Monday, 10 November 2008

Dacre v Eady

Every time I think I've finally done with Max Mosley, the story comes back to grab me. The latest twist on this year's most notorious spankathon, of course, comes in the form of Paul Dacre's speech on Sunday night to the Society of Editors. In its most notable - and certainly most quoted - passages, the editor-in-chief of the Mail denounced Mr Justice Eady's ruling in that case, and his other rulings, which together amount, supposedly, to a new law of privacy. One brought in as it were by stealth, without sanction of Parliament and even to fulfil the personal agenda of one judge. Eady J, thinks Dacre, represents one of the most serious threats currently existing, not just to freedom of expression but to the very survival of the newspaper industry in this country.

Even Dacre, I assume, wouldn't claim that his industry's current predicament is entirely the fault of Mr Justice Eady. He began his speech with a nostalgia-drenched paean to a lost golden age of Fleet Street propriety. Back in the days when his father worked for the Sunday Express, the paper featured interviews "not with the kind of half-baked trollop who passes as a celebrity these days, but with, say, the mother of a newly chosen British Nobel Prize winner" (why not with the winner?), book reviews "with barely a nod to literary criticism" and readers' letters which captured "the tears, the tribulations, the laughter, the quirks and the wisdom of everyday family life" , but which turned out to have been ghost-written by the hacks. Now, he worries "that some of the journalistic skills and values behind the Sunday Express’s success are in danger of being lost today." Journalists are over-educated, over-privileged and too far up their own backsides (I paraphrase), more interested in talking to each other than in informing their readers. Later on, Dacre complained about the overwhelming and distorting effect of the BBC - a point with which the Heresiarch is in full agreement.

Nevertheless, after telling us that Gordon Brown was "hugely sympathetic" to some of his concerns about new legislation and even "a great friend of press freedom," Dacre trained his guns squarely on the red-robed tyrant.


But there is one remaining threat to press freedom that I suspect may prove far more dangerous to our industry than all the issues I have just discussed."

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.

Two years ago, Justice Eady ruled that a cuckolded husband couldn’t sell his story to the press about another married man – a wealthy sporting celebrity – who had seduced his wife. ...

Recently, of course, the very same Justice Eady effectively ruled that it’s perfectly acceptable for the multi-millionaire head of a multibillion-pound sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him.

Dacre must have a very defective imagination - a failing not unknown, it must be admitted, among journalists - if he finds that a bottom-spanking party in Chelsea amounts to "unimaginable" sexual depravity. Not only is it imaginable, it isn't even particularly uncommon. Just the other night more than two hundred spankers - including some of Mr Mosley's pulchritudinous friends - met up in Hackney to celebrate their shared enthusiasm. The Heresiarch was sadly unable to be present but I'm told a good time was had by all. Although one poor sod had his cane stolen.

Even though he was speaking to an audience of his peers rather than writing for his Sunday paper - or even moonlighting for the Screws - Dacre couldn't resist reminding his listeners just how unimaginably depraved Mosley's private party had been:

The judge found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World contested, though some of the participants were dressed in military-style uniform. Mosley was issuing commands in German while one prostitute pretended to pick lice from his hair, a second fellated him and a third caned his backside until blood was drawn.

Nice word, fellate, by the way. It comes from Catullus*

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”.

Nor in his mind was there anything wrong in a man of such wealth using his money to exploit women in this way. Would he feel the same way, I wonder, if one of those women had been his wife or daughter?

But what is most worrying about Justice Eady’s decision is that he is ruling that - when it comes to morality - the law in Britain is now effectively neutral, which is why I accuse him, in his judgments, of being “amoral”.

Well, at least you can't accuse Dacre of toning down his prose. Regular readers of Heresy Corner will be aware of the absurdity of Dacre's characterisation of the Mosley women as "exploited". His invocation of "most people" is odd from someone who goes on, a few paragraphs later, to accuse Eady of having "a subjective and highly relativist moral sense". In appealing to a (supposed) majority he is, of course, conceding that morality is something decided by popular opinion - rather than, say, an immutable moral law, or the will of God. And it's far from obvious that Dacre speaks for a majority. Eady's view, by contrast, isn't relativist at all. He argues in the Mosley judgement that what people get up to in private - so long as it's between consenting adults - is no-one's business than theirs. And he does so, not from private conviction, but from an analysis of case-law:

There is now a considerable body of jurisprudence in Strasbourg and elsewhere which recognises that sexual activity engages the rights protected by Article 8. As was noted long ago in Dudgeon v UK (1981) 4 EHRR 149, there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes of Article 8(2) because sexual behaviour "concerns a most intimate aspect of private life".

...the underlying sentiments are readily understood in everyday language; namely, that people's sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.


Dacre's claim that this represents a single judge imposing his own "liberal" view of morality on the outraged citizens of Middle Britain is fairly ridiculous. But he's not finished:

The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression. I personally would rather have never heard of Max Mosley and the squalid purgatory he inhabits. It is the others I care about: the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.


Regarding the right of people to freedom of expression, does it not occur to Dacre that "freedom of expression" - in a private, sexual context - was precisely what Max Mosley was exercising that day in March? Perhaps it doesn't. While Dacre complains about the courts - and thus the law - repressing the rights of newspapers to write what they see fit, he has no such problems with newspapers - backed by no democratic legitimacy - repressing the rights of individuals to engage in consensual sexual acts that offend his delicate Puritan sensibilities. Indeed, so obvious to him is the depraved nature of Mosley's idea of fun ("squalid purgatory" indeed) that he scarcely stops to think what about it, other than its unconventionality, is quite so objectionable.

If pressed, I suppose he might say that the element of deceit Mosley engaged in vis-a-vis his wife was the nexus of his moral turpitude - although, given the loving detail with which he concentrates on the mechanics of sadomasochism I'm rather inclined to doubt it. Dacre's statements in this part of the speech are bordering on the deranged. "The very abrogation of civilised behaviour of which the law is supposed to be the safeguard"? No, Mr Dacre, the law is supposed to be the safeguard against crime and to protect private and public rights. It is emphatically not there to impose private morality. It is supposed to be "neutral", that is the whole point.

If Dacre wants to see a legal system that places a premium on safeguarding public morality, perhaps he'd like to visit Saudi Arabia. But then again, I seem to remember that the Mail titles were in the vanguard of condemnation against Rowan Williams' notorious Sharia speech, and more recent instances of Sharia being used in Britain.

At times, it seems that Dacre wants to replace the law of the courtroom with the law of the lynch-mob. Indeed, he seems to think that the law of the land and the leader column of the Daily Mail either are, or ought to be, coterminous. Take this, which represents perhaps the core of his argument:

Since time immemorial public shaming has been a vital element in defending the parameters of what are considered acceptable standards of social behaviour, helping ensure that citizens – rich and poor – adhere to them for the good of the greater community. For hundreds of years, the press has played a role in that process. It has the freedom to identify those who have offended public standards of decency – the very standards its readers believe in – and hold the transgressors up to public condemnation. If their readers don’t agree with the defence of such values, they would not buy those papers in such huge numbers.

The last point is contestable: but even so, despite its relatively high circulation and its constant proclamation of the values of Middle England, the Daily Mail is not bought or read by anything like a majority of the population. Even if all its readers agreed with Dacre's view of Mosley - and they do not - that fact alone would not put Associated Newspapers above the law. In a free society it is a basic principle that the law is there, above all, to protect minorities from the tyranny of the majority, to protect individuals from the state and to safeguard personal freedoms. Dacre, if his words are anything to go by, seems to want the press - or at least his section of it - to have quasi-judicial powers. He opposes court or political interference in his freedom to write what he likes, yet at the same time he wishes to use that very freedom to punish and harry others for "crimes" that have never been created by Parliament or the courts - crimes such as having non-standard sexual tastes, for example.

There is indeed a deep paradox in Dacre's approach here. For - to be generous - there is no media group, possibly no prominent organisation of any kind, that takes a firmer stand in Britain against the steady erosion of our ancient freedoms than Associated Newspapers. From the increasing interference of the EU to the snooping habits of local councils, from accounts of the intrusive growth of the "database state" and the madness often done in the name of health and safety to the must-read articles by Peter Oborne on the corruption of the political class, if there's one popular paper that fights for our rights it's the Daily Mail. Certainly it makes a notable contrast to the even more-read Sun, which seems determined not to rest until we live in a full-blown police state, the better to protect us from shadows. So the Mail's editor in chief ought to be peculiarly well attuned to the connection between privacy and freedom.

When the government ministers tell us, when introducing some new outrage, that "if you have nothing to hide, you have nothing to fear", Mail journalists are usually able to see that a state that demands to know everything about you has all the tools for oppression. But the worst that can happen when your personal data is expropriated by the state is that it will get sold on, lost on a train or accidentally deleted. When newspapers get hold of personal information, the consequences, both for the subjects of their enquiry and for their families, can be devastating.

Nevertheless Dacre's main point, though far from noble, is pragmatically at least a significant one that deserves consideration. If people buy newspapers mainly for the tawdry gossip and sex scandals, the argument runs, and suddenly find there aren't any, then circulation will decline, the tabloids will go out of business, and there'll be nowhere to put the really important, political stories that need to be told:

Put another way, if mass-circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations with the obvious worrying implications for the democratic process.

It may not matter much to the BBC - funded by a tax - or the Guardian - funded largely by government advertising (idea for the next Tory government, by the way: advertise jobs online, and you won't just save great dollops of tax money, you may even shut down the Grauniad. I call that a win-win), but the commercial press is funded, like it or not, by its appeal to the lowest common denominator.

Now some revile a moralising media. Others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice.

If the News of the Word can’t carry such stories as the Mosley orgy, then it, and its political reportage and analysis, will eventually probably die.


I disagree. What has taken away that choice isn't, in the final analysis, Eady, or Strasburg, or even the Human Rights Act. It's a changing understanding of private and public morality that Dacre - with his confusion of private morality with public ethics - would seem to have missed entirely. Of course, if people are presented with titillating details - like the photos of Georgina Baillie the Mail plastered over its pages the other week to accompany its in-depth examination of the Brand/Ross affair - then they will stop and stare. But the public by and large now accepts that people's private lives are their own. If the journalists at the Daily Mail or the Screws are truly unable to find tasty and crowd-pleasing stories to fill their pages in the absence of Mosley-esque scandals then the papers deserve to fail. But I don't believe that for one moment. Nor, I suspect, does Paul Dacre.

(Full text of speech here)

*Bononiensis Rufa Rufulum fellat,
uxor Meneni, saepe quam in sepulcretis
vidistis ipso rapere de rogo cenam
cum devolutum ex igne prosequens panem
ab semiraso tunderetur ustore.

(The Screws would have loved Rufa:

Sex-crazed it-girl Rufa from Bologna, isn't satisfied with hubby Menenas; but that isn't the half of it. When she isn't giving lover Rufulus head, she also gets a thrill from creeping up on smouldering funeral pyres and stealing the sacred food offerings. Gives a whole new meaning to the phrase "put one on the barbie". The scruffy crematorium attendant who spoke to our reporter told us he once gave her a beating; but even that doesn't seem to put her off.

That's a more-or-less accurate translation, by the way.)

8 comments:

lost causes said...

I don't know how you find the strength, H. You're spot on as always - Dacre and the Mail really are the worst.

I wouldn't worry too much though - as part of the generation who grew up with the internet, Cosmo and Loaded, I'm fairly sure Mosely's antics are not a modern Briton's idea of unimaginable depravity. And we'll be in charge soon.

valdemar said...

Dacre is a Catholic, which means that he's intellectually incapable of separating private morality from public policy. And he's a twat of the first order; but you knew that, too.

Irene79 said...

I read the mail, have done for years and I think the comments on Mosley are stupid. I was delighted he won his case, he has every right to do what he wants with consenting, and well paid, adults and serve the press right he was not intimidated. I feel different about the BBC, largely because I am forced to pay for it and it rarely reflects my views or makes programmes I want to watch. I live in middle England and am a retired widow so it's not just the internet generation.

Surreptitious Evil said...

with, say, the mother of a newly chosen British Nobel Prize winner" (why not with the winner?)

Because, back in the long-gone and wholly imaginary Golden Age, the Daily Mail was written to be read by "the wives of the men who run the country" (as listed here but of uncertain and ancient origin - except the relatively recent addition of the Scum) as opposed to its less sex-selected but equivalently characterisable current audience.

They, of course, would be less interested in the details of cosmology, biology, economics (or even Literature) but keen to know which parish committees his (and it would have been, then) mum sat on and whether she was non-U enough to be the chairman of any of them!

Hasn't the world changed? You can argue, of course, whether it is for the better or not!

Umbongo said...

Of course, if Dacre and Associated Newspapers were unhappy with Eady's verdict and/or his interpretation of the law they could have appealed: they didn't. At the time of the original case they could have requested that the case be heard by a different judge: AFAIAA they didn't. Dacre prefers the "court of public opinion" for the patently obvious reason that there he might be able to influence the decision. Thank God the press cannot (yet) directly influence decisions made in public in the High Court.

BTW this case does not, as Dacre implies, create a "precedent" in law. A High Court judge trying a similar case in future is not required to follow Eady's reasoning. Only if the Court of Appeal (or a higher court) hears such a case and lays down the legal principles involved is a precedent created which judges of the High Court would be required to follow.

The Heresiarch said...

Not so. This ruling, like all similar rulings at first instance, does create a precedent. It is not binding on higher courts, but a future high court decision could only depart from it by finding distinctions. Dacre's claims about Eady, indeed, spring from the effect of one judge, deciding numerous cases, playing the leading role in developing this area of the law. However, in the absence of an appeal overturning Eady's approach (not impossible, but unlikely) or Parliament legislating on the issue, then it will stand. Better judge-made law than newspaper-made law, in any case.

It was, of course, the News of the World, not the Mail, that was sued by Max Mosley, so it isn't open to Dacre to appeal even if he wanted to.

Umbongo said...

Another High Court judge with a similar case and a different interpretation would turn somersaults to distinguish the cases. You may be correct technically but practically the next High Court judge along would feel bound only to give serious consideration to Eady's decision: he wouldn't follow it slavishly. In the same way the Court of Appeal although technically bound by past decisions of the Court of Appeal has sufficient leeway to ignore them (Young v Bristol Aeroplane (1944)?).

Even so, had Murdoch as owner of the NoW (rather than Dacre/Associated Newspapers as officious and noisy bystanders - my mistake) thought there was a ghost of a chance of winning on appeal he'd have gone for it: he didn't which says a lot for the faith of the Screws in its case.

Bob B said...

Try comparing Mr Dacre's rant about the High Court Judge with this illuminating piece in the New Statesman a couple of years ago about how the press voluntarily shielded its readers from unpleasant and unwelcome news concerning leading politicians:

"If you were a member of the Garrick Club, or the Athenaeum or Reform, you would expect staff and members to keep your secrets, and so it is with the Palace of Westminster - the best club in London, some of its members call it. It guarded Charles Kennedy's alcoholism well, even though his colleagues knew and lobby journalists guessed. It took smart footwork and threats of libel actions to keep them at bay. There was a time when the press considered such things none of the readers' business, and lobby hacks thought it unprofessional even to mention them. Kennedy and David Blunkett could both wish they lived in such a time. . . "
http://www.newstatesman.com/200601160005