Leading article: Secret justice can never command public respect

The balance between the right to privacy and the right to free expression has been lost

Share
Related Topics

When Donald Rumsfeld came up with the phrase "unknown unknowns" he inadvertently summed up the effect of the super-injunction. These legal instruments not only prevent the British media from reporting on a subject, in the manner of a normal injunction, but also forbid media outlets from reporting that an injunction has been granted. In other words, the public are not only prevented from knowing information, they are also prevented from knowing that they do not know it.

But sometimes unknown unknowns, hidden deep in the darkness of court-ordered secrecy, are dragged into the light regardless. The BBC broadcaster Andrew Marr has voluntarily revealed that he managed to persuade a judge to grant a super-injunction in 2008 that prevented details of his extramarital affair being reported. What is more, Mr Marr now argues that super-injunctions are "running out of control".

This volte face highlights a growing sense of disquiet about such super-injunctions. The instruments are growing in number. There are believed to be about 30 other gagging orders in place. They are growing in scope, too. The High Court judge Mr Justice Eady last week issued a "contra mundum" injunction, effectively a worldwide and never-ending ban on the reporting of information. Given that these injunctions often involve the infidelities of celebrities, some people have assumed that the only thing the public is being denied is access to salacious gossip. But that assumption is a mistake. In the case of at least one super-injunction there was an issue of genuine public interest involved. In 2009, the oil-trading firm Trafigura took out a super-injunction to prevent information being reported in relation to a toxic disaster in Ivory Coast. The existence of the legal order was only revealed because an MP, Paul Farrelly, referred to it in the House of Commons.

Moreover, such is the secrecy surrounding super-injunctions that the public simply cannot make a judgement about whether justice is being done. Media organisations are forbidden from reporting not only the details of the case, but the reasons why an individual judge has reached a decision. Justice needs to be open if it is to command public respect. It is hard to see how super-injunctions can be compatible with a transparent legal system.

There are parallels with the battle over the blanket secrecy that until recently prevailed in the family courts and the Court of Protection. Here, reporting restrictions had sound justifications, namely to protect the privacy of children and vulnerable adults. But that secrecy went too far and harmed the broader interests of justice. Controversial decisions were hidden from public view. Protection swamped transparency. The same thing has happened in the case of super-injunctions.

Judges have granted several super-injunctions under the Human Rights Act, which guarantees a right to a private life. It is perfectly proper for them to take that legislation into consideration. But too often the balance between that right and the right to free expression, also enshrined in the Human Rights Act, has been lost.

The family courts and the Court of Protection have been opened up in recent years thanks to public and media pressure. The privacy of the vulnerable has been preserved, but so too has the right of the press to bring important information into the public domain. A similar rebalancing needs to take place in our legal system over super-injunctions. The Master of the Rolls, Lord Neuberger, will publish a report on the use of them next month. It is to be hoped that he will recommend such sensible reforms. If not, the appropriate boundary between free reporting and privacy will need to be drawn in Parliament.

React Now

Latest stories from i100
iJobs Job Widget
iJobs General

Middleware Support Analyst

£45000 - £50000 Per Annum: Clearwater People Solutions Ltd: Our client is curr...

Senior Java Developer/Designer

£400 - £450 Per Day: Clearwater People Solutions Ltd: My client are looking fo...

Domino Developer and Administrator

£40000 - £45000 Per Annum + benefits: Clearwater People Solutions Ltd: Domino ...

IT Teacher

£100 - £120 per day: Randstad Education Group: Full or Part Time ICT Teacher ...

Day In a Page

Read Next
 

Daily catch-up: Cameron’s speech, his place in history, and the Pedant Club

John Rentoul
 

Why Facebook won't be feeling threatened by Ello...yet

Ed Rex
Italian couples fake UK divorce scam on an ‘industrial scale’

Welcome to Maidenhead, the divorce capital of... Italy

A look at the the legal tourists who exploited our liberal dissolution rules
Tom and Jerry cartoons now carry a 'racial prejudice' warning on Amazon

Tom and Jerry cartoons now carry a 'racial prejudice' warning on Amazon

The vintage series has often been criticised for racial stereotyping
An app for the amorous: Could Good2Go end disputes about sexual consent - without being a passion-killer?

An app for the amorous

Could Good2Go end disputes about sexual consent - without being a passion-killer?
Llansanffraid is now Llansantffraid. Welsh town changes its name, but can you spot the difference?

Llansanffraid is now Llansantffraid

Welsh town changes its name, but can you spot the difference?
Charlotte Riley: At the peak of her powers

Charlotte Riley: At the peak of her powers

After a few early missteps with Chekhov, her acting career has taken her to Hollywood. Next up is a role in the BBC’s gangster drama ‘Peaky Blinders’
She's having a laugh: Britain's female comedians have never had it so good

She's having a laugh

Britain's female comedians have never had it so good, says stand-up Natalie Haynes
Sistine Chapel to ‘sing’ with new LED lights designed to bring Michelangelo’s masterpiece out of the shadows

Let there be light

Sistine Chapel to ‘sing’ with new LEDs designed to bring Michelangelo’s masterpiece out of the shadows
Great British Bake Off, semi-final, review: Richard remains the baker to beat

Tensions rise in Bake Off's pastry week

Richard remains the baker to beat as Chetna begins to flake
Paris Fashion Week, spring/summer 2015: Time travel fashion at Louis Vuitton in Paris

A look to the future

It's time travel fashion at Louis Vuitton in Paris
The 10 best bedspreads

The 10 best bedspreads

Before you up the tog count on your duvet, add an extra layer and a room-changing piece to your bed this autumn
Arsenal vs Galatasaray: Five things we learnt from the Emirates

Arsenal vs Galatasaray

Five things we learnt from the Gunners' Champions League victory at the Emirates
Stuart Lancaster’s long-term deal makes sense – a rarity for a decision taken by the RFU

Lancaster’s long-term deal makes sense – a rarity for a decision taken by the RFU

This deal gives England a head-start to prepare for 2019 World Cup, says Chris Hewett
Ebola outbreak: The children orphaned by the virus – then rejected by surviving relatives over fear of infection

The children orphaned by Ebola...

... then rejected by surviving relatives over fear of infection
Pride: Are censors pandering to homophobia?

Are censors pandering to homophobia?

US film censors have ruled 'Pride' unfit for under-16s, though it contains no sex or violence
The magic of roundabouts

Lords of the rings

Just who are the Roundabout Appreciation Society?