I have disabled comments for this posting to avoid potential legal mishaps, not least having seen what others, including Hacked Off's site, and social media are prepared to publish despite a clear risk of prejudice. If you wish to have your say send it to this address and, if I am satisfied it is safe, I will approve it ...
To err is human. Lynn Gaffney erred when, many years ago as the then partner of a prison officer, Scott Chapman, she allowed him to use her bank account for payments from newspapers for information he passed to them.
Judge Charles Wide erred, when sentencing Gaffney for this error at the Old Bailey last Thursday, by failing to make himself properly understood. As The Guardian's correction put it on Saturday, his words were "universally misheard", by court officials and police as well as reporters present, so that everyone believed he had sent her to prison for 13 weeks.
At Salut!, I described that sentence as "utterly pointless", my feeling being that one so short could surely have been suspended, if only to avoid tearing a mother, with a previously unblemished record, from her two children just before Christmas.
The reporter in the case, from the News of the World and also the parent of two children, was indeed given a suspended term, the judge having expressly taken account of family circumstances among other factors.
But he hadn't jailed Gaffney for 13 weeks, a term so "universally misheard" that it followed her to Holloway, where prison staff also believed that to be her sentence. As the judge announced 24 hours or so later, it was 30 weeks, which I discovered to my initial disbelief from the excellent tweeting of a court reporter, @jamesdoleman.
That is bad enough. There is worse. Jim Kain, Gaffney's partner for the past 11 years, her fiance and the father of her younger child, aged only six, tells Salut! in one of two moving e-mails that she had still not been informed of the error, or misunderstanding, by the time he was permitted a timed, five-minute phone conversation with her three days later (they'd had a quick, emotional call a few hours after sentence, but long before the defence QC rang him, next day, with the unwelcome news). He was astonished on Sunday evening to be the one breaking that news to her.
"This is the first time I have been able to speak with Lynn since Thursday so obviously we had a lot to say to each other," he writes. "But to my astonishment no one had even told Lynn that her sentence had been increased and I was left giving the woman I love this terrible news. The sound of her trembling screams back to me will haunt me for ever."
I accept that it was no part of Judge Wide's intention to cause her this further distress. He will have risen from the bench unaware of the general, incorrect impression he had created and presumably put it right as soon as it was drawn to his attention. It is nevertheless an appalling thing to have happened and I believe the effect of this mishearing, shared by scores of people in the same courtroom, justifies my headline.
Court practices may well have changed significantly since I was a regular in the press boxes. But I must admit to finding it odd that an entire courtroom could be left with entirely the wrong idea. If a judge really must articulate a prison term in weeks, surely there is an absolute duty to ensure the meaning cannot be misunderstood.
Quite separately, I still think the interests of justice would have been adequately served by a suspended sentence, even of the longer term.
That would have been the humane outcome despite the severe treatment of Chapman (three-and-half years) that Judge Wide considered necessary. The punitive "add-ons" to the suspended sentence for the reporter (150 hours of community work and a tagged curfew for three months as “a daily reminder of how close to prison you came”) could have been applied to Gaffney, too, without seeming a remotely soft option.
Jim Kain's e-mails are necessarily partisan, as he acknowledged to me when we spoke later. He rightly wishes to support the woman he loves.
As a non-hacking (irrelevant to this case but needs to be said), non-bribing journalist, who has sought to write in measured terms about Leveson and related issues, I try to consider these matters fairly. Authority, as I have repeatedly argued, has it in for errant journalists and, even more so, public officials who helped them but, however perverse individual judgments may appear, it is important that no one is seen to be above the law.
This judge took a dim view of the people facing him for sentence. He rejected the reporter's claim to have acted in the public interest when using Chapman's information to reveal the supposedly easy treatment in prison granted to Jon Venables, one of the killers of the Liverpool toddler James Bulger. On the face of it, I feel the reporter had a point, even though my own view of penal matters is a great deal more liberal than that of the now-defunct newspaper for which the items were written. But I may be wrong.
In the case of Chapman, the judge regarded the amounts received - more than £40,000 - as a serious aggravating feature. He also saw it as a "grave" matter that in his first contact with the press, he had given Venables's assumed identity (the press already knew this but wished to verify the man's credentials as a prison officer). I still regard the jail term as excessive when set against far shorter punishments imposed in all sorts of other, admittedly unrelated cases where the harm or wrongdoing seems greater. In the case of Gaffney, he chose the worst possible interpretation of her actions ("money laundering"), whereas I could not stop myself thinking back, for example, to a major drugs trial when wives or girlfriends of the principal defendants were shown the mercy denied to her.
But now I shall let Jim Kain take up Gaffney's story: "I sat in court on Thursday and listened to his sentencing speech. I was sat in the gallery and so was probably the furthest away from him. I clearly heard him sentence Lynn to 13 weeks of which she would serve half.
"I heard it, the Met police heard it and filed it on their statement, the court registrar heard it and entered it on their log and Lynn was booked into Holloway as 13 weeks ... The whole thing stinks and if a packed court heard it how can he change it 24 hours later? Worse still, how can the defendant not know three days later."
There is also criticism of the judge's directions to the jury and whether this led to Guilty verdicts against his fiancee and the reporter. Another reporter was cleared, apparently on the basis that he did not know the informant was a prison officer whereas the judge was satisfied that the other did. Those may be issues for another place, ie the appeal court
But Jim Kain's second e-mail continued: "Despite people's mixed views of the case. Lynn didn't know either journalist until their time in court. She had never spoken to, emailed or called any press organisation and she certainly was never in any public office.
"Scott approached Lynn to use her account and, yes, she accepted but not for financial gain as is being portrayed. This all started post (I think he means pre) the NoW scandal and as far as Lynn was concerned, people could sell stories to papers. She had no idea what Scott was doing was illegal and felt Scott could lose his job at most. When she was arrested on conspiracy to commit misconduct in a public office it was the first she and in fact I had ever heard of such a thing.
"Lynn's greatest protection is her children and when I spoke to her in prison today, her last scream to me before we were disconnected and after learning her sentence had more than doubled was 'look after my kids'. She would never have allowed Scott to do what he did if she for one second thought it was illegal and that would lead to where they are now."
While ignorance of the law is famously not a defence, those words ring true. There was a culture, to which officialdom was happy to turn a blind eye until it was no longer acceptable to do so, of law-breaking then seen as technical in pursuit of news.
A former DPP has been quoted as saying the payment of public officials was known about but deemed "too petty - and too complicated" to be acted upon. Eventually, as a spin-off from the phone-hacking scandal, that approach changed. We now have the Crown Prosecution Service deciding where public interest, exceptionally, makes criminal charges inappropriate - and, occasionally, a jury is brave enough to reject cases that make it to court. It is a lottery, and an unjust one, whether or not we feel much sympathy for those caught up on its whims.
But the CPS and judges are, in a general and sometimes specific sense, overlooking the extent to which foot soldiers relied on prevailing practice, the advice of in-house lawyers and the demands of intimidating superiors. If any Crown counsel has seriously dismissed this was the defence that cut no ice at Nuremberg, as I saw implied in Peter Preston's media column at The Observer in relation to another trial, the comparison is unworthy and contemptible. It must also be remembered that the popular press had a practice of advertising its willingness to pay for stories; I do not find it hard to understand why a prison officer's girlfriend might have thought that made his actions a risk to his employment but no more.
In fairness, I will also quote what Det Chief Supt Gordon Briggs, in charge of the operation - named Elveden - that led to the proceedings, told the media after the case: “Scott Chapman abused his position of trust as a prison officer to sell confidential information to journalists for private gain. He received in the region of £40,000 for these stories.
“Lynn Gaffney aided and abetted Chapman by acting as a conduit to accept payments from the journalist on his behalf in an attempt to cover their tracks.
“A journalist from the News of the World, who cannot be named for legal reasons, knew that Chapman was a prison officer and knew he was breaking the law by leaking confidential information for money and conspired with him in that criminality. Scott Chapman and Lynn Gaffney were motivated primarily by financial gain; the journalists exploited that to their own advantage without lawful justification.
“The investigations launched under Operation Elveden are not about attacking press freedom or from preventing information that is in the public interest from being published. The police are not here to act as censors. However, where criminality has been alleged it is right and important that the police conduct thorough investigations and that the evidence is put before a court.”
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