Press standards, privacy and libel - Culture, Media and Sport Committee Contents

Examination of Witnesses (Question Numbers 960-974)


19 MAY 2009

  Q960  Paul Farrelly: The American publishers have put a collective submission in to us where they suggest certain thresholds. I do not know whether you have had a chance to see that submission.

  Sir Anthony Clarke: I am afraid, I have not, no.

  Q961  Paul Farrelly: If you do get the opportunity to look at it, it is the final paragraph, 18, where they suggest, what seem to be, some sensible thresholds, and it would be very interesting to have some evidence as to whether there might be unforeseen consequences or, indeed, whether those thresholds were sensible, if you could address that without reference to any particular case that has been going on.

  Sir Anthony Clarke: I will certainly look at them and see if it is appropriate to make any comments and, if it is, I will.

  Q962  Paul Farrelly: Finally, the American publishers, you may think, scurrilously or not, make the following observation about the English libel industry: that it is unusual, its costs, by far, are the highest in Europe and there are only two main libel chambers in which the practitioners and judges are drawn. That begs the whole question of whether to have specialist judges or not and what is better, but they imply that it is pretty much a racket on a very closed circuit.

  Sir Anthony Clarke: Well, I certainly would not accept that. I have not seen the evidence. I can see that they may have an axe to grind, the writers of that piece, but there are many specialist areas of the law where there are only limited numbers of chambers because, if you are operating in a specialist area, obviously, what the market wants is specialist advocates and, just as they want specialist solicitors, they want specialist barristers and there are, inevitably, likely to be a small number of chambers. Equally, it has been found over the years to be desirable to have specialist judges and it is not all that satisfactory to have judges who do not know anything about the area that you are in. I myself spent many years doing maritime work and there are specialist judges and, to my mind, if you had to choose between specialist judges and generalists who know nothing about it, I would go for the former.

  Q963  Rosemary McKenna: In 2005, the judiciary set up a panel of media-trained judges to try and improve the media understanding and public understanding of the judiciary and judgments. How would you assess the success of the media panel?

  Sir Anthony Clarke: I think, first of all, it is important to appreciate what the media panel does and what it does not do. It is not really a panel, as such, but it is a number of judges who have been trained to, if you like, cope with the media since it is not always terribly easy without any training, as perhaps we all know. However, what the judges cannot really do is comment upon the facts of particular cases, and I think that has been accepted widely by the media. Obviously, we have the Judicial Communications Office now so that, if there is a piece in the newspaper which is simply hopelessly inaccurate, which does sometimes happen, as we all know, then the Judicial Communications Office is able to correct matters like that, but the media panel activity has been to discuss more general problems. I have a list of the sorts of topics which have been discussed in recent times, for example, problems relating to litigants in person because we have, perhaps in these days when there is less and less public money to assist litigants, more and more litigants in person and they do, undoubtedly, provide their problems, and how to cope with them is an important factor. Then there have been panels about witness intermediary schemes and witness protection schemes, there have been discussions on bail, then why juries are dismissed, and there has even been one on the day in the life of a judge, though I do not know who would be interested in that, but there we are! Then, there have been panels on, for example, the role of summary proceedings, how the county courts deal with repossessions, the process of small claims and, more recently, transparency in the family courts, which has been a big issue. So those sorts of topics.

  Q964  Rosemary McKenna: I noticed, from the list that you have supplied to us, that most of it would seem to be not the print media, but television and radio, certainly in 2008 and 2009. Is there an attempt to improve the reporting of cases in the print media or the judgments in the print media of the judiciary, for example, the judgment that Mr Justice Eady was "creating" a privacy law by the back door, which was widely reported?

  Sir Anthony Clarke: Well, one thing we have tried to do, again through the Judicial Communications Office, is we have tried to make courts' judgments more readily available and more immediately available to the media so that the media have the actual judgments delivered because many of these judgments are handed down in a written form and sometimes we have summaries. We are having summaries more often now, and even press notices to make sure that the information which the media actually have in their hands is accurate because I think many of us over the years have had quite a bit of experience of inaccurate reporting of cases we have been involved in one way or another. It is obviously desirable and it is quite important for us to make sure that our judgments are accurately reported. All the business about whether Mr Justice Eady created a privacy law all by himself would not perhaps have had the publicity it had if people had actually read a lot of these judgments because it is simply not the case.

  Q965  Alan Keen: We have obviously had extensive submissions, but the joy of having you actually with us today is that I wonder if you could talk us through the tension between Article 8 and Article 10 because that would be very helpful.

  Sir Anthony Clarke: Well, the reason, for example, I said just a moment ago that Mr Justice Eady did not invent the privacy law was that there had been much debate over many years about whether the common law should develop a privacy law, and the common law never did, although it did gradually develop the law of confidence into something pretty close to a privacy law. We could argue about whether it really is a privacy law or whether it is like a privacy law, but not really a privacy law, and the like. It was gradually developing, but the whole area was radically altered with the advent of the Human Rights Act which, of course, incorporated the European Convention on Human Rights into our law. Before that, although we were signatories, and had been from the beginning, of the Convention, the United Kingdom although it had signed up to Article 8 on the one hand and Article 10 on the other, it was not until the Human Rights Act was passed that it became part of our law. From that moment onwards, it was the court's duty, and the role of the judge, to balance the rights in Article 8, respect for privacy, and the rights in Article 10, freedom of expression. As we know, in each of those articles it has, in paragraph 2, a sort of balancing provision, so, for example, in Article 10, freedom of expression, but having regard to the rights of others and the like, and one of those rights is the right to privacy. There has been a lot of jurisprudence now about how to balance the two rights. For example, it has been authoritatively held, I think, by the House of Lords that one does not trump the other, they have got to be balanced, and it is really a matter for the judge in the particular case to carry out the balance. I think, for that simple reason, that it is quite wrong to say that any particular judge has invented the privacy law because actually it derives from the Convention which was enacted by Parliament in the Human Rights Act. Of course, if Parliament wanted to change the law, it could, presumably, in theory at least, do so, though of course the United Kingdom remains a party to the Convention and it would be a very large step perhaps for the United Kingdom to withdraw from the Convention, if indeed it were possible. The way it has actually worked is that there have now been quite a large number of cases, some have been before Mr Justice Eady and many before other judges, quite a lot of the cases have gone to the Court of Appeal and quite a lot of the cases have then gone to the House of Lords, and, of course, Strasbourg has had its twopennyworth as well. Princess Caroline, in the Von Hannover case, played a very big part in the development of the Article 8 aspect of it, but it recognises that there is this balance to be struck and the balance has to be struck on the facts of each particular case. There is really nobody else who can do the balance, but the judge in a particular case. He or she has to apply the principles which have been adopted and laid down, first of all, by the Court of Appeal and then by the House of Lords, and all of us have to have regard to the Strasbourg jurisprudence under section 3, I think it is, of the Human Rights Act. So that is how it has developed on a case-by-case basis.

  Q966  Alan Keen: Do you have anything to add, Sir Rupert?

  Sir Rupert Jackson: Nothing. I agree with all the Master of the Rolls has said.

  Q967  Chairman: You are saying that obviously it has to reflect the will of Parliament, and one thing Parliament did do was insert section 12 of the Human Rights Act, which was widely interpreted as saying to the courts that there should be greater weight to freedom of expression against privacy, yet it appears that the courts are doing precisely the reverse.

  Sir Anthony Clarke: This is section 12 of the Human Rights Act. Is that not about interlocutory injunctions? Would you just tell me what it says?

  Q968  Chairman: It says: "The court must have particular regard to the importance of the Convention right to freedom of expression ... " Essentially, as I understand it, it is Parliament's intention that, in striking this balance, freedom of expression would be given greater weight.

  Sir Anthony Clarke: Section 12 is about the grant of interlocutory injunction, is it not? "(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression." This section is about the case where an application is made to the court for an injunction to restrain publication by a newspaper. Then: "(2) If the person against whom the application for relief is made (`the respondent') is neither present nor represented ... " That is a further provision in relation to the protection of the press. Then the point you mentioned: "No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed." That is a much tougher test for an injunction than it is in relation to every other injunction in every other walk of life. In every other walk of life, all you have to do is to set out your case; you have to say that there is a serious question for the court to try—which is quite a low test. As long as you have some kind of realistic case, a case which is not fanciful, then you satisfy the merits test in the ordinary everyday case; for example, if you want to stop your neighbour doing something. Here, the test you have to establish is that the claimant is "likely to establish that publication should not be allowed". In fact, the House of Lords in a case called Cream has considered what that means. I would recommend anybody who is interested in section 12 to read the House of Lords decision and reasoning in the case of Cream because it does set out in very considerable detail the approach which the House of Lords decided the courts should adopt. If you are thinking about this, I would recommend that you do look carefully at the reasoning in Cream because any new law would have to grapple with that. It is a somewhat nuanced approach but, essentially, the provision is as stated in this statute; namely, that you have to show that it is likely (in the sense of "more likely than not") that you will win at the trial. That is quite a tough test. As compared with other areas of our life, it does give the defendant—the media, if you like—quite a bit of protection. It always has, historically, been very difficult, if not impossible, to obtain an injunction, for example, to restrain the publication of something which is said to be defamatory. If the defendant has indicated that it may wish to justify the allegation, then the general rule is that no injunction will be granted, because it is recognised that freedom of expression is a very important right—as you say, recognised by article 10. I suggest to you that section 12 is not about the balance between article 8 and article 10. There, when you ultimately come to look at it, it is a balance where you have to take account of both articles. I see in a case decided only yesterday or the day before in this area that Strasbourg stressed the importance of article 10.

  Q969  Chairman: I am conscious that the Lord Chancellor is waiting. I do not want to delay him for too long.

  Sir Anthony Clarke: We certainly would not want to keep the Lord Chancellor waiting.

  Q970  Chairman: One of the points made to us by the media is that judges who have an application for an injunction which they receive on a Saturday evening are more likely to grant it on the basis that there is plenty of time: "We can come back to it, perhaps next week, and look again," whereas not granting it cannot be reversed. The media, therefore, think that they are biased in terms of granting injunctions in favour of them being given. You are saying that section 12 should operate in precisely the other way.

  Sir Anthony Clarke: Section 12 should operate to give judges great cause for concern before granting it, even late at night on a Saturday night. It is quite true that, across the board, generally, for those of us who have been on duty late at night on a Saturday night when you have been given some terrible story, in most cases the sensible thing to do is to grant the injunction, to hold the ring until Monday, because, mostly, the balance of convenience or the balance of justice is to say, "Let's hold the ring now, and then the thing can be thought out and decided on a Monday." This shows that the courts are very reluctant to do that, because sub-section (3) applies in the case you mentioned, and in subsection (2), when an application is made ex parte (as it used to be called) "[ ... ] no such relief shall be granted unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified." You need a very, very good reason indeed before you can persuade a judge who is applying the thing properly to grant you an injunction in the circumstances you mention.

  Q971  Paul Farrelly: We have jumped from media panel to the balance between privacy and freedom of information, and that was the subject covered in Paul Dacre's speech.

  Sir Anthony Clarke: Yes.

  Q972  Paul Farrelly: Which was an attack on Mr Justice Eady, and your submission is a very cogently argued defence of the judgments that he has made. Mr Justice Eady himself made a speech in the House of Lords two or three months ago.

  Sir Anthony Clarke: In the House of Lords?

  Q973  Paul Farrelly: It was the Intellectual Property Lawyers' Association. It was under Chatham House Rules, but the Sunday Times got wind of this. The reporter Stephen Robinson asked Mr Justice Eady for a copy of his speech, and Mr Justice Eady gave him a copy of his speech, and he quoted a little bit from it in a Sunday Times magazine article. We have not had Mr Justice Eady here. I think we have asked his chambers for the speech but I do not know what the response is. I wonder whether you might prevail in your usual way so that we can have a copy of his comments.

  Sir Anthony Clarke: It is really a matter for Mr Justice Eady whether he wishes to comment. Indeed, it is a matter for him whether it would be appropriate for him to do so. I will certainly inform him of what you have said.

  Q974  Paul Farrelly: It has been given to a journalist.

  Sir Anthony Clarke: If he has already given it to somebody else, it may be that he would be quite willing to make it available to the Committee. We will undertake to ask him.

  Paul Farrelly: Thank you.

  Chairman: Could I thank the two of you very much indeed.

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