On Injunctions And Civil Liberties

One wonders how long it will be before somebody blames the naming of Ryan Giggs as the holder of a super-injunction as the real reason Manchester United lost to Barcelona in the final of the Champions League.

Mr. Giggs's pursuit of Twitter users in the High Court would seem to indicate that his team's 'never say die' spirit does not translate well to other fora. It was also gratifying to see that the surreptitiously expressed, yet, somehow appropriately, overheard, desire of Sir Alex Ferguson, his team's manager, to 'get' a journalist who asked him a question about Mr. Giggs that he didn't like was thwarted. It is always a good and wholesome thing for the powerful to be challenged. It is even better for them sometimes to be thwarted. For all that he is a famous Glaswegian, in my opinion Sir Alex has often, indeed sometimes very often, seemed to exude an unattractively brutish air. Without question, he is very good at what he does; but what he does is manage a fitba' team.

And I do hope that the Greater Manchester Police Service is taking a keen interest in identifying the mob that slashed the tyres, and egged the cars, of journalists outside Mr. Giggs's home. This is by far the most sinister development in the whole sorry saga. It is to be hoped that their investigation into this matter is conducted without fear or favour, and that the law will take its course, to whatever doors it might lead.

It is distressing to see that one holder of a super-injunction seems to have tried to justify their actions on the basis that they may have been the subject of a blackmail plot. This point does not seem to have been picked up by any media that I have seen, but is of vital importance to the privacy debate. Blackmail is, of course, a crime. The anonymity of blackmail victims has always been preserved by law, but blackmailers are tried in public. If this person were the subject of a blackmail plot, they already had a remedy - to go to the police. Although their conduct might have been odious, perhaps irretrievably damaging to their other personal realtionships, they have not been engaged in any legally prohibited conduct. Civil laws criminalising homosexuality were regarded as blackmailers' charters, as the blackmail victim could not seek legal redress without exposing themself to prosecution. No holder of a super-injunction is under that pressure, and it is disrespectful to those many men who, before 1967, took their own lives rather than be 'exposed' as homosexual for them to pray in aid of their own schemes that they are the prey of others' schemes. If you're being blackmailed, you should be a man, phone the cops, tell the missus and take the hit. While it might cost you money, you aren't going to go to jail for frequenting hotel bedrooms with prostitutes young enough to be your daughter; and one hopes that the next celebrity to seek a super-injunction claiming that they are being blackmailed is sent away from the bar with a flea in their ear, and given the phone number of Victim Support.

For the scholar, a title to which I make no claim for myself, the whole question of whether a privacy law should be permitted to be developed judicially is yet another interesting example of watching an ideology, in this case liberalism, eating its own young. Liberalism says that privacy is a good thing. Liberalism also says that generous financial provision on divorce is a good thing. The genesis of the super-injunction has created a situation whereby the desire to protect your privacy might provide you with a vehicle for thwarting somebody else's right to generous financial provison on divorce, by preventing them from finding out that grounds for divorce might exist. This is the type of Gordian Knot that liberalism always ties up for its adherents to try to unravel, leaving the rest of us to marvel at the intellectual contortions demanded by their attempts. In the case of the new English laws on privacy, this has been no fault of the judges. By enacting the Human Rights Act, Parliament gave them the tools, and all they have done is show the will to finish the job.

However, this episode in our history is illustrative of how easily societies can slide into oligarchies, where only the rights and liberties of the oligarchs are deemed worthy of consideration. Those among us who are prepared to spend largely inconsequentially gotten gains on preventing the public knowing what they have done would have fitted right in to some of history's great oligarchies, like late Rome, or 17th Century Poland. Like all oligarchs, they want to have their cake and eat it, and preferably all the cake.

As I have said before, and until any other information becomes available it must remain the last word on that subject, it is my opinion that those who hold super-injunctions, or who have held now thwarted super-injunctions, do not possess a single shred of personal honour between them, for having allowed the good name of a virtuous wife like Mrs. Gabby Logan to become the subject of unwarranted gossip. All of them, every one of them, owe her an apology. If nothing more positive comes from this affaire than that, then all of the protest and outrage will have been worthwhile.

On the general subject of privacy laws, it was interesting to see Shami Chakrabarti quoted in today's 'Sunday Times' as saying that "(t)o suggest that when you are in public life you should have absolutely no privacy is as wrong as the argument that a woman wearing a miniskirt is asking to be assaulted". One beneficiary of an injunction who is very likely to have much worse done to them than be assaulted should its terms be breached is a gentleman named Jon Venables, in defence of whose rights as possibly the most vulnerable adult within the English criminal justice system Ms. Chakrabarti has been ubiquitously silent, a fact of which she, and everyone else, should be reminded as often as possible.

It has also been interesting to see The Tartanissimo railing against the Supreme Court's decision to quash Nat Fraser's murder conviction. At some points in his life, Mr. Fraser seems to have been a violent, thoroughly dislikable person, yet the tenor of last week's judgement is that he should not have been convicted of murder because evidence which might have been helpful to his defence had been suppressed. Witness The Tartanissimo's reaction - instead of saying that full investigations would be held into Northern Constabulary's and the Crown Office's conduct of this case, his spastic, Pavlovian approach is to say that the court which directed that the conviction be quashed should have no function in Scottish criminal process.

Now, the Scotch, that cartoon nation of dunderheaded authoritarian blusterers for whom The Tartanissimo, no apparent fan of the Scots' possession of civil liberties as far as I can see, is a poster boy, might applaud his desire to stick the boot into someone they don't like, a depressingly Scottish character trait. However, the Supreme Court's jurisdiction over Scottish criminal process is a consequence of the same roiling change in the British constitution which is the only real reason that he is now First Minister of Scotland. Both he and the Supreme Court are two sides of the same coins (as an aside, I am indebted to Robin Lane Fox for pointing out, in his 'Alexander the Great', that coins are the vehicles which oligarchies usually choose to decorate with their mythologies in order to justify their positions; the insight that one sees this practice alive and well today in the appearance of the initials 'F.D.' on all British coinage is my own).

Nobody in the public sphere in Scotland seems to have challenged The Tartanissimo on his support for the air attack on Libya. I might be wrong, but to my knowledge he has opposed every previous military intervention conducted by the United Kingdom since 1997, presumabley on the basis that these were Britain's wars, not Scotland's. My own belief is that his support for the Libyan intervention is founded upon the involvement of aircraft and crews from bases in the north of Scotland previously marked for closure which, in an apparently classic piece of doublethink, he had campaigned to keep open. However, with the Nat Fraser case, the mental gymnastics become very much more serious.

Does he really believe it to be better for a man whose defence was not provided with all relevant evidence to stay in jail than for his conviction to be quashed by a British court? I'm as much in favour of the independence of Scottish law as the next person, but wouldn't it be better for those who shouldn't be in jail have a chance of not being in jail, regardless of where they receive access of justice?