High Court Brexit ruling – a headline too far?

Brexit continues to orbit like a moon around Donald Trump’s earth.

Yesterday the moon shone a little brighter. The High Court decision that the government must consult Parliament before invoking Clause 50 of the European Union Treaty produced a stream of vituperation from Leave supporters and right-wing newspapers that The Walrus (aka Trump) would find it harder to better.

Leading the field as always, the Daily Mail published pictures of the three judges who made the decision – including the Lord Chief Justice – under the headline “Enemies of the People”. A surprisingly Stalinist phrase for a newspaper that has served over the past year as the Brexit rabble-rouser-in-chief.

But hardly surprising given its unerring ability to find itself on the right side of history. This is the newspaper whose owner in the 30s was the best mate of Hitler and Mussolini. The same owner, the first Viscount Rothermere, who published a charming leader entitled “Hurrah for the Blackshirts” in praise of Oswald Mosley’s fascist thugs.

The Mail was also the paper that in 1924 published the Zinoviev Letter, purportedly written by a Soviet official urging increased communist agitation in Britain, as in this section:

A settlement of relations between the two countries will assist in the revolutionising of the international and British proletariat not less than a successful rising in any of the working districts of England, as the establishment of close contact between the British and Russian proletariat, the exchange of delegations and workers, etc. will make it possible for us to extend and develop the propaganda of ideas of Leninism in England and the Colonies.

It just happened that the Mail published the letter four days before a general election, at a time when Ramsey MacDonald was struggling to stay in power as the leader of a minority Labour Government. The letter was later revealed as a fake. MacDonald lost. Sounds familiar? Hence the analogy of the sun and the moon.

Once the High Court decision put the spoke in the Brexit wheels, I was not surprised at the reaction on the Leave front. Nigel Farage, for example, saying that our political class “have no idea of the level of public anger they will provoke” if they try to hamper Brexit. Riots in the streets, Nigel? Very Trumpian.

The Daily Mail went further, however. By branding the judges as “enemies of the people”, it impugned the independence of the judiciary, and it intimidated, at least by implication, the judges of the Supreme Court who will have to hear the Government’s appeal against the ruling.

It’s not hard to imagine that there might be some Leave supporters who will be influenced by that headline to take some action against these judges. After all, we lost an MP this summer to a seemingly deranged right-wing fanatic. Hopefully the judges will be protected from physical abuse, but the verbals have already started, cheer-led by the Daily Mail.

All of which leads me to wonder whether the newspaper has gone too far. Under the Criminal Justice and Public Order Act, Chapter 33, Part XII, Section 4A of Section 154 (Intentional Harassment, Alarm or Distress):

1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

2. An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.
3. It is a defence for the accused to prove—

(a) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(b) that his conduct was reasonable.

Let’s think about this, then. Was the act of describing three senior judges as “enemies of the people” threatening, abusive or insulting? I for one would say yes.

Were those words “used by a person inside a dwelling and the person who is harassed alarmed or distressed is also inside that or another building”? Clearly not, unless the justices happen to have offices inside the Daily Mail’s offices.

And finally, was the conduct of the Daily Mail “reasonable”? Well, dear reader, that’s for you to judge. But to malign three eminently-qualified judges by accusing them of political bias, and to incite hatred towards them by describing them as enemies of the people would appear to be profoundly unreasonable.

No doubt the Mail would argue that it was merely reflecting public opinion about the judgement. If so, why did it not ascribe the words to an individual as a quotation? It seems pretty clear to me at least that the headline reflects the view of the newspaper.

I await with interest to see whether the Director of Public Prosecutions will issue a summons against Paul Dacre, the paper’s editor, and the current owners, on the criminal charge of causing intentional harassment, alarm and distress to Lord Chief Justice Thomas, Master of the Rolls Sir Terence Etherton and Lord Justice Sales.