IMPRESS reject arbitration and compensation claim from ex MP over Esther Baker investigation story on this blog

esther baker

Esther Baker

CROSS POSTED ON BYLINE.COM

The press regulator, Impress, has refused a request for arbitration and compensation from former Liberal Democrat MP, John Hemming, over an article published on this blog last September when the Crown Prosecution Service decided not to  issue criminal proceedings against the ex MP and two other people over allegations of child sex abuse from Esther Baker.

The article reported, almost in full, statements issued by Staffordshire Police and the ex MP after the decision was announced by the CPS. The CPS concluded there was ” insufficient evidence ” to proceed, the ex MP said he had been the subject of false allegations.

Since then Esther Baker has appealed the CPS decision and a ruling is expected some time in the autumn.

This blog is not directly covered by the regulator, IMPRESS, but because I cross post articles on the independent platform, Byline, it is indirectly covered since Byline has agreed to be regulated by IMPRESS.

IMPRESS’S regulatory committee ruled  that the article  on its own could not been seen  as Mr Hemming claimed as ” harassment”. And it dismissed his claim for compensation by saying that any  alleged harm caused to Mr Hemming  by this article was ” trivial ” and ” too insignificant to meet the  test ” for a claim.

For the record  and to prevent other people putting  any spin on this decision this is the text of the ruling sent to Byline:

“I am writing to advise you that an IMPRESS Regulatory Committee recently met to consider John Hemming’s request for arbitration. Having carefully considered his request in accordance with the IMPRESS procedures they have decided that the request is not suitable for arbitration under the CIArb/IMPRESS Arbitration Scheme. The reasons for their decision are set out below.

Reasons for Board arbitration suitability decision:

Rule 8.3 of the IMPRESS Regulatory Scheme requires the Board to make an administrative assessment of whether a claim is covered by the scheme. For the avoidance of doubt, this decision is not based on an assessment of the merits of a claim.
Rule 46 of the Regulatory Scheme Procedures provides six administrative criteria that need to be satisfied before a claim can be accepted under the scheme.

The Board considered each of these in turn:
(i) The claim is made against a publisher regulated by IMPRESS.
The Committee was satisfied that the claim was made against a publisher (Byline) that was regulated by IMPRESS at the time of the act complained of (6 September 2017).
(ii) The claim is related to one of the areas of law covered by the scheme.
The Committee was satisfied that the claim related to an area of law covered by the scheme, namely defamation and harassment. With regards to the claim for harassment however, though this related to one of the areas covered by the scheme, the Committee determined that the claim for harassment did not satisfy the relevant test. This was because, under a claim for harassment, a ‘course of conduct’ required two or more events to be characterised as such. The claimant therefore could not bring a claim against the publisher for the publication of one article.
(iii) The claim is not a pre-publication matter where it is appropriate for it to be directed to the courts.
The Committee was satisfied that the claim did not relate to a pre-publication matter where it was appropriate for it to be directed to the courts.
(iv) The claim provides a clear statement setting out the harm or financial loss suffered by the claimant.
The Committee was not satisfied that the claim clearly set out the harm or financial loss that the claimant had suffered as a result of the published article. It noted that the claimant largely relied on the fact that the article was part of a wider campaign against him which he accepted that Byline was not a party to.
(v) The claim describes a specific action or activity of a publisher that has caused the alleged harm or financial loss.
The Committee was not satisfied that the claimant adequately described how it was the article published by Byline that caused the alleged harm and loss to the claimant. This is because, although the claimant identified specific harm and loss caused by the ‘wider campaign’, the claimant failed to specify any harm or loss which arose as a direct result of the article published by Byline. The Committee determined that any harm or loss caused to the claimant by the publisher was trivial or incidental in conjunction with the remainder, and was thus too insignificant to meet the test.
(vi) The claimant explains why the complaint is not suitable for resolution by the IMPRESS complaints procedure.
The Committee accepted that given that (i) the complaint did not, on the face of it, appear to engage the Standards Code and (ii) the claimant sought financial compensation as a remedy, it was not suitable for resolution by the IMPRESS complaints procedure.
In conclusion, the Committee decided that the claimant’s request for arbitration should be refused on the grounds that parts (iv) and (v) of the test were not met.

Are you a terrorist if you have a copy of the Vietnam protesters’ Anarchists Cookbook ( published 1971)?

Anarchistcookbook

The Anarchist Cookbook: Are you a terrorist if you have it.

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Imagine you have a dog eared copy of an old book that told  you various pranks, how to make fireworks and home made bombs and cheat credit card companies. Or you have recently bought one off Amazon.

You would not expect owners of  The Anarchists Cookbook to be front line terrorists in the age of Isis. Yet this precisely what the Crown Prosecution Service and a Birmingham high court judge thought when they tried  27 year old Josh Walker, a University College,  Aberystwyth student for borrowing a copy of it for a  student role playing game.

He was charged under the Terrorism Act, 2000, which when MPs challenged the then home secretary, Jack Straw, about the breadth of the act – he told them

” we can all invent hypothetical circumstances—fantastic circumstances—in which any of us, according to the criminal code, could be charged and subject to conviction; but there is no point in our doing so.”

…”Such circumstances therefore do not arise, and I do not believe that they ever will”

Not so Mr Straw. As it is the jury decided to acquit him after three days. But one wonders if the person – given the current climate had been a Muslim rather than white British it would have gone so easily.

And no doubt people wanting to reinvent Reds under the Beds will soon start asking how  many members of Momentum have  such books or ordered them from Amazon. For those wanting to relive the 70s entryism I expect they will take it is as their litmus test and ring the Daily Mail.

The full  story is on the excellent Inforrm’s Blog and is also reproduced below:

Is your library criminal? – Joel Bennathan QC

In 1999 the Home Secretary, Jack Straw, was presenting what was to become the Terrorism Act 2000 to the House of Commons. Answering a challenge about the breadth of its terms he said:

“Of course, we can all invent hypothetical circumstances—fantastic circumstances—in which any of us, according to the criminal code, could be charged and subject to conviction; but there is no point in our doing so. We know that, in the real world in which we live, the criminal law is subject to a significant series of checks and balances, including proper invigilation by the courts of the land and control of the Crown Prosecution Service by Members of Parliament who are answerable to the House of Commons and the other place. Such circumstances therefore do not arise, and I do not believe that they ever will”.

Tell that to Josh Walker; in the summer of 2015 he was organising a student role playing game at his university in Aberystwyth. To make it more real he signed into his student library internet account, searched and printed off a partial copy of the Anarchist Cookbook, a ragbag originally produced in early 1970s USA containing a mix of pranks, firework and bomb recipes and tips on how to make free phone calls and cheat the US credit card companies. He could have bought a copy off Amazon, but didn’t bother. At the end of the game the students planned to destroy all the paperwork but Josh forgot and ended taking the partial book and some other random papers home. A year and a half later they were found in the drawer under his bed.

In the meantime Josh had seen what was going on in Syria and flown out to help the Kurdish groups who were fighting against ISIS. He came home in December 2016 and was arrested as police tried to work out what he had been doing in the Middle East; he was not charged for helping the same group that the Americans, the French and the UK are assisting, but a police search of his Aberystwyth bedsit found the book and 10 months later he stood trial in Birmingham Crown Court, accused of possessing information likely to be useful to a terrorist, under section 58 of Jack Straw’s 2000 Act.

No one said Josh Walker was going to make one or more of the bombs described in the book. No one said he knew any terrorists. No one said there was any sensible prospect of a terrorist looking in the drawer under the bed in his room. Yet the terms of section 58 don’t require the person owning the book to be a terrorist, nor that their copy of the book might fall into the hands of a terrorist; if the information in the book is such as is “likely to be of use to a terrorist” the owner is guilty unless he or she has a “reasonable excuse”.

It wasn’t meant to be this way. Jack Straw thought he was passing a law that would only be used to stop terrorism. The House of Lords in the appeal of G seem to have been told the offence would not be used against books such as an “A to Z” and placed great faith in prosecutors who are “very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest”. Tell that to Josh.

And so, on 23 October 2017 Josh Walker and his legal team turned up at Birmingham Crown Court. An application was made for the trial Judge to halt the prosecution on the basis it was an unjustified interference with both common law rights and the European Convention right to “receive information”, and that the Director of Public Prosecutions’ consent to the case proceeding should never have been given. The Judge refused and the trial started. Three days later a Birmingham jury decided that a student owning a book with no intention to harm anyone was a reasonable excuse and Josh Walker was found not guilty.

Questions remain. What was the public interest in prosecuting this case in the first place? Do Jack Straw’s assurance to Parliament and the expectation of the Law Lords in G count for nothing? And if the CPS wishes to criminalise a book, why not pick on someone their own size, like Amazon, instead of a student on legal aid who had risked his life fighting terrorists in Northern Syria? Someone really ought to ask the DPP.

This post originally appeared on the Doughty Street Chambers website and is reproduced with permission and thanks

Esther Baker child sex abuse case: “Insufficent evidence”to prosecute as accused ex MP outs himself “

esther baker

Esther Baker

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 UPDATE  20 January 2018: Since this blog was published Esther Baker has been given core participant status at the Independent Inquiry into Child Sexual Abuse. She has appealed the decision by the Crown Prosecution Service who are currently reviewing the case

She is still regarded by Staffordshire Police as a witness for a separate inquiry with another police force into child sexual abuse and exploitation.

The two year long police investigation into allegations by Esther Baker against a former Liberal Democrat MP and two other people has ended with no prosecutions against any of the people following a decision by the Crown Prosecution Service that there is ” insufficient evidence” to get a conviction in court. Her case was highlighted,among others, by Exaro News, and centred around allegations that as a young girl she was sexually abused in the woods in Staffordshire by a number of prominent people while police officers looked on.

Staffordshire Police said in a  carefully worded statement which was supportive of Esther : “We have now concluded a thorough and sensitive investigation into a number of non-recent child sexual abuse allegations made by Esther Baker.

Throughout this process our priority has been to support Esther and ensure all potential lines of enquiry were carefully assessed and investigated. We submitted the findings to specialist lawyers at the Crown Prosecution Service (CPS) who have now concluded that there is insufficient evidence to provide a realistic prospect of conviction of any suspect in this case.

We recognise this investigation, and subsequent review by the CPS, has taken a great deal of time. ”

Supt Amanda Davies said “It was vital we gave the victim the time, space and support she needed to disclose the information. Over 100 hours of interviews were conducted by specially trained officers, and throughout the investigation we have kept her informed and continued to provide support.

“In this case Esther made the difficult decision to waive her right to anonymity and we will continue to support her, as we would with all victims of crime. We want to take this opportunity to reassure other potential victims that their identity is protected by law.”

“Supporting victims remains our absolute priority, rest assured you can contact us confident that you will be listened to and we will provide the support you need.”

Three people were interviewed under caution during this investigation, one of whom was arrested, he has now been released from bail.

John Hemming, the former Liberal Democrat MP for Birmingham, Yardley, decided yesterday to reveal that he was subjected to allegations from Esther Baker and interviewed by the police though not arrested. In a long statement on his own blog, reproduced below, he attacked the Labour Party and accused his successful opponent,  Jess Phillips, Labour MP for Birmingham, Yardley of a campaign against him over the case ( even though he was never named) which he claimed was a perversion of the course of justice. He also attacked Sky News and Exaro for their reporting of it.

 He said :“I am pleased that the Police have now made it clear that there has been a concerted effort to promote false criminal allegations against me and that the allegations had no substance whatsoever.

I would like to thank Emily Cox, my children, Ayaz Iqbal (my Solicitor), my local lib dem team and many others who supported me through this dreadful experience. 

There are many worse things that happen to people, but this was a really bad experience.

It is bad enough to have false allegations made about yourself to the police, but to have a concerted campaign involving your political opponents and many others in public creates an environment in which it is reasonable to be concerned about ill founded vigilante attacks on your family and yourself. Luckily there was a more substantial lobby to the contrary as well, which included many people who were themselves real survivors of abuse, which has helped. 

I am normally someone who helps other people fight injustice. Being subject to an unjust campaign of vilification is something I do not wish to repeat.

The police themselves have handled the allegations well. However, although it was obvious from the start that the allegations were nonsense, it has taken two years for this to be resolved. Identifying why that is will take time, but I believe that the system is too tolerant of false allegations. The current CPS guidelines on handling false allegations are in my view too tolerant of malicious allegations and need review. The unnecessary delay of around 2 years in resolving the issue I believe arises from procedures that are being used being flawed.

It has been in the public domain for 2 years that the complainant changed her allegations in early 2015 from those she had made publicly previously and that she had stated publicly that she had never met a politician…

It should be noted that the newspapers generally have handled the issue reasonably well. Exaro and Exaro’s funder have behaved dreadfully. Sky should recognise that not only was their broadcast of the original allegations in May 2015 a complete nonsense, but also had it been based upon truthful allegations that it would have undermined a criminal investigation. The attempts to drum up additional false complainants through the use of publicity highlights a difficulty with publicising cases whilst a police investigation is going on. There are people who will make false allegations merely because someone suggests that they are looking for such allegations.

Some members of the Labour Party, including my opponent in the last two General Elections, have invested considerable time in promoting these allegations. The promotion of the complainant as an expert in this subject area as a consequence of these allegations has caused additional difficulties for my family.

I am not myself aware of another situation where members and supporters of a political party have promoted such allegations in such a public manner – essentially arming the villagers with torches and pitchforks and setting off on a lynching. There were public attempts to prevent me from standing as a candidate because of allegations made maliciously by a Labour Party member backed by other members of the Labour Party. Many Labour members will find this unacceptable and it is an issue that needs consideration by the Labour leadership.

I have asked the police to investigate this attempt to pervert the course of justice and await their response. There are, of course, many procedural options that are open to me to obtain justice for my family. I will consider those over the near future.”

Two points need to be made as I suspect that this case will not be going away for some time.

First because other allegations  ( not involving the ex MP) made by Esther are still under investigation by Staffordshire Police with another police force, relating to when she was a teenager and she is intending to appeal the CPS decision.

Second it is clear Mr Hemming will not let this go. On his criticism of Exaro there are two points. He wrongly blames the former owner and funder, Jerome Booth, for publication of the story. Jerome never knew or wanted to know what stories Exaro was investigating and read the stories for the first time  like everyone else when they were published.

Secondly Exaro never named him throughout the investigation and when the police revealed his age which would have made it easier to identify him through ” a jigsaw identification ” removed the tag Liberal Democrat.

 

Internet trolls beware, your prison cell awaits

With growing interest on the abuse of people on the internet, some amazing figures have emerged from the Ministry of Justice showing the huge rise in the number of prosecutions in the last decade.

I am indebted to the pay wall site of Media Lawyer for permission to reproduce much of their findings and to Inforrm blog who have also published the report.

Ten years ago just 143 people were convicted of the crime  to send “by means of a public electronic communications network” a message or other material that is “grossly offensive or of an indecent, obscene or menacing character”.

Last year – the latest figure for convictions had soared to 1209 – an extraordinary eight fold increase.

As Media Lawyer reports:

“The previously little-used section [ Section 127 of the malicious communications act 2003] has come to prominence in recent years following a string of high-profile cases of so-called trolling on social media sites.

It can also cover phone calls and e-mails, and cases of “persistent misuse” which cause the victim annoyance, inconvenience or needless anxiety.

Ministry of Justice  statistics show that 1,501 defendants – including 70 juveniles – were prosecuted under the Act last year, while another 685 were cautioned.

Of those convicted, 155 were jailed – compared with just seven a decade before. The average custodial sentence was 2.2 months.

Compared with the previous year there was an 18% increase in convictions under Section 127 but the number has dipped since a peak in 2012 when there were 1,423.”

The article adds:

” The issue of online abuse came under scrutiny after cases such as the targeting of Labour MP Stella Creasy, who spoke of the “misery” she suffered caused after a Twitter troll re-tweeted menacing posts threatening to rape her and branding her a “witch”.

Other victims of trolling have included campaigner Caroline Criado-Perez and Chloe Madeley, daughter of Richard Madeley and Judy Finnigan.

The MoJ figures also revealed a similar rise in the number of convictions under the Malicious Communications Act, which makes it an offence to send a threatening, offensive or indecent letter, electronic communication or article with the intent to cause distress or anxiety.

Last year, 694 people were convicted of offences under this Act – the highest number for at least a decade and more than 10 times more than the 64 convictions recorded in 2004.”

I have noticed  an increase – since this blog has highlighted  child sexual abuse – in the number of survivors who speak out and then find themselves the target of trolls – sometimes saying they don’t believe their story.

The government  will increase penalties. Media lawyer reports it will increase: “the maximum sentence for trolls convicted under the Malicious Communications Act from six months to two years and extend the time limit for prosecutions under Section 127 of the Communications Act 2003 to three years from the commission of offence.”

Obviously there has to be a balance between pursuing people and free speech – with the previous head of the Crown Prosecution Service now a Labour MP, Keith Starmer, saying there must be a ” high threshold” and people practising internet jokes should not be prosecuted. But what is disturbing -and I intend to return to this is that the abuse and misuse of the internet is growing  and there may be a case for even harsher penalties for the most persistent offenders.

Janner: Good Call by the Goddard Inquiry

Lord Janner Image courtesy BBC

Lord Janner
Image courtesy BBC

The decision announced today by the Goddard Inquiry to carry out a thorough investigation into the allegations against Lord Janner is good news. I had wondered why the inquiry had been so silent for so long following  the statement by Alison Saunders, the head of the Crown Prosecution Service, that Janner would have been prosecuted save from him suffering advanced Alzheimer’s Disease. Frankly it would have outrageous if the inquiry did not conduct a thorough investigation.

The full statement plus a Q and A  is on the inquiry’s website here .

It will remain to be seen how exactly this will be done and whether any of the evidence will be heard in public or whether the inquiry will publish a full report on it after the investigation. But the right things appear to have been put in place including ensuring that all the key documents are handed over to the inquiry.

Of course this decision comes at a time when the inquiry itself could face a judicial review for deciding not to appoint survivors and  its plans to limit access and powers of people appointed to its advisory committee.

There is also  the fact that as well as the review of the DPP’s controversial decision not to prosecute Lord Janner and any potential legal action to get the decision reversed that Goddard will not be able to proceed immediately.

But what is absolutely essential is that the scandal surrounding the failure to prosecute Lord Janner earlier by the police and the legal authorities is properly investigated and the survivors are given a chance to tell their stories. In the meantime we must be vigilant to ensure the right thing is done.

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Child sex abuse : Why Goddard must put the Lord Janner decision at the heart of her inquiry

Lord Janner Image courtesy BBC

Lord Janner
Image courtesy BBC

I was expecting Lord Janner, the former Labour peer, to become the first prominent person to face charges for child sex abuse as a result of a plethora of current police investigations across the United Kingdom. It was quite clear from the attitude of both the Met Police and Leicestershire Police ( and it now appears Northamptonshire as well) that they had uncovered serious allegations against him dating back decades.

So in one sense it was not a surprise that the Crown Prosecution Service statement says that the Labour peer faced numerous charges.

They were following Operation Enamel ( the Leicestershire Police investigation) enough for the CPS to say “the evidential test was passed on the basis that the evidence is sufficient to have warranted charging and prosecuting Lord Janner in relation to the particular charges listed below; these relate to nine individuals:

  • 14 indecent assaults on a male under 16 between 1969 and 1988
  • 2 indecent assaults between 1984 and 1988
  • 4 counts of buggery of a male under 16 between 1972 and 1987
  • 2 counts of buggery between 1977 and 1988.

One of the victims has issued a statement through Leicestershire police. So the decision after four separate medical reports not to prosecute Lord Janner because he has Alzheimer’s Disease and is unfit to plead is devastating for all the survivors of the alleged abuse who will not be able to testify. It also must thoroughly frustrating for Leicestershire Police , who are understandably furious about the decision, after conducting such a thorough and forensic inquiry. It appears in the CPS’s view to have been done too late. There is a full report by my colleagues on the Exaro site.

At the moment we are left with an impasse over a high-profile  and contentious figure. His family can forever say he is innocent of all charges because it will not be tested in a trial. His victims and survivors can claim he is guilty and yet another member of the Establishment to escape justice for hideous crimes.

To make it worse both views are irreconcilable even among people who worked with him. Before this decision I had talked to two people who had closely worked with Lord Janner. One,a journalist, was utterly convinced that he was innocent and could not believe he would  do such a thing. Another,a politician, was highly suspicious about his behaviour with young men ( though he had never been propositioned himself).

New Zealand dame Justice Lowell Goddard pic credit: http://www.teara.govt.nz/

New Zealand dame Justice Lowell Goddard pic credit: http://www.teara.govt.nz/

If the CPS decision cannot be challenged it seems to me the only way for survivors to receive any form of justice is for Lady Goddard to step in and make this a central plank of her judicial inquiry. It has all the messy ingredients of the  current historical child sexual abuse scandal – missed opportunities, failed previous police investigations, a failure by the Crown Prosecution Service itself, and the convenient death or terminal illness of alleged perpetrators just when justice beckons.  A different scandal,involving Grafton Close children’s home in Richmond  the death of  the council’s former children’s home deputy manager,John Stingemore , just before his trial for child sexual abuse at Southwark Crown Court earlier this year, echoes Janner.. Again there were police failures, allegations were not followed up, and charges not made until years after the event.

Only a thorough examination of the entire documentation of the Janner saga and – as it is a judicial inquiry – testimony from people who people involved, including the survivors, social workers, the police, and for that matter Keith Vaz, the chair of the Commons home affairs select committee in the last session of Parliament- and a staunch defender of Janner in the past.

If Goddard fails to do this – it could also be taken up by the Independent People’s Tribunal- which is also now being set up and will provide an alternative voice to the official inquiry.

Justice has to be done and lessons learned. The biggest one involves any current allegations of child sex abuse – justice must not wait until the perpetrators are dead or terminally ill.

Why police whistleblowers will be crucial to getting to the truth of historical child sex abuse

While controversy rages about the future of the independent panel into child sex abuse,a key development almost passed unnoticed at the end of last year.

It was the decision of former police officers in previously closed down child sex abuse inquiries to present a dossier to Sir Bernard Hogan Howe, the Met police Commissioner, and to the overarching inquiry into child sex abuse when it finally starts taking evidence.

My colleague Alex Varley-Winter on Exaro produced two powerful pieces revealing both this move and the extraordinary revelations on a closed website by former police officers  who investigated child sex abuse allegations during those dark days of the 1970s, 1980s and 1990s.. You can read her pieces on Exaro here and here. They reveal that  their own investigations were ” canned” when they started to involve prominent people or politicians.

As she reports:”The participants in the two discussions are mostly former Met officers. One exceptionally identifies himself as having worked for “UK gov”, and said that he signed the Official Secrets Act. And another was a firearms instructor in the Met.

…”Across all the discussion threads published by Exaro, seven participants claim to have direct knowledge of a cover-up of VIP paedophiles. Many others say that they were told by colleagues or do not specify the basis of their claims about closed operations.”

The significance of this cannot be underestimated. At the moment the police have  detailed allegations from survivors of very serious abuse and possible murders of three survivors. As Scotland Yard has already said the allegations by ” Nick” as revealed by Exaro are credible. But the police need more evidence to corroborate this to bring charges. These could come from other survivors.

But  what better evidence  could there be than from former police officers who could h\ave been investigating the very same allegations if they can come forward.  This would provide the Crown Prosecution Service with quite separate evidence in addition to the survivors themselves.

I have a feeling that this could be a game changer in the investigations that are currently taking place across the country if these police officers are able to testify. This will make this year a very important one for all survivors of historic child sex abuse who have been denied justice for such a very long time.