A free press

There are some disturbing developments in the field of free speech around the world at the moment, all of which resonate particularly in the United Kingdom given the debate over a Royal Charter or possible statutory regulation of the press.

There are two points here: a general one about the nature of state control and a more particular one regarding free speech.

As to the first, fundamental rights and freedoms cease to be fundamental once the state gets the idea that they are just another part of its responsibilities and can accordingly be tinkered with at will.  This is why the executive is always pressuring to subsume management of the courts, the judiciary and the entire criminal justice process within another monolithic state emanation such as the Ministry of Justice.  Once that happens, then the rule of law becomes an optional extra, subject as with everything else to bugetary constraints and the overriding need to ensure the incumbent government gets re-elected. If the state gets hold of the press, then we can expect a steady if stealthy erosion of the freedom of the press, moving towards a curtailment of anyone being warned off stories which might embarrass the executive.

As to free speech, this is a principle that can be justified broadly on two grounds. First, the "rights" based argument, which is that as part of personal autonomy we have the right to free expression, meaning the right to any political, religious or other point of view, simply as part of a free society.

The second ground is the "consequences" argument, which is that the consequences of banning speech usually turn out to be worse than not doing so.  Of course this is not always the case, which is why consequentialist arguments in favour of a free press are always up for debate. At the moment the argument is being presented that the free press we have hitherto enjoyed behaved so badly that it needs to be reined in by way of a Royal Charter or statute.

Coinciding with the debate here comes this report into the Chavez regime.

Chavez was admired by a number of British politicians, a number of whom are struggling to say anything bad about him. Here, for example, is a breezy encomium from Lord Prescott on a tabloid site. And here is a Guardian editorial which struggles to say anything negative about him at all.

The most amusing and telling comment comes from the satirical Daily Mash, which ran a spoof headline about Guardian readers paying tribute to a man who would have banned the Guardian had it been published in Venezuela.

Then comes news of this sort of thing elsewhere.

It seems one step forward with free speech, and then a lot of steps backwards, and none of it bodes well for increased regulation in this country. 

Of course people have a right to a private life, and the press has been notoriously bad in recent years about interfering with such a right.  But there are two problems. First, no-one should assume that suppressing the press instead will automatically be a better option, or even that it will be the lesser of two evils.  The fact that certain sections of the press blinded themselves to Chavez's human rights abuses because they agreed with his anti-American stance or his social programmes does not fill one with confidence.

Secondly, the public/private distinction is not an easy one to make. For example, straw polls I have conducted confirm that Mr Piers Morgan is seen as a paradigm of an irresponsible tabloid editor, and by contrast the Guardian is seen as a responsible member of what used to be called the broadsheets.  For what it is worth, I do not number myself amongst Mr Morgan’s fans.  But credit where it is due.  In this interview Morgan makes Alan Rusbridger, the editor of the Guardian, look frankly ridiculous for his hypocrisy and muddle-headedness on the issue.   Who would want either a Morgan or a Rusbridger as a putative regulator of Fleet Street?

As with any form of regulation the prior question is whether any extra laws are needed at all.  I previously wrote about Leveson:

where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.


The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

 Which remains my view today.

The Leveson inquiry - the press, the politicians, Parliament, the police and the public

Free speech, in case anyone needed reminding, is one of the cornerstones of our democracy. So it is not just the media who should be interested in the Leveson report and its aftermath. There is no guarantee that the report’s recommendations will find their way into law, but either way they deserve close scrutiny. The Prime Minister has already indicated he does not accept all of the recommendations, and as is well known could not even agree with the deputy Prime Minister enough to make a joint statement, so we can expect to hear a good deal more in the coming months on the relationship between the press, the politicians, Parliament, the police and the public.

One general question concerns the appropriate composition of this sort of inquiry. Here the inquiry was conducted by a single judge. The report explains that it was hoped that the inquiry would proceed on judicial lines, involving the calling of witnesses and the adducing of evidence, followed by factual findings and conclusions. Certainly a judge or senior barrister would be the obvious choice in those circumstances, but the recommendations and conclusions are not at all confined – nor was it ever expected they would be – to forensic findings. It was not simply a matter of which politician and which policeman had done what with which journalist. The ongoing regulation of the press and others cannot be syllogistically extracted from a set of factual findings about what they have done in the past. Rather, we are into the realm of principle in determining proper limits of free speech, and also the realm of pragmatism in how those limits might be best enforced.

For that reason, for all his undoubted experience of the media reporting litigation over the years, Lord Justice Leveson would, I venture to suggest, have been assisted by others along the lines of a Fleet St grandee and perhaps some retired police and politicians. If it was too difficult to find someone with expertise who was fully independent of any remaining interests in this country, then perhaps assistance could have been found from elsewhere in the Commonwealth.

By way of comparison, in my book I criticise the Chilcott inquiry into the Iraq war for having no lawyers at all and thus no-one experienced in cross-examination. Appropriately there was military expertise on that inquiry but the conduct – and cross-examination of witnesses – would have been enhanced by counsel being added as well. In other words, a better composition could have been found with both Chilcott and Leveson.

Another prior question regarding the Leveson report is whether there was a need for an inquiry at all. The casus belli was the apparent hacking of the mobile phone of the murdered teenager Milly Dowler, but the story turned out not to have been true. Leveson states in forthright fashion that an inquiry was still justified because of ongoing concern about the place of the press. But it does not follow from bad behaviour of the press with other parties that it is the former and not the latter who should be regulated in future.

For example, where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.

The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

The most controversial suggestion in Leveson comes from his suggestion of a statutorily-underpinned but still “independent” regulator. Some reaction has been frankly naïf: one blog suggested the only statute should be an almost verbatim reproduction of the US First Amendment. This is absurd for the simple and trite reason that short of complete anarchy there will always be restrictions on free speech.

That does not mean, however, that a statutory regulator – a stronger restriction in theory than ad hoc laws protecting such things as privacy, state secrets and intellectual property – is necessary or desirable. An independent regulator “underpinned” by statute looks like a statutory regulator at one remove, if not a statutory regulator by any other name.

Leveson conceded that much of the wrongdoing with which he was concerned was already unlawful or, in some cases, illegal, but then suggested an arbitration process which parties would be compelled to follow on pain of not receiving costs in the High Court even if they won. The justification for such a process is the usual objection to litigation of it being too slow and too expensive for the general public. But that applies to all litigation, and it is not clear at all why some form of exemption should be carved out in one area of law and not others.

Secondly, arbitration proceedings are usually confidential, because they constitute a process chosen by parties to a commercial contract as part of their private bargain. The resolution of any disputes arising out of those private affairs is (generally speaking) no-one else’s business. With the press printing stories about individuals without the latter’s consent, any resultant dispute is not part of a consensual bargain. Moreover, there may be a public interest in the proceedings and their outcome which is not present in commercial bargains, so the justification for confidentiality will be much weaker.

Further, commercial arbitration in London is done under the purview of a long-established system of commercial law. By contrast, the law of privacy and the press is in a state of flux. Arbitration proceedings have no precedent value and so will not develop the law at all.

The final point is the elephant that was in the room throughout the Leveson inquiry, in the form of the internet. As I have written before (see Cases, Causes & Controversies: fifty tales from the law (Wildy, Simmons & Hill, 2012), p 151):

… the reality is that since the law (for present purposes) has no reach beyond these shores, it has become – for better or for worse – very much harder indeed to suppress information than ever before. Someone outside the jurisdiction might publish something on the internet that would then be easily accessible to British citizens. It would still be an offence for a British citizen to download and disseminate the information, but readers will need no elaboration of the reality of such a situation.

The only recourse for the government in those circumstances would be to try and censor internet search engines, in the manner of a few largely non-admirable totalitarian regimes elsewhere. I trust such a step is not likely to occur in this country ...

Only today we have seen what modern communications enable overseas media to do, and there is nothing whatsoever that any British statutory body could do about it ..

More Taking Sides

I am continuing to read Bernard Levin's Taking Sides, and enjoying the window that it provides on Britain's recent past.  In 1973 Levin loses his cool with the Gas Board for making a hash of converting his elderly widowed mother's flat to gas.  He finds the details of the supervisor responsible and publishes them in the Times, exhorting the public to express their frustration for any similar experience directly.  I doubt he'd be allowed to get away with it now and I am rather surprised he got away with it then.  He finishes his first column on the subject with the following thunderbolt:

I want a public answer to this question: what is wrong with a national organization which gives its customers not the service they pay for but, instead, incompetence and a string of broken promises. 

It seems his column worked, for he follows it up with another dated two weeks later in which the problem has been solved and a letter of apology received by his mother.  But he despairs for anyone else:

Unless the Gas Board, feeling that it has done its final duty by the tribe of Levin, has now given up The Times, perhaps any senior official reading this might care to indicate to his colleagues that something in the nature of a return to square one is urgently needed. 

There are any number of problems with privatised utilities: price gouging if a monopoly; executives trying to ensure their bonuses keep pace with the rest of the City irrespective of their actual performance; different companies involved in the supply chain each seeking a profit and inflating the price for the end user accordingly; important national resources being placed beyond national control; and so on.  At the same time, reading Levin's book tends to confirm the suspicion that a return to 1970s Soviet-style state monopolies with Soviet levels of incompetence and inefficiency might not be the answer.

In the next article Levin returns to the law and his favourite pastime of attacking lawyers, in this case judges.  He records that one Mr Banks, "who is herewith invited to blow the froth off a pint of mine any time he finds it convenient to call" was arrested and charged with contempt for having given the fingers to a judge passing in official regalia on the way to Teesside Crown Court.  Apparently Mr Bangs made a mistake and had intended to do the fingers to the Mayor instead, as an expression of frustration over a recent rates increase.  For this misidentification he found himself in the dock.  Levin mercilessly taunts the judges for their Gilbert and Sullivan appearance and haughty pomposity.

I have to say I agree with Levin that prosecuting Mr Bangs did something to damage and nothing to uphold the majesty and dignity of the law.  Levin provides a contrasting example of an aggrieved litigant in person who threw books at the bench as they were retiring.  None of the judges batted an eyelid, leaving the litigant rather than them looking silly and feeling harassed.

As with most who have observed court over the years I could add many similar examples.  My favourite(it may be apocryphal) concerns the failed appellant in the Court of Appeal, Criminal Division, who screamed at the Lord Chief Justice "You f++ing bastard", before receiving the casual response: "Well I suppose the bastard point's debatable, but I'm certainly not f++ing anything at the moment ..."

Without drawing too long a bow, I might add that such sanguinity is something to bear in mind in the present day, where the law is busily tying itself in knots trying to apply s 127 of the Communications Act 2003 to the billion or so Facebook updates and Tweets daily.  It might be harsh telling someone to develop a thicker skin, but it is more harsh to jail someone for some random piece of nonsense published on social media.

Bernard Levin - Taking Sides

Recently I have been leafing through an old book for the first time in a number of years, Taking Sides by the late Bernard Levin. I have a fond personal memory of meeting Mr Levin in the mid-1990s, when he was on a speaking tour of New Zealand and I was a young law student. Aware of his reputation as a fearless liberal, I carefully prepared a submission in case there were audience questions.  I don't remember the wording but I recall pulling together some impressive-sounding (so I hoped) quotes on free speech from John Milton and Ronald Dworkin and relating them to some story then in the news.  I didn't get the chance to speak during the Q&A session as it turned out, but I did get to speak to Mr Levin afterwards.  I carefully presented my submission and felt a tinge of adrenaline at the thought that I might be about to lock horns with a famous intellectual.  Instead Mr Levin said "absoutely, I quite agree" and then added "of course, indeed" before moving on to the next person.  I must admit to feeling slightly deflated, though he wasn't dismissive or insincere in the way he spoke. 

In retrospect I might have had a better chance of exchanging views had I offered something with which Levin was likely to disagree, but he was a famous defender of free speech and so it wasn't surprising at all that he concurred. Perhaps therefore I should have taken a leaf from his book and adopted a deliberately contrarian position: Levin apparently accepted a job with the Times rather than the Guardian because he thought it more interesting as a columnist to go against the editorial grain (others have suggested the better pay also might have had something to do with it).

Levin is known as the father of the modern Parliamentary Sketch: prior to him, most were reverential and dull in equal measure. Levin on the other hand did not see himself as dutifully recording the learned discourse of his betters, but more as a theatre critic sitting in the front row of a farce.  I think he was also something of a blogger before his time: at his peak, he wrote short and succinct posts almost daily on all manner of subjects, and prompted more letters from readers than most blogs receive comments.  Like the very best bloggers today, Levin could be interesting whatever the subject. Despite the randomness of what he wrote about there were some recurrent themes, and a strong sense of values underpinned all his articles, even the apparently trivial.

Taking Sides makes fascinating reading. Levin is a writer of such genius that he can be inspiring and off-putting at the same time to anyone who writes for a hobby or for a living: the phenomenal craftsmanship of  his sentences is inspiring and intimidating in equal measure.

The book was first published at the end of the 1970s and is composed of a collection of articles written during that decade, when Levin was chief columnist for the Times. As such it gives quite an insight into an age when some things were very different and others very much the same.  His article on a teacher who seduced a pupil is very poigniant given the Savile affair and related accusations.  (It is also worthy of a separate blog post, which I hope to get around to shortly.) 

There is much dramatic irony in what modern readers know but Levin could not.  One essay, for example, is an impassioned argument against the death penalty, which many were calling for at the time because of the Birmingham IRA attack.  Levin's argument is not on the basis that the Birmingham Six were innocent but on the basis that they were indeed cold-blooded murderers, and his argument becomes crushingly powerful to a modern reader who knows that they were in fact innocent. 

Other essays fearlessly attack the inquities of Apartheid and the Soviet Union.  Both of course vanished less than twenty years after Levin was writing, but few imagined that at the time, especially in the case of the Soviet Union. I may also fashion some future blogs around these articles: with human rights rarely out of the headlines there are more than a few lessons to be learned from our recent past.

In other respects, it must be pointed out, Levin was in the wrong then and remains in the wrong now.  He defended Nixon long after Tricky Dicky had become indefensible.  His liberalism was a liberalism too far when it came to advocating Myra Hindley's release - not because no case could ever have been made, but Levin's own was uncharacteristically weak. And despite his brilliance as a writer some jokes don't work, and some go on too long, and sometimes his serious prose turns into not much more than a rant, in the process losing whatever point or points he set out to make. 

Enough criticism for now.  One of Levin's greatest strengths was taking on the establishment and any sacred cows of the day.  Lawyers were amongst his favourite targets, at least when they were at their self-important and pretentious worst (not on the other hand when they were in the form of Sir Sydney Kentridge fearlessly attacking the Apatheid authorities).  I will close this post with one of the "letters from the profession" which Levin explained had replaced his column on a particular day.  It was prompted by the-then Commissioner of the Metropolitan Police, Sir Rober Mark, who had had the temerity to suggest that some criminal lawyers were criminal in both senses of the word.  Levin's letters are from the likes of Sir Preposterous Attorney QC; Sir Grand Larceny QC and Mr Only Line-Pockets QC.  This one is from Sir Ratlike Countenance QC, of 961 Pump Court:

"Sir,

Once again it is necessary to explain to the public - this time because of Sir Robert Mark's scandalous and unjustified allegations - just how the legal profession works.  Sir Robert insinuates that we lawyers are willing to tell a pack of lies in court for money: but I can refute this charge - as ridiculous as it is false - quite conclusively.  Every lawyer is perfectly willing to tell the truth for money, or even to shut up entirely for money.  Indeed, some even prefer to, other things (the money, for instance) being equal." 

Free speech in knots

This morning comes the news that Matthew Woods, jailed over offensive social media messages, has had his sentence reduced on appeal.  This does not change the fact that he should not have been charged in the first place, let alone convicted and sentenced to a term of imprisonment.

The problem, as others have identified, is that the Communications Act 2003 predates the invention of Facebook and Twitter.  It seems to have been developed to deal with telephone messages.  When added together there are over a billion Facebook updates and Tweets every day.  The legislation is therefore unworkable.

Meanwhile, lawyers are left trying to explain to the public why Mr Woods was jailed but Frankie Boyle was not even charged over his tweeted joke about Jimmy Savile going to heaven to have sex with Madeline McCann. In fact the law has been distinctly on Mr Boyle's side of late, with him recovering damages for libel because, he contended, a newspaper accused him of being racist.

I leave the last word to someone else on Twitter, who wrote: "If you're thinking of unfollowing Frankie Boyle because he made a distasteful remark, why were you following him in the first place?"

Free speech again

I have always enjoyed reading Private Eye, and often laugh out loud at the cover picture and caption.  Over the years, some of the covers have strayed very much into bad taste, and I suppose my enjoyment therefore counts as something of a guilty pleasure.

For example, at the time of the Thalidomide scandal, a company executive was shown on the cover exclaiming "they haven't got a leg to stand on".

Almost matching that for offence was the picture of a stressed-looking Michael Barrymore when Stuart Lubbock had been found dead following a party at Barrymore's house.  Press reports stated that Lubbock had received a serious sexual assault before his death.  The caption had someone asking how he died, with Barrymore (who is homosexual) responding "Buggered if I know".

Then there was a picture of Lord Hutton after his well-known report on Dr David Kelly's death, which largely exculpated the government.  The caption read "... and in conclusion, I find Dr Shipman innocent of all charges."

The Eye is no stranger to the courts, though so far as I am aware it has only experienced the libel courts at the RCJ on the Strand rather than the criminal courts at the Old Bailey up the road. 

Of course I accept that some people would be grossly offended by the three covers.  But I do not accept that the Eye should have been prosecuted for any of them.  And yet the possibility of any similar items landing the Eye in the dock must now be raised, given a recent and very disturbing assault on free speech in this country.

As set out by the UK Human Rights blog, one Matthew Woods, a 20-year-old, has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. He pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending ”by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. 

This is the same Act that was responsible for the infamous Paul Chambers twitter trial, which I wrote about recently. In the case of Chambers, what he wrote was patently not of an indecent, obscene or menacing character, so the CPS should never have gone near him.  In the case of Woods, by contrast, what he wrote was certainly indecent and obscene, so it can be said that there was a prima facie case.  But there are at least five problems.

First, the sentence is wholly disproportionate given the number of crimes involving actual violence or burglary or other things distinctly worse than offensive words on the internet which do not result in any custodial sentence. The press readily supply examples of assaults or burglaries which end up with a slap on the wrist by way of a conditional discharge or something else well short of prison.

Second, and more fundamentally, criminalising offence is contrary to the basic idea of freedom of speech, which is that not only “good” speech is permitted. As I have said in my forthcoming book,

With regard to freedom of speech, I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfilment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Third, there is a simple remedy for those who are offended by rubbish on the internet or elsewhere.  I can’t say I find the humour of Russell Brand or Frankie Boyle particularly funny - both of whom try and generate laughs by being as offensive as possible - so for the most part I don’t bother watching or reading them. That is the simplest remedy. If anyone annoyed me on Facebook or Twitter I would defriend them or stop following them.  (Indeed, as it happens, I have stopped allowing comments on this blog because of a tiresome number of either pointless comments or spam kept appearing.) 

Fourthly, we have to define what is offensive in the first place, which might not be so obvious.  I imagine we might all agree that Mr Woods' efforts fell into that category.  But a highly intelligent blogger of my acquaintance recently wrote a wholly innocuous piece about the innocence of childhood, in a light-hearted and humourous vein, and had two people take a ludicrous amount of offence to it, having wholly misread the tone of the post. I would not like them on the jury if I were ever prosecuted for some internet publishing offence that carried the right to jury.

Fifthly, and finally, any attempts to ban offensive material on Twitter and Facebook or the internet generally are pretty much doomed to fail, because there are many millions of posts every day.  The CPS cannot possibly consider every one of them and, besides, any number are generated overseas and thus beyond the jurisdiction anyway. 

The date of the Communications Act gives a clue about why it is turning into such a problem.  2003 was another age, or, frankly, another epoch in the history of electronic communications.  It predates both Facebook and Twitter.  For those aged 20 or less, I imagine that seems like the 19th Century does to my (only slightly older) generation.  I wonder if those drafting the Act really had any idea of the likely effect of what they were doing.  Either way, Parliament needs to look at it again, and quickly.

A deadly secret

Published in the New Law Journal, vol 162, 28 September 2012, p 1230

New Zealand, like the United Kingdom, has a fairly comprehensive national health system, although the system does not share the same name and is in some respects perhaps not as comprehensive. Being a far smaller community the opportunities and resources for medical specialisation are necessarily fewer, for example. Nevertheless, it has long been the expectation of New Zealanders that they will receive health care on the basis of need, not ability to pay. Any identifiable exceptions to that rule over the years have always generated strident public debate.


So it was in the mid-1980s, when the government decided it would no longer pay for heart transplants in New Zealand hospitals. Instead, grants would be made available for patients to have the operations performed in Australia. To say that the measure was controversial would be an understatement. It certainly would have come as a painful shock to one Mr Tucker, a patient on the transplant waiting list at the time.

Worse was to follow for Mr Tucker. The grant subsequently offered by the government was nowhere near enough to pay for the necessary treatment in Sydney. Sympathetic newspapers picked up his plight and a national fundraising campaign was held. The campaign appeared to be successful and he travelled to Australia to await his operation.

In the meantime, however, the rumour mill had been fed some grist. It turned out that Mr Tucker had an unsavoury past, having served time in jail for indecent assault. Unsurprisingly, public sympathy for his plight started to evaporate, along with some of the promised funds for his operation.

With his life now imperilled, both by the lack of funds for the operation and the extra stress brought on by the adverse publicity, Mr Tucker applied to the High Court for an injunction restraining further publication of his past convictions.   Continue reading here.

Bad law and the CPS Part I: the Paul Chambers Twitter Trial

In a two-part article for Criminal Law & Justice Weekly, I have looked at the position of the Crown Prosecution Service (CPS) in two recent high profile cases. The first concerns the “twitter trial” of Paul Chambers.  The second looks at the trial of the barrister Simon Walsh arising out of pornographic images said to have been found in his possession. The first part has now been published (see Criminal Law & Justice Weekly, vol 176, 22 September 2012, pp556-7).

Readers will recall that Mr Chambers was convicted in the magistrates’ court regarding a supposedly threatening tweet. His conviction was upheld in the Crown Court but eventually overturned by the Divisional Court.

The interesting point concerns the appeal to the Divisional Court. According to its most recent press release on the subject, the CPS did not support the conviction, but still appeared before the Divisional Court and “reluctantly” contested the appeal, because the conviction was based on a finding of the Crown Court, which only the High Court could overturn. I, for one, am most uneasy with the thought of the CPS contesting an appeal it thinks should fail.

To illustrate the point, let us start with two scenarios where the proper course for the CPS would be to acquiesce in an acquittal. In scenario A, a conviction is obtained but the CPS then discovers that it has been based on an outdated section, and the offence no longer exists. Or perhaps the conviction has been based on an authority since overruled.

In those circumstances the obligation of the CPS would be clear: they would have to bring the correct statute or authority to the Court’s attention, point out the error and accept the defendant’s acquittal.

In scenario B, the CPS is informed by the police that it turns out that the defendant had a watertight alibi after all, and therefore the conviction was based on a patently wrong factual foundation.

Again, the CPS would have to accept the error and tell the court that it did not oppose the appeal.

Let us now return to Mr Chambers. Here the situation was slightly different. The facts – essentially, the existence of the tweet - were never disputed. What was in issue was whether the tweet constituted an offence under the Communications Act 2003. I can find almost no published opinion which ever thought that it did, save for those few people in the legal chain (police, lawyers and judges) who made the conviction come to pass.

So how does this differ from scenario A or B? Only in the sense that interpretation of a statute is not as cut and dried as in the case where the offence has been abolished, as in scenario A, and unlike scenario B the facts of the Chambers’ case were not disputed, just whether or not they should have amounted to a crime. But it is not so very far removed, if everyone takes the view – as it seems they did by the time it reached the door of the Royal Courts of Justice – that the conviction was based on an interpretation of the statute that was simply not in accordance with reality, and was therefore unworkable. If the DPP accepts that that is the case, he should not be turning up to court hoping to lose.

Instead, he should point out all the arguments below and explain why he has taken the view that they were mistaken and that the defendant should be freed. The Court would then most likely ask some searching questions about the DPP’s change of heart. It would be very unlikely, however, though I suppose not impossible, that the Court would insist that the conviction stood.

The alternative would be for the DPP to contest the appeal. Suppose he does so and wins. In that case, a man would remain convicted despite the prosecution wishing he had never been charged, and presumably taking the view that no-one else in comparable circumstances would be charged ever again.

I venture to suggest that that would not be a just outcome.

A non-vintage case

Published in the current edition of the New Law Journal (vol 162, 17 August 2012, p 1094)


In 1976, the famous “Paris Tasting” took place in the French capital. Organised by an Englishman, Steven Spurrier, a selection of judges drawn from the haute société of French wine undertook a blind tasting and found, to their amazement, that they preferred unknown Californian wine to some classic French offerings. The event amounted to a watershed in the history of non-French wine: more than thee decades on, the shelves of wine merchants now heave with offerings from across the globe. As well as the New World, the event also benefited older regions, with the realisation that perhaps France did not have a monopoly on the best terroir after all.

One such older region was Hungary, whose tradition of wine making dates back to Roman times. In fact, Magyar has the distinction of being the only language apart from Greek which has a name for wine that is not derived from Latin. Hungary is best known for a dessert wine, Tokaji, and the arrestingly named red wine Egri Bikavér, or “Bull’s Blood of Eger.”

To continue reading click here

Not so free speech

For Halsbury's Law Exchange

No sooner had HLE published a post on the joke (in every sense) trial of Paul Chambers than another story appears which leaves one wondering how many in officialdom have even heard of free speech, let alone understood it.


According to this report in the Independent newspaper:

A teenager will appear in court after allegedly making comments on Facebook about the deaths of six soldiers in Afghanistan last week, police said.

Azhar Ahmed, 19, according to West Yorkshire Police, posted the comments on his profile page and has been charged with a racially aggravated public order offence, according to West Yorkshire Police.

A police spokesman said Ahmed, of Fir Avenue, Ravensthorpe, West Yorkshire, was bemoaning the level of attention the British soldiers who died in a bomb blast last week received compared to Afghan civilians who have died in the war.

The offending post has been uploaded by Spectator blogger Alex Massie here.

Leaving aside Ahmed’s fairly shaky grasp of the English language, his post might reasonably be described as offensive. It certainly does not express views I would share, though as it happens I think our stay in Afghanistan has probably outlived its usefulness.

Yet none of that is of any relevance. Ahmed’s published views might properly be called offensive, but if free speech is to mean anything at all, it has to include the freedom to offend. In a democracy, the view of the majority rarely needs defending. The majority has the power to vote away anything with which it disagrees (or disagrees sufficiently for someone to organise a political campaign). It is the ability to offend the majority, challenge the powerful and contest the status quo which needs defending.

It is hard to think of which is worse – prosecuting Paul Chambers because he made a joke, or Azhar Ahmed because he made a statement about the war in Afghanistan. Without dissolving into cliché, it might be observed that one of the key differences between our society and that of the Taliban is that the latter tends to execute anyone not on message politically or religiously. In Britain on the other hand free speech is one of the cornerstones of our society.

It is true that free speech has not always been as robustly defended in Britain as in the United States, but if it has come to prosecutions of inane facebook updates or tweets then we have reached the lowest point since the days of mediaeval persecution. (Incidentally our overworked criminal justice system will likely explode or implode as well.)

Of course there are limits to free speech – protecting intellectual property, or state secrets, or preventing harassment of another – but no sensible restrictions would include making jokes (which are painfully obviously jokes such as Chambers’) or remarks, offensive or otherwise, about the rights and wrongs of the actions of soldiers or the war in Afghanistan.

Extraordinarily basic introduction to free speech over. All that has been offered by way of explanation by the police (quoted by Alex Massie in the article linked above) is that Ahmed:

“... didn’t make his point very well and that is why he has landed himself in bother.”

Assuming the quote not to be severely out of context, it does not deserve a response. Instead I would direct the spokesperson to Art 10 of the European Convention on Human Rights, and the history in this country of Lollardism, the Reformation, Milton, JS Mill and much else besides. Alternatively, they could just recall the following quote attributed to Stephen Fry:

“So you’re offended. So f+++ing what?”

Free speech and street preaching

Published on Halsbury's Law Exchange here

The limits of free speech and freedom of religion are presently on trial once again with the reported prosecution of a Christian street preacher, Michael Overd, in the Magistrates’ Court. The case arises out of threatening remarks Mr Overd allegedly made in public to a homosexual couple.


The trial brings to mind a similar prosecution from earlier this century, of the street preacher Harry Hammond. I wrote about the trial for Criminal Law & Justice Weekly (vol 175, September 10 2011, p 527), and this blog is substantially based on that article.

I am insufficiently familiar with the facts of the Overd case to comment on its merits, and to do so would be inappropriate before the conclusion of the trial in any event. My comments are therefore in relation to Hammond’s case only (which was on related but not identical issues), and are not to be taken as agitating for a verdict either way with Overd’s.

Hammond was an Evangelical Christian who had been a street preacher for 20 years. The Justices described him as “a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.” During the summer of 2001 he had a large double sided sign made bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ on each side and attached to a pole.

Prior to 13 October 2001, Hammond had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.

During the afternoon of Saturday 13 October 2001, Hammond travelled by bus to Bournemouth to preach with the sign. During the bus journey he covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.

On arriving at Bournemouth town centre, he positioned himself in a pedestrianised area and began preaching, holding the sign upright so that it was clearly visible to passers-by.

A group of 30 to 40 people gathered around him, arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at him and one person was hit over the head with the placard.

At one point someone tried to pull the placard away from Hammond, during which he fell backwards to the ground. He got up again and continued with his preaching displaying the sign, whereupon a member of the public poured water over his head.

The police arrived and asked him to take the sign down and leave the area. He refused. Despite the fact that he seems to have been more on the receiving end of the violence, Hammond was arrested and charged with an offence under s 5 of the Public Order Act 1986. He was convicted, and then appealed by way of case stated to the Divisional Court. Sadly he died before the appeal could be heard, but the court went ahead in any event.

The court ruled that it was necessary for the prosecution to prove that the sign which Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It was a defence for Hammond to prove that, nevertheless, his conduct was reasonable.

The court concluded, not without hesitation, that the conviction should stand. It held that (i) the words on the sign were capable of being held to be insulting, not least because they appeared to relate homosexuality and lesbianism to immorality; and (ii), notwithstanding familiar free speech arguments advanced on Hammond’s behalf, it had been open to the Justices to find his conduct unreasonable.

Harry Hammond’s life and death therefore stand as part of the matrix of religion and the law, and freedom of expression generally.

Two things have been common to many cases in that matrix, including Hammond’s. First, they concern people expressing genuine and deeply held beliefs that until very recently represented mainstream opinion in this country.

Secondly, for those involving homosexuality at least, they involve the expression or manifestation of opinions that would never be tolerated if they concerned other minority traits such as race.

Thus arises the key question at the heart of liberal philosophy: how to tolerate intolerance. In the context of free speech I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Peter Tatchell, the inveterate homosexual rights campaigner, advanced a similar view when commenting on Hammond’s case at the time of the original conviction:

“Criminalising prejudiced opinions is a step too far. Where do you draw the line between legitimate robust criticism and illegitimate rank prejudice? The only circumstance where there is a clearly valid case for limiting freedom of speech is when it involves inciting violence”

No-one would have known better than Mr Tatchell that only a few years before it would have been gay rights campaigners like himself who were getting assaulted in town squares by angry crowds.

He would also have known that it was hardly likely, to put it mildly, that any passer-by would suddenly undergo a radical and irreversible change in their beliefs simply after seeing and hearing the sermons of Mr Hammond. I have seen many a street preacher but never an audience for one.

As much as I deplore homophobia, I remain uneasy with Harry Hammond being made a criminal, for two reasons. First, he was expressing a political or religious or moral viewpoint, and freedom of speech, if it is to mean anything, has to include freedom to make offensive speech on such issues (no-one is likely to complain about inoffensive speech, which accordingly is unlikely to have its freedom curtailed). The proper response for anyone who disagreed was more speech, pointing out the flaws in his arguments.

Secondly, Mr Hammond by all accounts was otherwise a law abiding citizen, who simply outlived the mores of his time. I doubt all of us will be wholly immune from the same fate.

Fair trials and the freedom of the press: when fundamental principles conflict

Published on Halsbury's Law Exchange here.

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.


Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press.

One very recent manifestation of that inherent conflict concerned a blog by a well-known political commentator about the Stephen Lawrence murder trial. The blog has been referred to the Attorney-General for consideration for prosecution for contempt of court. As the trial is still in progress nothing more will be said about it.

A recent occasion on which the courts had to consider the same issue, however, was the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug), which arose out of the murder of Joanna Yeats at the end of 2010.

Police attention was initiallyfocused on Miss Yeats’ landlord, who was arrested but released without charge. Before suspicion had been lifted however, some elements of the press printed all manner of lurid allegations about him. In the event those mattered not, since the real murderer did not dispute the fact of having killed Miss Yeats. It was held however that if the landlord had faced prosecution, he would have been able to raise a serious argument that he could not receive a fair trial because of this adverse publicity. Even though the argument would probably have failed, it would have been properly made and therefore would have incurred tangible costs and delays to the trial process, and a possible ground of appeal.

Accordingly, even the most robust defenders of freedom of speech would have to concede some limitations on the right of the press to influence an extant trial.

The Yeats decision raised some important points about the present state of the law, and points for reform. What it did not consider, however, was the possible influence – not for the good – of the internet. As I wrote in an article on the case for Criminal Law & Justice Weekly, one of the central planks of the publishers’ defence was that the articles would have faded from the jurors’ memories by the time of the trial. But articles would still have been readily obtainable online.

Moreover, no prosecution for contempt of court will be possible in the case of articles published overseas, although they may be readily accessible to British citizens. For the same reason I have always suspected that superinjunctions for privacy would be a flash in the pan, since anyone minded to do so could expose material which is the subject of an injunction with impunity if they were based outside the jurisdiction.

It can only be hoped that the fair trial process is not destroyed in that fashion. For all of the arguments in favour of free speech, one can find many instances of tabloid journalism grossly interfering with justice. One thinks of Hollywood circuses from the Fatty Arbuckle scandal of the 1920s (see New Law Journal [2011], vol 161, p 1150) to the OJ Simpson fiasco of more recent times: few would wish to see justice conducted – and corrupted – in the same manner in this country.

No freedom of speech

Published in Criminal Law & Justice Weekly, Vol 175, September 10, 2011, p 527

When discussing religion and the law in this journal and elsewhere, I have consistently argued for free speech and for a complete separation of church and state. The counterpoint that others have expressed is that religion has been subordinated to other rights such as gender and sexual orientation.


I would maintain that the approach I have advocated is equally applicable to defending religion. I have been asked for some examples in support of that proposition. One obvious one concerns the sad tale of Harry Hammond’s street protest in Bournemouth in October 2001. It also provides a classic illustration of freedom of speech in the context of religion.

Continue reading here

Free Speech: American and British perspectives

For Halsbury's Law Exchange

This Thursday Politeia is hosting an evening on the different approaches to Freedom of Speech in the United Kingdom and United States. It is a particularly topical subject, needless to say, in the year of the superinjunction. Here are a few thoughts on the differences between legal approaches in the two countries, on which I freely stand to be corrected if my knowledge of American law proves as deficient as I suspect.

Both the UK and the US have a strong – and interwoven – history of free speech. As a concept in political philosophy, arguments for free speech that are strikingly modern in content can be found in Milton’s Areopagitica, and later in the famous harm principle of Mill’s On Liberty. As a legal concept, however, free speech developed primarily in the United States in the twentieth century, pursuant to the explicit protection of the First Amendment to the Constitution.

Nowadays, an equivalent jurisprudence is being developed by the European Court of Human Rights and the domestic courts of member states under art 10 of the European Convention on Human Rights (the Convention). There is, however, a significant difference in the wording of the American and European constitutional documents. The First Amendment is in these apparently unqualified terms:

“Congress shall make no law abridging freedom of speech ...”

Even the Ten Commandments would struggle to compete with that lack of ambiguity. A moment’s reflection, however, shows that it would be impossible to comply with the First Amendment literally: “no law” abridging freedom of speech would mean no law preserving state secrets, no copyright protection and no confidentiality for medical records, for a start. Equally it would mean allowing the most outlandish libel and slander, wildly misleading advertising, and so on and so forth – to the point where no law abridging freedom of speech would effectively mean no law at all.

The American courts have therefore had to permit many an abridgement to free speech over the years. In doing so, they have attempted to fashion principled exceptions, whilst at least paying lip service to the uncompromising nature of the First Amendment. Often this involves reclassifying something as “not speech”, or conversely permitting something controversial such as pornography on the ground that it is “speech” even though for the most part no-one might be saying anything.

By contrast, art 10 of the Convention starts with a declaration of the right to free expression, but then adds that the exercise of that right may be subject to such restrictions as are:

“prescribed by law and are necessary in a democratic society ...”

Thus, while any form of speech automatically engages the protection of art 10, the protection might be withdrawn if the infringement under question meets the qualifying criteria – but only to the extent that it does.

In the UK additional weight is given by s 12 of the Human Rights Act 1998, which provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered.

The different wording of the First Amendment and the Constitution is accordingly more apparent than real: the Convention effectively codifies the same approach that the US courts are compelled to take by the impossibility of literal First Amendment compliance: allowing restrictions, but only where lawful, necessary and proportionate.

Nevertheless, it is fair to say that protection of speech has tended to be been stronger in the United States.

There are at least three interrelated reasons. First, since the American courts are effectively compelled to undertake a form of rhetorical trickery - or even intellectual dishonesty - to proscribe speech given the bluntness of the First Amendment, they tend to be very reluctant to do so.

Secondly, and much more importantly, the First Amendment has long been central to American political debate and American culture generally, in a fashion that does not really find any equivalent in Europe (save arguably for the Dutch culture of tolerance). Knowledge and indeed reverence of the First Amendment is far greater in the US than knowledge of art 10 in Europe.

Thirdly, under the Convention, European courts are required to balance art 10 with other Convention rights, such as the right to privacy. The Convention does not give priority to art 10 over those other rights; the courts are required to afford them equal weight. In America that argument would be much harder to advance.

One can see any number of recent manifestations of the different approaches, such as the respective cases on soldier’s funeral protests; Tiger Woods’ unremitting media coverage versus the British footballing superinjunctors; and the fortunes of Pastor Terry Jones.

It is difficult to summarise, let alone add to the daunting volume of philosophical works by American jurists who have considered the concept of free speech, from robust proponents such as Ronald Dworkin to the more sceptical such as Stanley Fish.

For my money one of the most compelling arguments in favour of the American approach is the analogy advanced by Judge Richard Posner with America’s cold war strategy. The front line against the USSR, he observes, was not the Potomac but the borders of Western and Eastern Europe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often violent, sadistic, sordid or nonsensical manifestations of speech, as with Hustler’s article or the funeral protests. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

When deciding what is or what is not a proportionate interference with art 10, the European Courts might consider a similar perspective.

Injunctions: almost time for a dry martini

Published in Halsbury's Law Exchange here

Fred Goodwin has been back in court (Goodwin v NGN Ltd [2011] All ER (D) 45 (Jun)). The injunction concerning a relationship he had with a former colleague has been varied to permit disclosure of the job description of the lady in question, but not disclosure of her name.

Mr Justice Tugenhadt had this to say about the publicity which the case has received in the past three months:

"On many occasions since 1 March people have commented publicly on the case, criticising the injunction in the pages of newspapers and elsewhere. Much of this reporting contained many factual errors about the case, as I have noted above. Judges read newspapers, but judges cannot vary court orders on the basis of what the public are told by the media. If persons affected by a court order want it to be varied, they must make an application to the court. As appears from the events of 19 May, they can do this quickly and informally, if it is urgent.

English law develops in two ways. First, it is made by Parliament. The Prevention from Harassment Act 1998 and the Human Rights Act 1997 are two privacy statutes referred to in this judgment. Second it is developed by case law, as judges apply the statute to particular cases. At the second stage it is essential that the parties to litigation put their evidence and submissions before the court. It is by weighing up arguments and counter arguments that judges are best able to interpret the law. The circumstances of injunctions applied for out of hours on the telephone are not favourable to a considered development of the law. That is one reason why judges order cases to come back before the court for full consideration on the evidence. That happened on 4 March. But there was no argument then because NGN chose not to argue its case. And other media organisation notified of the injunction chose not to argue the case in court. To the extent that media defendants choose not to submit evidence and argument to the courts, judges will find it difficult to develop the law of privacy to meet the needs of society."

I think that constitutes at least a short stint on the legal naughty step for a few of the media organisations involved.

No doubt the case will be read with interest by all who attended the excellent privacy conference held by Weber Shandwick at Gray’s Inn on 8 June. During the discussion the point was again raised that privacy law may well end up being a castle built on sand, given that the internet may simply render injunctions unenforceable.

I have made this point before and it seems from comments on the UKHR blog that some people see it as a triumphant act of civil disobedience. While I agree that the privacy laws take too little account of freedom of expression – indeed significantly too little – I am not so sure that there are not other options available to those who wish to have them changed which do not involve breaking the law. Also, if it becomes the norm for injunctions to be obliterated by the determined twitterati then it will not be long before real harm is done to a deserving claimant rather than an indulgent miscreant footballer or z-list celebrity; if so the civil disobeyers might remember the old adage about being careful what you wish for.

Having said that, of course, it only takes a few to breach every injunction to render them all futile. If so there is no point in judges, politicians or anyone else arguing about the rule of law; they will have to throw the towel in, rather as American legislators felt compelled to do when ending prohibition.

Legend has it that FDR just happened to have the ingredients for a martini to hand when he signed the 21st amendment, having enjoyed a beer shortly after the Cullen-Harrison Act came into force. I wonder what equivalent might be available to a judge who feels compelled in the future to run up the white flag on judicially-developed privacy laws.

Injunction-breakers v privacy-brokers: the fight for free speech

Published in Halsbury's Law Exchange here.

When writing about superinjunctions in April, I offered the observation (for which I claim no originality or great insight) that the internet might well render the law of privacy unenforceable. Needless to say, something close to that situation has since come to pass, and there has been much discussion on the legal blogosphere on the subject.

I must admit to some mixed feelings about the injunction saga. Deliberately flouting court orders, whether it be by private citizens using the internet or by attention-seeking MPs invoking Parliamentary privilege, is seriously damaging to the rule of law. Spreading rumours about injunctions without even knowing if they are true or not (or perhaps deliberately in the knowledge that they are false) is also reprehensible behaviour by any measure.

In a country where political speech at least remains free, the internet-wielding private citizens ought to be campaigning for a change in the law if they happen to disagree with it, not deliberately undermining it. MPs as lawmakers have even less excuse.

One argument doing the rounds of the popular press has it that privacy laws are exclusively judge-made, and are somehow less defensible as a result.

In response I would say, first, that present privacy laws derive from art 8 of the European Convention on Human Rights which, needless to say, was brought into UK law by an Act of Parliament, so all the law-making has been done against that background. Moreover, Strasbourg was already some way down the line of current art 8 jurisprudence, so it is fair to say we were warned. But whether the present law of privacy is judge-made or not is beside the point: the law is still the law, and if it is deliberately flouted via the internet or Parliamentary privilege the rule of law is undermined.

Secondly, even if Parliament were to pass legislation on the subject, it would have the same enforcement problems as the courts for the same reasons – it would be largely unenforceable against overseas bloggers and tweeters, and MPs relying on art 9 of the 1689 Bill of Rights (although presumably the latter might be a little more restrained in their use of Parliamentary privilege if they thought that privacy laws carried Parliament’s approbation). Moreover, in passing any legislation Parliament would be constrained to act within the margin of appreciation afforded by Strasbourg.

Leaving aside the practical difficulties, it does seem to me that in balancing privacy with freedom of expression too much weight has been given to the former. I do think it would be wrong to allow publication of photographs or video footage of someone’s private activities, and for that reason the courts reached the right decision in the Mosley case. But I remain unconvinced that that degree of privacy should extend to suppress a textual report of the fact of someone committing adultery.

Injunctions are serious matters: any breach may result in a sentence of imprisonment. The usual ground advanced in their support is that children of the injunction-seeker should be protected. Yet murderers and rapists do not qualify for name suppression even if they have children, so the argument that adulterers should is on flimsy grounds. The criminal law is the state’s ultimate weapon against its own citizens and it should be used sparingly. Tell-tales and gossip-mongers are generally not admirable people but that should not render them criminals, which is what injunction-breakers will become. Moreover, the courts are a scarce, expensive and overworked public resource and there are many more deserving litigants waiting to have their cases heard than embarrassed footballers and other b-list celebrities.

I suspect self regulation, for the mainstream media and for news and legal bloggers who wish to be taken seriously, will be more effective. The courts should be used to award damages against those who impinge privacy in cases such as Mosley’s. The distinction between breaches which do warrant the law’s intervention (such as Mosley’s) and those which do not (straightforward kiss and tell tittle-tattle) would have to be worked out on a case-by-case basis – even if Parliament did legislate on the subject, for then there would be litigation on the interpretation of that legislation. A starting point might be to consider the US law on the subject, whereby those deemed to be public figures rarely stand a chance of suppressing the freedom of the press.

Those who do not like what has been said about them should either sue for defamation – if the statement wasn’t true – or maintain what used to be called a dignified silence. Or, dare one even suggest it, not give the tabloids ammunition in the first place …

Coda: for further reading this morning’s roundup on the UKHR Blog is a good place to start.

Pastor Terry Jones' proposed visit to the UK

I don't have time to write a full piece for HLE or anywhere else at the moment, so have commented under the UK Human Rights Blog's entry on the subject instead.

It ain't over till it's over: Naomi Campbell

I have been published in the New Law Journal here.

BBC v The Stig again

Published on Halsbury's Law Exchange here.


Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.

As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.

Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.

In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.

As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.

Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.

Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.

Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.

Update: the UK Human Rights Blog has responded to this post here.

British Chiropractic Association v Singh

Today the Times reports that the British Chiropractic Association has dropped its libel case against Simon Singh, following an adverse ruling by the Court of Appeal.

I wrote the following as a company blog on the Appeal Court's judgment:

“Sticks and stones may break my bones”, went a popular refrain of my primary school days, “but names will never harm me”.

Made of somewhat less robust material is the British Chiropractic Association, which took exception to an article by the scientist and author Dr Simon Singh in the Guardian newspaper. The article included the following:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

Ignoring the journalistic context, this is the ordinary stuff of scientific controversy: the Association made certain claims for which Dr Singh disputed the evidence. The appropriate response for the Association would have been to adduce peer-reviewed evidence supporting its claims; and for those to be subject to further study. Over time either or both sides should then have modified their views depending on the weight of the evidence. There were any number of fora available to the Association to propound its viewpoint: indeed, the Guardian itself offered just such an opportunity.

But the Association did not take that course. Instead it chose to sue for libel. Moreover, it chose to sue not the obvious defendant of the Guardian, but Dr Singh personally.

It takes little imagination to work out why. The Guardian would be well placed to defend any such action. But Dr Singh is a private individual and, though reasonably well-off, hardly in the position of a national newspaper to afford the cost of High Court litigation. It is not unreasonable to assume that the Association hoped not only to silence Dr Singh, but also send a message to anyone else who dared cross them in the same fashion.

The Court of Appeal had this to say of that tawdry strategy:

It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation ...

Fortunately it was not the ultimate consequence of the litigation. Dr Singh found the resources not only to defend the action in the High Court, but to appeal successfully against an adverse first instance finding that his article could not amount to “fair comment”.

The evidence proffered by the Association is revealing in itself. The Court of Appeal quotes the following:

The BCA ... relies (among other studies) on a 1989 observational study of 316 children, of which it is said:

"This …. measured the number of hours each child spent in crying .... There was no control group. However, the study constitutes evidence."

It is, however, elementary medical science that the only evidence worthy of the name comes from double blind, randomised control tests. The Association’s quoted “observational study” admits that it had no control group and thus did not meet that criteria. To suggest it constitutes evidence is a classic example of the post hoc ergo propter hoc fallacy. It is difficult to rebut the suspicion that the lack of scientific validity of this “observational study” might be the reason why the Association opted for a libel suit rather than the proper course of a public debate about the evidence for its claims.

The Court of Appeal offered the following pithy observation from an American judgment (Underwager v Salter 22 Fed. 3d 730 (1994)):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."

With which it is impossible to disagree. The irony is that by adopting its bullying tactics and failing, the Association has ultimately done itself more damage – both financially and in terms of its reputation – than Dr Singh’s original article ever would have done if it had been simply ignored. It fully deserved to come unstuck on that one.