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

iJobs Job Widget
iJobs General

C# Developer (HTML5, JavaScript, ASP.NET, Mathematics, Entity)

£30000 - £45000 per annum + Benefits + Bonus: Harrington Starr: C# Developer (...

C# Integration Developer (.NET, Tibco EMS, SQL 2008/2012, XML)

£60000 - £80000 per annum + Benefits + Bonus: Harrington Starr: C# Integration...

Biztalk - outstanding opportunity

£75000 - £85000 per annum + ex bens: Deerfoot IT Resources Limited: Biztalk Te...

Trade Desk Specialist (FIX, Linux, Windows, Network Security)

£60000 per annum: Harrington Starr: Trade Desk Specialist (FIX, Linux, Windows...

Day In a Page

Read Next
 

i Editor's Letter: The final instalment of our WW1 series

Oliver Duff Oliver Duff
 

Simon Usborne: The more you watch pro cycling, the more you understand its social complexity

Simon Usborne
A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

A History of the First World War in 100 Moments

Peace without magnanimity - the summit in a railway siding that ended the fighting
Scottish independence: How the Commonwealth Games could swing the vote

Scottish independence: How the Commonwealth Games could swing the vote

In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

A writer spends a night on the streets

Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

UK's railways are entering a new golden age

New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

Conchita becomes a 'bride' on Paris catwalk

Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
Pétanque World Championship in Marseilles hit by

Pétanque 'world cup' hit by death threats

This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

Why did we stop eating whelks?

Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
10 best women's sunglasses

In the shade: 10 best women's sunglasses

From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

World Cup final: Messi? Mascherano is key for Argentina...

No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
The true Gaza back-story that the Israelis aren’t telling this week

The true Gaza back-story that the Israelis aren’t telling this week

A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
A History of the First World War in 100 Moments: The German people demand an end to the fighting

A History of the First World War in 100 Moments

The German people demand an end to the fighting
New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

New play reveals what Oscar Wilde said at trials

For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
Can scientists save the world's sea life from

Can scientists save our sea life?

By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

Richard III review

Martin Freeman’s psychotic monarch is big on mockery but wanting in malice