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Unbelievable

By Steven | May 21, 2011

Some readers have wondered whether I’m exaggerating when I accuse the British press of being incapable of reporting fairly about so-called super-injunctions. Here I offer Exhibit A:¬†today’s Guardian story about a long-awaited and fascinating report by a committee headed by the Master of the Rolls on the issue of injunctions, super-injunctions and anonymity orders. The headline?

Super-injunctions granted far too readily, say judges

This is, in fact, precisely not what the report says. It says it has been able to find evidence of only two super-injunctions since 2010, one of which was reversed on appeal. The committee (not just made up of judges) says super-injunctions have to be very carefully controlled, granted on strict terms, and granted rarely. And it says that’s just what’s happening. Still, the committee wasn’t certain it had picked up on all the super-injunctions around, including some that may have been granted before 2010.

This is simply nowhere near as big an issue as the media are suggesting.

UPDATE: I was mystified by the way the Guardian quoted the committee as saying that there was “justifiable concern” super-injunctions had been granted “far too readily”. That statement doesn’t appear in the report at all.

But a summary of the report, with accompanying statements by Lord Judge and Lord Neuberger, does say it:

There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

The Guardian’s headline seems much more justifiable in that light, though it¬†implies that the practice continues when the report says it doesn’t. Still, the story sets out the report’s findings. Oddly, the report itself really doesn’t supply any evidence to substantiate the concern that super-injunctions were granted far too readily before 2010. It does talk (para 2.35) of “justifiable concerns that a form of permanent secret justice was beginning to develop”, and says (para 2.36) that some old super-injunctions may still be in existence. But it provides no statistics or even examples, adn merely reports (para 4.4) that the claims are “impossible to verify”. The report suggests that the higher estimates (up to 300) may based on double-counting, counting anonymity orders, or just exaggerated. The committee sensibly recommends that better statistics be kept.

Topics: General | 4 Comments »

4 Responses to “Unbelievable”

  1. granny.morris Says:
    May 21st, 2011 at 4:24 pm

    Sorry Steven, but you’re in danger of getting into Alice territory here. Words do not necessarily mean what you say they mean.

    You say that “super injunction” means one whose existence can’t be reported. In the UK, common usage amongst the press, twitterati, bloggers et al is that a “super injunction” as one which suppresses the name of the applicant(s). Your “super injunction” is now known as a “hyper injunction.”

    I guess there are still people who use gay to mean happy, but they – like you on this one – are in a serious minority.

    Any thoughts on the illustrious committee’s reported views that the press might be held in contempt for reporting the detail of parliamentary proceedings?

    Any thoughts on whether a well known former welsh international who plays for Man Utd will succeed in his quest to rein in Twitter?

    These are far more important issues than whether the underlying injunction is Super or Hyper.

    Granny

  2. Steven Says:
    May 22nd, 2011 at 1:19 pm

    Thanks Granny, but wrong. I’m not making up my own definition. A super-injunction is one that suppresses the existence of the injunction itself. The term was coined by the Guardian, and this is the definition widely given by the British press, in Wikipedia, by media lawyers and judges, and by the committee itself. You’re mixing it up with anonymity orders, which raise different questions, and do seem to have been granted with increasing frequency. A “hyper-injunction” seems to be a term invented for political grandstanding. It means an injunction that prevents discussion of a case with an MP. I doubt there has ever been such an injunction. The so-called “hyper-injunction” bandied around by MP John Hemmings was in fact a consent agreement: http://www.headoflegal.com/2011/03/23/john-hemming-mp-abuse-of-power-and-privilege/

    Admittedly, as Wikipedia notes, “Many media sources were wrongly stating that all gagging orders were super injunctions”. The committee also notes the confusion, and says conflating super-injunction with other gagging orders is “misleading”.

  3. Justin Says:
    May 22nd, 2011 at 2:19 pm

    The guardian also has a nice explanation of the difference:
    http://www.guardian.co.uk/law/2011/mar/21/secrets-to-keep-hyper-injunction

  4. Steven Says:
    May 22nd, 2011 at 2:30 pm

    Yes, although (sigh) having properly explained what a super-injunction is, they then use an example of a case (Fred Goodwin) which doesn’t seem to be one: http://inforrm.wordpress.com/2011/03/23/can-the-media-use-parliamentary-privilege-to-circumvent-reporting-restrictions-in-privacy-injunctions-henry-fox/

    This could be taken to bear out my point or Granny’s.

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