It was a clash between two great British institutions, both with decades of entertainment history behind them, both with massive fan bases, and both with their fair share of detractors.
But it was Sir Cliff Richard who ended up with his best-known song ringing in his ears yesterday after a landmark victory over the BBC which appears to have created a new red line for media coverage of police investigations.
It’s not often that the first half of the 10 O’Clock News turns into a live media law lecture.
And it’s a shame that one of the most interesting and significant developments in media law for several years ended up happening while our lecture theatres are empty.
But there is plenty of material to keep people like me busy – plus plenty to talk about in the autumn.
And this isn’t some arcane, academic, ivory-tower discussion point.
The judgement of Mr Justice Mann raises ethical and practical issues that could affect the way every single journalist in this country operates.
His ruling that people being investigated by the police have a reasonable expectation of privacy is in some ways no surprise after other cases in recent years – such as Hannon – have moved the law in this direction.
But it has understandably unleashed a serious backlash of concern – from the BBC itself, from highly experienced journalists, from media organisations and from specialist lawyers.
The judge’s conclusion that the BBC’s public interest argument could only be supported as far as coverage of an anonymised investigation – and not as far as identifying the celebrity target – is said to be a chilling restriction on media freedom and a green light for police obstructiveness or even abuse.
— The Sun (@TheSun) July 18, 2018
As usual, the Sun summed up its objections beautifully – even if the shotgunning of any more into one word offends my eye.
But is it correct?
The example of serial predator TV presenter Stuart Hall is rightly used in arguments against the sort of legal ban on naming suspects who have not yet been charged which Mr Justice Mann now seems to have created. Women came forward to strengthen the police case after he had been named at the arrest stage by the media.
Mr Justice Mann disregarded the notion that there was any ‘shaking of the tree’ merit in naming Sir Cliff.
And for every Stuart Hall there is a Christopher Jefferies – someone whose life was ruined by outrageous media coverage of an arrest that the courts agreed could have prevented justice being done.
Some red herrings have also been thrown into the debate: I saw a very experienced media lawyer suggesting the latest ruling would stop legitimate coverage of investigations into abuse by teachers – as if that unique pre-charge identification ban in Section 13 of the 2011 Education Act was all a dream. And there was concern on yesterday’s excellent Media Show that police appeals to find named and dangerous suspects could expose titles to legal risks – despite the long-standing reassurance burnt onto the eyeballs of all NCTJ exam-takers from the 1982 Attorney-General, and the key principle of qualified privilege.
One impact of the Leveson Inquiry has been the gradual closing of doors to the media by police forces, a process which has been all the more frustrating in an era of social media.
I can see this isn’t going to help, and my former colleague Tom Rawstorne makes a good point.
My real concern is that there is already virtually no relationship between press and police post Leveson. This will b used by police press offices to further clam up. It’s already nightmare trying to get even basic, uncontentious information from them today.
— Tom Rawstorne (@Rawsty) July 18, 2018
I still have mixed feelings about the BBC’s actions.
I welcome its championing of the cause of media freedom, and to see an organisation often accused of being over-cautious and bound up in regulation and compliance paranoia with its head above the parapet in this way is perhaps refreshing.
But I can’t rid myself of the suspicion that had the Beeb not been quite so bull-at-a-gate, we may not find ourselves in this situation.
To be fair to the BBC, the judge was clear that any coverage which identified Sir Cliff would have been a breach of privacy.
But there’s no doubt that helicopter, that live and intrusive footage, that short timeframe for a comment, and particularly that appallingly tactless Scoop of the Year submission added dangerously unnecessary fuel to the fire.
As I said before, part of me thinks the BBC has got us into this mess. And so it should do all it can to get us out.
These are incredibly difficult issues to wrestle with, and I’m very conscious of that saying that ‘hard cases make bad law.’
I’d very much like a second judicial opinion on this.