Skeletons in the closet

Constance Briscoe is a successful

barrister and part-time judge, and the author of an autobiography, Ugly (published by Hodder & Stoughton), which has sold over 400,000 copies. It tells the story of her life and of sustained childhood cruelty and neglect.

In her book, Ms Briscoe described how her mother had abused her, calling her 'a dirty little whore' and a 'germ' and beating her with a stick; how she was made to sleep on urine-soaked bedsheets and locked in a cellar.

Fiction and fantasy?

The book was published in 2006 and, having read it, Ms Briscoe's mother, Carmen Briscoe-Mitchell, aged 75, not having been told about the book or its revelations, sued her daughter for libel. She described the book as a piece of fiction and fantasy. Ms Briscoe pleaded justification, saying it was true.

After a 10-day trial in November last year, the jury returned a unanimous verdict in favour of Constance Briscoe. The costs of the trial were estimated to be in the region of £1m, and Mrs Briscoe-Mitchell was on a no-win-no-fee agreement.

The case illustrates the difficulties faced by publishers in the increasingly popular 'misery memoir' field. A number of recent cases have been exposed for fiction, hoaxes and plagiarism. Publishers must therefore be particularly conscious of establishing the veracity of the allegations and, wherever possible, obtaining corroboration for them. In many instances, the allegations are effectively one person's word against the other.

Ironically, in the Briscoe action, Ms Briscoe's siblings actually appeared in court to give evidence against her, but the jury preferred Ms Briscoe's evidence. Andrew Caldecott QC, for Ms Briscoe, conceded that her book had its share of errors but emphasised that it was properly put in the biography section and not in the fiction section of the bookshop.

While Hodder & Stoughton celebrated this victory, they soon had a reminder of the risks involved; in January 2009 they settled a libel action brought by a father against his daughter. Gayle Sanders wrote a book, Mummy's Witness, alleging sexual, emotional and physical abuse by her father from the age of four. Again, the father knew nothing of the allegations until the book came out, and sued. The book, which had sold 38,000 copies, has now been withdrawn from sale and Mr Sanders obtained a £5,000 settlement. His counsel, in referring to the settlement, asserted that all the allegations were completely untrue and there was no evidence to substantiate them.

The dilemma for the jury in cases such as these is who to believe?

Justification the only defence While 'mis-lit' is clearly a lucrative area for publishers, the warning is clear: special care should be taken before publication to ensure that the dangers of a libel action are minimised. Quite apart from the evidential problems when a jury may have to decide who might be telling the truth, stories about childhood written many years later can be embellished innocently or deliberately. Given the gravity of the allegations, justification can be the only defence.

Perhaps the best course of action is to wait for the relevant party to die, as the dead cannot sue for libel. Dominic Carman, whose warts-and-all biography of his father, No Ordinary Man '“ A Life of George Carman QC revealed a monster behind this brilliant advocate, didn't publish until the dust had settled after his father's death. Carman QC was exposed by his son as an adulterer, wife beater, alcoholic, obsessive gambler and brothel frequenter. Even though the book was published after his father's death, Dominic was still the subject of much bile and abuse for telling it how it was.

The other consideration is whether judges, part-time or otherwise, should write autobiographies while still in 'active service'. Poor Lord Denning had to retire early, having written a book containing prejudicial remarks about black men on juries '“ a sad blot on a brilliant career. More recently, Cherie Blair QC, a part-time judge and recorder, published her memoirs and so infuriated a former senior judge at Southwark Crown Court, Gerald Butler QC, with her perceived indiscretions and references to senior figures such as the Queen and US presidents, that he called for her resignation from the judiciary. She was also accused by others of using scientist David Kelly's suicide to portray Tony Blair's premiership in a favourable light. For a judge it is of course important to exercise careful judgment, to be trusted with confidential material and to respect confidences. Mrs Blair was unrepentant and said mention of the Kelly suicide was merely recording an event that occurred while they were at no.10.

The wisest advice may be to leave things be. In any case, be extra vigilant about letting out skeletons from the closet or washing dirty linen in public until time has passed and wounds have healed '“ especially if you are in the public eye. Publishers will have to be increasingly wary of 'misery memoirs' and the risks they carry with them.