It took three years for the action to get to the High Court in London. Richard Tait admitted that with the benefit of hindsight, ‘ITN would have been better to press on with the court action earlier, but journalists are rightly reluctant to sue other journalists.’ 84 Among the sceptics about ITN’s decision to sue was Martin Bell, who himself had ‘been a target for Mr Hume’s verbal assault force’. He wrote that the libel action ‘should never have been brought; in a free society, if not a Marxist one, journalists should refrain from suing each other’.85
But some went further than Bell and didn’t just dispute ITN’s decision, they challenged ITN’s journalism, suggesting an anti-Serb bias. In October 1998, the future Conservative Education Secretary Michael Gove, then a journalist on The Times, wrote about the libel action, which then was still over a year away. In an article headlined ‘Speaking Up for the Serbs’ he told his readers that LM faced ‘possible extinction at the hands of a powerful organisation it dared to criticise. Independent Television News has been so stung by an article in the magazine that it is using its formidable resources to pursue a libel writ against LM.’ Gove saw it as a struggle between LM’s David and the ITN Goliath. He argued that LM were ‘libertarians of the Left who now regard consensus as the enemy, not capitalism’. This seemed to strike a chord with Gove, who was from the libertarian right. He acknowledged that ITN’s powerful images had a great influence on Western attitudes, but he believed that ‘Trnopolje was not an extermination camp like Auschwitz, but a transit camp for prisoners-of-war’. Gove opined that while ethnic cleansing may have been dreadfully evil it was not comparable to the Holocaust. The problem was that ‘ITN may not have wanted to equate Serb actions in Bosnia with the Holocaust. But their pictures allowed others to.’
Gove added to his charge sheet against ITN by citing a potential new Balkan tragedy: the Kosovo conflict, in which the NATO countries where lining up against Serbia. ITN’s pictures, he argued, had also allowed the skewing of ‘perceptions of a nation against whom we may be about to wage war … confusion about the enemy can lead us into a no man’s land’.
Gove’s article drew a response from Richard Tait in which he defended ITN’s staff. He made the point that,
far from this being a rich company pursuing a poor, this is a case of ITN defending two honest and courageous journalists against vilification by a glossy and apparently well-funded magazine. We made clear to LM last year that we sought an apology and costs and would forgo damages. If they choose to run the risk of paying the price for what they said about us, that is their responsibility.86
ITN pressed ahead with their legal action and both sides prepared to do battle in the High Court in early 2000. It was at this point that John Simpson entered the story. He had started his BBC career as a sub-editor in the radio newsroom, which he ‘hated’, before realising his ambition to become a reporter and then a foreign correspondent. After ventures into political reporting where he felt ‘utterly, utterly shackled’ and TV news presenting, ‘I was a crap newsreader,’ he returned to foreign reporting.87
Strange Places, Questionable People was the title of a book he wrote in 1999 about his life as a foreign correspondent. He made a brief reference to ITN’s coverage of the Bosnian camps. He wrote that it had been ‘British television which gave a powerful impetus to the idea that the Bosnian war was the present-day Holocaust. By some clever planning a team from ITN managed to get to the camps run by the Bosnian Serbs at Omarska and Trnopolje.’ He said that the ‘pictures were quite unforgettable’, had spread around the world but, ‘somehow along the way, though, the reservations of the ITN team which filmed them were ignored. The ITN team was careful not to make the analogy with Nazi concentration camps. Others did.’ This was very similar to the line Michael Gove had taken.
But then Simpson went on to publicly sign up to the Deichmann interpretation of the pictures. ‘The skeletal figures weren’t inside the barbed wire, for instance, they were outside it. The wire was old and ran round a small enclosure. The cameraman got behind the wire to film the scene.’88
Just weeks before the trial opened the news broke that Simpson had gone even further and had offered his services to LM’s defence team. Eddie Gibb, a journalist writing for the Scottish Sunday newspaper the Sunday Herald, wrote, ‘The BBC and ITN are preparing for a head-to-head court battle over the reporting of the war in Bosnia. Veteran BBC foreign editor John Simpson has been lined up as an expert witness for LM magazine, which is being sued over an article it published in 1997 about ITN’s reporting of Bosnia’s “death camps”.’89
In another, longer report in the same issue Gibb wrote that the ‘case will raise fascinating questions about the limits of press freedom – and the fact LM is calling BBC foreign editor John Simpson as a defence witness offers the intriguing prospect of representatives from Britain’s two biggest news broadcasters duking it out in court’.90
Behind the scenes Simpson’s offer of help to LM had led to him preparing a witness statement which, like all such court documents, had to be disclosed to the other side, in this case ITN. At the company’s headquarters in Gray’s Inn Road, the senior executives and their legal advisers were shocked by what they read. Simpson’s statement was a direct attack on the integrity of the company and its journalists. The contents of John Simpson’s statement are revealed here for the first time.
The BBC correspondent pointed out that he had done long tours of duty in Sarajevo and elsewhere in Bosnia, and had ‘acquired a very clear understanding of what the Bosnian Serbs did to their prisoners’. He admitted that ‘I have not been to either Omarska or Trnopolje camps’ but reported that he’d had long conversations with an investigator for the International War Crimes Tribunal at The Hague who had examined the circumstances in the camps in the light of ITN’s report. His view was that it was not an accurate reflection of conditions in Trnopolje.91
He went on to dispute ITN’s technical evidence, essentially on the basis that the BBC didn’t do things that way. Simpson looked at ITN’s evidence and the tapes, and in his view the barbed wire issue was as Deichmann had described it.
Simpson then expressed his opinion that
the ITN team presumably realised this; but when the pictures were edited and presented these two points [that Fikret Alić was no longer threatened and that there was no barbed wire to keep him in], so essential to an understanding of what was going on at Trnopolje, were not made. They edited out altogether an interview they had recorded with a prisoner who seemed intelligent and not speaking out of fear, who told them that Trnopolje was not too bad. The commentary on the report as broadcast reflected this to some extent, but the report was edited in such a way that it was dominated by pictures of an apparently starving man apparently imprisoned behind barbed wire. This image dominated everything. It reminded us all so much of the Nazi death camps that we assumed that we were seeing.
Later Simpson said bluntly that
ITN’s reporting of Trnopolje was, I believe, profoundly misleading. They should not have edited out the interview with the man who told them that the camp was not too bad. They should have explained about Fikret Alić and the barbed wire. If I had allowed elements as misleading as these to enter one of my reports, I would have regarded it as a matter of professional duty to put the record straight as quickly as possible. And if I found out that a BBC report by someone else had contained elements as misleading as this, especially in a matter of such importance, I would insist that the report should be changed and the wrongful impression corrected; no matter how awkward and embarrassing it might be.
His concluding remarks delivered an even wider judgement:
in my view it is not enough to say that even if the pictures weren’t what they seemed to be, it doesn’t matter because the Serbs were doing bad things elsewhere. Our reporting has to be as honest and as literally true as we can make it. As a result of ITN’s report, people were given a false impression about one of the major events of the decade. And when LM po
inted this out, ITN tried to silence it.
A few days before the trial began, a pre-trial review was held by the judge chosen to preside, Mr Justice Morland. He had joined the bench in 1989 and in 1993 had presided over the trial of the two boys accused of killing Liverpool toddler James Bulger. He also heard two high-profile libel cases in the 1990s, Naomi Campbell’s action against the Daily Mirror and Neil Hamilton’s case against Mohamed Al Fayed, the owner of Harrods.
Before him was the witness statement of John Simpson. Mr Justice Morland ruled that it was not admissible as evidence. The legal problem was that the statement was opinion not fact. It was what Simpson thought might have happened and what other people had told him they thought had happened rather than hard evidence of what had happened. Part of it was clearly hearsay. It was an interesting piece of journalism but Simpson had not actually been a ‘witness’ to any of it. The judge also ruled that statements by the journalist and writer Phillip Knightley and by ‘a leading QC’ were similarly inadmissible.
Trial
The libel hearing began on 28 February 2000. Elsewhere in the High Court in London’s Strand, American academic Deborah Lipstadt was fighting David Irving in a libel action about the Holocaust that was billed by some as ‘History on trial’.92
ITN’s legal team and its leading counsel, Tom Shields QC, had decided that the best way of demonstrating that there was nothing to hide was to place every member of the teams that had gone into the camps, plus their editorial chains, on the stand where they could tell their own stories in their own words and from where they could be cross-examined by LM’s lawyers. It was a bold tactic. None of the ITN witnesses, including me, had ever appeared in a High Court libel case before. Who was to know if there wouldn’t be some wrinkle in their evidence that might be seized upon by the other side. ITN really was putting its reputation on the line. The tactic drew some criticism from LM’s editor, Mick Hume. At one stage he professed surprise that Nik Gowing, the reporter who helped to get the original invitation from Bosnian Serb leader Radovan Karadžić, had not been called. Hume described him as ‘about the only person, apart from the tea lady, we have not heard from in the last two weeks’.93
By contrast, with LM’s expert witness statements ruled inadmissible, Hume later claimed ‘there were eighteen ITN witnesses versus me and Thomas Deichmann … Presumably that is what the law means by “a level playing field”.’94
The trial’s opening day drew considerable media interest, probably because there was a latent expectation that perhaps ITN had really fallen down on the job and that all would be exposed. But as the days wore on and the journalists, cameramen and sound recordists, editors and executives gave their evidence it became clear to many that the journalists’ and their team’s modus operandi was transparent and comparable with other media organisations’ practices. It was established that the ITV and Channel 4 News journalists, team members and editorial staff had all been acutely conscious of the heavy loading of the term ‘concentration camp’ and all decided not to use it for that reason.
On the matter of the fence the trial spent hours looking at a diagram that Deichmann had compiled when he visited the site of the Trnopolje camp four years after it had been closed. It had accompanied his article and LM’s lawyer took the court through the video evidence in ‘excruciating detail’ to show from where each shot had been taken.95 LM had argued that because it was not complete and there was no contiguous boundary around what had been called Trnopolje camp, inmates were there for their own protection (according to the magazine) and were free to come and go. Moreover, Deichmann had argued, the area into which the journalists, cameramen, sound recordists and their minders had strayed was partially fenced and it was that fence through which the pictures of Fikret Alić had been taken.
However, during the various testimonies it became clear that the journalists, who were shepherded by Serb minders and only at Trnopolje and Omarska for approximately one hour each, had not noticed the exact orientation of fences. There was a telling exchange between Penny Marshall and LM’s barrister, Gavin Millar. When he asked her about the shot of Fikret Alić through the fence and the fact that it ‘had assumed some significance as far as other media commentators and newspapers were concerned’, she agreed: ‘the image had become important because people were appalled by his condition’. But then she added, ‘But you look at the picture and see barbed wire; I look at the picture and see Fikret. That is the difference between us.’96
The video evidence made available to the court was what had survived: in his opening remarks ITN’s counsel had told the court that one of the camera tapes, which had contained closing footage taken at Omarska and the opening footage of Trnopolje, had been lost from ITN’s archive several years before. The loss had only been discovered when ITN had been asked by the International Court, ICTY, to provide copies of all their footage to the court in 1995–96 for the Tadić trial. However, the missing footage was not considered to be a key and LM’s barrister did not make an issue of it, taking the view that what was available was sufficient for establishing the magazine’s defence. But the loss led some observers to see something suspicious.97
The witness whose evidence appeared to observers to have the greatest impact came not from ITN or LM but from one of the camps. He was the Trnopolje camp doctor, who had been interviewed on film during the journalists’ visit nearly eight years previously. Providing first-hand witness testimony, Dr Idriz Merdžanić, told the court that he had not been taken to Trnopolje camp of his own free will.98 He said that he had nothing but the floor on which to sleep99 and that the camp doctors were told that they would be held responsible for anyone who went missing from the camp.100 He said that the medical laboratory was used for prisoner beatings and that screams were ‘regularly’ heard coming from inside.101 He told how he had received the camera with which he took the still photographs of the beating victims, and passed on the film to Marshall, from Dr Azra Blažević.102 Dr Merdžanić told the court that one of the people that he had photographed had subsequently died from his injuries.103 He also said that one of the doctors, Dr Jusuf Pašić, had been transferred to Omarska where he had been killed.104 Dr Merdžanić also told the court that there had been women at the camp, some of whom had been raped – ‘particularly at night’.105 When asked about food, the doctor said that it had first been brought into the camp by locals, although after they were ‘sent away from their houses’ the inmates had been allowed into the surrounding fields to dig potatoes and prepare meals, but that afterwards the ICRC had come to the camp and distributed food.106 Medicine had been non-existent at the camp and lice rife, according to Dr Merdžanić.107
Dr Merdžanić told the court that preparations were made before the journalists visited the camp:
A few days before they came we felt different. There were differences … Azra Blažević was the first one to find out that the journalists were coming … she found that out from a guard a day before … We decided to give them that film because we didn’t know at the time whether that would be the last chance.108
But after the journalists left, Dr Merdžanić sensed real change for the better: ‘Things were changing really fast. Other journalists started to arrive. Some people were coming from some international organisations, so then they ordered the wire to be taken down. People were allowed to go behind wire…’109 Prisoners were registered, and that gave them a degree of protection. However, Dr Merdžanić also recounted the story of five prisoners brought to the camp while the Red Cross was absent. They had been beaten and eventually killed.110
At the end of the doctor’s questioning by ITN’s barrister, the court turned to LM’s counsel, Gavin Millar, expecting him to rise and challenge the evidence. Millar told the judge that he did not wish to question Dr Merdžanić. It was a crucial moment. This was first-hand testimony from a man who had seen what really happened at Trnopolje and LM had decided not to lay a glove on him. If John Simpson had been called as a witness later it would have
been interesting to hear his response to Dr Merdžanić’s evidence.
For LM Mick Hume and Thomas Deichmann were questioned and cross-examined for just over a day and made robust defences of their case. The trial has been analysed in detail by Professor David Campbell of Durham University and he also looked into some of the broader issues of the case, in particular some of the wider aspects of the fence and the description of Omarska and Trnopolje. Professor Campbell has noted that LM’s witnesses ‘conceded the central point of their case against ITN’. They had acknowledged that ‘the nature of the fence at Trnopolje had nothing to do with the issue of whether Alic and others were imprisoned in a camp’.111 Both men had admitted that conditions at Trnopolje were severe and that killings, rapes and other brutal acts had occurred often. Moreover, the continuing presence of armed guards effectively meant that the inmates could not leave: they were imprisoned if not by a visible fence, then by an invisible one. The consequences of crossing either could be equally lethal.
After the closing statements and the judge’s summing up, Mr Justice Morland advised the jury about the maximum damages, including aggravated damages, that could be made if it found for the plaintiffs.112 The jury then retired and considered its verdict. After asking to review some of the video113 it returned and announced to the court that it found that Penny Marshall, Ian Williams and ITN had been libelled by LM and awarded substantial damages to each (£150,000 each to Penny Marshall and Ian Williams for the damage that they had suffered, and £75,000 to ITN).114
Aftermath
When Reporters Cross the Line Page 4
