Posts Tagged ‘trafigura’
Today I was one of four bloggers giving evidence to the Parliamentary Select Committee on Privacy and injunctions. Also on the panel were David Allen Green (Jack of Kent / New Statesman), Paul Staines (Guido Fawkes) and Jamie East (Holy Moly).
My main focus in the discussion was the notorious Trafigura super-injunction which I helped to unravel back in 2009, by posting a “banned” Parliamentary Question on Twitter.
A super-injunction is a gagging order that both prohibits the publication of a specific piece of information, and forbids any mention of the gagging order’s existence.
Trafigura’s super-injunction banned any reference in the UK media to a leaked company memo known as the “Minton Report”. When, in October 2009, the MP Paul Farrelly raised the issue in Parliament, Trafigura’s controversial lawyers, Carter Ruck, tried to prevent the press from reporting Farrelly’s question.
This had come at the end of a year that also saw a draconian libel ruling against the science writer Simon Singh. The year before, Ben Goldacre and the Guardian had successfully defended a vexatious libel case by the AIDS-denialist quack Matthias Rath – yet the newspaper nonetheless lost hundreds of thousands of pounds in unrecovered costs. I myself had spent time fighting off an unfounded libel claim over Don’t Get Fooled Again, and had seen up close the chilling effect that such threats could have.
To me and many others who took action the same evening, Trafigura’s super-injunction felt like the last straw after a series of attacks on freedom of speech. The bid by Carter Ruck to ban the reporting of Parliament seemed like imperial over-reach by a “reputation management” company far too used to getting its way from pliant High Court judges. It seemed extraordinary that a judge sitting in an English court – on a handsome salary funded by ordinary taxpayers – might allow such an effort.
The situation also seemed absurd. The “banned” Parliamentary Question had been published by Parliament on its own website. The Minton report itself had been available on Wikileaks for over a month. Yet anyone who repeated the same information themselves could face prosecution for Contempt of Court.
Secret courts and freedom of speech
But the fundamental problem was the very idea of a secret court hearing to ban the free exchange of information. When a court case is heard in secret, the public has no way of checking whether the judgements made in their name are decent, honest, and fair. Because we don’t even know that the case is going on, we have no way of holding the court to account if – as is inevitable from time to time, given human nature – a judge makes a decision through corruption, cronyism or incompetence rather than through the fair application of the law. Public scrutiny is an essential safety valve in any democracy, and it seems extraordinary that our political class would seek to dispense with it so lightly. This is not a new idea.
Likewise, any constraint on freedom of expression risks being abused by those seeking to cover up evidence of corruption or incompetence, as we have seen time and again with UK libel law.
We might nonetheless accept this risk in certain narrow circumstances. We might agree that some categories of information should in principle, in all or most cases, be kept confidential. Some examples might be:
- Children’s medical records
- The name and address of a person under a witness protection programme
- Information likely to be prejudicial to a criminal trial
We might accept that the courts have a role in enforcing this. But even in these cases, court decisions have to be open and public if we are to minimise the risk of abuse. And for a government official to extend such restrictions to information which merely has the potential to embarrass a large and powerful corporation seems, frankly, reckless.
“How does undermining the rule of law aid the public interest?”
Two years after Trafigura it feels as if progress has been made. There seems to be a general acceptance (other than from Carter Ruck and Trafigura, obviously) that Carter Ruck’s attempt to gag the reporting of Parliament was misguided. There is also a recognition that the current system of privacy and “confidence” injunctions is in a mess, and needs reform.
But it looks as if there’s a way to go yet. Prior to today’s meeting, the panelists were sent a list of somewhat loaded questions, including:
“Most of you have blogged about injunctions; some of you appeared to know or think you were breaching injunctions whilst you were blogging. What were your motivations for doing this? What made you think you wouldn’t be prosecuted?”
“Do you think that you are able to judge the appropriateness of an injunction when you haven’t heard the full case (compared with a judge who has)?”
“What is your definition of the public interest? How does undermining the rule of law aid the public interest?”
In one form or another, all of these questions came up during the session. I clarified to the Committee that when I chose to publish the Trafigura question I was by no means sure that I wouldn’t be prosecuted. I took the risk because I felt so strongly about the issue, and believe that many of the others who did the same thing were making a similar calculation.
The second question may seem reasonable at first glance. But the implication seems to be that when a judge passes a free speech restriction that appears completely unjust, or absurd, we simply have to nod deferentially and trust that they must have had lots of good reasons that we just don’t know about. This again, seems like a prescription for corruption and incompetence.
The last question was particularly interesting. While the Committee wanted to challenge us on our understanding of the “public interest”, it seemed to me that their definition of the “rule of law” was just as much open to question.
a principle of governance in which all persons, institutions and entities… are accountable to laws that are publicly promulgated, equally enforced… and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law… avoidance of arbitrariness and procedural and legal transparency.“
The International Bar Association, meanwhile, sees the rule of law as establishing “a transparent process accessible and equal to all”. The IBA spells out that “Confidence in the system of governance in any society cannot be maintained unless the process is open and transparent.“
On this basis, it would seem that High Court judges who pass secret edicts restricting freedom of expression – and the Parliamentarians who allow them to continue – are doing far more to undermine the rule of law than the bloggers who circumvent them.
Rich man’s justice
Lord Gold and Gisela Stewart MP seemed concerned – if somewhat bemused – by my suggestion that I would quickly go bankrupt if I was ever dragged into a libel court over something that I’d written. Surely this was incredibly unfair to any potential litigants who might end up losing money by taking me to court? His Lordship noted, disdainfully, that it wasn’t worth anyone’s while suing me, was it?
It was difficult to know what to make of this point, so I thought I’d expand on it here: A typical UK libel case can end up costing upwards of £100,000 to defend. This is a figure far beyond the means of most ordinary people, including most bloggers, and that is why, for most of us, being sued for libel would entail bankruptcy.
The main reason that such cases are so expensive in this country – reportedly around 140 times the European average – is that the “reputation management” firms that bring them are willing and able to charge more for an hour’s work than many of us earn in a week.
This is, in other words, a situation that the legal profession, aided by a Parliament unprepared, so far, to reign in the activities of such firms, has actively created. So it seems odd for Parliamentarians – many of whom, like David Gold, are also lawyers themselves – to wring their hands when confronted with the consequences.
I’ve no idea what the Committee will have made of our testimony. It is, at least, encouraging that these issues are starting to be debated properly. But it is nonetheless disturbing to see such a blithe acceptance among our elected officials of this fundamentally undemocratic system. It’s difficult to see how the current mess will be sorted out, and public confidence restored, until we dismantle these secret courts.
Private Eye wins the prize for being the first UK media outlet to report fully on these allegations about Trafigura and their law firm MacFarlanes. Here’s the PDF
BBC Newsnight has the full story 16m 15s into this piece.
See also, Amnesty International:
Amnesty International today welcomed the guilty verdict by a Dutch court against the multinational company, Trafigura, for delivering hazardous waste to Amsterdam while concealing the true nature of the waste, and for exporting the waste to Cote D’Ivoire.
Today’s verdict is the first time the company has been held criminally accountable for its involvement in exporting the hazardous waste to Cote d’Ivoire.
“This judgement appears damning given Trafigura’s previous denials of any wrongdoing. The waste, which was ultimately dumped in Cote d’Ivoire, had a huge impact on the lives of tens of thousands of people,” said Benedetta Lacey, a special advisor at Amnesty International who has visited Côte d’Ivoire and met victims of the dumping.
“While the ruling is a significant step forward, this is not the end of the story for those affected. There are unanswered questions about the impact that the waste may have had on people’s health, and the areas where the waste was dumped are yet to be fully decontaminated”…
From Agence France Presse:
THE HAGUE — A Dutch court will hand down judgment Friday in the first trial of a Swiss-based company whose chartered ship dumped waste alleged to have killed 17 people in Ivory Coast in 2006.
Multinational Trafigura, waste treatment company Amsterdam Port Services (APS), and the Ukrainian captain of the Probo Koala ship were tried with three others for allegedly breaking environment and waste export laws on Dutch territory.
They all pleaded not guilty before the Amsterdam district court. Trafigura risks a fine of up to 2.1 million euros (2.7 million dollars).
“We are happy that four years after the fact, Trafigura has finally been brought before a judge,” Marietta Harjono, spokeswoman for environmental group Greenpeace, told AFP.
“But there can only be real justice when Trafigura is prosecuted for the events in the Ivory Coast.” This trial was about alleged violations of European law.
Caustic soda and petroleum residues on board the Probo Koala were prevented from being offloaded on July 2, 2006 for treatment in the Port of Amsterdam and redirected to Abidjan, where they were dumped on city waste tips.
The waste, slops from the cleaning of fuel transportation tanks, was pumped back into the Probo Koala after APS demanded a higher price for treatment as it was more toxic than previously thought.
Trafigura declined to pay the increased price.
The company, which denies any link between the waste and casualties and has an independent experts’ report backing its stance, reached out of court settlements for 33 million euros and 152 million euros in Britain and Ivory Coast that exempted it from legal proceedings.
But a United Nations report published last September found “strong” evidence blaming the waste for at least 15 deaths and several hospitalisations.
The Ivory Coast claims the dumping caused 17 deaths and thousands of poisoning cases.
Dutch judges have yet to decide on a bid by Greenpeace to have those responsible for the waste dump tried in the Netherlands for crimes committed on Ivorian soil.
In the current case, the prosecution asked the Amsterdam district court to impose a two-million-euro fine on Trafigura.
It sought a one-year jail term for Trafigura employee Naeem Ahmed, 43, who coordinated the operation in the port of Amsterdam, and four months for the Ukrainian captain of the ship, Sergiy Chertov, 46, for allegedly falsifying documents and lying about the nature of the waste.
For APS former managing director Evert Uittenbosch, 60, the prosecution sought a six-month jail term, half of it suspended, for violating environmental laws.
APS faces a 250,000-euro fine for the same violation, and the city of Amsterdam, which administered the port, 150,000 euros for not having prevented the exportation of dangerous waste.
The head of the Tommy company which dumped the waste from the Probo Koala in Ivory Coast was given a 20-year jail term by an Abidjan court in October 2008.
PA News has become the first UK media outlet to make any reference to allegations – widely reported in the Netherlands and elsewhere – that the controversial oil trade Trafigura bribed a number of witnesses to the Probo Koala toxic waste incident. PA is a syndicated newswire whose stories are normally picked up and republished by media across the UK – so it will be interesting to see if that happens in this case.
(Special mention should also go to the Daily Telegraph, who in a welcome break from their more usual slavish parroting of corporate pseudo-science have gone further than any other UK media outlet in reporting the full background to the case.)
From the Press Association newswire:
Green Party MP Caroline Lucas has called on the Government to launch a “full inquiry” into allegations of illegal toxic waste dumping by a British-based oil trading firm.
Ms Lucas said the full details of allegations against Trafigura – which is facing criminal charges in the Netherlands – were not being fully reported because of the “chilling effect” of UK libel laws.
She urged the Government to investigate claims “that UK nationals and UK firms may have been involved in illegal waste shipments and a subsequent cover-up and that payments were made to truck drivers in return for favourable witness statements”.
In a Commons motion, the Brighton Pavilion MP also asked ministers to review libel laws “to ensure that this matter can be fully reported in the UK”.
Trafigura hit the headlines last year when The Guardian claimed it had been prevented from reporting a parliamentary question relating to the firm because of a legal order obtained by lawyers Carter Ruck – despite such questions being protected by privilege.
The row led then justice secretary Jack Straw to review the use of so-called “super-injunctions”, which not only ban reporting of a story but also of the existence of the ban itself.
A confidential settlement of the largest-ever group action was reached in London last September over the alleged dumping of toxic waste in the Ivory Coast.
The claims were launched against Trafigura following an August 2006 incident when thousands claimed they fell ill after “slops” were deposited near Abidjan, the African country’s commercial capital, from the Probo Koala, a ship hired by the firm.
Trafigura said it regretted the incident but did not accept legal liability as the dumping was carried out by a ship contractor which acted independently of, and without any authority from, Trafigura.
The motion from Ms Lucas – the Green Party’s first MP – “calls on the Government to launch a full inquiry into the allegations against Trafigura” in the light of fresh legal proceedings in the Netherlands which began last month.
From the website of the UK Parliament
Early Day Motion
TRAFIGURA AND SHIPPING HAZARDOUS WASTE TO THE IVORY COAST
That this House, concerned that due to the start of fresh legal proceedings in the Netherlands on 14 and 17 May 2010 concerning the multinational commodities trading group Trafigura, including allegations that UK nationals and UK firms may have been involved in illegal waste shipments and a subsequent cover-up and that payments were made to truck drivers in return for favourable witness statements and given that this is not being fully reported in the United Kingdom because of the chilling effect of the UK’s libel laws, calls on the Government to launch a full inquiry into the allegations against Trafigura and to review the libel laws to ensure that this matter can be reported fully in the UK.
With help from the newly-elected Green MP Caroline Lucas, The Independent newspaper has taken a clear lead in the “Trafigura challenge” – the race to see which UK media outlet will be the first to report fully on the upcoming trial in the Dutch courts of the controversial oil company.
No UK newspaper or broadcaster has yet made any mention of allegations made to Dutch prosecutors by Greenpeace – and widely featured in the Dutch media – that Trafigura and their law firm MacFarlanes sought to bribe witnesses in an earlier London court case. But the Independent has, by citing Caroline Lucas’ remarks, at least been able to reference the ongoing legal proceedings.
Under the Parliamentary Papers Act 1840, “correct copies” of any Parliamentary publication may freely be republished without fear of legal action, including, crucially, any action under the UK’s notoriously expensive and one-sided libel laws, which Trafigura has been ruthlessly exploiting.
In a message on Twitter last night, Caroline Lucas promised an “EDM [Early Day Motion] and PQs [Parliamentary Questions] to follow”, so with luck the UK press may soon have more opportunities to cover this story freely.
From The Independent
Caroline Lucas used her maiden speech to raise concerns that the British media are unable to fully report legal proceedings involving the commodities trading company Trafigura.
The Green MP pledged to use her new position in Parliament to raise the issue after legal claims were launched in the Netherlands against the company, which chartered the ship whose toxic sludge was illegally dumped in the Ivory Coast in 2006.
The Dutch-based oil trader caused outrage last year when a High Court injunction issued on its behalf had the effect of blocking coverage of parliamentary proceedings involving its activities. The “super-injunction”, obtained by the law firm Carter Ruck, was amended after it was accused of infringing the supremacy of Parliament by preventing the reporting of a question tabled by an MP. Politicians from all sides criticised the legal manoeuvre.
The law firm agreed to change the injunction and insisted there was no question that Trafigura had sought to gag the media from reporting parliamentary proceedings.
In her maiden speech to the House of Commons, Ms Lucas said she was still concerned that proceedings in foreign courts were not being reported in Britain. She said: “Last year honourable members from all sides of the House helped to shine a light on the actions of the international commodities trading group Trafigura, and the shipping of hazardous waste to the Ivory Coast.
“There was particular concern that the media in this country were being prevented from reporting the issues fully and fairly. This remains the case, for new legal actions concerning Trafigura have been launched in the Dutch courts and are being reported widely in other countries, but not here. And these are the kind of issues I would like to pursue.”
In unrelated proceedings, a court in Amsterdam is due to start hearing the trial next week of Trafigura for the alleged infringement of Dutch waste export laws relating to the Probo Koala, the chartered tanker whose waste was dumped at sites around the Ivorian city, Abidjan.
The company is accused along with the captain of the vessel, the municipal authorities in Amsterdam and a waste treatment company of breaking rules when the ship attempted to offload the waste in the Dutch city before it then departed for West Africa. The trial is expected to last five weeks.