The Prince and the Press: Continuing the Discussion on Prince Harry and the UK Media

[MrsMaxDeWinter]

A few weeks ago, there were three really great long running threads about Prince Harry and his battles against the UK "popular press."

I thought I would do one that looks at Harry's current court action.

For those interested in the kind of balanced view you won't get from the tabloids, all of whom face conflicts of interest, here is the Guardian take, which is the springboard for this discussion.

It is not possible to take any of the tabloids seriously when they report on Harry's legal cases. Former editor Alan Rusbridger, now of Prospect, has observed that all tabloids covering this story are acting unethically as they have not declared their conflicts of interest: Harry is suing all of their media houses.

The only papers with no conflict of interest are the Guardian, the Telegraph and the Financial Times.

So I will be following this from the Guardian live page.

https://www.theguardian.com/uk-news/2023/jun/04/diana-meghan-and-the-tabloid-press-harry-finally-gets-his-day-in-court

I was wondering if the judge would summon Piers like he did Jane Kerr. He's been mentioned 3 times now, it's becoming clear that he is pertinent in this case.

Which channel was that on?

He also said questions had been raised about why “three or four associates of the Duke of Sussex” had not given evidence in the case against MGN.

Apologies. I hadn't seen that. The report I read only listed people who had worked for MGN.

How does that work, then? He monitors what everyone is saying out of court? What happens if there is a non-called witness on both sides A and B. And they both make comments. But the judge misses A's comments and so assumes he hasn't said anything. But he catches B's comments and raises an eyebrow. He'd be allowed to infer that B had something to hide by not showing up and A has innocent reasons?

The question the judge has to consider is why a witness whose evidence is, or would be, central to the case has not been called. In Vardy v Rooney, for example, the judge decided that the reason Watt (Vardy's agent) wasn't called was that her witness statement was false, and she couldn't face being cross examined on it. The destruction of evidence by Vardy and Watt was also a factor, with the judge deciding that they had deliberately destroyed incriminating evidence. If there had been no destruction of evidence, it is less unlikely the judge would have drawn any inferences from Watt's absence, but less weight would have been given to her witness statements than if she had been called.

In this case, the plaintiffs have asked why MGN hasn't put any of the reporters involved on the stand and is inviting the judge to draw the conclusion that this is because they would be lying if they denied the use of phone hacking and therefore don't want to face cross examination. The fact that Morgan in particular has been quite vocal publicly but hasn't given evidence is potentially significant. It wouldn't enter into the judge's thinking if MGN had called at least some of the ex-employees listed to give evidence as to how the stories were obtained. However, as they haven't called any of them, it is open to the judge to decide that this is because they couldn't honestly deny the use of phone hacking.

Let's say I had a witness to something but we didn't get on. And they refused to come to court. I felt I could prove the case without them, maybe through statements the police had made a note of but obviously their testimony in court would be better but they wouldn't attend. The fact that the judge could/would take a negative inference from that is totally wrong.

In that situation the judge would not draw a negative inference.

If, for example, your witness had made a witness statement but refused to turn up in court, their witness statement would still go into evidence, but the judge would give it less weight than if they had turned up. If you can prove your case without them, their absence is immaterial. However, if a witness who is clearly central to the case is not called to give evidence for you, the judge will want to know why.

In this case, as MGN is insisting its reporters obtained the stories without using phone hacking and that senior management weren't aware of any phone hacking, it is perfectly reasonable for the judge to question why MGN has relied on bare assertions and not called the reporters and senior managers concerned to give evidence. It would be totally wrong if a judge could not draw a negative inference when one side has made assertions that could be proved by witnesses but has failed to call those witnesses.

BBC, its on player

Thanks for this explanation.

New thread: https://www.mumsnet.com/talk/the_royal_family/4832188-they-dont-just-report-the-news-they-create-it-on-meghan-harry-and-the-press

Thanks, I found it on the 15th. BBC2

Scandalous : Phone hacking on trial.

The question the judge has to consider is why a witness whose evidence is, or would be, central to the case has not been called.

But that's not what you said. You said that the judge was listening to what was going on outside court and using that to make negative judgements against one side or other.

However, he is allowed to draw negative inferences from a failure to call relevant witnesses, particularly when these witnesses have a lot to say for themselves out of court.

As Piers Morgan hasn't said much during the trial, one quick snippet when he was getting into a car, it would therefore follow that the judge is using information that he's read or heard before the trial. That can't be right, can it? How can not calling a previous sacked employee, still carrying a judge against you, who is refusing to give testimony unless forced, who would happily attempt to wreck defendant's case mean that a judge can rule against the MGN?

The judge should just look at what evidence is presented with because that's what either side has decided to put before him. It's not for him to wonder and draw his own conclusions. If he thinks that Chelsy Davy should have been brought, that's none of his business. She might be concerned that the opposing counsel will ask her personal questions that she doesn't want to expose the answers to - maybe not that would affect the case but that would have personal, business or embarrassing repercussions. It's not for the judge to infer anything negative to the claimant's case by her absence because he doesn't know. Harry shouldn't have his case jeopardised because of that. That's not fair.

Basically judges can make any inferences they like that suits their cause. Perhaps barristers on both sides thought they'd made their case without Morgan and Davy. Perhaps in other cases, the claimant or defendant couldn't afford for the witness to come. The judge drawing negative inferences by their absence, by any behaviours outside the court, because of the lawyers' decision not to call them, shouldn't impact on the claimant or defendant further than their absence might have failed to supply evidence for their case.

The judge should make judge on fact not on speculation. There either is evidence or there isn't.

You misrepresent what I said and then quote it! Amazing!

I have not said anywhere that the judge is using information that he has read or heard before the trial. That would be entirely improper.

How can not calling a previous sacked employee, still carrying a judge against you, who is refusing to give testimony unless forced, who would happily attempt to wreck defendant's case mean that a judge can rule against the MGN

I haven't said that either. But there is no evidence that all these journalists were sacked (indeed, plenty of evidence that they weren't), still less that they carry a grudge against MGN. You seem to be making up your own facts to support MGN.

I wasn't going to go into the full ins and outs of this, but...

If a party is unable to call a witness for reasons outside its control and can show that it had made reasonable efforts to trace and call the witness but had been unable to do so, or the witness was so clearly hostile that it would have been pointless, no inference will be drawn.

If a party has failed to call a witness who was involved in the events in question on that party's side and the reasons are insufficiently explained or justified, but the other party has produced witnesses to the events in question, there is no need to draw any adverse inference. That situation clearly favours the party who has produced witnesses.

If a party has failed to call a witness who was involved in the events in question on that party's side and the reasons are insufficiently explained or justified, and the other party, for good reason, has no witnesses of its own, the court can draw an adverse inference. There are principles, which I'm not going to set out here, that the courts use when determining whether to draw an adverse inference in this situation.

So, in this case, MGN has repeatedly asserted that its journalists obtained the stories by legitimate means. However, it has not produced the journalists in question to testify on the subject, nor has it offered any explanation for this failure. If the journalists in question had all been sacked and held a grudge against MGN, MGN would have said so. They didn't. Clearly, none of the plaintiffs has any direct evidence as to how the stories were obtained. The judge may therefore be able to draw a negative inference - that the reason the journalists weren't called is that their evidence would have been unhelpful to MGN.

thanks once again @prh47bridge great to have your knowledge and explanations

Sorry this is long. I don't know if I'd bother reading. Even I was bored by the end! But negative inferences are wrong!

I have not said anywhere that the judge is using information that he has read or heard before the trial. That would be entirely improper.

Well, yes you did.

However, he is allowed to draw negative inferences from a failure to call relevant witnesses, particularly when these witnesses have a lot to say for themselves out of court.

He must be listening to what Piers Morgan said to know he spoke about the trial. He's made very little comment during the trial that I can see. He has said a lot prior to the trial. Therefore that must be what the judge has listened to. "A lot to say for themselves." If he's going to make a negative inference from him not attending, that is one thing (which I think is wrong, obvs). But that he's making negative inferences because of what he's said out of court is another.

But there is no evidence that all these journalists were sacked (indeed, plenty of evidence that they weren't)

Piers Morgan was sacked by the Mirror.

still less that they carry a grudge against MGN. You seem to be making up your own facts to support MGN.

Exactly. I don't know if any of them have a grudge but that's the whole point. Neither does the judge. So if someone doesn't come to court, the judge is drawing a negative inference without knowing facts.

If a party has failed to call a witness who was involved in the events in question on that party's side and the reasons are insufficiently explained or justified, and the other party, for good reason, has no witnesses of its own, the court can draw an adverse inference.

Yes, I understand there are many reasons why witnesses aren't called to court. But there are cases where people don't want to reveal what their reasons are why they aren't giving evidence to support a claimant/defendant. The C/D's case is already suffering because they're not giving evidence which could help them with their case. They shouldn't have a further penalty against them, of adverse inference, because a witness cant/wont/daren't etc testify.

So, in this case, MGN has repeatedly asserted that its journalists obtained the stories by legitimate means. However, it has not produced the journalists in question to testify on the subject, nor has it offered any explanation for this failure. If the journalists in question had all been sacked and held a grudge against MGN, MGN would have said so. They didn't. Clearly, none of the plaintiffs has any direct evidence as to how the stories were obtained. The judge may therefore be able to draw a negative inference - that the reason the journalists weren't called is that their evidence would have been unhelpful to MGN.

Of course it could be that all the journalists were hacking and spying and lying. Perfectly possible.
Piers Morgan was sacked from the Mirror, unrelated to hacking. He might very well hold a grudge but as it is to do with issues not related to hacking, MGN might not want to reveal private information. It might even be unsubstantiated rumours - again which they don't want/can't reveal. So indeed Piers Morgan's evidence may have been deliberately unhelpful, even skewed, but for reasons that are unrelated to hacking. It might be that Morgans evidence is unhelpful because he actually hacked. Or because Charles was meeting with him and giving him personal stories. Or he was shagging Camilla. And he doesn't want to give evidence in case any of that gets revealed. I don't know. But neither does the judge.

The fact that they haven't produced witnesses to say how they got their story is injurious to MGNs case in that they can't close down the claimant's case immediately. They shouldn't have an extra burden of having negative inferences because the judge won't always have all the facts.

I've repeated myself which makes it hard to read. But the bottom line should be: Is there evidence? What is the evidence? Is the claim proved.
If I take someone to court for damaging my car, I should have to prove it. If I don't know who did it, I can't take someone to court and say I reckon it was this guy because he lives two doors down and he damaged my neighbour's car last year.
Equally, if I did take it on that evidence and the guy I was accusing said it wasn't him because he was at his friend's house but his friend doesn't come to court, then obviously I'd expect his defence to have no traction. But I wouldn't expect the judge to make the negative inference that he was a liar. Because he might not be.

I'm going to tackle your post slightly out of order...

Well, yes you did.

No I did not. I did not refer to Piers Morgan at all. You are trying to put words in my mouth.

But negative inferences are wrong!

No, they are not. They are essential.

If we followed your reasoning, Rooney would have lost her case because the judge would not have been allowed to draw the obvious inferences from the large amount of evidence that went missing after Vardy was ordered to disclose it, or from Watt's refusal to testify.

The fact that they haven't produced witnesses to say how they got their story is injurious to MGNs case in that they can't close down the claimant's case immediately. They shouldn't have an extra burden of having negative inferences because the judge won't always have all the facts.

The problem here is that we are dealing with a case where the plaintiffs (all four of them) do not have any direct evidence that phone hacking was used. Their evidence is circumstantial. MGN say phone hacking was not used and that the journalists obtained their stories by legitimate means. If no negative inferences are allowed, MGN can win by simply not calling any of the journalists to give evidence. That is not remotely fair on the plaintiffs. The courts take the more realistic approach of allowing the judge to consider why the defendants haven't called these witnesses. That doesn't necessarily mean he will decide against MGN. But he is allowed to consider if the reason they haven't been called is that their evidence would be harmful to MGN's case.

But there are cases where people don't want to reveal what their reasons are why they aren't giving evidence to support a claimant/defendant.

In that situation the party that could have called them can show that they have tried to call the witness, but the witness has refused. They don't need to reveal why the witness doesn't want to give evidence. This is in the first category from my post. As long as they can show that they have tried to call the witness, no negative inference will be drawn.

Equally, if I did take it on that evidence and the guy I was accusing said it wasn't him because he was at his friend's house but his friend doesn't come to court, then obviously I'd expect his defence to have no traction. But I wouldn't expect the judge to make the negative inference that he was a liar. Because he might not be.

Why on earth would the judge make the negative inference that he was a liar? This is in the second category from my post - there is no need for the judge to draw a negative inference. You have evidence, the guy you are accusing does not, so you win on the balance of probabilities.

Neither of these situations is analogous to the situation in this case.

I'm tired now. I don't thinkneither us going to convince the other. But..

No I did not. I did not refer to Piers Morgan at all. You are trying to put words in my mouth.

Sorry, I thought you'd read the news report. The judge was referring to Piers Morgan and his talking out of court. I assumed that that as you were quoting the judge, that's who you were referring to as well.

The problem here is that we are dealing with a case where the plaintiffs (all four of them) do not have any direct evidence that phone hacking was used. Their evidence is circumstantial. MGN say phone hacking was not used and that the journalists obtained their stories by legitimate means. If no negative inferences are allowed, MGN can win by simply not calling any of the journalists to give evidence.

Then if the journalists have the proof, did the claimants summons them? If they refused to go, wouldn't MGN say that's why they didn't summons them? If the claimants didn't call them, are there negative inferences made about that?

I know it's not a criminal trial but even with this lower level of proof, surely the burden is on the claimant to bring the evidence to get it over the line.

In that situation the party that could have called them can show that they have tried to call the witness, but the witness has refused. They don't need to reveal why the witness doesn't want to give evidence

So if MGN said that they had asked the journalists and they'd said they didn't want to, the judge would make no negative inference? Nothing would happen to the journalists and MGN dont suffer in any way?
That sort of doesn't make rational sense. Vardy would just say I wrote to ask my agent to come and she said no. So the judge wouldn't make any negative inference.

You have evidence, the guy you are accusing does not, so you win on the balance of

OK, I accept my answer was long so you probably just skim read it. Because..

My car is damaged. He has damaged someone else's car in the past. Therefore I'm claiming it's him that damaged it.

He has no evidence that he didn't damage it.

You'd find it my favour. I mean, that's just bonkers. I have literally no evidence just a supposition. Again, I accept you probably tired by the end of my post and dudnt rake thus in. I hope so, anyway.

*
Finally, my concern is nothing to do with this case per se. I think there's a good chance they were hacked etc. Newspapers like to make the money, I've no problem with the mirror going out of business having to compensate them.

What I object to is that I could be accused of things and it seems I have to prove my innocence over something that happened maybe years ago. (Recently learned.) I think what I need to do is get more fragrant or lie about giving $7m to charity because I hear that can help win your case with these even handed judges. 😏

Then if the journalists have the proof, did the claimants summons them? If they refused to go, wouldn't MGN say that's why they didn't summons them? If the claimants didn't call them, are there negative inferences made about that?

They were ex-MGN employees. It was clearly for MGN to call them, not the plaintiffs.

I know it's not a criminal trial but even with this lower level of proof, surely the burden is on the claimant to bring the evidence to get it over the line.

In broad terms yes, it is up to the claimant to make their case on the balance of probabilities. In this instance, they have shown that there is reason to believe their phones were hacked and that there is circumstantial evidence that at least some of the stories appeared as a result of that. Whether they have done enough to convince the judge remains to be seen. MGN could have simply said that the claimants don't have enough evidence to prove their case, but instead they have maintained that the stories were obtained by entirely legitimate means. Since MGN has made that argument, it is up to them to prove it. It is not unreasonable to think that, if the stories were obtained legitimately, MGN would have been happy to call at least some of the journalists involved to explain how they got the stories.

So if MGN said that they had asked the journalists and they'd said they didn't want to, the judge would make no negative inference? Nothing would happen to the journalists and MGN dont suffer in any way?

They would need to prove that the journalists had refused rather than simply saying that. Nothing is going to happen to the journalists regardless. The negative inference, if one is drawn, doesn't affect them at all. It simply weakens MGN's case. The number of journalists involved in this case (around 30 I believe) makes it harder to believe that none of them would give evidence. But ultimately, a judge cannot normally draw a negative inference from a witness refusing to appear. However, see my next point.

That sort of doesn't make rational sense. Vardy would just say I wrote to ask my agent to come and she said no. So the judge wouldn't make any negative inference.

Actually, Vardy did say that and advanced medical evidence as to why Watt did not appear in court to be examined on her witness statement. On its own, that wouldn't have led to a negative inference being drawn. However, given the destruction of evidence by Vardy and Watt, and Vardy's attempt to throw Watt under the bus by claiming it was all her fault, the judge was entitled to conclude that the evidence had been destroyed because it was incriminating and the reason Watt wasn't giving evidence was that she didn't want to be cross examined on a witness statement that was false. So it isn't a simple binary thing - the witness has refused to be called so no negative inferences are drawn. But, if no evidence had been destroyed and Vardy hadn't tried to throw Watt under the bus, no negative inference could have been drawn from Watt's refusal to give evidence.

You'd find it my favour. I mean, that's just bonkers. I have literally no evidence just a supposition. Again, I accept you probably tired by the end of my post and dudnt rake thus in. I hope so, anyway.

No, I wouldn't accept it on just a supposition. I read your last paragraph as meaning that you had some evidence beyond a supposition since you talked about the defence not having any traction. If you didn't, the defence would be irrelevant. You would lose even if they didn't bother with a defence at all.

What I object to is that I could be accused of things and it seems I have to prove my innocence over something that happened maybe years ago. (Recently learned.) I think what I need to do is get more fragrant or lie about giving $7m to charity because I hear that can help win your case with these even handed judges.

In general you don't have to prove your innocence. It is up to those accusing you to prove your guilt. You can just sit back and say, "Prove it". However, if they are able to make out a case that is strong enough to mean it could convince the judge, you will need to come up with a defence. If your defence relies on someone else (as in this case, where MGN's defence relies on the actions of their employees), you will be expected to call them to give evidence (or, at a minimum, show good reason why you haven't been able to call them).

It is a shame that Amber Heard got away with lying about giving money to charity. It would have been better if Depp had had the evidence to show she was lying at the time of the UK case.

Quick P.S. on Piers Morgan having looked at reports...

One of the witnesses called by the plaintiffs is a former MGN journalist who is reported as saying that Piers Morgan knew how to hack phones and showed him how to do it. MGN would have known this evidence was coming. The judge is clearly aware that Morgan has repeatedly denied any involvement in phone hacking, although that won't form any part of his deliberations since Morgan hasn't come to court to say it. However, it is not unreasonable for the judge to think that, faced with this evidence, MGN ought to have called Morgan to refute it and allow him to defend his reputation (inasmuch as he has one - I can't stand the man myself). He has not said he will draw a negative inference from the fact Morgan was not called and I'm not saying he will, but it may be open to him to do so.

OK, I accept what you say. Although I thought that the claimants were calling a journalist in the mail case, so I don't see why they wouldn't call them in this case.

I know the uk and us trials have a different format but I'd not seen the evidence myself in the US trial, I'd have always believed everything Heard said. When I read the UK trial transcript and findings, I was amazed at how much the judge just accepted was true without any proof. My confidence in British civil trials will always be knocked by that. Two points have since been proved to be untrue. But the judge believed her. And based on believing those 2 points he believed other points as they went to a pattern of behaviour. Assumptions made on untrue assumptions.

Having compared UK and US civil trials, it's easy to see how Americans think Harry will lose because he presented little evidence. In the same way people assumed Heard would win because she effectively won in the UK and then changed their mind as the evidence emerged in the US, I think there will be bemusement about how conjecture serves as evidence when/if Harry wins.

@prh47bridge the judge says he may make inferences. Which is judge speak for he will. And they're clearly not positive inferences. They are reserved for pretty $7m donating actresses and fragrant female scientists. 😀

Again, I don't care two figs for Morgan or the Mirror. Neither of them affect my life one jot. I just dont think the system as I've seen it in two public cases is fair or just. And selfishly, I worry what happens if I somehow get caught up in it. Because it seems like the defendant has a lot more to prove the case than the claimant. I wonder if that's why so many foreign nationals try to sue here.

Not sure which fragrant female scientist you are referring to. That doesn't ring any bells for me, I'm afraid. Can you enlighten me?

The defendant definitely doesn't have a lot more to prove the case than the claimant. The burden of proof is on the claimant. If the claimant cannot prove their case, the defendant doesn't have to do anything. But, if the defendant makes claims, the burden of proof is on them to prove those claims.

Responding to your posts out of order!

OK, I accept what you say. Although I thought that the claimants were calling a journalist in the mail case, so I don't see why they wouldn't call them in this case.

The claimants have called journalists in this case, and those journalists have given evidence to support their case. They don't have to keep calling additional journalists. However, MGN has alleged that the journalists who wrote the articles in question used legitimate means to get the information. The claimants don't have to call those journalists as they are unlikely to support their case. MGN, on the other hand, ought to call those journalists. If they don't, they are relying on a bare assertion with no supporting evidence.

Re Depp v Heard, although Depp was suing the newspaper, it was always going to turn on whether the judge believed Depp or Heard. Depp was hampered by the fact he was suing the newspaper rather than Heard. That meant he didn't get the disclosure from Heard that he got in the US case. She could effectively tailor the evidence to support her case. The judge noted this but said (correctly) that it was a risk Depp knew he was taking when he chose to sue the newspaper.

You could argue that any decision made by any court is conjecture. The court never has all the information. It has to work with the information available.

Mr Justice Caulfield’s description of Archer’s wife, Mary. “Has she elegance? Has she fragrance? Would she have, without the strain of this trial, radiance? How would she appeal? Has she had a happy married life? Has she been able to enjoy, rather than endure, her husband Jeffrey?” The rest is history.

That was over 30 years ago! I thought you were referring to something more recent.

Thank you @prh47bridge for your enlightening posts.

You could argue that any decision made by any court is conjecture. The court never has all the information. It has to work with the information available.

All these demands of where is the proof.

Even in serious criminal cases, you have to put together various factors. How many times do you see a video of a person shooting/knifing/poisoning someone. We would have no molestation/rape convictions etc. if we thought you have to have hard proof all the time. You take a series of events and put them together.

I believe Kerr was called in by the judge because she was on over 90% of the articles originally submitted. As the case goes on however, Piers is mentioned 4 times.

I would be surprised if the judge rules against the claimants.
Piers already lied under oath during Leveson. So MGN did not call him, and Sherborne was not going to call him either to 'defend' himself in court, with more lies.