New gagging orders are 'a recipe for hiding injustice'

New gagging orders are 'a recipe for hiding injustice'

A new breed of gagging order is preventing miscarriages of justice from being investigated, according to an MP campaigning against secrecy in Britain's courts.

By Anita Singh 10:00PM BST 17 Apr 2011

The latest case, involving a pregnant woman, was heard at the High Court last week Photo: ALAMY

John Hemming said the rising tide of injunctions granted by the courts threatened to contravene the Magna Carta.

The MP has launched an inquiry into "excessive and unlawful court secrecy" and will put his evidence before the Commons Justice Select Committee.

The new order to which he refers involves a pregnant woman caught up in a High Court battle with her local authority.

The order threatens her with imprisonment if she speaks to the media about her case. Journalists could also face jail for asking questions about the case.

Mr Hemming said: "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 'Quaero injunction', after the Latin word '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 woman's lawyers also wrote to Mr Hemming asking him not to refer to her case in Parliament, despite the ancient right of parliamentary privilege allowing MPs to raise issues in the Commons without threat of impeachment.

Mr Hemming used parliamentary privilege last month to disclose that Sir Fred Goodwin, the former chief executive of the Royal Bank of Scotland, had taken out a super–injunction banning the publication of information about him – an order so draconian that it prevented him being identified as a banker.

Increasing numbers of public figures are turning to the courts for injunctions to prevent their indiscretions from being made public.

Cases that came to light last week include a leading actor who has gagged the press from reporting that he cheated on his wife with a prostitute, and a Premier League footballer who took out an injunction to ban reporting of his extramarital affair with a former Big Brother contestant.

So–called "super–injunctions", which prevent even the disclosure that reporting restrictions are in place, have now been joined by "hyper–injunctions", in which parties are forbidden from discussing their case with MPs or journalists.

Mr Hemming is collecting examples of such orders to place before the Justice Select Committee. He said: "What is clear is that almost all of the super– and hyperinjunctions have no public judgment. That means they are not compliant with the rules of a fair trial.

"It is wrong to have a system whereby people can buy the sort of justice they want. That is a contravention of the Magna Carta." Clause 29 of the Magna Carta states that "we will sell to no man ... either justice or right".

Niri Shan, the head of media law at Taylor Wessing, welcomed the inquiry, and said MPs should not be prevented from raising issues in the Commons.