The INJUSTICE of it....

The description “criminal barrister” is normally used to mean a barrister who specialises in criminal law, rather than a barrister who is also in fact a criminal. But then William Travers is an unusual barrister in many ways.

Though formerly a member of London chambers, he now seems to be a partner in a provincial firm of solicitors in Ipswich. His office is neat and tidy and contains no law books apart from half a shelf randomly filled with a few odd volumes of Halsbury’s Laws and Statutes. Neither there, nor in court, nor at home do we see him with the criminal practitioner’s bible of choice (be it Archbold or Blackstone’s). Even if the plot does not call for their use, the idea of a lawyer working without access to law books or law reports seems, let us say, far fetched.

But then Travers is an unusual barrister. He asks his clients point-blank whether they are innocent. “Did you kill her?” It’s not a question defence counsel normally asks, because the answer may prove professionally embarrassing. But Travers is different. He won’t defend them unless they swear they didn’t do it. Only then can he give of his services. And he’s good, he’s one of the best. As someone remarks, no one “does murder” like Travers. He gets them off. Trouble is, what happens if they turn out to have been lying? What happens if they did, after all, do it?

Well, as has been noted, there’s no one who “does murder” quite like Travers. And that’s the point of this somewhat drawn-out mystery psychodrama, written by Anthony Horowitz, on which ITV lavished all its best production values (apart from a set of The Law Reports) over a five-day mini-series aired last week. Injustice is based on the premise of a barrister who is so haunted by the consequences of his role in the administration of what turns out to have been an injustice, that he takes the law into his own hands and declares himself judge, jury and willing executioner.

Part ghost story, part thriller and part just good old fashioned cat-and-mouse detective yarn, Injustice was certainly ambitious. It took in animal rights terrorism, youth detention, ruthless (sometimes lawless) police detective work, toxic capitalism, investigative journalism, arms dealing, domestic violence and, up to a point, the law. There were two murders, a suicide and what was probably an accidental death. A heady mix which, despite the time lavished on it, didn’t quite come off.

In re Silk [2011] BBC 1, applied.

It got off to a bad start by appearing to treat the recent BBC law drama, Silk, as a binding precedent, and duly applying it. First there were the blood-red threads that twisted and turned across the screen over the opening credits, to the urgent rasp of an ascending cello, so reminiscent of the unravelling pink tape over the credits for Silk. Then there was the opening court scene, in which Travers successfully defended someone who, just like the defendant in the opening court scene in Silk, was alleged to have burgled an ex military man’s home and stolen his much-prized service medal. In Silk, it became clear after his acquittal that the client in question was after all guilty. In Injustice, it turns out to be a different client who pulled the wool over his own brief’s eyes. But the solution proposed in Silk – report the matter to the police – doesn’t meet with Travers’s approval. He doesn’t think much of the police, who take the law (or at least the evidence) into their own hands. So he decides to, er, take the law into his own hands. Or rather – and this really the point of the whole story – not the law, but justice.

It’s an arresting idea, which was somewhat marred in the execution. Vigilantism has not had the literary or filmic treatment it deserves. In fact it has generally had little better than a lurid pulping, as in The Four Just Men by Edgar Wallace (1904) and I, The Jury by Mickey Spillane (1947) both of which became films, along with Death Wish (in which director Michael Winner at least refrained from telling the Charles Bronson character to “calm down dear” as he went on a righteous rampage against all the city’s crooks and hoodlums).

In Horowitz’s hands, the vigilantism idea takes on a more subtle psychological flavour. Travers (played by James Purefoy, with a somewhat wooden choice of three frowns – angry, puzzled, or mildly amused) has had a nervous breakdown after being confronted with the duplicity of an earlier client, an animal rights activist who put a booby trap bomb in the car of a scientist who experimented on animals. The scientist’s schoolboy son was killed when the car blew up but Travers got the suspect off. When he realised the truth, he couldn’t square it with his conscience and gave up his successful London practice and went to live in the country, where his wife (Dirvla Kirwan) yearns for her old metropolitan publishing work, and makes do with teaching Eng Lit (eg George Orwell’s Animal Farm) to bolshy inmates at a young offender institution. When Travers spots the former client on a railway station, he follows him and discovers the abandoned farmhouse where he’s been hiding out. When, later, the man’s body is discovered, a bullet hole through his head, the detective reckons it’s been an “execution”.

Detective Sergeant Mark Wenborn is not a “nice” fellow. The niceties of the rules of evidence cut little ice with him, and section 76 of the Police and Criminal Evidence Act 1984 is a rule more honoured in the breach. But he “gets results” one way or another, in much the same way that Travers “does murder” in one way or another. Wenborn (played by Creed Miles) is a nasty piece of work, whose smile is even more scary than his snarl; but he is on the side of justice, just about: he is Right and Revolting (as 1066 And All That would say) where Travers is Wrong and Wromantic. Pitted against each other, they play out what becomes a dance of death.

Injustice can be seen on ITV Player for another three weeks or so.

STOP PRESS: more curious connections

1. Dirvla Kirwan, who plays Travers’s wife in Injustice, is actually married to the actor Rupert Penry-Jones, who plays one of the two rival barristers striving for Silk, a second series of which is apparently in the offing.

2. Anthony Horowitz, who wrote the screenplay of Injustice, has been asked to write a Sherlock Holmes “continuation” novel. It’s title? The House of Silk.

An open and shut case

The principle of open justice is our guarantee of judicial accountability. It is also the best way of ensuring that those caught up in the web of litigation are treated fairly and, where, necessary, the wrongdoer is villified while the rightdoer is vindicated.

Law reporting has always played an essential role in maintaining that principle. Justice must not only be done, it must be seen to be done. Court reporters are the “watchdogs of justice” (in the words of Lord Denning MR), who record for posterity the decisions which affect not only the litigants in the cases being decided but – through the case by case development of the common law – affect future cases involving other litigants.

Recent events have brought this process into sharp relief. But before I talk about superinjunctions, let me mention some other recent cases involving issues of openness and scrutiny.

This case is closed

Renaissance Capital Ltd v ENRC Africa Holdings Ltd, a decision of Sir Robert Nelson sitting in the Queen’s Bench Division on 7 April 2011, is only available (to paying subscribers) as a Lawtel/Westlaw summary. There is no freely accessible transcript on Bailii and there almost wasn’t a judgment at all. That is the point. The parties wanted it all hushed up, no doubt for sound commercial reasons.

What those reasons may have been we can only guess. No record of the subject matter of their dispute is available. What we know is that, following a ten day trial, and while the judge was preparing his judgment, the parties (having perhaps sensed the way the forensic wind was blowing) began to negotiate a settlement. When they were sent the draft judgment in the usual way, they applied to the judge to refrain from handing it down. Having concluded their negotiations, they presented the judge with a draft order and requested him to keep his judgment to himself.

Giving judgment on the application (but not, crucially, the substantive dispute) Sir Robert Nelson held, following Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000, that he had a discretion not to publish judgment even after it had been sent in draft to the litigants, and that on the facts such an exceptional course was justified. However, he recognised that there was a presumption that a judgment, once drafted, should be published so that the public could see it. A judgment was not just for the parties and any third parties such as witnesses caught up in case: it was also for the development of case law, and to allow for judges’ work to be scrutinised. However, in the present case there were no legal issues that would develop the law or assist in the settlement of future commercial disputes; nor were there any factual issues, such as findings of fraud, which it would be wrong to cover up. In short, the public interest (in open justice) did not outweigh the parties’ private interests (in furtherance of which his Lordship also declined to make public even the order agreed between them). So it was a case of “least said, soonest mended.”

A blow for freedom (of the press)

A more recent case which went the other way (ie in favour of openness) was In re X, Y and Z (Morgan intervening) v A Local Authority [2011] EWHC 1157 (Fam) in which Sir Nicholas Wall, President of the Family Division, ruled that a medical expert, “Dr M”, who had been heavily criticised by the judge below (Judge Bellamy sitting as a High Court judge) in care proceedings in which all the parties including the local authority had been anonymised, should nevertheless be named. The application to name him had been made by a journalist, Brian Morgan, who thought the issues raised by the case ought to be publicly discussed.

The President took into account the fact that the judge had criticised Dr M without giving him an opportunity to defend himself, and the importance of encouraging medical experts such as paediatricians like Dr M to continue to act in such cases without fear of criticism or indeed the not uncommon threat of personal violence. He concluded that Dr M should nevertheless be named and his report made public in this case, provided that he was given (as Mr Morgan had promised to do) an opportunity to put his side of the matter.

The case raised important issues of transparency in family justice generally, the President said. There needed to be a debate about the quality and content of expert evidence, but it was just as important that such a debate should be informed. Giving guidance for furture cases, he said at para 94:

“I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.”

His Lordship concluded by reminding the media of their responsibilities, quoting the warning of Lord Hobhouse of Woodborough in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 238:

“No public interest is served by publishing or communicating misinformation.”

Too much (mis)information

Both the above cases were or will be reported. The un-parliamentary name-calling, howls of protest (from the watchdogs) and the rash of delirious twitterings that were such a feature of the recent epidemic of super-injunctivitis were, I would suggest, symptoms of a deeper unease about the lack of public scrutiny, rather than simply of an unhealthy obsession with the (mis)deeds of banking buccaneers or frolicking footballers.

It was not so much the fact that these matters had been kept (albeit temporarily) secret, but the processes by which that had happened. There was a feeling that something was going on behind closed doors, and that what this amounted to was the creation, by judges, of a new law of privacy (interpreted as blanket secrecy), which ought to be a matter for Parliament.

Much of the comment was ill-informed, if not actually amounting to the kind of “misinformation” Lord Hobhouse may well have had in mind. For, as the media lawyer Mark Warby QC attempted quite reasonably to explain in a discussion with Adam Boulton on Sky News, we already have a law of privacy, created by Parliament in the Human Rights Act 1998 and [article 8 of] the Convention to which the UK has signed up, and if we want to override that we would not only have to repeal that Act but also withdraw from the Convention itself. Unfortunately Warby’s fairly sensible comments were overshadowed by the rather crude outburst by the blogger Guido Fawkes, also taking part in the discussion.

The development of a law of privacy on a case by case basis would be a matter of legitimate public interest, if that were really what was happening, though not for the reason given by the critics. (Of course people are wrong to suppose that only Parliament can make new law.) The problem is that people don’t quite know whether or not that is what is happening, or whether (as the judges see it) each case is simply being decided on its merits, in a delicate balancing act between conventional article 8 privacy rights and article 10 freedom of expression.

Perhaps that’s why the decisions ought to be available, however redacted, so people could judge for themselves. The accurate reporting of such decisions, for all the reasons already discussed, but most particularly because of the need (indeed the duty) to record those cases which do set precedents, is crucial. Then perhaps we could have a well informed and unhysterical public debate.

BIALL... The countdown is on...

We’re really looking forward to attending this year’s BIALL Conference, which is to be held at The Sage in Gateshead. And according to the BIALL Blog this year’s venue has been named the hippest street in Britain!

The event always offers companies the perfect backdrop to speak to both new and old customers. Already we're looking forward to greeting lots of friendly and familiar faces.

The above image is courtesy of Trip Advisor

If you’re attending the event, between 16th and 18th June, stop by Stand 31 to see what's new at The ICLR.