Examination of Witnesses (Question Numbers
960-974)
SIR ANTHONY
CLARKE AND
LORD JUSTICE
RUPERT JACKSON
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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