• Concern that double gagging orders being used too freely
• John Terry's legal failure 'won't mark end of injunctions'

The government is consulting the media and the judiciary after becoming "very concerned" that super-injunctions, such as the double gagging order which was obtained by the England football captain John Terry but lifted last week , are being used too often.

Although it is hard to determine the frequency of the orders, as they come to light only if successfully challenged in court, ministers have become increasingly worried about the effect they have on the principles of open justice.

On Friday, the super-injunction preventing newspapers from reporting allegations that Terry had had an affair with an ex-girlfriend of his former Chelsea team-mate Wayne Bridge was overturned after the judge who imposed it changed his mind. Mr Justice Tugendhat ruled that the order was not "necessary or proportionate" to the effect that publication of the allegations would have on Terry's private life. He also criticised the footballer's lawyers, Schillings, for failing to tell the News of the World, which was preparing to publish the story, of the legal steps they were taking.

Tugendhat rejected Schillings' arguments that they had not notified anyone about the application because their client did not know of any media organisation with a "specific interest in the story".

Terry's attempt to use a super-injunction to keep the press at bay comes three months after the oil trading company Trafigura used one to prevent the Guardian from reporting a parliamentary question about the firm and "the alleged dumping of toxic waste in the Ivory Coast". Trafigura's action prompted an online outcry – particularly on Twitter – and the company's law firm, Carter-Ruck, was forced to drop the injunction.

Yesterday, the Ministry of Justice said it was looking into the best way to curb the unnecessary use of such orders.

"The government is very concerned that super-injunctions are being used too frequently. That is why we are consulting the judiciary and media stakeholders on what can be done about that," said a spokeswoman. "The government has already published consultations on multiple publications on the internet and controlling costs in defamation."

Although the News of the World hailed Tugendhat's decision as "a long overdue breath of fresh air and common sense coming out of the privacy courts", media lawyers have dismissed suggestions that super-injunctions are on the way out, arguing that Terry's bid failed on its own merits – or lack or them.

Not only did Schillings seek the super-injunction without naming Terry or specifying which news organisations were looking into the allegations – meaning the media were not told about the legal bid and could not challenge it – the application also centred on the possible damage any revelations would do to Terry's finances rather than the pain they might cause his wife and children.

In his judgment, Tugendhat noted: "This is essentially a business matter for [Terry] … High-profile sponsors are sensitive to the reputation of the sports professionals to whom they pay large sponsorship fees. They may cease to use a famous face if it is associated with behaviour of which the sponsor or the public may disapprove."

Duncan Lamont, a media lawyer at Charles Russell, said the Terry saga was unlikely to herald the end of the double gagging orders. "This is not the death of the super-injunction," he said.

"I don't know whose decision [the application] was, but it was clumsy and ill-advised and they made a bad mistake. The principle with super-injunctions is that you only get one if you really need one. What you normally do is ring up the paper and say: 'If you do this, we'll sue you; if you don't, we won't. There's minimal expense involved and no super-injunction."

Dominic Crossley, a partner at Collyer Bristow, said: "It appears that here the court was not prepared to accept that Terry's privacy rights trumped the newspaper's right to freedom of expression where his objective was to protect his reputation with sponsors. It will not have helped Terry that he has benefited commercially from his marital relationship by selling rights to his wedding and subsequent sponsorship."

Still, he went on, Tugendhat's decision betrayed "the myth that injunctions are handed out 'willy-nilly' to undeserving celebrities".

Media lawyer Mark Stephens, of ­Finers Stephens Innocent, agreed that the application had been "misjudged". "Tugendhat's judgment says that Terry was worried about his ability to exploit commercial rights and so it was not a question of privacy.

"It wasn't worth having as a privacy injunction, let alone a super-injunction, which was just over the top."

Stephens also felt reports of the super-injunction's death had been exaggerated. "Clearly there are going to be cases for super-injunctions where national security is at stake, but it's causing the judiciary to look very closely at when they grant super-injunctions. The super-injunction where the facts of the injunction are secret will be relegated to those very few cases where it's absolutely necessary."

Lamont – who described Tugendhat's ruling as "a wonderful example of the courts belatedly realising that they have created a monster and reining it in" – said the Terry case should give both journalists and lawyers pause for thought.

"It's not quite the victory for the tabloids and common sense that they are pretending it is," he said. "Super-injunctions are quite expensive and it's a real Rolls-Royce service to give your client. But it's an indulgence when you don't need them," Lamont added.

Full Article: http://www.guardian.co.uk/media/2010/jan/31/john-terry-government-concern-super-injunctions

Bereft of lawyers, the Iraq war inquiry has suffered total forensic failure. This was a cakewalk for Blair

None of the members of the Chilcot inquiry have training in either legal principles or forensic skills. They have no permanent appointed legal experts or advisers and no appointed counsel to represent the tribunal and to cross-examine witnesses. This was quite deliberate. The government that set up this inquiry was quite open on the subject. It was widely suggested by the prime minister and others that the presence of skilled cross-examiners would conceal rather than reveal the truth. To this patent nonsense was added the issue of expense. The Iraq war has to date cost £26,000,000,000. Appointing a legal team to assist the inquiry, would be, it was maintained, prohibitively expensive.

There was of course another agenda. In assessing responsibility for the Iraq disaster, past and present members of this government are the prime suspects. Although the inquiry is famously not "a court", its public purpose is to reveal the manifest deceptions and concealments that led us to participate in a conflict that caused massive suffering, the loss of 600,000 lives and a huge increase in fundamentalism and terror. Most prime suspects for most crimes or misdemeanours would opt for a trial without a skilled prosecutor and preferably with unqualified judges. And that's what the government achieved.

The extent to which the prime suspect, Tony Blair, was consulted or complicit in the shaping the process is, of course, unknown but, whether by accident or design he has precisely the tribunal he would have devised. An inquiry has been created that is devoid of the forensic tools properly to enquire. It is a tribunal without teeth providing trial without tribulation. And of course evidence is not on oath.

The results were predictable. In the main areas of controversy the inquiry has proved itself totally ill-equipped to test or challenge testimony which demands the most rigorous and forensic examination. In doing so it has failed lamentably to investigate deceptions of parliament and in particular the central issue of the attorney general's legal advice to cabinet and Westminster. In terms of importance this issue has no equal. If cabinet or parliament had been told, or believed, that the legal case for war was doubtful, there would have been no war. If it now transpires that parliament or cabinet had been deceived or misled on this issue, the effect would resonate across the whole investigation and would illuminate the extent to which we had secretly been committed to war at the behest of an American machine. Legality is the issue in its own right, and is the prime test of the integrity and bona fides of the architects of war.

The facts themselves are well known and stark. After months in which he had maintained that only a further UN resolution could legitimise war the attorney general partially changed his mind. He produced on 7 March 2003 a written opinion for the prime minister. In it he acknowledged that a "reasonable case" could be made for legality without the UN resolution but (and it is of course a huge "but") he "could not be confident that this view would succeed in a court of law". In other words, put plainly, legality was doubtful.

The effect of this was potentially seismic. Had this view been known to the cabinet or parliament, votes for the war would have been unthinkable. Had this unvarnished view been known to our military command and armed forces, many, if not all, would have refused to fight. Had it been known to contractors, civil servants and unions engaged on war work many, if not all, would have withdrawn their labour and support.

At this point 40,000 British troops were massed on the borders of Iraq and war was three weeks away. On 17 March the attorney general attended cabinet. The purpose of his attendance was to provide his opinion that the war was legal. His own doubts and equivocations 10 days earlier received no mention. As to the very existence of a written opinion there was total silence. The following day he repeated his unequivocal view on the law to the House of Lords, whence it came to the Commons. As to the very existence of a written opinion there was, again, total silence.

The reason given for this extraordinary passage of events was, when it came, lame and unacceptable to any lawyer (or indeed anyone). The attorney general effectively said that he had been approached by the chief of the defence staff and a representative of the Cabinet Office asking that his advice be made unequivocal and he duly obliged.

This lamentable, inexcusable saga demanded from the Chilcot inquiry, searching forensic analysis and penetrating relentless enquiry. It received neither. Blair's main inquisitor, Sir Roderic Lyne , failed repeatedly to formulate the essential questions, did not pursue manifest evasion and allowed interminable responses that steadily eroded the allotted time. It was dreadful.

He had begun badly. Lyne's first, rambling "question" contained multiple strands and comments inviting a long rambling "reply" during which Blair noticeably relaxed. This was going to be a cakewalk. Nearly six minutes of time (2% of the day's session) had been wasted and we had discovered precisely nothing.

It got worse. Answer after answer descended into self-serving waffle of total irrelevance. His love of America, his closeness to President Clinton, his admiration for the armed forces, the indescribable nastiness of Saddam, " the calculus of risk " (what?), his experience as a junior barrister, even his silly asides to Fern Britton expanded endlessly to suffocate meaning. No one demanded a straight answer. No one deplored the obvious strategy of delay.

In the morass, essential questions surfaced briefly, were avoided and remained, amazingly, ignored. Question: "Had President Chirac phoned to say that his position was being misrepresented out of context?" Answer: "I remember speaking to Chirac on a number of occasions." Yes? And? What is the answer? We will never know as the examination drifted gently on to another topic, and obscurity remained.

Essential issues – the detailed conversations with Bush, the exact undertakings given by Blair on military support, the Downing Street memo, all surfaced briefly, were evaded ("Look, what I think needs to be made absolutely clear, Sir Roderic …"), and then drifted harmlessly away.

Then came legality. Here surely lay the killer punch – the line of cross-examination that was essential and from which there appeared no conceivable escape. It was, like the best cross-examination, so simple. "Why was the cabinet and parliament kept in ignorance of the existence (never mind the content) of the attorney general's only written opinion?" Why did prime minister and attorney general watch their colleagues vote for a "legal" war without mentioning once the existence of written advice given days before that legality was uncertain? Why? Tell us.

We will not know the answer for one simple reason. The question was never asked. Why was it never asked? Ask the Chilcot inquiry. See if you get an answer.

Full Article: http://www.guardian.co.uk/commentisfree/2010/jan/31/chilcot-forensic-failure-cakewalk-blair