This seems to have been the question that has been asked since the Member for Birmingham Yardley took the decision to name Ryan Giggs as the subject of the much discussed High Court injunction, in the Commons on Monday. Surely the real answer is ‘neither’?
Hemmings was simply doing his job; reflecting public opinion in the face of an already farcical situation, growing more and more ridiculous by the hour.
I have no interest in what Ryan Giggs may or may not get up to in his spare time. Equally, I have little sympathy for him, aside from the vast amount of money he has spent on what must qualify as some of the worst legal advice in history.
This case simply represents the wider issue. Giggs is a populist story which has captured the public imagination in a way that something like Trafigura didn’t. A sad indictment perhaps, but that’s really neither here nor there. I certainly don’t for one minute think that The Sun are being selfless in any way here, but it has put the issue in the public consciousness.
The nature of these injunctions (and it’s worth pointing out that this is simply an anonymised injunction, not a ‘supeinjunction’) is certainly troubling. I am not a proponent of unlimited free speech; there has to be limits, and it certainly must be balanced against the right to privacy. The current balance certainly isn’t right.
In the Giggs ruling, Mr Justice Eady’s judgement contains details of what he considered to be blackmail, and cites this as a key reason for the granting of the injunction. That makes the issue a criminal one and should be treated as such. Yet, thanks to this injunction, we have a situation where Imogen Thomas is unable to defend herself against those allegations, either in court, or in public. This hardly seems fair. Allegations of blackmail are considerably more serious than allegations of infidelity, yet where is her protection?
We also have the situation involving Giles Coren. It looks like nothing will come of the weekend stories that Coren was potentially facing action for revealing the subject of a different injunction. However this gives us another potential conflict between injunctions and what we expect from our legal system. In the case of someone facing a contempt charge for breaking an injunction, how would the terms of that injunction be varied for the purpose of that trial? If not, how could the defendant expect a fair trial without full disclosure of the facts contained in the injunction?
In the case of a superinjunction – where the existence of the injunction cannot even be revealed – the potential is even more chilling. The logic would dictate that someone inadvertantly breaking one of these injunctions would have to be tried and sentenced in complete secrecy, for the injunction to be maintained. The actions of a totalitarian state.
Now, of course I accept that the above scenarios are sensationalist. However, such extremes, even if unlikely, do not mean that the degrees leading up to them are much more palatable. The extremes simply go to demonstrate how in conflict such injunctions are with what we expect of our legal system and with our rights as individuals in a liberal society. Superinjunctions effectively hides the judiciary themselves from public scrutiny. This cannot be good.
I don’t know exactly what Hemming’s motives were for specifically naming Giggs, other than what he has since said on his own blog. Whether he was right or wrong to do so, if his actions help lead to a serious look at privacy and freedom of speech at the highest levels, then perhaps it is a case where the potential ends do justify the means.