1. I refer to a discussion we had some time ago on this subject. I am putting pen to paper after many weeks of work-induced delay because I think as a friend of the Media Council I have a duty to do it. I understand that there is a review of the Council’s role and functions proceeding at present and perhaps this incident can be looked at in this context.

2. In a nutshell, I very much doubt whether the process followed by the Council in the case of David’s complaint against IB would withstand the most basic scrutiny in terms of fairness or due process.

3. David came to see me after the decision of 27 June was delivered. I was minded to take it to court on one of my many fee-free crusades – not as an aggressive piece of advocacy, but in order to help the Media Council define its legal duties. David was not of the same view. He wanted us to try to make something more positive of this experience and suggested I simply put my views on paper.

4. As I have indicated to you no-one, not even self-appointed scrutineers of the Council’s procedure such as me, has the right to comment on the view you took of the merits of the case, and I do not wish to confuse the issue by going there. But I think there are serious defects in both the procedure the Council followed and its reasoning and I would rather hope that if the no-one got anything else out of this letter the Media Council would at least not fall into these errors again, because a Judge, at the behest of a more aggressive Media Council complainant, would severely criticise the Council for them.

9. The adjudication begins by reciting that before publishing the letter (presumably it is meant the article about the letter) IB’s editor in chief "had tried to contact Mr Robie for comment and had left two unanswered messages at his office". This was, later in the adjudication, accepted by the Committee as correct - when it had never even been put to David.

10. Had David even been made aware of this "fact" (raised in a submission to the Committee that he as complainant never saw, and never once mentioned by IB in earlier correspondence with both David and the Secretary), he would have pointed out its newness in the sequence of correspondence and invited the Committee’s assessment of its truthfulness, in light of the fact that this had never previously been suggested. Mr X could not be reached for comment is such standard journalistic patter these days that it is to be hoped that the Committee would not merely fall for it.

11. David may (or may not) be heartened to know this. But what did this have to do with the complaint?

12. David’s complaint ("First complaint", p2 Robie letter of 19/10/00) was that the article implied, in its words introducing the text of Mr Solofa’s letter, that he had been inconsistent in his news approach by not publishing a letter critical of him. It does not complain that the text of the letter was published – it concedes (p2,Robie letter of 19/10/00) that what IB thinks is news is IB’s business).

13. Having then missed the point of the complaint, the adjudication says the wording of the preamble to have been "unnecessarily provocative" and unnecessary. Unfortunately it is the wording of the preamble that was the subject of the complaint. It follows, surely, that the complaint ought to have been upheld.

18. Most processes of dispute resolution recognize that if there is a willingness between people to settle their differences, this willingness will help settle them in a non-contested way. If there is less willingness to do so, the dispute might as well be settled in a contested way. It was clear that the likelihood of non-contested settlement here was low. The Council, which offers the Complaints Committee as a contested dispute resolution process, should then have gotten on with it.

19. If the Council simply wishes to offer a mediation process, then it should say so. But it should not advertise itself as prepared to make adjudications if it is going to criticize people for wanting to resort "prematurely" to the adjudication process. In this case the preliminary steps before adjudication were attempted. They failed. The Committee agreed to adjudicate. It should understand its role and do its job.

20. Finally, the adjudication discusses the Council’s procedural arrangements, including the fact that it does not require written responses to complaints from media organizations. If this is the "procedure", dare I say it ought to change. Had written responses been required from the relevant media organization (and in this process, might I add, we are dealing with wordsmiths, not illiterates), then the issues would have been understood better and the adjudication would have been less likely to go off the rails as this one did.

21. David’s complaint was comprehensive. It referred specifically to the provisions of the Code of Ethics which he considered breached and the reasons why he considered them to be breached.

22. David has never seen anything from Islands Business responding to the complaint other than to promise to publish a letter, an invitation to call the publisher’s secretary or to meet over a bottle of wine. Worthy as such gestures may (or may not) be, IB has not, to David’s knowledge, ever sought to address its conduct in terms of the Code of Ethics (and with respect, the Committee did not make much a job of it either).

23. One of the most important aspects of adjudications is that they give guidance to journalists on how the Media Code of Ethics is to be applied and interpreted. With respect, one would be hard-pressed to get any value out of this adjudication in those terms.

25. If the Media Council process is to be credible it must be sound. In a couple of cases where clients have come to me complaining about their treatment at the hands of the media I have recommended to them that they use the Media Council procedure because it is supposed to be quicker, to get to the real problem and (hopefully) to give complainants a real solution. If the Robie process is representative of that which the Media Council follows, I would be much slower to counsel my clients that way now.

26. I appreciate that when we spoke you did not (nor may not want now) to do anything which is seen as ‘re-opening" this complaint. It was always too late for that after adjudication, I agree – but I hope that the above gives you some indication of the defects in the process that, if they are replicated elsewhere, will result in considerable loss of confidence for the complaints process.

27. Because this is a private communication on the Media Council process, I have not copied it to IB. I leave it in your discretion as to whether you do.