Consultancy website

Hello, if you're here looking for the website of my media law consultancy, you will find it here:

http://davidbanksmedialaw.wordpress.com

If you're looking for media law training, advisory services and journalism training, you will find all the details you need there.

Steve Jobs and working on an Apple Mac

There will be millions of words written about Steve Jobs in the coming days, weeks and months. If you read one piece, make it Stephen Fry's eloquent summation of the man.

I will just say this.

I've spent many years working in newspapers on PCs and Macs. PCs are ok, they do the job, most of the time, but they are never, never a joy to work on.

Macs on the other hand have always been a constant source of delight. Every day you would find some lovely little quirk that just made your life as a writer, sub-editor or page designer that bit easier.

Macs work beautifully.


One of the jobs I loved the most was night editing the Daily Post. The accompaniment to the start of a shift was the welcome chimes of the ranks of subs' Macs as they switched on. It's a sound that I will always associate with getting a newspaper out and all the excitement, frustration and fun that involves.

Steve Jobs and his company's products made my working life that bit easier and more pleasurable. For that I'm very grateful.

Hackgate and PCC reform - I told you so (sort of)

AT the launch of the 20th edition of McNae back in 2009 I got into conversation with, I'll call him 'an insider',  from the Press Complaints Commission.

There had been rumblings, as ever, about reform, but this time, I thought, there seemed to be a bit of political will behind them. I said that a new Parliament might bring with it a desire to look once again at statutory regulation.

The chap from the PCC was totally dismissive, describing John Prescott, who was one of the main voices for reform at the time, as 'a prat.'

Since then I've had a couple of pops at the PCC which, I felt, was failing to respond adequately to legitimate criticism of the way it worked.

I mentioned it here on this blog, and here in a piece I wrote for the Guardian.

Both times I warned that a new Parliament, with a new crop of MPs unblemished by expenses scandals would be willing to look again at regulation of the press, possibly on a statutory basis.

At this stage I ought to declare an interest in that earlier this year I applied, unsuccessfully, to become a public commissioner on the PCC. If they do pay any attention to lone bloggers, I would just point out that I have been making this point for a long time, and well before my application to join them.

The extraordinary events of the last two weeks have given Parliament the opportunity it was waiting for to have a go at press regulation once more.

If the PCC does not survive this episode then it only has itself to blame. Its lack of any sensible response to criticism levelled from everyone from Gerry McCann to the former DPP has left it in a very vulnerable position.

Its excuse that it was lied to by NI over the hacking allegations served only to point up how weak it was as a regulator.

It has sleep-walked into a situation where we are now staring statutory regulation of the press in the face, which is a disaster for a free press.

If the media organisations who fund it through Presbof, have any sense, they will start working on its replacement now, looking at Ofcom as a model - with proper powers of investigation and fine, before MPs come up with something much more draconian.

The Times, Kate Middleton and nasal mutation

It's a brave editorial writer in England who ventures into the choppy waters of Welsh. Many have floundered and the latest victim is none other than The Times.

In a broadly positive editorial, although a touch patronising in parts, the Thunderer wrote of Kate Middleton's first official engagement at Prince William's side in Wales.

"The skill that eluded John Redwood when he was Welsh Secretary, that of singing fluently in the Welsh language, has already been mastered by Kate Middleton," gushed the leader writer.

"This Thursday, on her first official engagement at Trearddur Bay, Anglesey, the fiancee of the next-but-one heir to the throne did not put a word out of place as she sang Mae Hen Wlad Fy Nadau, the Welsh national anthem, known to those of us who do not speak the language as well, as Land Of My Fathers."


Well, up to a point, Nadau, you see, means cry, or clamour. What had foxed the Times writer was the nasal mutation that turns Tadau, fathers, to Nhadau. So the correct title is Mae Hen Wlad Fy Nhadau.


A minor point perhaps, but they wouldn't misspell the words to God Save The Queen, would they?

Molecular chemistry, contempt of court and the reporting of the Joanna Yeates case

Let me introduce you to the optical isomer, also known as a mirror image molecule.

Fascinating things. The one on the left has a sedative, hypnotic and anti-inflammatory effect. The one on the right has a teratogenic effect.

With me so far?

The diagram is the thalidomide molecule. The sedative, hypnotic effect cured the symptoms of morning sickness. The teratogenic molecule - caused birth defects. Both molecules were in the drug given to pregnant women worldwide, causing terrible birth defects in children they were carrying.

The drug caused the death of 100,000 unborn children. The families of the children who survived, some 10,000 globally wanted to know how this had happened and here in the UK some of the families were talking to the Sunday Times Insight team - at the time one of the world's very best investigative journalism teams (sadly disbanded in 2005) The ST started running articles on thalidomide and its manufacturers, Distillers (later acquired by Guinness and now part of Diageo)

Because compensation cases were still being dealt with in courts the ST could not properly investigate the origins and testing of the drug (it had been invented by accident in Germany) The Sunday Times, under the legendary editor Harold Evans decided to challenge the law that was preventing their investigations - common law contempt - which would punish publication of material which was seriously prejudicial to proceedings that were 'pending or imminent.'

They took the case all the way to the European Court of Human Rights, where it was held that UK common law contempt was not in keeping with the UK's oblihations under the European Covention on Human Rights. A country in this position has a choice - either withdraw from the ECHR (and take a seat at the back next to North Korea) or amend the law.

And so, eventually, we got the Contempt of Court Act 1981, which is, in effect, a liberalisation of the law. Gone is the old woolly 'pending or imminent' - now to be in contempt you have to create a substantial risk of serious prejudice or serious impediment to active proceedings. For proceedings to be active an arrest needs to have been made or a warrant issued for someone's arrest. It also includes a defence of discussion of public affairs, to reflect the Sunday Times situation - which means that just because there is an ongoing court case, it does not follow that all discussion of the issues involved in that case is forbidden.

On the downside, it is a strict liability offence, which means that the the prosecution do not have to prove intent on the part of a publisher. So you can't claim that yo accidentally published something prejudicial if you are prosecuted for contempt - you've done the deed, you're guilty. This forces publishers to take care not to publish contempts - you train your reporters, newsdesk, subs (if you've still got them) to know the law and abide by it.

There is also an unlimited fine for contempt of court - which ought to concentrate editors' minds.

It has to be said that since 1981 contempt of court proceedings against newspapers and broadcasters are relatively rare. You have to make some effort to fall foul of it. The Sun managed it when they published the photo of a man accused of murder before he was due to take part in an ID parade, causing the collapse of the case (the ID witnesses could not longer be relied upon to use their memory of the offence when picking a suspect out of the line-up) The Sun was fined £80,000 and Kelvin MacKenzie, its then editor was fined £20,000 personally - this remains the record fine for contempt by publication in the UK.

The Sunday Mirror did it by running an interview with an assault victim's father in the Bowyer and Woodgate trial. The father talked about racist attacks he had suffered when the issue of race had been excluded from trial. This was published during jury deliberations and caused the abandonment of the first trial.

But the Contempt of Court Act was enacted long before the internet was invented. The most powerful media in potentia jurors and witnesses lives were newspapers, TV and radio. The legislators of 1981 cannot possibly have envisaged the effect the internet firstly, and social networks latterly, would have on pre-trial publicity.

Which brings me to the reporting of the Joanna Yeates case. The Attorney General, Dominic Grieve, has warned the media about some of the coverage. Some, it has to be said, has been excessive, and its cumulative effect, some might say, has been prejudicial.

Then we have Twitter and the court of public opinion expressed there, where some are not even in nodding acquaintance with the laws of libel, contempt or any other such constraints. The boyfriend of Ms Yeates criticised the press and internet coverage of the case yesterday.

The difficulty is that Twitter and Facebook simply carry the sort of conversations that might be going on in homes, office and pubs across the UK. But Twitter amplifies these conversations. The only way I can see a Tweet resulting in a contempt action is if it perhaps links to longer prejudicial material and is tweeted or retweeted by someone with significant numbers of followers. Whether the Attorney General wants to take this step of going after Twitterers is another matter. At the moment he seems more concerned with what the mainstream media, especially the redtops, are doing.

I would advise those openly speculating on this case both in mainstream and social media to keep their powder dry. As well as any person's fundamental right to a fair trial I have seen enough criminal trials to know that predicting their outcome on the basis of very preliminary 'evidence' is folly.

Sex, death, brass bands and libel by photograph

Lest I be accused of being a little holier than thou in my attitude to The Sun in the post below, let me assure you I know just how easily a photograph can ruin your day as a journalist.

Let me share with you the story of one such disaster, which, sadly, I had a hand in.

This is back in the days when I was a jobbing hack on the Daily Post and it was my turn to 'do the calls.'

This was the round of phone calls made several times a day to the emergency services to see if there were any crimes, deaths, disasters or other human misery happening for us to report on. It was also in the days when such calls were made to human beings - usually a duty inspector in the police control room, or a desk sergeant at individual police stations. Since then these humans, who one could have a conversation with, have been replaced by pre-recorded 'voicebanks', which are a journalistic dead-end and should only ever be used as a starting point for a story by any reporter worth their salt.

Anyway, I digress, back to the sex and death. You see the virtue of talking to a human is that they do love a bit of gossip and so it was that morning when I made the call and was informed of a sudden death in a nearby market town, woman in custody as a result. Slowly, but surely, the story emerged.

It would seem the local brass band was a hotbed of illicit passion. She was 30, he was in his 60s, and after band practice they would adjourn to the local marshes in his roomy estate car where they would consummate their affair. Both were married.

The police were holding her as they believed she'd hit him in a lovers' tiff, causing a fatal heart attack. She said he had died during or shortly after they had made love. She had shagged him to death.

So, I set out hotfoot to the market town with a photographer, and crucially got to the bandmaster before word had spread of just how this bandsman had died. The family were letting people know of his death, but were, understandably, not sharing the grisly detail.

Most important, we got a photo of the band. Dead man, back row centre, and the bandmaster never queried it, but we got him to name every single band member, and there she was, in the front row - the, quite literally, femme fatale.

So, were were very happy with ourselves, we had the story, the picture, the whole shebang and off to Liverpool it all went to be printed the next day in the Daily Post.

The next day, when I opened the paper, it was one of those moments as a reporter and you will all have them, when you close the paper, wanting what you see not to be true.

Because, on the front row far right there was a bloke in a wheelchair, and there was no-one sitting or standing behind him, what a designer would call 'dead space' a blank wall. So the man in the wheelchair was cropped off to neaten the pic. However, when the caption, which has already been written, reads: "Mrs X, fourth from the right," the crop means that the identification moves along to the right. So instead of accusing the femme fatale of shagging to death a fellow bandsman, we accused the 16-year-old schoolgirl sitting next to her.

So, I have some sympathy with the Sun messing up the picture in the story about Maj Gallimore. It is easily done.

But if you do do it, then get it sorted quickly, which is precisely what the Daily Post did.

Firstly, we didn't wait for a complaint. Eric Langton, who was on the DP newsdesk - one of the best news editors I've ever worked with, a real newsman, totally unflappable and a pleasure to work for - went straight round to the girl's family with a letter of apology from the paper.

Her dad, you will understand, was not a happy man. Let's face it, his daughter is 16 - she's not on drugs, she's not pregnant, not a tattooed death metal fan. She plays in a brass band for heaven's sake, she is every dad's vision of perfection, and here you have the Daily Post suggesting she kills elderly bandsmen with sex.

But, in typically civilised British fashion, he was polite with Eric and said that what action they took depended on how she reacted, she was at school and hadn't seen the paper yet.

She arrived home, took one look at the Post.....and burst out laughing. She didn't think anyone in the town would really think it was her, and didn't think it would be taken seriously. So, they didn't sue us. Nor did they want a correction, which they felt would just draw more attention to the story.

A close call, but a lesson that being straight with people and admitting your error, no matter how stupid it may make you look, can get you off the hook.

Oh, and the femme fatale? She was acquitted at trial.

Texting jurors and the Contempt of Court Act

So, you're on your final hours of jury duty. You've heard the closing arguments, the judge has summed up and now along with your fellow jurors you're seated in the jury room beginning your deliberations.

Then the judge pops his head round the door and points to a box in the middle of the table.

"Erm, ladies and gentlemen of the jury, in that box there's lots of information about this case which I've ruled inadmissible, or it's been kept out because of legal restrictions. Just don't look in it ok? Thanks a lot."

You look at one another, one of you whispers that surely a peek wouldn't hurt, another says you might get into trouble with the judge if you look. The judge's head appears round the door again and he says: "Oh, if you do look and keep schtum about it, there's nothing we can do, we can't even ask you if you looked after you've reached a verdict."

This about sums up the attitude of the courts to the internet and jurors. They are warned not to look, not to conduct their own Google-investigations. But unless a juror is reported for bringing in material by another juror, there's no way the courts can 'detect' such practices. Indeed the Contempt of Court Act 1981 forbids anyone, even a Royal Commission on Justice, from even asking jurors how they reached their verdicts - eg, did you reach it as a result of evidence, or did Wikipedia give you a helping hand?

This week we have seen the latest use by a juror of technology. A teenage juror texted another on the same trial to give a running commentary on evidence, as reported here in The Guardian's new Law section.

The recipient of the text reported the matter, both were discharged, and the texter was given a suspended sentence, showing how seriously the courts take these matters.

This is something I've been pointing out for some time now. While the print media in particular, broadcasters too though they generally do less court reporting, are all under dire warnings of the dangers of contempt, very little is known of what jurors do when they sit at home in the warm glow of their laptop.

An indication of just what is available was shown in the 2004 trial of David Bieber, who stood trial and was later convicted of the murder of PC Ian Broadhurst, and the attempted murder of two other officers.

I was teaching in Newcastle, where the trial took place, and seeing the police presence outside the court, Googled 'David Bieber.'

Now, before the results, I should mention that the reporters in court were told not to mention anything about Bieber's background, previous offences. His photgraph was banned too as 'identity was at issues' - ie he was claiming he didn't shoot the officers, a mysterious Mr X had done so - I know, this goes some way to explaining his conviction.

Top of the Google results was a site called America's Most Wanted which helpfully informed a viewer that Bieber, aka Nathan Wayne Coleman, was on the run for a suspected murder in Florida. It also carried his police mugshot.

If I were a trial judge I would be far more concerned about the Googling or texting juror than the court reporter sitting on the Press bench.

There's an interesting paper by Prof Michael Bromby of Glasgow Caledonian University.

The last government announced that it would conduct research into juries and how they reached their verdicts. It is to be hoped the present government continues this research. It might come to the conclusion that the Contempt of Court Act, enacted almost 30 years ago - long before the internet, Twitter, Facebook and blogs - is long overdue some revision.