V
Despite the quality of gentlemen going into it, the journalistic world into which Sir Edward Pickering had first ventured before the Second World War was still widely regarded as a trade. By the time of his death, it had clear pretensions to becoming a profession. For those at the broadsheets, salaries had finally reached a level of professional standing and the proportion of those with university degrees had greatly increased. Many even had degrees in journalism. Yet, among the public, the reputation of journalism had enjoyed no such assent. Inexplicably, the papers that were most popular with the public were those that were also held up to have descended deepest into the gutter. During the 1980s, the Press Council’s ability to police Fleet Street was increasingly questioned by the Street of Shame’s periodic, and high-profile, excesses. Founded in 1953, the Council’s chief sanction was that, where it found fault, it could force newspapers to publish its adjudications. Without an agreed code of conduct, its judgments perhaps inevitably lacked consistency and neither journalists, editors nor aggrieved parties appeared to place confidence in it.
Cleaning up the press was not an easy task. Much of the criticism, in particular of the popular press, was directed at its right-wing bias and lowbrow tastes. Yet, drawing up statutory powers to curb such editorial judgments was to stray into dangerous and authoritarian waters in which the law would intrude into value judgments better left – for all their shortcomings – to the forces of competition. Indefensible harassment and deliberate misrepresentation was a different matter. Those who felt they had been libelled had recourse to the courts (at any rate, if they had the time and money). Fleet Street’s broadsheet and tabloid editors were united in favouring self-regulation over statutory intervention, but the Press Council’s failure to produce speedy, consistent and authoritative judgments ensured that it was no longer the vehicle to guarantee the former. In the House of Commons, various private members’ bills proposed a statutory right of reply and the protection of privacy. Nothing better assisted the cause of those demanding a right of privacy than the actions of journalists from the Sunday Sport who, in 1990, barged into a hospital to photograph and attempt to interview the comic actor Gordon Kaye as he lay seriously injured on a life-support machine. Believing that, as the law stood, it was within its rights to publish the pictures taken, the Sport demonstrated its careless arrogance by responding to a reprimand for its actions with the headline ‘Bollocks to the Press Council’. By then, the Government had already decided to act and had appointed Sir David Calcutt QC, the Master of Magdalene College, Cambridge, to chair an enquiry into the press and privacy. The six other members of his committee included Simon Jenkins, who had recently been appointed The Times’s editor.
Fleet Street’s editors had traditionally been opposed to drawing up a code of ethics but the possibility of having one forced upon them brought an abrupt change of tune. In line with other newspapers, in 1989 The Times appointed its former managing editor and deputy editor, John Grant, as its readers’ representative, charged with investigating readers’ complaints and alleged errors or misrepresentations. Calcutt issued his report in May 1990. It called for the Press Council to be replaced by the Press Complaints Commission (PCC). It would implement a code of practice (the code itself was drawn up and agreed by a committee of editors). For newspapers, the most important part of the report was that it did not sanction a privacy law. But Calcutt made clear the press was on probation. If self-regulation did not work, statutory regulation should follow.
Promoting greater responsibility from the tabloids was the main goal of the PCC, but it was not long before The Times fell foul. A Times Diary article in May 1991 had alleged that Bernie Grant, the Labour MP, had encouraged a US congressman to boycott the Queen’s address to Congress because of racism in Britain.10 The source for the story in Washington DC, was a good one and when Bernie Grant failed to return The Times’s telephone call, the allegation was printed without securing his side of the story. When it was published, the MP categorically denied it. When the PCC subsequently condemned The Times for its tardy checking of facts, the newspaper quickly responded by making amends in line with the code of practice.11 Some of the tabloids, however, appeared to regard a rap on the knuckles as an incitement to behave more outspokenly. The Sunday People reacted to complaints about its publication of a photograph of the Duke of York’s infant daughter, Princess Eugenie, naked (she was bathing within a private walled garden at the time) by republishing it with a telephone hotline for readers to say whether or not they found it offensive under the caption ‘Come on Andy where’s your sense of fun?’. The crude excesses of a few risked a statutory backlash that could do far more to gag the serious journalism upon which a free society rested.
There was certainly no shortage of salacious copy to promote, much of it provided by the royal family. The efforts of the PCC’s chairman, Lord McGregor, to bring the press to book had been swiftly handicapped by the Princess of Wales. McGregor’s attempts to protect her dignity were undermined when it was revealed that the source for many of the stories, particularly those he condemned in Andrew Morton’s Diana: Her True Story, serialized in the Sunday Times, was none other than Diana herself. The tabloids’ blood sport at the expense of the royal family continued unabated. When David Mellor, the Heritage Secretary, was provoked into warning that the press ‘was drinking in the last chance saloon’, the Sunday People destroyed Mellor’s career by revealing his affair with a resting actress, complete with various inaccurate but highly embarrassing details provided by the publicist Max Clifford.
Meanwhile, Calcutt had been asked to review the workings of the PCC. In 1993 his second report concluded that the self-regulation he had helped put in place had failed and that with ‘no realistic possibility’ of getting its house in order the PCC should be replaced by a statutory tribunal presided over by a judge armed with powers to block publication, fine miscreants and force published retractions. In particular, there would be legal restraints on such staples of investigative reporting as the use of electronic bugging and long-lens photography. Calcutt’s proposals represented what, in effect, resembled a privacy law. In common with the rest of Fleet Street, The Times was appalled, accusing the ‘blinkered’ Calcutt of producing a report that ranged ‘between the supercilious and the hostile. In that respect it is certainly a document of its time.’12 The paper had already made clear its belief that statutory regulation, and in particular a privacy law, ‘would be a delight to all those with something infamous to hide and a grave blow to the freedom of the press’.13 The Times’s upholding of this freedom was strengthened by its commitment to freedom of expression on its own pages. Among Times columnists, Calcutt found a champion in Woodrow Wyatt. Wyatt, who managed to combine a reverence for the royal family with a close friendship with Rupert Murdoch, used his column to condemn the Sunday Times for peddling Andrew Morton’s book. What was more, he advocated the sort of French privacy legislation that would have made its publication illegal.14 Wyatt maintained that The Times leader column’s reaction to Calcutt smacked of hysteria: ‘the US press vigorously attacks the president, his administration and his opponents without restraint. It is not in the least cowed by US privacy laws on Calcutt lines,’ he argued.15
An alternative argument questioned whether a privacy law was workable. Rees-Mogg observed that Calcutt’s proposals against using telephoto lens would not prevent foreign paparazzi having photographs published (indeed, many of the worst intrusions upon the royal family had been taken while abroad) and if there was to be a prohibition on bugging then it should include that undertaken by the State.16 The Government, too, was reluctant to go as far as Calcutt deemed necessary but The Times, conscious that press criticism of the Government and its members’ private antics had lost it friends at Westminster, feared some form of retribution. The paper even opposed the less stringent findings of the National Heritage Select Committee, arguing its proposals for a press ombudsman, regional complaints offices and the replacement of the P
CC with a more powerful Press Commission stood a chance of being implemented ‘because some ministers want to placate parliamentarians and some parliamentarians want to protect their friends’.17
In the event, the Government settled for a more modest restructuring of the PCC that put disinterested parties in the majority. Attention was focused upon the PCC’s code of practice which was designed to promote responsible journalism. Drawn too tightly, it could threaten legitimate investigative freedom. Thus it attempted to find a balance by permitting newspapers to breach eight of its sixteen rules if they could establish it was in the ‘public interest’ to do so. Exposing criminality or wrongdoing, safeguarding public health and safety and correcting misleading statements were three areas that were commonly accepted to be within ‘the public interest’. The code stated that the public interest extended beyond these areas but decided it would be overly proscriptive to set the parameters and better to take it on a case by case basis. This left considerable room for editorial manoeuvring. To what extent were the private lives of public figures covered by the ‘public interest’? Newspapers could certainly claim so when it came to the royal family or politicians. When the Daily Mirror published photographs of the Duchess of York – separated from but still married to the Duke – in an intimate setting with her financial adviser, The Times argued that ‘the best defence the duchess and the rest of the royal family can throw up against intrusion is to show greater discretion in their private behaviour’. While it accepted that publishing the photograph might demonstrate a ‘lack of taste’, it was wrong ‘to expect a legal fiat to lay down the bounds of good taste in a matter such as this’.18 The paper had a similar attitude to politicians. The tabloids had a field day exposing the sex lives of Conservative MPs, justifying doing so not on grounds of prurience (although this was a large part of it) but because, as members of a party allegedly committed to family values, there was a public interest in exposing them as hypocrites. The Times did not take the lead in exposing the private lives of public figures, although it was happy to report them once other newspapers had already published the details. It did not have a scoop in this area until 2003 (outside the scope of this volume) when, having secured the rights to Edwina Currie’s diaries, it broke the news that the former Health Minister had had an affair with John Major. Neither party (and least of all Ms Currie) lodged a complaint about the exposure.
In the spring of 1998, however, The Times found itself at the centre of a storm when it serialized Gitta Sereny’s book Cries Unheard about the child killer, Mary Bell. In Albert Speer: His Battle with Truth, Sereny had written an acclaimed study of Hitler’s architect and wartime planner who had escaped the death penalty at Nuremberg. In it, she carefully unpeeled the seemingly ambiguous relationship he had had towards the crimes of the Nazi regime he had served so well. Cries Unheard attempted to understand how, at the age of eleven, Mary Bell had strangled two young boys. The book dwelt on the deprivation and abuse that Bell had experienced as a child.
With memories fresh about the murder of the toddler Jamie Bulger by two young boys, an atrocity that had gripped and horrified the public, Sereny’s theme had resonance. As a book, its intent was far removed from the titillation of some true-crime literature. Nonetheless, its publication and The Times’s serialization caused uproar. Sereny had written the book with Bell’s participation – help for which the ex-convict was paid. Bell, it was argued, had therefore profited from her crimes. Tony Blair waded into the furore by describing the payment to Bell as ‘repugnant’. Furthermore, given the stigma that her crime had placed upon her, Bell had been granted a life injunction on her release from jail that prevented her from being identified. Benefiting from this, she had been able to start a new life under an assumed identity and had brought up a daughter who was unaware of her mother’s grim past. Cries Unheard and its serialization in The Times provided the tabloid press with an excuse to hunt Bell down. Her cover was blown and, in the face of considerable media harassment and unwanted publicity, she was forced to tell her daughter the truth.
The affair raised many questions. The greatest fury was directed at the antics of the tabloid press whose rapacious desire to expose Bell appeared to come from low and sensationalist motives. Some, however, believed that by cooperating with the book Bell had brought the attention upon herself. Others felt that Sereny herself was guilty of prurience and could not stand aloof from the consequences of her own book just because it was written in an anguished and high-minded style. The Times was disparaged for publishing its contents and paying Sereny serialization rights that increased her profit and, potentially, the sum Bell demanded for cooperation. Among rival newspaper editors, none was more scandalized by The Times’s decision than Charles Moore who told his readers, ‘I felt that this was a situation that a quality newspaper such as the Daily Telegraph must avoid.’ He assured them that if the Telegraph had behaved as The Times had done, he would have opened himself up to suspicions of being motivated ‘by the desire for profit, sales, sensation, controversy’ and risked his paper being found in breach of the PCC’s code of practice.19 This was prophetic. Complaints were duly brought against The Times under Clause 16 (ii) of the code which prohibited newspapers paying convicted or confessed criminals for their stories unless there is an identifiable public interest defence. Here then, was the ‘public interest’ catch-all put to the test.
When, in July 1998, it issued its report, the PCC cleared The Times of wrongdoing on the grounds that the payment was in the public interest since it sought to explore the penal system’s treatment of child criminals. When the House of Lords debated the issue, Lord Wakeham, the PCC chairman, went further, claiming ‘the public interest oozes from every pore of the book and in turn from the extracts from it which was serialised in the newspaper’. Although he conceded that the public interest should not be confused with what the public might be interested in, Wakeham considered what Sereny ‘had to say was important and deserved a wide audience’.20
Legally, the issue of criminals benefiting from their crimes was a difficult one. The PCC also cleared the Express and the Mirror for paying two nurses, Deborah Parry and Lucille McLauchlan, convicted of murder in Saudi Arabia, for their stories as well as the Telegraph for serializing a memoir by Sean O’Callaghan, a convicted IRA terrorist who had subsequently rejected violence and become a police informer. The existing law permitted the Home Secretary to confiscate money made from criminals writing memoirs. The Government recognized that it was an area of law in need of review but there were difficulties in tightening it up, not least since the European Convention of Human Rights (entrenched in English Law by the 1998 Human Rights Act) guaranteed freedom of expression for everyone, including criminals.
It was in branding a Russian businessman an alleged mafia boss that The Times found itself testing the libel laws in the wake of the Human Rights Act. During 1999, the paper published a series of more than forty articles analysing organized crime and the theft of Russian assets since the collapse of the USSR, but it was two articles written in the autumn on 1999 by David Lister, with assistance from James Bone from the paper’s New York bureau, that unwittingly made an important contribution to British law.
Lister and Bone’s article named Grigori Loutchansky as an ‘alleged … Russian mafia boss’ under investigation in the Bank of New York money-laundering scandal. A second report suggested he had provided a chauffeur and staff in Israel for Lev Chernoi, another Russian businessman who was under investigation for money laundering.21 According to his own testimony, Loutchansky first heard from a report on Russian television that The Times of London had linked him to organized crime. He decided to sue for libel and try to clear his name.
David Lister was a twenty-five-year-old Cambridge history graduate who had worked for the Evening Standard before joining The Times. In August 1999 he had been tipped off by a former detective with the National Criminal Intelligence Service and the National Crime Squad that a British investigation was pending into L
outchansky’s alleged role in the Bank of New York money-laundering scandal. A supplementary source was Jeffrey Robinson, the author of a book on international organized crime, who told him that the Russian businessman was also being investigated by the FBI. According to Lister’s notes, Robinson had even suggested that Loutchansky and Semion Mogilevich had sold Scud missiles to the Iraqi regime. Naturally, Lister decided to follow up these intriguing leads and asked a high-ranking FBI intelligence officer who was on secondment at Interpol’s headquarters in Lyons if Loutchanksy was being investigated over the Bank of New York scandal. According to Lister, she had laughed nervously and replied, ‘I believe it would be fruitful to write about it.’ A trawl of published reports turned up allegations that Loutchansky’s firm, Nordex, had been established with KGB money and that it had possible links with the Russian mafia.22
Some facts were easily verifiable. A businessman in his mid-fifties with joint Israeli and Russian citizenship, Loutchansky’s career had resembled the twists and turns of a fairground roller coaster. At twenty-nine he had become pro-rector at the Latvian State University of Riga. Charged with embezzling various items including university furniture, he had been convicted in 1983 for embezzlement, forgery and abuse of power. He was given a seven-year sentence, part of which was spent in Siberia. After his release he had become general manager of Nordex, a Vienna-based company that claimed to trade in fertilizer. Despite this innocuous sounding line of business, in December 1994 Michael Howard, the Home Secretary, had refused him entry to Britain on the grounds that his presence ‘would not be conducive to the public good’. Jack Straw, Howard’s Labour successor at the Home Office, renewed the ban. This was not the only black mark. In 1996, Time magazine described Loutchansky as ‘a man considered by many to be the most pernicious unindicted criminal in the world’.23
The History of the Times Page 71
