Examination of Witnesses (Question Numbers
1020-1039)
MR MARK
STEPHENS AND
MS CHARMIAN
GOOCH
2 JUNE 2009
Q1020 Chairman: Would they employ
UK-based libel lawyers to pursue?
Ms Gooch: It varies. Each situation
is different. In that instance they started to do so and then
switched to another jurisdiction. In other threats we have had,
yes, they do. There was an attempt to injunct some information
we had put up on a website about a public official—a public
official who is the son of the President of Congo-Brazzaville,
his name is Denis Christel Sassou-Nguesso; and Schillings, the
UK-based law firm, whom I note have been in to give evidence—
Q1021 Chairman: Indeed, their name
has cropped up a few times in the course of the Inquiry.
Ms Gooch: In fact, I am very interested
and little bit concerned to see that the Committee has heard a
lot of evidence from claimant lawyers, but remarkably little from
defence lawyers. I think Mark Stephens is probably one of the
few defence lawyers that you have heard. I would ask that you
take that into account when you weigh up the evidence from the
claimant lawyers. In the case of Schillings, they pursued an aggressive
and inaccurate process against us which led to one of their lawyers
having to make a public apology in court because of basically
making threats that could lead to the directors of Global Witness
being put in prison, which they then later retracted and said
that they had been unaware of some of the issues and some of the
finer points of company law in Hong Kong, which is somewhat hard
to believe for a law firm that prides itself and promotes itself
as a leading corporate law firm. In that case that was an issue
over privacy; and an issue about "how do you balance public
interest and privacy"? Judge Burton found in our favour and
found that the use of oil revenue to fund a private lifestyle—hundreds
of thousands of dollars of luxury goods—was in fact an issue
that did need and did warrant having credit card statements put
up on the internet so that people could scrutinise them.
Q1022 Paul Farrelly: Before we move
on, in your experience what sort of people benefit from this chilling
umbrella? Are they people like arms dealers, for instance?
Mr Stephens: Yes, they are certainly
arms dealers; they tend to be the rich, the powerful; some very
large companies who are exploiting natural resources—for
example, illegal logging and mining in predominantly Third World
and emerging markets. So we see those sorts of people benefiting,
as well as people who are receiving corrupt payments and that
kind of thing. It is very high level public interest. If you can
rate public interest as a graded scale then it would certainly
come up the very highest end.
Q1023 Chairman: You mentioned privacy
law, which is one of the main areas this Committee has been examining.
Are you finding that with the extension of privacy law through
a series of judgments that people are now seeking to prevent you
carrying out your work by threats of privacy law rather than libel
action?
Ms Gooch: Yes, that injunction
was two years ago—that attempt to injunct and get the information
taken down—and that was by an individual who was domiciled
overseas; had no presence in the UK; I believe had absolutely
no intention of ever paying. There was £50,000 of costs;
two years on, we have yet to see those costs despite a court order.
In a sense, here we have a public official involved in corruption
overseas, who was very happy to use the British courts to try
and chill down and stop legitimate comment and information; and
yet when that same court makes an order of costs against him (this
is the son of the President) has absolutely no intention of paying.
I would also question very much whether Schillings ever seriously
thought that he would pay up.
Q1024 Chairman: Did Schillings get
paid?
Ms Gooch: One would assume so!
Mr Stephens: It would be difficult
to believe they would never get paid. In relation to that particular
case, it does seem wrong that somebody can come here from abroad
and begin proceedings.
Q1025 Chairman: Where do you think
he should have taken action then?
Mr Stephens: Certainly preferably
not Congo-Brazzaville. The issue I think is there was ongoing
litigation in Hong Kong, for example, which has perfectly decent
jurisdiction.
Q1026 Chairman: Your organisation
is based in London?
Ms Gooch: My organisation is.
Q1027 Chairman: In a sense, taking
action in a London court does not seem so inappropriate?
Ms Gooch: What I think should
have happened—and a recommendation or an ask I would make
to the Committee to consider—is that claimants who have
an overseas domicile should be required to put a significant cash
deposit down, because otherwise I think the chances of any proper
justice being done on this is very slim.
Q1028 Chairman: You would not question
the appropriateness of their taking action in the UK court—just
that you did not get any money?
Ms Gooch: No, I question the basis
on the fact that they attempted to injunct on privacy when in
fact this was a public interest issue. Congo-Brazzaville as a
country has received millions of pounds of UK money, tax payers'
money. Congo-Brazzaville has made promises to the international
community, including the UK, about reforms to receive that money
and to forgive debt; and this is actually part of a larger concern
that we have as an organisation, that millions, in fact billions
of pounds of resources—such as oil, diamonds, timber and
other resources—the revenue from those are being looted
out; they are being handled by banks; and basically banks are
facilitating a state looting. For governments that are serious
about the claim that they want to make poverty history and have
supported the Millennium Development Goals, for them not to tackle
this massive abuse, and what in effect is corruption and the facilitation
of corruption, is a long-term problem. This information that we
put up on the website was connected to that work.
Q1029 Chairman: I entirely understand
that, and that presumably is why the UK court decided not to grant
an injunction. You seemed to suggest earlier that you did not
think it was right that they went to the UK courts; actually I
do not see which other courts they would have gone to other than
Congo, which obviously from your point of view would have been
rather less satisfactory.
Mr Stephens: Chairman, there are
two issues arising here: one is in relation to Global Witness,
which is an English and American organisation; and there are also
issues in relation to cases, for example, with Human Rights Watch,
which is an American organisation, which was sued here by a Rwandan
wanted for genocide. There is no obvious connection with the courts
of this country in those kinds of cases. It does seem to me, as
I am sure the Committee is by now acutely aware, the British courts
do have this very expansive notion of which cases they will and
will not take.
Q1030 Chairman: Can I just explore
that a little further then. The cases that have been drawn to
our attention are where the definition of "publication"
has been stretched to the limit to get into the UK courts—in
other words, 20 copies of a book. An organisation like Human Rights
Watch presumably their reports are pretty widely circulated in
this country; so to that extent the views they are expressing
would be widely known here?
Mr Stephens: They would; they
are available more widely; but let us just take the print suggestion.
One of the proposals that was put forward in the written submissions
was that we should treat as de minimis, and therefore not
as a publication within the jurisdiction, where there is, say,
less than a thousand print publications within a jurisdiction.
That has two effects: one is that a thousand is a fairly minimal
number in terms of dealing with somebody's reputation; it is likely
to have had a much more significant circulation in another jurisdiction,
which would be perhaps more appropriate to sue in; and as a consequence
of that we are not cluttering our courts up with small pettifogging
claims, rather than the bigger claims which are more appropriately
dealt with within the jurisdiction of this court. It was for that
reason I felt it was a good idea to try and draw some kind of
arbitrary line in the sand, and a thousand seemed to be roughly
where the courts were going, saying things below that would be
an abuse of process, and numbers of publications above that were
clearly a substantial tort within the jurisdiction of this court.
Q1031 Chairman: Have you attempted
to challenge the jurisdictional issue when action has been taken?
Mr Stephens: Yes, we have. Whenever
that comes up we do that. The problem, of course, is that it is
hugely expensive. A challenge to the jurisdiction is a full day
in court, usually with barristers; invariably the other side will
have a Queen's Counsel; and that is going to be in the order of
£50,000-£80,000 in terms of legal costs to fight with
the evidence and everything in advance. That in terms of an organisation,
an NGO, is two researchers for a year. When you are faced with
the choice between paying lawyers and two researchers to get good
reports out and proper public information, it seems to me we should
not be paying the lawyers. Perhaps that may not be in my best
financial interests in the long-run, but I think in society's
interest it is the right thing to do.
Q1032 Chairman: Did you ever succeed
in a jurisdictional issue?
Mr Stephens: Yes, we have. There
have been a number of cases where we have managed to throw it
out; but what happened was that the law then changed against us.
Sir Charles Gray, who is now a High Court judge, came up with
the rather clever idea of saying, "Well, we will only sue
in relation to the publication in the UK and the person's reputation
in the UK, or within the jurisdiction of the court"; and
that sort of artificially circumscribes the tort. If you are then
asking the court to say, "Where is the most appropriate place
for this case to be tried?"—if it is about an English
reputation in relation to an English circulation, it is clearly
London, even if that circulation is but 27 copies, for example.
Q1033 Paul Farrelly: The Schillings
lawyer who apologised in court, did anyone refer him to the Law
Society for a disciplinary proceeding?
Ms Gooch: We did not. Perhaps
we should have done, and perhaps we still should.
Q1034 Paul Farrelly: I used to be
a practising journalist and the burden of proof is all one way.
Have you ever in your experience come across libel lawyers who
actually do not bother to go through the proper procedures to
check whether their clients are lying or not, and therefore are
recklessly making threats?
Mr Stephens: One of the things
that concerned me, particularly in the Denis Christel case, given
that the allegations were about receipt of corrupt money by skimming
the national oil wealth, I was concerned that the lawyers in that
particular case were being paid with corrupt money—which
as all lawyers know they should have, and may have to my knowledge,
reported to National Criminal Intelligence Service (NCIS). That
is, I think, a matter of enormous importance. Perhaps one of the
ways of stopping people representing these corrupt people is to
check the money supply. I have reported people, acting for people
over the years, and I have never been told, "Don't act".
All that seems to happen is that the police, if they do anything,
are just watching from afar.
Q1035 Paul Farrelly: Is it not usually
in law that responsible lawyers will make sure that they do not
believe their clients, if it is criminal law, are indeed guilty
and criminals and therefore should not represent them?
Mr Stephens: No, we are employed
to do the best job we can for whoever comes along. Whether they
be guilty or innocent, that is not the point. The point really
is that there needs to be in place systems which ensure that organisations
which are peculiarly vulnerable, like NGOs, like charities, are
not able to be bullied and pushed around in the playground of
our libel courts by the rich and the powerful. One of the ways
of doing that, I think, is if you are going to sue an NGO then
I think you have to show, one, there is no public interest in
what you are doing; so if you are using bra-cams and tittle-tattle-type
reports, which I cannot see anyone ever would, then in those circumstances
you would not have a public interest; but if it is a public interest
then it ought to be debated and the information ought to be out
there, and they ought not to be allowed to have injunctions to
prevent that kind of thing coming out.
Q1036 Chairman: Can I just ask you
one question which is slightly away from our remit which was put
to me in the last 24 hours. Criminal libel remains on the UK statute,
although virtually never used. It was suggested to me the fact
that the UK still has it gives cover to other countries which
pay less attention to the law to maintain it and then use it to
basically lock up anybody who says something they do not like.
Is that a view that you would echo?
Mr Stephens: It is, Chairman.
In fact I can speak with some knowledge on this. I defended, I
think, the last criminal libel in this country.
Q1037 Chairman: Which was?
Mr Stephens: It was in relation
to Scallywag magazine some time ago. I also took proceedings
to defend blasphemy to the European Court of Human Rights in a
case about a film called Visions of Ecstasy. I think both
of those laws are being used when you go to the Third World. I
am very often asked to be a trial observer or, indeed, to go and
monitor the human rights standards of other countries, and invariably,
particularly in the Commonwealth, it is said back to me, "Yes,
but you've got criminal libel—why shouldn't we?" This
is a particular problem in Southeast Asia. I think the quicker
we do away with these laws—which we all know have fallen
into desuetude and are not likely to be resurrected—we are
able then to stand up and encourage others to make reforms. I
think those would be very, very welcome changes.
Q1038 Chairman: Thank you. That exactly
bears out what was suggested to me.
Ms Gooch: If I might just add
to that. Global Witness has been on the receiving end of this
in Cambodia where, over the years, we have detailed the way in
which the entire state revenue has been captured by the Prime
Minister and his family and cohorts around him. As a result Global
Witness named staff cannot enter the country and are subject to
threats of criminal defamation.
Q1039 Mr Hall: In your evidence to
the Committee you said you have never lost a libel case.
Mr Stephens: That is her—not
me!
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