6 years, she has falsely accused individuals of corruption, lying, perjury, assault and theft.

Then on the one occasion the Council responded to her attacks Mrs Thompson secured the services of specialist libel solicitors and Counsel and sued for libel with the benefit of a conditional fee agreement with success fee. 

Her intention was to stop the Council, including democratically elected members, from ever questioning why she is so critical of the Council. It is important that her attempts have failed and I am pleased for the staff who have been falsely accused that they have been completely vindicated by this judgment. My only regret is that Mrs Thompson has wasted a huge amount of time and money."

Mrs Angry sat down on the bench outside Court 14, this morning, took a quick look at the conclusion, and was stunned. Not so much by the decision, in truth: the direction of the case had always indicated a likelihood that the outcome could not be anything other than weighing against success for Jacqui, but what was surprising was the tone of the judge's comments, and the harshness of his condemnation of her actions - and what seemed, to someone admittedly unversed in the finer points of legal judgements, to be a puzzling lack of reference to some of the issues raised in her defence. Mrs Angry had imagined that the two libel cases would be dismissed, at worst, and it still seems to her that this would have been the fairest outcome, not such a punitive finding.

Legal blogger David Allen Green has described the judgement as being, in his view, 'illiberal', and Mrs Angry would have to agree. 

Nick Cohen remarked:

In democracies the public holds the govt to account, not the other way round. In Britain however..

Campaigning journalist Heather Brooke commented on twitter:

 So loses libel trial. Judge didn't seem to have a lot of time for her or her arguments so not totally surprised.

and then:

Frankly, I'm amazed I won the MPs' expenses case in the High Court. The Establishment usually protects itself. I hope will appeal

Certainly sitting through this trial, and especially on the days in which Mrs Thompson and Mr James gave evidence, it was clear to see that a shy middle aged woman, a full time mother and small holder, living three miles from the nearest village in rural South Wales, was at a severe disadvantage in court played against a very experienced Chief Executive, used to public appearances, and supported by an astute legal team paid for by his employers' generous indemnity. It was an uncomfortable experience, watching Jacqui grilled all day, her quiet voice responding slowly, patiently, to a relentless cross examination from Mark James' barrister.

Although she has perhaps made errors of judgement in some of the comments made in some of her posts, and failed to persuade the judge that other examples complained of were substantiated by evidence, it could reasonably be argued that some of those examples were not fully explored or challenged in court. 

It is also true to say that much of the hearing gave a great deal of emphasis to the personal circumstances in which the blog was begun, rather than the later issues of significant public interest on which it focused.

This weight of emphasis may well have been, at least in Mrs Angry's view, responsible for an unfair representation of the motivation of Jacqui Thompson, and her reasons for writing about Carmarthenshire County Council.

Why was there so much attention put to the background to an earlier part of the story, and yet so little importance put on the issues of genuine public interest that became the mainstay of the blog? 

It is undoubtedly true to say that Caebrwyn began her blog on a subjective basis, angered by what she saw as injustice in the local planning department. Evidence was given, including a reference to concerns by local MPS, that she was not alone in her criticism. Yet the judgement holds the motivation of much of her 'campaign' to have been focused entirely personally on individual officers, and notably Mr James.  

It might be fairer to say it was and is primarily focused on the council, and that Mr James, in his position of Chief Executive, one in which he wields very strong influence, has often been the target of criticism on that basis, rather than any personal vendetta. 

It is equally true to say that what began from a personal sense of injustice has clearly developed into something rather more searching and wide ranging: a continuing act of scrutiny in an area where the local mainstream media no longer performs such a role, and as in many other  parts of the UK, is committing a long act of suicide in the process of failing to meet this obligation.

There were a limited number of blogposts submitted as evidence to the court, as far as Mrs Angry understands, yet there are many issues of bona fide public interest that the Caebrwyn blog has covered as a whole: the Towy church grant issue is one example. Was there a fair amount of emphasis given to the significance of such issues of public interest, or was the balance set firmly against such considerations? The Towy story was barely addressed: yet there was a point of relevance there, both directly and indirectly, in this respect.

The responsibility for the choice of emphasis may have been dicated by which evidence was and was not allowed in court: it may also have been propelled by the course directed by Mrs Thompson's counsel, and the weight of emphasis she and Mrs Thompson's legal team chose to give to the variant aspects of the case.

Judge Tugendhat has at least sought to emphasise, in his conclusion, that Jacqui's actions in regard to the #daftarrest episode, and the issue around the struggle to film council meetings, are separate to what he has found to be 'a campaign of harassment'. 

He excepts from this separation, however, the incident of 13th April 2011, in which Jacqui was briefly attempting to film part of a council meeting with her phone, from the public gallery - and when the judge says Mrs Thompson 'falsely accused Mr Davies of assaulting her and attempting to steal her phone'.  Judge Tugendhat states, in paragraph 207, that:

'I find that both Mrs Thompson's complaints, assault and attempted theft, were false and false to her knowledge at the time. She was attempting to pervert the course of justice when she made her allegations to the police, and when she made her statement.'

And yet he also states, paragraph 203:

'... because the seating in the public gallery has high backs, and the balcony at the front of the public gallery is also high, none of the witnesses sitting behind Mrs Thompson in the public gallery or those looking up at the public gallery from the chamber, could not see much more than the head and shoulders of Mrs Thompson and Mr Davies when they were seated in the public gallery'...

Mrs Angry would refer you to the statements of these witnesses, and their responses when challenged in court. See the report from Day Five of the hearing:

And now take into consideration the events of the #daftarrest incident itself, on the 8th June 2011, and the fact that this woman was arrested by four police officers simply for filming a few minutes of a council meeting with her phone. 

She had not broken the law, nor any rule of the council. 

Judge Tugendhat states she was arrested 'in order to prevent a breach of the peace'. It is clear from all evidence that on both occasions of filming, the only disruption caused was by council officers determined to prevent this completely justifiable act, and one sanctioned, and indeed encouraged,  by the Secretary of State for Communities and Local Government.

One of many unanswered questions relating to this incident, though not within the scope of this case, apparently, is why the police arrested Mrs Thompson, put her in handcuffs, took her miles away to a police station, kept her in cuffs, detained her in a cell, took her shoes, socks and wedding ring, and only released her after signing an undertaking not to attempt to film any more council meetings.

Judge Tugendhat remarks that Mrs Thompson has not 'so far as I have been told ... made a complaint to the police that she was wrongly arrested' ... the judge may not have been told about it, but Mrs Angry is not entirely certain that such a statement is a fair representation of the situation, and would expect the local police to be obliged to explain why such an arrest and detention was justifiable. No significance, interestingly, seems to be given to the failure of Mr James to make any complaint about the posts in question until after the libel action started by Mrs Thompson, in response to the remarks he left on the Madaxeman blog.

Judge Tugendhat is the senior judge for matters dealing with media issues, so Mrs Angry was surprised at the beginning of the trial to see counsel apparently obliged to explain to him the meaning of the word 'hashtag', and the use by him in the trial of the term 'weblog'. Having said that, no doubt the law on libel applies equally in whatever written form it is alleged to have been made, and a familiarity with social media terminology is irrelevant.

When Mrs Thompson was giving evidence, she began to speak about her experience of the arrest, but Mr James' counsel interrupted, and said that he had objected to this evidence. The judge commented to the effect that elaboration of this point was unnecessary. 

This case could have been held in front of a jury. It was decided that this would not be allowed. There has been, post Huhne and Pryce, a fair amount of speculation as to whether trial by jury is still a fair system of trial. One might speculate as to the outcome of this case, if it had been put to a jury. Mrs Angry has undertaken jury service, and marvelled at the extent to which the jury took seriously their duty to be fair, and the way in which they undertook the responsibility entrusted to them. The reaction of a jury to the arrest of Jacqui Thompson, for better or for worse, is less predictable, perhaps, than that of a judge.

the arrest of Jacqui Thompson   pic Alex Murray Smith

More tomorrow, perhaps, but in the meanwhile, a statement was published this evening by Jacqui Thompson, in which she expressed her feelings at the outcome of the trial:
Judgement on Libel Action - a brief statement

I am struggling to find the words to describe how I feel but further to the judgement handed down today I would like to make the following brief statement;

I am absolutely devastated by this judgement and I believe it is a miscarriage of justice. I would never have embarked on fifteen months of litigation and endured a six day trial in the High Court if I had not felt entirely justified in my action.

I have always acted in good faith, my motives have always been honest and sincere and have merely criticised the council where I felt it appropriate, and have never had a complaint until the counter claim was issued.

I want to thank everyone for their support. I am now in discussions with my lawyers concerning the possibility of an appeal.

This has potentially opened the floodgates for similar actions and I believe this judgement has dire consequences for others who publicly scrutinise and criticise their local authority, including the press.

I do not recognise the picture which has been painted of me, anybody who knows me or has met me will know that it is wrong.

I have no idea where I'm going to get £25,000 from, I haven't got £25. I am lost for words at the kind offers of financial help but this is my problem and it would not be right to accept such kind generosity.

I am trying to remain positive and will try and continue with my blog and calls for transparency as best I can under the circumstances.

Once again, thank you all for your kind words and support.



Anonymous said...

Having read your blogs on this case, I find the outcome and its future consequences quite disturbing.. This on the same day as hearing that IDS is about to retrospectively change law next Tuesday - re DWP handling of job seekers rights and - to cover his own inept bungling...unbelievable

Anonymous said...

As a carmarthenshire county councillor I am very disturbed both by the decision to counter sue in this case and by the council's policy to indemnify officers in libel cases. Councils cannot be defamed but can, through this loop hole, effectively silence criticism by using its staff as proxy instruments. I don't agree with everything that Jacqui says but I feel she has a right to speak freely on political matters.
Carmarthenshire is a poor area and few could risk the sort of damages Jacqui has been asked to pay. I am not critical of Mark James in this as our chief executive, it is the council's executive members who decided on this course of action, who instruct the chief executive, and the Labour Council leader, Kevin Madge, who has to answer for this as he is, at least in theory, in charge of the council.
If you can't take criticism, Kevin, you shouldn't be in politics and if you need to spend £000's of public money in a recession silencing a blogger whose recent main theme has been campaigning for open government and filming of meetings, your priorities seem to me a little warped.
I hope that some good comes out of this and not that other councils will take up the proxy libel action tactic so well illustrated by my own authority. I feel that as councillors we should engage in debate about our actions, not hide our meetings by filming and recording bans.
Cllr Sian Caiach

Mrs Angry said...

Cllr Caiach: it is to your great credit and a tribute to your integrity that you have had the courage to comment in this way about the case: you are right to say that this is an example of a public authority using a proxy libel action to silence criticism, and this cannot be tolerated.

Local politicians and senior officers who refuse to engage with the processes of transparency and accountability will inevitably run the risk of becoming the focus of attention from residents who take on the act of scrutiny. This is dangerous territory, as we have seen.

To avoid the risk of personalising the issues of public interest that are properly the concerns of all citiznes, and in order to maintain a healthy democracy, there must be an undertaking by all local authorities to make the process of governance open, fair, and accountable to the people whose taxes pay for the administration of public services, and pay the wages and allowances of those holding public office.

rankersbo said...

Perhaps I'm not understanding how libel cases work, but I'm most disturbed that the judge not only decided that Mark James comment wasn't libel, he basically agreed with it and said Jacqui was conducting a campaign of harassment.

For me this was the disturbing part.

Awarding libel damages just sort of follows on from there.

baarnett said...

An interesting news report...

Tessa said...

Thank you Mrs Angry. The judge indeed seems to have taken a strange angle - in that he interpreted Jacqui's blogging as a personal vendetta. I think, from your reference to his needed to be instructed on common online terms, he needs to "get out (or rather online) more". He cannot be in touch with the blogging community, its nature, and indeed its purpose. The thoroughness and value of Jacqui's work was far superior to that of the Audit Commission - and I speak as a former employee of them so I do know what I'm talking about. Indeed I have been proud to be asked and pleased to assist Jacqui in interpreting Carmarthenshire's financial information for use in her blogs. Yet jacqui's work was unpaid - her motivation being frustration at the profligacy and injustice - the same as mine as a regular commentor on her blog. NOT a "personal vendetta"! I have no axe to grind, nor do many sharing Jacqui's thinking, but I certainly have strong opinions, and opinions should not punishable - please note, Your Honour.