Friday 15 March 2013

Heartlessly logical, but still knifing political criticism?

The #daftarrest judgement seems to have been made
by an emotionless, pointy-eared, green-blooded hobgoblin.
I was itching to say something on this while the court case was ongoing, but it was sensible to wait until there was an outcome. I've been following the case closely via Twitter, Y Cneifiwr, Inside Out and Broken Barnet. I'm sure many people reading this will have too.

The background is complicated, but to summarise the relevant points (re: this blog); Jacqui Thompson - aka Caebrwyn of the award-winning Carmarthenshire Planning blog – has been one of many outspoken critics of Carmarthenshire Council's practices for many years.

In 2011, she was arrested by Dyfed Powys Police - apparently at the request (direct or indirect) of Carmarthenshire's chief executive, Mark James - for trying to film a council meeting. She spent up to three hours in a cell and was searched. She was also asked to sign an agreement that she would no longer try to film council meetings – which she refused. Ultimately, this arrest set a series of other things into motion.

Immediately following that incident, in response to an open letter on another blog, Carmarthenshire's chief executive sent comments to councillors making a number of allegations. As a result, Jacqui accused the chief executive of libel.

In response to her libel claim, the chief executive made a counter allegation of libel. Perhaps that was based off the critical content of her blog – which he admitted during the trial to never having read.

But there's an added element to this. In 2008, Carmarthenshire Council amended their constitution to allow funding for libel cases. Despite this contravening Welsh Government orders forbidding local authorities from doing so, as a Carmarthenshire council tax payer Jacqui could well have also been (effectively) part-funding legal action against herself. A truely Kafkaesque nightmare.

Today – after a trial lasting a week, and a reserved judgement period - the High Court in London dismissed Jacqui's libel claim and awarded Mark James £25,000 in damages based on defamatory content in three blogs.

Although it's obvious I wanted Jacqui to win, I was fully expecting both libel actions to be dismissed, cancelling each other out and not really satisfying anyone.

The chief executive
've been thick-skinned enough to ignore the open letter, while Jacqui - notwithstanding making a bold stand - probably should've let this one go. It's all good saying that with the benefit of hindsight though.

I hate to say this, but reading through the judgement (there's a link provided by MH in the comments), and on what was argued, it was ruthlessly and heart-breakingly logical, even if I most certainly don't agree with it (more on why further down). We're not Vulcans. The damages also seem punitive and excessive.

ut because of the complex background to this case, further complicated by the arrest, there was perhaps much more at stake here than a simple libel trial, including what constitutes political criticism as well as the ongoing record of Carmarthenshire Council.

Blogging : Press or citizen?

I avoid talking about blogging itself, as self-referential stuff like that would make me disappear further up my own backside than I already have done.

I'd say the peak of the Welsh (political) blogosphere was between 2006-2010. I think that's simply because in the last few years you've been able to get instant opinion "straight from the source" via social media. You don't have to wait for blog updates or a press release, whilst journalists and politicians alike can save time.

Blogs like mine are for hardcore anoraks and supporters of independence. Blogs like Carmarthenshire Planning play a different – perhaps more important – role.

They do the sort of thing the local press used to do, whom in this day and age don't have the resources or time to do all the "armchair auditor" stuff. Also, as the local press become increasingly reliant on indirect funding via things like public notices, the relationship between local press and local authorities is perhaps, at times, incestuous.

That leaves people like Jacqui. The fact she's continued to do it, through all the stress that this case inevitably caused, is inspirational and nothing short of heroic.

There are "rules" about what you should and shouldn't do as a blogger. Most of the time it comes down to careful use of language, or going so far in the opposite direction to become what a reasonable person would consider parody or lampooning. In both cases you can still "make a point".

As long as you can provide evidence, your argument is reasoned and you don't make things excessively personal, you should be on firm ground. You also have to factor in things like "fair comment" - which might include satire, dysphemisms and innuendo.

As far as I'm concerned, Jacqui's always done that, and there's nothing on Carmarthenshire Planning that could be considered anything but valid (and invaluable) political criticism of Carmarthenshire Council. Obviously the courts have other ideas.

The trouble is that blogs straddle a line between journalists, who have standards to maintain and greater legal/civil protection - unless you live in Carmarthenshire, as the Llanelli Star found out yesterday – and ordinary citizens.

This can be an advantage, as bloggers can pretty much say whatever we want with little oversight by editors or the PCC (or whatever replaces it). However, it also makes us a very easy, very tempting target for legal actions like these.

What bloggers have is the virtual equivalent of a loudhailer and a soap box. People with loudhailers and soap boxes – without AM/MP after their name, or press accreditation - can, and do, get pushed around.

Today, that second-class status was solidified. And it's unlikely we're going to be factored into forthcoming post-Leveson press regulations either.

Pulling up the soapbox

If people in office can't handle criticism of policy from a single blog, they should stay home and take up gardening.

This whole thing probably could've been settled by a mutual withdrawal of libel actions and apologies. You've got to think that, as public officials, the Carmarthenshire executives would've tried that.

I think all local councillors and officers – Carmarthenshire, and elsewhere – need to ask themselves why they're in it.

If they're arrogant enough to think their views as so right as to shape public policy, surely they won't be terrified to have decisions they make, or deals they do, put on record for all to see. Surely they won't be feeble-minded enough to think they'll never be held to account for those decisions – delegated to officers or not - by blogs or elsewhere.

There's no air of respectability in being quite happy to sit back and allow a private citizen to be arrested for nothing more than using her mobile phone. Regardless of draconian and archaic rules, that's wrong on so many levels. However, the rights and wrongs of things like that played no part in the judgement.

In a decent society, such people would've at least been on their hands and knees begging for forgiveness. No, not Carmarthenshire Council. They've had the brazen cheek and arrogance to not be ashamed or embarrassed by their treatment of Jacqui.

Concerns from councillors that her actions were "damaging the council's reputation" tickled my funny bone. I get the impression that many in Carmartheshire County Hall believe they're starring in a real life West Wing, and should have "Ruffles and Flourishes" parp out as they march stridently past on their way to discuss offloading public toilets.

Nope, try Fraggle Rock instead, or Muppet Babies.

By approving changes to their constitution, councillors allowed a personal case to be brought to court with the (implicit) full backing of a local authority, which employs several thousand, and has a budget running into hundreds of millions of pounds.

This action stains them. It was done in their name. It's a Pyrrhic victory, as I'm sure they know what this will look like to the public. The reputation of CCC lies in tatters.

Councillors – don't be shy, now - especially those who backed this and those who (apparently) applauded Jacqui's arrest, can go out with pride, and tell their constituents that they heroically sat back and allowed "their boss" to use the full legal and fiscal force of a local authority against one woman who dared to criticise them.

Yeah, she lost. She probably should've been more careful. But that doesn't mean she doesn't still come out of this well.

She's still worth ten times the collective value of any of those self-serving humps called "councillors" and "officers" – quite a few have probably taken one too many hard hits in the ruck down the years, or long for the good old days, when true leaders had bushy moustaches and a ready will to crush dissent.

One of the roles of elected officials is to uphold transparent democracy. If the Assembly and Welsh Government couldn't step in and see what's happening in Carmarthenshire for what it is - CCC  have broken rules the Welsh Government set down for heaven's sake - regardless of devolved responsibilities and legal jurisdictions, what use are they?
Prospective councillors should also pass a test, determining if they have a sense of awareness greater than that of a KFC Family Bucket. Actually, someone should bring those Kenyan trees back to run for office, because a tree would be less of a danger to democracy.

Fortunately, it appears as though the Sian Caiach Independents and a few Plaid Cymru politicians have something between their ears. So they're not all bad, and genuinely don't deserve to be tarred with the same brush.

But the rest have, ultimately, allowed Jacqui to be thrown to the wolves - whether that's by sitting back and doing nothing or hiding behind things like the devolution settlement (or lack of).

It could easily be me one day, or anyone else reading this. If a councillor or AM says the wrong thing at the wrong time, it could be them too. When that happens – and it will, probably sooner than you think - I'm going to laugh.

Freedom to criticise is a "pressure valve" that allows people to vent. It's supposed to stop explosive public rage by nipping bad practices in the bud before they get out of control. It's probably not wise to tighten those vents, because if people can't do it via a simple blog, and if local press simply don't have the resources to do it anymore, what sort of environment do you think that will create?
I just hope when the cogs get to work in their brains, that - councillors, AMs, whoever - realise what happened today and what we all could have just lost.

If ordinary people can't criticise political decisions - regardless of how that's said or done -  taken by people who aren't even elected, without fear of being threatened, arrested and dragged through the courts, then what do we have?

I'm no longer sure I have any sort of legal or constitutional protection to do this. I'm not sure I want to tread on eggshells, crossing my fingers and hoping that political criticism won't be construed at some point in the future as libel.

One of the best ways to punish those who took these actions, those who stood by and allowed this to happen, those who, perhaps secretly, applauded it is to completely ignore everything they say, do or propose. Act as though they don't even exist and nothing they do matters to you or anyone else. Make their world considerably smaller. Make them inconsequential. Waste their time, not your own and don't encourage them by giving them any mandate to speak on your behalf.

You know what, all those people who don't bother to vote aren't uncouth barbarians and politician bashers - they're probably the most politically savvy people around by not giving a damn anymore.

Make a point by giving them precisely what they want – zero criticism, zero scrutiny and a free reign - and let nature take its course. History reminds us constantly of how that pans out. Sowing winds and whirlwinds.

However, the best way to take back perceived infringements of your freedoms is to act as though they've never been taken away in the first place.

If the law is an ass you need to kick it.

I suppose you could say I've lost faith in the legal system and the political process. Any
naïve optimism I had when starting this, just over two years to the day, has been increasingly replaced by a murmuring discontent, gradually turning into outright cynicism.

Freedom to criticise political decisions should be enshrined. I think I'm going to be waiting a long, long time for that to happen in EnglandandWales as it's blindingly obvious it's not going to come from Westminster – whose laws and judicial system has allowed this to happen, and who appear keen to roll back "rights".

Stuff like this is why I support Welsh independence, because I have the (probably mistaken) impression that we would be able to take a more idealistically liberal stance on things like this.

Any Scots reading this - who aren't unfortunate enough to be tied into a legal Westminster shotgun wedding - learn from this. Protect yourselves and protect your fundamental rights by going out over the next year and convincing as many people as possible to vote yes.

I get the distinct impression that ordinary people aren't welcome to participate in Welsh politics. I thought long and hard that, should this have gone "the wrong way", I would no longer expend any more energy on this when I have more important things I could be doing.

F**k it.

However, that would be doing a disservice to Jacqui and her supporters, as well as being incredibly self-indulgent. She's perhaps proven that all this is really worth something after all - not necessarily for content, but for what it represents.

People have been shamed, imprisoned, executed and fought and died for our collective right to be able to do this. I'm going to keep doing it anyway. I hope Jacqui
has the strength to keep going too. She'll have my complete support, and I'm sure that of countless others.

Regardless of the rights and wrongs of this legal battle, and the circumstances by which the damages were awarded, I'm convinced she'll win the war.

Believe me. She needs to.


  1. Thank you! The outcome of this trial should certainly not detract from the "ongoing record of Carmarthenshire Council".

    Delyth Jenkins, Trisha Breckman, Lesley Williams and the Towy Community Church/Bowling Alley to name but a few.

  2. As a Sir Gar resident I'm thoroughly disgusted that my tax money was used in this way. If this guy is any kind of a man he wont chase JT for the full amount. I wont hold my breath though.

  3. "Carmarthenshire Council have desribed the judgment handed down by Mr Justice Tugendhat in the High Court in London as a victory"


    "VICTORY". Really? Is that really how Carmarthenshire County Council sees this? What a contemptible statement. Goliath beats David. A victory? I feel physically sick.

  4. Thanks for the comments (and for the link, MH, which I forgot to add), on what's been a rather depressing day.

    I imagine if this judgement has cheesed enough of the "proper" press off - who should probably be looking over their own shoulders - I'd hope CCC will be under even more scrutiny from now on. I did link to the Streisand Effect further up.

    I should point out, and think I made clear, that I don't think the verdict was right, just that the judgement was logically reasoned. "Logic" doesn't always mean "right".

    Technically, this is a victory for CCC. But as I've said, it'll be a Pyrrhic one. This could very easily backfire spectacularly. They come across as an overly aggressive, bullying organisation for taking such actions against one person. Through that amendment, it could indeed be reasonably concluded that this action was by CCC, not an individual.

    Like I said, I think Jacqui Thompson will ultimately win the war.

  5. You simply cannot accuse ANYONE in a circulated blog, of being corrupt or dishonest WITHOUT PROOF and expect no response. It is against the law, and if Caebrwyn wishes to continue to blog without further problems of this nature, she should make sure that she has factual proof of wrongdoing before making such accusations.

  6. Anon 00:40 - It's a reasonable point, and the issues surrounding this are worthy of further exploration in the future.

    It's true that you can't accuse anyone of corruption etc. unless it's a matter of opinion. However, it's legitimate to have "suspicions" of wrongdoing/dishonesty, or in certain circumstances insinuate.

    As I understand it, "Person A is a liar" would fall under a statement of (honest) opinion.

    "Person A might be/could be a liar because of XYZ" would tread the boundary between an accusation and a suspicion, but it would probably be let go.

    "Person A is a liar because of XYZ" is a direct accusation, and if XYZ is interpreted to be false, or not counting as proof, then it could be considered libel. In Jacqui's case, it appears as things she considered proof, were ultimately deemed false by the judge.

    However, the judgement failed to - in my opinion, though I'm not a lawyer or a legal expert - fully take into account the reasoning behind the blog. I think it was a big stretch to consider it a "campaign of harrassment" as ultimately she was criticising political decisions she disagreed with. Her downfall was the wrong choice of words in some circumstances, but again - in my opinion - it only made the truth sound a bit more negative than it actually was.

    Jacqui probably has very strong grounds for an appeal, depending on proper legal advice. Our libel laws are stuck in the 18th/19th century, with obsession over honour as though we still wear frilly shirts and have duels. Also, regardless of the "technical correctness" of the judgement, it could still be wrong. There's another court that will have to judge this a victory too - public opinion. This looks like the state squashing a citizen, regardless, all due to laws that appear to be designed to protect the rich and powerful from any sort of criticism, however you want to interpret criticism.

    And seriously, if we're going to have such strict interpretations of libel law, most AMs would probably be living in solid gold houses by the end of the week if they took one look at Wales Online comments.

    And absolutely nothing - legal or otherwise - should stop Jacqui from continuing blogging. Any such move would be beyond the pale.

  7. I've tried posting this before, but I'll try again:

    Throughout this whole case, I followed it on twitter and thought to myself what sort of person Mark James must be to use council funds to fund his case.

    I also had a clear idea in my mind that Jacqui was 100% on the right side, and that it was preposterous that this even got to court.

    Then I heard the judgement. I was horrified. I needed to learn more about the case, so I checked the ruling on bailii and, I can't believe I'm saying this, but I think the judgment was correct.

    Jacqui made some serious errors in the actions she took and the posts she made, none of which have been made clear in any media reporting of this case. She made allegations which she could not prove.

    You know as well as I do that what goes on in Carms county hall is far from whiter than white, but (and it is very unfortunate) I honestly believe, having read the judgment, that Jacqui was careless in the way she went about her campaign.

    It was a campaign. Whether it was a campaign of revenge or a campaign for freedom of speech is irrelevant - it was a campaign, and despite the clear benefit Jacqui's website gives to holding CCC to account, some serious errors were made, none of which were reported in the press before or since the trail, and that is perhaps the biggest injustice, that the case has mistakenly been referred to as the case over filming the meeting.

    Read the judgment. It IS huge, of course, but the filming of public meetings is absolutely NOTHING to do with this harsh ruling. Absolutely nothing, save for the fact that Jacqui was found guilty of perverting the course of justice when she falsely accused an officer of assaulting her without foundation.

    I can't say how much I'm on Jacqui's side, I really truly am, but I URGE EVERYBODY to read the judgment, it did change my whole perception of "daft arrest" and it might change yours.

    I honestly don't agree that bloggers need to be more careful following this case. Bloggers should always be careful. If in doubt, don't publish. The mistakes made by Jacqui are simple ones, this case is in no way an earth shattering one for freedom of speech, in fact it is a pretty run of the mill case as far as libel goes, and the only element of precedent - and something the judge refused to delve into, was that it was funded by CCC.

    Once again, anybody who has an interest in this, don't just disregard my comment, simply read the whole judgment, and understand each and every twist in the tale of this very long and sorry saga, with no winners at the end.

  8. Thanks Anon 12:08. What you've said is perfectly reasoned, but I still disagree with some of it. I think this case has more shades of grey than we think, and I don't think Jacqui has been given a fair crack at the whip.

    As for the blog, it's focussed on Carmarthenshire Council - the hint's in the name. Out of hundreds of blogs they only found five worthy of libel, and two were dismissed. Would it have made any difference had there been a few good news stories on there? I doubt it.

    I'm sure Mark James is a decent guy. He's entitled to a private life like any public figure (if he counts), but I don't believe Jacqui made this too personal. It was a "campaign" against Carmarthenshire Council, not Mark James. If they had another chief executive they would've likely had the same attention. Ultimately, any decision or actions he takes in his job are open for scrutiny, and if anyone thinks what someone in that position is doing is untoward they should have the right to say so.

    The question is wording. I doubt I can mention specifics, but concentrating on the libel funding issue, Jacqui used a certain phrase to describe it. I had to look that up to see if it really constituted libel, as I believed she meant "unacceptable use of public funds". The judge even agreed in one or two cases - but not in others, which seemed odd. Her mistake, in this case, was she gave the impression that funds were set aside ahead of other things when they weren't. So she was perhaps right, but for the wrong reasons.

    Did "small mistakes" like that really damage someone's reputation to the tune of £25,000?

    The biggest issue for me in relation to Jacqui's conduct was the assault accusation. But even then, going so far to describe it as "perverting the course of justice" seemed excessive as it seemed to be, on paper, one person's word against anothers.

    As for blogging, I've probably gone close to the line once or twice but always believed I've done enough to not stray over as, 99% of the time, I focus on what people say or do rather than the person themselves. I'm not sure where the lines are now, but by thinking too much about "lines" bloggers could end up muzzling ourselves for no good reason.

    Blogs are supposed to be more informal and casual than the press. However, there's so much stuff on the internet that genuinely does damage reputations, that this case seems depressingly small beans in comparison. It still looks like a citizen being squashed under a legalese dictionary.