Super-injunctions: The law's not just an ass, it's a superass
Published 27/04/2011 | 07:15
An all-points bulletin was issued yesterday shortly after 8am, and the police have asked me to repeat the details for anyone who happened to miss it.
A balding, white Caucasian male in his early fifties with prominent ears is wanted in connection with a suspected contempt of court. Although armed with only an air of aggressive self-righteousness, he is mentally confused and should be approached with caution.
It could be that Andrew Marr has been found in the hours since this article was completed, assuming he hasn't done a John Stonehouse, but at the time of writing the BBC smartypants was presumed to be on the run. What else explains the Today programme feature about the Marr super-injunction that involved commentators on media and law and hero of the piece Ian Hislop of Private Eye, but not the headline artist in this intriguing legal psychodrama?
Mr Marr is hardly phobic about appearing on Today, popping into the studio each Monday to plug his forthcoming Start the Week with a little merry banter. But yesterday he was either the dog that didn't bark or the elephant in the room (on strictly aural grounds, by the way, BetFred go 30-100 the latter).
If he has taken flight, he may have reason to run scared. Has he breached the super-injunction the High Court granted him three years ago, committing a contempt of court grave enough to warrant a custodial sentence? He took out that super-injunction, he claims, primarily to protect the identity of the child he believed – wrongly, as DNA evidence later showed – he had sired out of wedlock. That child is in no position to consent to the lifting of a legal measure intended for her protection. On what possible grounds did he imagine he had the right to lift it on her behalf?
The truth is that the poor chap is in such a shocking muddle that a spell in a psychiatric hospital may be more fitting than one in jug. Mr Hislop, who by weirdest happenstance was poised to challenge the super-injunction in court next week, drew attention to his bamboozlement with laser-beamed precision. He quoted Mr Marr's previously stated belief that judges should not determine privacy law, and subtly contrasted his pious "I did not come into journalism to gag journalists" with the fact that what Mr Marr did was gag journalists. As the "most respectable" of the super-injunctors, Mr Hislop added, he led the pack.
In abrogating his duties as pack leader, Mr Marr seemed more bewildered than ever in his interview with the Daily Mail... a cosy chat that brought to mind Jamie Theakston telling a Sunday red top with pictures in its safe how thrilled he was at being offered the chance to talk freely at last about visits to the dominatrix's dungeon.
Exactly what persuaded Mr Marr to invade his own privacy and jeopardise that of the child concerned would take Bletchley Park's finest a week to extract from his ramblings. But so far as I can discern, the key factor was that super-injunctions have become a bit, well, common. "With 30 in place," he said, "it's out of control."
Here one sympathises. There's nothing more irritating than picking an unusual name for your baby, and a few years later discovering from the weekly trawl round Tesco that loads of single mums from the council estate chose it for theirs. None of us likes having our sense of uniqueness undermined and our sense of style coarsened, and it must have been demeaning for him to watch a procession of footballers and soap stars – whose identities he will have learnt as you will probably not – following the trail he blazed.
Imagine buying a charming Georgian townhouse in a secluded part of Bath, and being woken one morning by the dulcets of the Ozzy Osbournes as they unload the Pickfords van next door. Wouldn't you pack up and have it on the market by the end of the week?
"There is a case for privacy in a limited number of difficult situations," continued Mr Marr, "but then you have to move on." Here again, for so articulate a man, he is obtuse. Is he saying that such situations are difficult for neo-establishment titans such as former editors of this newspaper turned BBC golden boys, but dead easy for common or garden red-top fodder? And that a super-injunction should be ditched the moment it loses its cachet and novelty, regardless that the person nominally protected by it is still a young child?
No, the only sense Mr Marr has spoken so far on the matter is when he invited us to call him a stinking hypocrite. He was never my cup of tea, the undoubted cleverness being as ostentatious as the sense of superiority, but this level of hypocrisy must make him everybody's cup of strychnine. All that may be said in his defence is that he has, unwittingly, done much to crystallise a difficult argument which brings in to collision two competing human rights. If the battle between Private Eye and Public Ears was rendered clear-cut by the hypocrisy angle, the tortuous scrap between the right to freedom of expression and the right to privacy is more finely balanced, particularly so when children are involved.
By exposing plainly that when the wealthy and influential cite the wellbeing of children, this is a strictly time-limited concern, and by betraying that their only genuine motive is safeguarding themselves and their careers, Mr Marr performs a service. He has made a superass of a branch of law that had been braying mulishly for too long, and the fallout will focus political minds on the need for legislation to circumvent the capriciousness of certain red-robed High Court sweethearts.
There would be innocent victims if the right to free speech became enshrined in law – but with this, as with going to war and all other complex judgments, it comes down to the lesser of two evils. We do not ban driving because a number of pedestrians are killed each year by cars, and cannot go on tolerating judge-made law so viciously draconian that it has on occasion prevented newspapers reporting parliamentary debate in the interests of foreign multinationals with much to hide.
The free-speech argument made by tabloids with a compelling commercial interest in turning over celebs is spurious and self-serving, and the prurience they feed does those of us who read them little credit. But the scope for abuse inherent in this ridiculously opaque legal area is an affront to democracy rather than taste, and the collateral damage a price worth paying.
As for Andrew Marr, once he has returned or been recaptured, he will have the sense to realise that he is too compromised to continue interviewing politicians on his Sunday morning show, which for weeks has studiously avoided the super-injunction debate raging elsewhere. When a journalist and a politician meet professionally, the overtly stinking hypocrite is supposed to be the one answering the questions.