The SDT recently published the Leigh Day judgment, just before the start of term proper, on a PDF which was a scan rather than a proper, easily readable, and editable PDF. All of these things undermine my ability to blog about the substance of the case. It’s a small sign of the SDT’s rather poor attitude to transparency or good management (a more important example is the absence of a full and searchable database of their decisions, available to all). But, I digress, because that is not what I want to write about.
I want to write briefly about a piece in the Law Society Gazette suggesting that the SDT should not have published the minority judgment in the Leigh Day case. Ostensibly, this is because the Times and the Sun were provided with ammunition to write a piece knocking lawyers acquittal and it is is not in the public interest because the profession’s reputation is thus besmirched. Now, I complained on twitter about the Times coverage in their ‘Brief’ email. It was poor, not balanced, and very Rupert Murdoch. I am hoping that whoever wrote it, and or edited it, is embarrassed enough to do better. (And today, praise where it is due, they did spot a US study on class actions was not really saying what the survey’s paymasters wanted it to say, so perhaps they are making amends).
Now, one might take the Law Society Gazette more seriously in their argument, if it were not for the fact that there are questions over the way they have selectively reported the Leigh Day case. When the verdict was announced, although they knew that it was a majority verdict, the same author of the piece wrote a piece decrying the prosecution (although primarily for its expense) and also tweeted the following…
I’m not sure the Gazette should have immediately piled in with a ‘the SRA must answer questions’ article and their lead reporter on the issue should almost certainly not have tweeted with doubts about the merits of prosecution on such a sensitive case where the verdict was by a majority. We all make mistakes on tweets, and I understand that the majority verdict was not reported because in criminal trials when a defendant is acquitted by majority verdict this fact is not reported. This is to avoid a risk of defamation, I am told, although close watchers of any particular jury trial will know a majority direction by a judge is reported, so anyone following matters will know an acquittal is probably by a majority verdict. Appeals on professional ethics can be by majority verdict and I can think of at least one Cout of Appeal case where the judgments might be deemed to be sensitive to the lawyer’s reputation.
So there is the whiff of hypocrisy about the argument that the Times cannot selectively report the acquittal but the Gazette can. Even if it is right that the majority verdict should not be reported in the aftermath, which I doubt, a little more circumspection in the aftermath of the verdict would have been wise.
And that leads onto my final point. It seems to me extraordinary that it would not be in the interests of the public that the outcome of the hearing is known. The profession should know that the decision was not cut and dried and that the minutiae of what went wrong might bear some reading and reflection. That such a high profile, and esteemed, lawyer had such a close shave with the Tribunal is very much food for thought from which I imagine many lawyers could learn.
Also, to make one last point, the nature of the verdict, and (when I get to read it) the nature of the findings may be enormously important to the debate about the standard of proof in tribunal cases. Stifling the information about this, on such an important case, seems to me to be an idea to be treated with a good deal of scepticism, no matter what source it emanates from.