ZAM v CFW & TFW: has John Hemming changed his mind?

by Carl Gardner on April 20, 2011

I posted recently about last month’s High Court judgment in this case, in which Mr Justice Tugendhat granted an injunction to stop allegations which were not even defended as true, and which Tugendhat J thought could involve an attempt at blackmail. The judge also granted anonymity to the claimant, ZAM.

Here’s what John Hemming MP said about the grant of anonymity on his blog on 30 March:

I am unsure how this really helps. The interests of confidence in justice are not being served. The fact that someone went to court to stop people repeating lies about them is not a fact that needs to be hidden even if it is best that people don’t repeat the lies.

Although the fact of the injunction and Tugendhat J’s judgment were entirely in the public domain, some reporting of the ZAM case lumped it in with so-called “superinjunctions”, and Henry Porter in the Observer called the case “disturbing”. To be fair, John Hemming’s comment, although clearly critical of the judgment, was less dramatic.

Now, though, he seems to have changed his mind. In what’s effectively a press release published on his blog on Monday (thanks to Jon Baines for drawing my attention to it) he quotes himself as saying:

A good example of an injunction that is handled properly is that relating to ZAM and CFW/TFW. This is accompanied by a published judgment.

I agree with that. But if his views on a public judgment can charge so quickly from criticism to praise, how seriously can we take John Hemming’s campaign against “court secrecy”? Is he serious?

The question matters because in Monday’s blogpost he says:

Mr Hemming has also revealed a new type of injunction against investigative journalism. “I have recently seen a gagging order that prevents people seeking information about a case from the parties. This goes a step further than preventing people speaking out against injustice. It also puts any investigative journalist at risk if they ask any questions of a victim of a potential miscarriage of justice.

“I call this the the Quaeroinjunction, after the latin work “to seek”. I don’t think this should be allowed in English courts. It has the effect of preventing journalists from speaking to people subject to this injunction without a risk of the journalist going to jail. That is a recipe for hiding miscarriages of justice.”

The press has already picked this up as yet another “new breed of gagging order”.

I don’t know the details of this supposed new type of order, of course, so I don’t say everything’s perfectly in order and there’s “nothing to see”. John Hemming may be on to something important. But equally, there could conceivably be some good reason for a restriction on communication even with journalists. We need to see the full, detailed evidence he intends to put before Parliament before we can conclude there is really any “new breed of gagging order”, or that any court has done anything wrong.

Knowing more about a supposedly disturbing case, or even just thinking a bit about what’s in the public domain, can change your mind about what you were initially told about it. John Hemming, for example, seems to have changed his own mind about ZAM.

{ 3 comments… read them below or add one }

1 John Hemming April 20, 2011 at 12:50

This one is Article 6 compliant. Many others are not.

I was originally commenting on the information in The Guardian which was insufficient.

I do have the injunction as well.

2 Carl Gardner April 20, 2011 at 13:39

Fair enough, John – and thanks for explaining.

Making critical comments like this about what judges do requires care, though, doesn’t it – especially from an MP? The Guardian article did make clear that the judgment had been published, and that the defence had not argued the accusations were true.

The instant media reaction to the grant of anonymity – which your criticism was part of – may have helped leave an impression with some people that ZAM is evidence of unjustified secrecy in the courts, even though you’ve quickly changed your mind, and now I think agree that it isn’t.

3 anajinn May 24, 2011 at 15:04

Injunctions have been used to silence victims of alleged financial crimes from speaking about the crimes, even to their MP. It is all done in secret, of course. The point is that injunctions are being abused and the judges are issuing them without due process.

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