A couple of pieces which are worth reading in respect of the current prisons book controversy are this report at the Independent on the practical difficulties in obtaining and sharing books in prison and this superb and spot-on Telegraph column by Mary Riddell.

 

Both articles provide detailed and much-needed context for this issue.

 

(My own post at the FT on this policy of pure idiocy is here – free, but registration required.)

 

 

 

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I just realised I have not posted here for a while.  So here goes…

…since I last blogged here I have moved from the New Statesman to the Financial Times.  

I think this is a good move.

I loved working for the New Statesman - it was the magazine I used to read in the sixth-form college library which made me feel very grown-up.

And with the support of Jon Bernstein (the then deputy editor) I was able to do some fairly adventurous and consequential blogging – from Nightjack to Julian Assange’s extradition mythology.

Believe it or not I even won an award as a “mainstream blogger of the year”.  (I think it was the first thing I have “won” in my life!)

But my time at the New Statesman came to a natural end, and I also wanted to do lengthier pieces – essays, in a way – to be published as-and-when I got round to finishing them.

(I also am making actual progress with an e-book about a famous historical legal case. )

My blogging from 2009 to 2012/3 was at the time great fun to do – BCA v Singh, Twitterjoketrial, David Rose, Nightjack, Assange, and so on – but what I may do next will be a little different and less “investigative” or “campaigning” and more analytic and explanatory.

And so the FT is a good place for me.  I enjoy analysing and explaining, and I think I am often good at at it (though not as good as I would like to be).

There are plenty of others who want to debunk and campaign, and I am happy to leave them to it.

After a bit of a gap caused by a bout of bad health which prevented me from blogging for while, I today posted a detailed account of the recent prosecution of some men arrested for taking discarded food from a skip.  Please have a look – I hope you find it interesting.

Planned posts include scrutiny of the government’s  ’good law’ initiative, a look at the state of the probation service, what the ‘Naked Rambler’ case tells us about the limits of the legal process, as well as a series of posts on public procurement and government contracts.  I will also keep on with the occasional analyses of cases in the news.

The FT blogs are free to access: but they are behind a registration wall.

That is a pity in that those who don’t want to register (or are not able to click through easily at the time they see the link) will not get to see the post.

All I can say in consolation is that it is worth registering as there is a lot of first-rate stuff to read at the FT.  But I am sorry if my main posts being behind a registration wall annoys or disappoints you.

Anyway, thanks for keeping an interest.

Was the nine-hour detention of David Miranda lawful?

 

To answer this, let us start with what we know about the detention..

The official statement of the Metropolitan Police was as follows:

At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.

This provides official confirmation of three crucial facts.

First, that the duration of the detention was just under nine hours.

Second, that the man was not arrested in respect of – still less charged of – any criminal offence.  The man was allowed to fly on to his destination.

Third, that the detention was under schedule 7 to the Terrorism Act 2000.

 

Now, taking these three facts together a fuller picture begins to emerge.

 

The power to question

The use of schedule 7 of the 2000 Act is significant.  The schedule is set out here, and it provides at paragraph 2(1):

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(Schedule 7 has legal effect under section 53(1) of the 2000 Act.)

The paragraph 2(1) power is limited to a specified purpose, that of “determining”  whether a person falls within section 40(1)(b) of the 2000 Act.  Therefore, if that is not the purpose then the power to question is not being lawfully exercised.

Paragraph 2(4) goes on to provide that an examining officer may exercise the power  whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b).  This means that there does not actually need to be a reasonable suspicion.  However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.

 

The power to detain

A power to question is not the same as a power to detain.

And so paragraph 6(1)(b) provides a power to detain a person for the purpose of questioning.

However, paragraph 6(1)(b) does not provide a power to detain that person – unless they are being questioned to determine whether they fall within section 40(1)(b) of the 2000 Act.

Therefore, this is not a general power to detain, and it is conditional on the person (a) being questioned for (b) the specified purpose.

So if the person is being detained for any other purpose then the power to detain is not being lawfully exercised.

As long as the power to detain is being used for its appropriate purpose then under paragraph 6(4), that detention can be for up to nine hours. However, the nine hours long-stop only applies whilst  the examination continues.  Once it is over before the end of nine hours, then the person should be released.

 

What section 40(1)(b) says

So schedule 7 provides a limited power to question and a limited power to detain.

Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.

So the next question is fundamental – what does section 40(1)(b) say?

Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:

a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Section 40(1)(b) thereby is a  limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition.  Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.

This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b).  It is not a general power of search.

However, once property has been taken, then paragraph 11(2) provides it can be retained:

(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, [or]

(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings [...]

So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.

 

Compulsion and coercion

Under paragraph 5(a), the detained person “must give the examining officer any information in his possession which the officer requests”.  Under paragraph 18, it is an imprisonable offence for that person not to comply with any duty (including the duty to provide information).

So the questions are asked under threat of coercion.

 

What schedule 7 is for and what it is not for

The legal powers provided under schedule 7 are broad, but they are also confined.

Unless they are being used for the specified purpose of determining whether the detained person fills the definition of “terrorist” under section 40(1)(b) then the power to detain and question cannot be lawfully used.

And if that is not the purpose, then the power to search for property to assist in determining whether a person is a terrorist is not triggered, and this in turn means that the power to retain any property for evidence in criminal proceedings is also not triggered.

In other words, schedule 7 cannot be used as a fishing expedition for property.

 

A detention of nine hours

David Miranda was detained for just under nine hours.

This is exceptional.

According to the official report on use of terrorism powers, only 0.06% of detainees are held for more than six hours.  This is not surprising given the limited scope of the question to be determined.  It seems 97.2% of those detained are freed in less than one hour.

For someone to be detained for almost the full nine hours is exceptional.  Even the “watchdog” for anti-terrorism legislation has called it “unusual”.

 

What the Americans have said

All the above can be worked out just from the Met police confirmation.

But what makes this case especially interesting – and, for me, worrying – is something which has been reported about what the American government knew. (Transcript.)

It is reported that the American government had advance notice of the detention.

If this is the case, then this appears to open a serious question [*Add for clarity - in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was.  He was not some random passenger.

Accordingly, if they knew who he was, then it would seem – to me – that [*Add for clarity - in this particular case] they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition.  They knew full well whether he did, or if he did not.  The questioning would be artificial.

In other words, by flagging the American government with an advance notice of the detention [Add for clarity - in this particular case], it would seem to me that [*this] detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).

And if  that was not actually the actual purpose of the detention, then there would be no power to question, detain and search David Miranda at all.

 

But in any case, and in summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.

 

[Add - 20 August 2013 - Joshua Rozenberg raises the alternative ground of illegality that the nine hour detention was disproportionate.]

[*Adds - 20 August 2013 - changes in the last few paragraphs to make intended meaning clearer - I was not making a general point that prior notice and awareness always meant a detention unlawful - but that in the case of Miranda it seems to me that they would have been aware that he was not a terrorist.]

 

 

 

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Today Bradley Manning apologised at the military tribunal – the apology is here.

 

The apology reads as if it was drafted by his defense lawyers: it is not only contrite, but it presses every button for the tribunal not to impose a harsh sentence.

 

This should not be a surprise, for the impression which has formed for many following this prosecution is that Manning is getting very good legal advice.

 

Instead of denying all charges, a wise decision was taken to admit the lesser charges and focus the defense on the more serious ones.  That tactic worked: Manning was found not guilty on the more serious charges.

 

Now at sentencing,  there is contrition and not crowd-pleasing defiance.  It may not be enough to prevent a heavy sentence, but it certainly will not provoke the tribunal into wanting to make a lesson of him.

 

Any lawyer defending a case in the public eye is aware that the defendant’s supporters will often want a more robust and confrontational approach to the case.  This pressure should be disregarded: the priority is always the client’s interests.  The media or political context of a case should not, of course, be ignored – and there are benefits to having external support – but the most important goal must be to get the optimal outcome for the defendant.

 

By concentrating on defeating the more serious charges, and by this show of contrition, it would seem that Manning now has the best possible chance of the lowest sentence available in the circumstances.  And if this is so, then it is the lawyers which should be thanked for that.

 

It is easy to be an “armchair defendant” – but it is less easy to be a real one sitting in a court room, or in a prison cell.

 

 

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Ignorance of the law is no excuse, as the old maxim says.

Nonetheless, there is something troubling about the spate of phone “hacking” which allegedly occurred in the first decade of this century. (Yes, I know the alleged interceptions of voicemail were not hacking in a precise technological sense, but bear with me.)

 

Newspaper offices are notoriously risk averse when it comes to the law.  That is why, for example, “libel chill” had the impact it did: there were things which would not be published, whatever the public interest.  The possible legal exposure was too much.  And even if an experienced editor would want to take a “robust” view, the in-house lawyers are there to urge due caution.

 

So what happened?

Why did any alleged phone hacking take place in this environment of compliance and risk avoidance?

 

Part of the answer was perhaps that the areas of law which dealt with phone hacking – namely the Regulation of Investigatory Powers Act and the Computer Misuse Act – were simply not well known to newspaper editors and lawyers steeped in the old media laws of libel and copyright.  As technology changed, the applicable laws changed as well, but that was not realised until far too late.

But part of the answer may also be  that it did not occur to anyone involved that it could even be a breach of the criminal law.  So, with no apparent law to comply with, only culture and ethics would act as any restraint on accessing the voicemails of others, or instructing private detectives to do so.

In practice, culture and ethics provided no barrier at all.

 

Phone hacking was probably never, in essence, a problem of illegality but one of culture.

There was this great new way of getting stories, and there seemed no compelling reason not to exploit it.

And so people did.

Ignorance of the law may never be an excuse, but sometimes it can also explain certain things.

 

 

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Over at the Observer, Nick Cohen has done a brilliant piece on the BBC’s witlessness over what to do with Ding Dong The Witch Is Dead.

 The silencing of the Munchkins must rank as one of the most inept acts of censorship Britain has seen.

[...]

As for the BBC, what is there left to say about it? Can it show The Wizard of Oz again? Can it only run the film after the 9pm watershed? Must the announcer warn: “This children’s story contains Munchkin choruses that some viewers may find offensive”?

 

Nick is, of  course, completely right.

In and of itself, there is nothing offensive or unlawful about the Munchkins’ happy chorus: just watch and listen:

 

So unlike a song which explicitly insults or otherwise derides Thatcher – for example Morrissey’s  Margaret on the Guillotine - it is only the interpretation which is being placed upon the Munchkins’ song which can render it offensive to (some of) her supporters, and not the song itself.

 

It has been a strange week or so for those who are neither Thatcherite nor Anti-Thatcherite.

Twitter has been a battleground for a historical re-enactment of 1980s debates.  One side seems angry in part because they never actually defeated her, and the other side seem defensive as it was actually they who removed the only Tory leader since 1970 to win an outright majority for a full parliamentary term.

In all this, getting Ding Dong The Witch Is Dead to number one emerged as a form of protest and celebration for Anti-Thatcherites.

 

This may well be distasteful; but there is something in this which must be satisfying for (some) Thatcherites.

It is a form of protest and celebration where the royalties go to some United States conglomerate.

And it is a form of protest and celebration by which Anti-Thatcherites indulge in a mass self-identification as Munchkins.

One rather suspects the ghost of Thatcher would find this amusing.

 

The ghost of Thatcher, however, would also be perhaps disappointed in how soft (some of) her supporters have become in contending that the Munchkin song is actually offensive.

They should harden up, one can imagine her spectre muttering, there are more important fights.

 

As for the BBC, their response should have been to do nothing different from what they normally would do; the record should have been treated just as another number one.

They should have neither drawn attention to it as a protest or celebration nor edited or censored it.

And by treating it as something which did not warrant any exceptional action, the BBC would have made a silent and effective point about those – like Thatcher but also many others – who seek to  interfere with the media  for political reasons.

 

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A week ago primary school teacher Lucy Meadows was found dead at her home.

Over the last week there has been a great deal of interest in the case.  There has been a vigil outside a national newspaper office; there are petitions calling for an individual journalist to be sacked; there is the prospect of a House of Commons debate; and various groups have claimed the tragedy supports their objectives.

In all this, there is little concrete information. This post sets out, as of today, what we know and – more importantly – what we don’t know about what happened to Lucy Meadows before she died.  This post deals with these points in broadly chronological order, and as this is not a “blame” piece, I have anonymised the names of all but Lucy Meadows.

The full sources and other links for what follows are here.

 

What happened with the school

We know Lucy Meadows was a primary teacher at a certain school and that she was transitioning from male to female.  We know she had the support of her headteacher and of the diocese.  It appears she was popular and highly regarded.

We know that the headteacher put thought into how to communicate this news to the school, and it appears the headteacher decided to do this by means of a low-key announcement in the “staff changes” part of the school newsletter.

 

The local press

We know that the local press covered the story before the national press were aware of it.  We know that the local press – one paper in particular – were able to get a quote (and a photograph) of a concerned parent.  We know that claims were made that other parents were concerned, but there is no explicit evidence of this.

We do not know what either Lucy Meadows or the School did about this local news coverage, other than to provide statements.  Lucy Meadows and her headteacher released statements asking for privacy to be respected.

(26/3/13 ADDED: See Dan Waddell’s two detailed posts http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering.html and http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering-follow-up.html on how the news story went from local to national level.)

 

The national press

The national press picked up the story soon after it was published in the local press.  We know that the national press sought “before” and “after” pics of Lucy but had to settle for unauthorised Facebook pics and a child’s drawing.  We know that the national press took the decision to publish a story in December 2012 based on the adverse reactions of the parents.  However, there were still no more named concerned parents.

Once the story was covered in at least two national tabloids as a news story, we know that a controversial columnist used the information acquired by others for a critical main piece in his weekly column.  We do not know what Lucy Meadows thought of this column, as it is not mentioned in any of the emails which have so far been published.

 

The complaints of harassment and press intrusion

We know that Lucy Meadows complained of the press intrusion in emails sent to another trans person.  These emails have not been published in full.  In these emails we are told that Lucy Meadows was concerned at the presence of photographers at her school and the attempts to obtain private information (and pictures).  We are also told that the press seemed uninterested in the parents who wanted to say positive things.

Lucy Meadows also wrote that she had to significantly change her routine to avoid the press attention, arriving at school early and leaving late.

We do not know whether this is correct (though there is no reason to doubt it). We also do not know whether the press which were present were freelance or were staff journalists/photographers.

We know that Lucy Meadows submitted a PCC complaint in January 2013 and it is understood that there were others.  We know that her complaint was “resolved” but we do not know on what basis.

We know that the columnist’s piece was edited on-line on or before 12 March 2013 and that it appears text and photos were removed.  We do not have a reason for that edit.

 

The death of Lucy Meadows

We do not know the cause of death, though very early reports said it was suicide.  We do not know the relevant circumstances if it was suicide, and the Samaritans caution that no suicide should attributable to one factor.

We know that the police do not believe there were suspicious circumstances and that the death was unexpected. We know that a file has been passed to the coroner and that the coroner is expected to have an inquest.

We do not know what, if any, relationship there was between the press coverage/conduct and her death.  And even if there was a relationship, we do not know what aspect of the press coverage/conduct is of most importance.  In particular, we do not have any evidence that the columnist’s piece was directly relevant.

 

The significance of the death

We do not know the significance, if any, of the death.  We do not know whether it supports “press reform” or is irrelevant to it.  We do not know whether it is linked to transphobia or to any other cultural point.  We do not know whether it justifies the sacking of any reporter, photographer, picture desk editor, or news editor.

We simply do not know.

 

But what we do know is that the press coverage/conduct in December was personally unpleasant to Lucy Meadows and that she complained of it both to a contact and the PCC, and that it appears that the press coverage/conduct was in breach of her own stated preference for privacy.

And we are also entitled to form a view as to whether the press coverage/conduct in December was humane and decent; and in my personal view, it plainly was not.  In particular, what one can only call a “monstering” was wrong on its own terms, regardless of what happened afterwards.

 

 

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Lucy Meadows is dead.

 

She was a popular teacher at a primary school. But on Tuesday, police and an ambulance were called to her home. She was found dead. Her death is not being treated as suspicious. Already various people have said she took her own life. Helen Belcher reports that friends said that Lucy Meadows had spoke of suicide. The police told me today a file will be passed to the coroner.

 

At the moment we do not know how she died and, if it was the case that she took her own life, what the relevant circumstances were.

 

But what we do know is that Lucy Meadows was monstered by tabloid newspapers when news emerged that she was transitioning from male to female.

 

Suddenly she became not only an unwilling figure in sensational news reporting, but someone ridiculed and criticised by a national newspaper columnist. There was, of course, no public interest in any of this.

 

Such “monster” pieces are easy for tabloids to produce (especially if they get “before” and “after” photos), and the powerless figures caught up – victims – are unlikely ever to fight back. In a way, the tabloids treat trans people the way they would treat anyone, if they could get away with it.

 

In December 2011, the group TransmediaWatch made a submission to the Leveson Inquiry (I helped with some of the drafting). It documents the monstering of trans people by tabloids. Anyone with an interest in media matters should read it. The stories are horrific.

 

A person in transition is likely to be going through intense psychological and emotional changes: the worst thing for them is the humiliation of a sudden tabloid monstering (see more on this here). They are also having the most personal surgery one can perhaps imagine; but no other comparable group of people having surgery – say women having a mastectomy or hysterectomy – would feature in such sensationalist news reporting. Instead such intimate matters are rightly regarded as nobody’s business but that of the person involved.

 

And this should be the case for trans people. It is a basic privacy matter. The fact that someone is in transtion does not create any automatic public interest in their national media exposure. In fact, their situation calls for a genuine respect for their privacy and autonomy. The monstering of Lucy Meadows and other trans people is wrong on its own terms, regardless of any consequences.

 

Such monstering pieces really must now come to an end.

 

 

You can follow TransMediaWatch on Twitter. The Samaritans can be contacted here.

 

Post script – I have created a resource page here.

I also did an interview for Radio 4 on the above – you can hear it here at 25:20.

 

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So the Human Rights Act and the European Court of Human Rights are in the news.

 

One Tory Minister wants to repeal the Act, and another wants us to withdraw from the Court.  The extent to which either of these propositions make sense is expertly set out by Adam Wagner, perhaps the UK’s leading legal blogger.

 

The proposals are depressing on two levels.

 

First, it is clear that such calls are gesture politics.  The Tories have lost a by-election and feel the need to play to the audience.  There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.

 

Second, it represents a failure by those in favour of human rights law.  It is now over twelve years since the Act took effect, but still uninformed and misleading statements about human rights law are made by those who should know better and circulated by those who could not care less.

 

But since 2000, human rights have become part of the mainstream in litigation.  Even Associated Newspapers has sought to rely on its Article 10 right to free expression under the ECHR (see paragraphs 33 and 36 here).   But the frequent use of human rights law in the courts has not been matched by a more informed public debate.

 

Indeed, one of the shortest conversations one can have in British politics is when a critic of human rights is asked to be specific as to which rights under the ECHR and provisions of the Human Rights Act should be abandoned.  It is almost as “human rights” is a hobgoblin with no more substance than is necessary to scare us.

 

In fact, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg.  The Act’s existence has made it rare for applicants to go to the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant.  The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained.

 

And as for the convention rights themselves, which ones should we not have as protections?  As the late Lord Bingham said in a lecture which should be read in full by anyone interested in the human rights debate:

The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.

Let me briefly remind you of the protected rights, some of which I have already mentioned.

The right to life.
The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.
The right to liberty and security of the person.
The right to a fair trial.
The right not to be retrospectively penalised.
The right to respect for private and family life.
Freedom of thought,conscience and religion.  Freedom of expression.
Freedom of assembly and association.
The right to marry.
The right not to be discriminated against in the enjoyment of those rights.
The right not to have our property taken away except in the public interest and with compensation.
The right of fair access to the country’s educational system.
The right to free elections.

 

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? 

There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, thosewho need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.

 

Here Lord Bingham nails it: just which of these rights do we really wish to discard?

 

 

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And so it came to pass, that a debate about the role of juries came out of nowhere.

 

Whatever we were expecting from the Huhne and Pryce trial (he pleaded guilty, she faces a retrial), it was not a discussion about the composition and function of juries. Points about reporting restrictions (the case has had many and some are still in force) perhaps, or about the scope of the curious “marital coercion” defence. But not about juries; that was a shock.

 

However, the Pryce jury’s questions prompted many responses outside of the courtroom.

 

The most detailed and fascinating of these responses was by Richard Moorhead, which should be read in full. The legal blogger Obiter J has set out a number of other links. My own contribution (the chief merit of which was the punning title) was at the New Statesman (and I also debate juries with Joshua Rozenberg, who did a misconceived and illiberal piece on juries, in the Observer tomorrow).

 

I am actually no great fan of juries. But they are better than the alternative, and their questions – however daft – should always be encouraged and not ridiculed.

 

For me, what was most interesting about the Pryce jury questions was how a combination of in-court tweeting and outside-court blogging led to an immediate and interesting public debate about juries in general.

 

For, in a week when it emerged that the Guardian law page is to become a zombie, automated site without dedicated editorial staff, the speedy, varied and relatively informed response to the Pryce jury questions shows that legal tweeting and blogging is now, in effect, the standard form of legal commentary on developments in the news. This is just as well, as soon there will be no full-time legal or court correspondents on any national paper.

 

But is legal blogging and tweeting really any adequate replacement for full-time legal journalism? On that the jury is still out…

 

 

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