Abstract
Former director of public prosecutions in England and Wales, and newly knighted, Sir Keir Starmer, discusses the right to offend, legal challenges for social media, and protection for whistleblowers, with Index editor
Sir Keir Starmer is not one to dodge difficult challenges, or put his feet up. After all, he took on the post of director of public prosecutions (DPP) in England and Wales, overseeing the prosecution service, a job described by some as a “poisoned chalice”. During his five-year term he appeared on television more often than previous holders of the post and helped raise awareness of the job. He also oversaw the establishment of new prosecution guidelines on the abuse of women and girls, the sexual abuse of children, and cases involving social media. Sir Keir is one of those incredibly bright people, who has the ability to discuss complex ideas, and get to the guts of them, using down-to-earth language that makes it possible for non-lawyers to understand. This is a skill that might equip him well for a change of direction, if, as has been mooted, he stands as a Labour member of parliament at the next UK election in 2015.
Sitting in the boardroom at his Doughty Street chambers, a large civil liberties and human rights practice, he is instantly relaxed, despite obvious demands on his time. On top of day-to-day cases, he has just taken on a brief from the UK opposition leader Ed Miliband to consider how victims and witnesses are interviewed during trials. At the same time he is preparing to join a post-conflict genocide investigation with the Croatian legal team at the International Court of Justice. As we walk past televisions showing a discussion on whether armed police officers should wear video cameras in the future, he comments “a good thing”. “Even with the best will in the world, trying to remember events is fraught with difficulties.”
We settle down to talk about another subject, but one he spent serious time on during his DPP term; considering new social media guidelines for the police, and the future role of social media in society. He believes there has not been enough political discussion about how outdated laws covering this area should be changed.
“The first thing to observe is there hasn’t been a political debate about what the limits of free speech ought to be in this new era. There just hasn’t been. There have been debates in the past about free speech and the criminal law or free speech and public order and they’ve led to very strong views on where the line ought to be drawn. But there hasn’t even been the debate. So we’re in a peculiar period.”
He is concerned that the politicians don’t appear to have this particular topic on their agenda, and they don’t “have any appetite for it”. He mentions, as he has done regularly in public, that in England and Wales the police fall back on the Communications Act 2003, which harks back to legislation designed in the 1930s to protect the sensibilities of operators putting calls through exchanges.
ABOVE: Sir Keir Starmer, while he was director of public prosecutions at the Crown Prosecution Service headquarters, London, March 2013
Credit: Rex
Does he feel new legislation is on its way? “I wouldn’t expect it to be aired this side of an election and as far as I know none of the parties are shaping up to deal with it.” He is convinced this problematic area of law needs more consideration. “I think we need to have an open debate about what the limits are. At the moment we’re using out-dated legislation to try and deal with a new phenomenon.”
The rise and rise of social media kicks off all sorts of questions, said Sir Keir. One of the ways we have judged language, debate and offence in the past is by where it is said; for instance, in the home, in the workplace or in a public space. That location had relevance to the number of people who would have heard the conversation. Now people can tweet or post from their back bedroom and the element of where you are when you make remarks makes little difference. Another factor is that people communicate on social media in a different way than they would do face to face; sometimes more openly, sometimes ruder, or franker, or perhaps more offensive. “So,” said Sir Keir, “they take more risks, they use different language, and so that raises its own issues.”
He added: “It is particularly challenging… because until now, broadly speaking, free speech has been governed by factors such as where you say it and what the reaction is. Hence, a lot of it is in the Public Order Act, which is where you wouldn’t normally look for a free speech provision. But it was all about whether what you say disturbs public order and therefore, broadly speaking, you can say a lot more in your front living room than you can on the street. You can say a lot as long it doesn’t cause people to want to engage in disorder, but not if it does. Now people have argued about whether that’s right or wrong but that sort of balance has held for many years.”
So where does that leave us? “The debate which is going to have to be resolved is, what’s the right balance between the criminal law and free speech where social media is concerned? And this has barely begun.”
Looking ahead, there are still some challenges, and Starmer, like most of us, is not sure how social media is going to look and be used in a decade’s time, or what the impact of those changes might be.
“Where it will all end? I don’t know, but I think there’s no going back and therefore it is, on the face of it, open to anyone to self-broadcast in a way that was simply not available before. In the past, if you wanted to get your views known to hundreds of thousands of people, unless you used an established media outlet, it just wasn’t going to happen, whereas now you can do it in your living room. There’s no going back. I mean there is absolutely no going back.”
Globally there are debates about the role of social media platforms in “policing” or taking down posts, as well as when that might or might not be necessary.
No one would suggest that platforms don’t have any kind of role in what is “broadcast”, says Starmer, and his test relates to the principle of harm. “If they [messages/tweets] are explicit and contain real threats to kill, or terrorist threats I don’t think a service provider would do other than take them down very quickly. So anybody who says there is no responsibility, I think, is forgetting that in those circumstances I don’t think any service provider would not take it down. It’s what they do in the other situations.”
As he points out, these platforms are operating globally, and the question is therefore whose laws, or social norms, do they adhere to? “Do you apply the test in the most restrictive country and apply it to everybody else and in that way make sure nobody’s criminal law is ever breached, which means that we would all be subjective to very, very restrictive free speech provisions? Or do you go with the most generous, which means that national laws are likely to be breached on numerous occasions?”
I think when the whistle-blowing legislation is applied properly it works pretty well. It’s people’s perceptions of what protection it gives you or when it’s misapplied that we get problems
He acknowledges that it is likely that there isn’t going to be international criminal law developed in this area and, therefore, if there is going to be any criminal intervention it’s going to be up to national law. So it’s complicated when you are dealing with a global platform. “It does make life very difficult when you’re talking about communications that spin across countries very, very quickly.”
He adds: “There are international norms about certain types of conduct of behaviour, normally around mistreatment. It may be that over time international norms need to develop and that you could say that there is an emerging agreement that these are at least the outer limits of what ought to be freely available.”
Despite being a strong advocate of free expression, not surprisingly, he doesn’t believe in a society without laws, or complete freedom. “You can’t have a law-free zone. Quite apart from threats of terrorism and real threats of violence, meaningful threats that are likely to be carried out, you have also court orders. What do you do about the anonymity of a rape victim? There are reasons why victims in these very sensitive cases are anonymised and if you simply say it doesn’t matter that the court order is breached because you are using social media, you undermine the entire criminal justice system and you remove all the protection that’s intended for very vulnerable victims.”
I am a very strong supporter of the Human Rights Act. I would not want to see is repealed or amended, but I would accept that there wasn’t a big enough debate when it was first passed
Starmer was widely acknowledged as having helped install a culture of greater openness at the Crown Prosecution Service (CPS) while he was at its head. He agrees that the role changed while he was there: “I genuinely think and hope people would say the CPS is a much more open organisation now than it’s ever been in the past. I think it’s done it the world of good. I think people have more confidence in an organisation that explains itself more often.”
He also believes that wider British society and its institutions have been going through a shift towards greater transparency, and towards a belief that it is important to explain decisions and debate them openly. “So to take my past role as director of public prosecutions, it was, in the past, perceived to be a bad thing if there was a public debate about whether the DPP got it right or wrong. Better not to have that debate than to have transparency and accountability, some thought. I fundamentally don’t agree with that but I think we’ve moved way beyond that now.”
And when the subject of whistleblowing comes up, we discuss whether in English law there is enough protection for people who choose to “out” information for the public good.
“I think when the whistleblowing legislation is applied properly it works pretty well. It’s people’s perceptions of what protection gives you or when it’s misapplied that we get problems. I’m not saying the law couldn’t be improved. You should always hold up these sort of laws and check whether they’re working well in practice, but it is important that there is legal protection there and it’s important that everybody appreciates it. I think a lot of people still labour under the misapprehension that if you whistle-blow you’re necessarily engaging in wrongdoing and that it’s something you can’t do.”
In this view there is, at the heart of society, a misunderstanding that if someone has broken a law to get some vital information into the public domain, they have necessarily done something wrong. “The only reason you protect whistleblowers is because they’ve got to do something wrong to get the information to where they believe it should be. Therefore, the argument that if someone has broken the law they are necessarily in the wrong is sterile.”
The discussion of freedom of speech is often very different in Britain compared to, for example, the US, where schoolchildren learn about the first amendment as part of their history lessons, and where it is presented as at the heart of the nation’s rights and self-image. So does Starmer believe the British need a written constitution and a First Amendment? “If you go to America [there] is a very, very strong sense that freedom of expression is a very important thing. We don’t have this here, partly that’s because of our history. I think if you have a common law system without positive rights it doesn’t resonate in the same way. So you could only truly say that people had a positive right to freedom of expression when the Human Rights Act came along and that was 14 years ago when it actually came into force, in the year 2000.”
Since the discussion of the Human Rights Act in the English, and to some extent British, media is highly emotional, and mostly negative, it is not surprising that Starmer recognises the public don’t see it as a positive force, or understand what it covers. “I am a very strong supporter of the Human Rights Act. I would not want to see it repealed or amended but I would accept that there wasn’t a big enough debate when it was first passed. I don’t think people appreciate it, what this constitution and piece of legislation is really giving them.”
His enthusiastic defence of the Human Rights Act has caught the attention of media commentators and put him head to head with the anti-human rights lobby in parts of the media. But he is clearly passionate about it. “I think the way that the European Convention is crafted and therefore the way the Human Rights Act is crafted is very clever. When you divide your rights into absolute rights and qualified rights, freedom of expression for me ought to be a qualified right. I don’t accept the proposition that you can say what you like, when you like, without any limits at all. Having it as a qualified right under the convention, hence the Human Rights Act, seems to be a sensible approach where you can …assert the right and then it’s for whoever wants to restrict it to demonstrate why it should be restricted and then it’s got to be necessary and proportionate. I think that’s a perfectly good approach. I think it works very well, and I wouldn’t want to disturb that approach.”
When it comes down to it, he believes: “Freedom to simply say what other people want to hear is not that valuable and wouldn’t be at all controversial, because nobody would restrict someone from saying something they wanted to hear. So freedom of expression only has bite when you’re saying something which other people don’t want to hear.”
Brief biography
Sir Keir Starmer was director of public prosecutions in England and Wales from 2008-2013.
He was named QC of the Year in the field of human rights and public law in 2007 by the Chambers & Partners directory.
In 2005 he won the Bar Council’s Sydney Elland Goldsmith award for his outstanding contribution to pro bono work in challenging the death penalty throughout the Caribbean.
From 2003-2008, Starmer was the human rights advisor to the Policing Board in Northern Ireland.
He has written several textbooks, including the Three Pillars of Liberty: Political Rights and Freedoms in the UK (1996), European Human Rights Law (1999), Criminal Justice, Police Powers and Human Rights (2001) and the Human Rights Manual and Sourcebook for Africa (2005).
He gave free advice to the defendants in the McLibel case.