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|Judgments - Turkington and Others (Practising As Mccartan Turkington Breen) v. Times Newspapers Limited (Northern Ireland)
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Cooke of Thorndon Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
TURKINGTON AND OTHERS (PRACTISING AS McCARTAN TURKINGTON BREEN)
TIMES NEWSPAPERS LIMITED
ON 2 NOVEMBER 2000
LORD BINGHAM OF CORNHILL
On 24 January 1995 The Times published an article relating to the subject of a press conference which had been held the day before. The press conference had been organised by an informal Committee formed to secure the release and vindication of Private Lee Clegg, who had been convicted of serious criminal offences allegedly committed while he had been serving as a private soldier in the Parachute Regiment in Northern Ireland. He had been sentenced to life imprisonment and to a concurrent term of 4 years'. The Times article made critical reference to the plaintiffs in these proceedings, a firm of solicitors practising in Belfast ("the solicitors") who had represented Mr. Clegg at his trial and on his unsuccessful appeal to the Court of Appeal in Northern Ireland. In these proceedings the solicitors sued Times Newspapers Limited as publishers of The Times ("the newspaper"), claiming damages for libel. They succeeded before Girvan J. and a jury, and again on the newspaper's appeal to the Court of Appeal. Although other issues were canvassed before the trial judge and the Court of Appeal, the newspaper's appeal to this House raises only the question whether the judge and the Court of Appeal were right to rule, as they did, that the newspaper was not in all the circumstances entitled to rely on the defence of qualified privilege afforded by section 7 of and paragraph 9 of the Schedule to the Defamation Act 1955 of Northern Ireland. This question has been sub-divided into two issues for decision, which are set out below.
The lucid and comprehensive judgment of the Court of Appeal delivered by Carswell LCJ ( N.I. 358) gives a full account of the facts giving rise to this appeal as understood by that court. I give only the barest summary needed to understand the issue.
The membership of the Clegg Committee included some former senior officers in the Parachute Regiment; Mr. McKay, Mr. Clegg's English solicitor who had by this time taken over his representation; a clerical supporter of Mr. Clegg; and Lord St. Oswald. They decided to hold a press conference to drum up support for Mr. Clegg at Lord St. Oswald's home in Yorkshire on 23 January 1995. Representatives of the press were invited to attend. One of those who did attend was Mr. Wilkinson, the northern correspondent of The Times, who was despatched by his newsdesk to cover the conference and in due course wrote (with others) the article complained of. Among others who attended was a Mr. Barker, a former member of the Parachute Regiment, who was not a journalist: he read of the forthcoming press conference in his local paper, spoke on the telephone to Lord St. Oswald, and attended at the press conference without any objection being taken to his presence. It is not entirely clear on the evidence how many people attended the press conference. It would seem that there were about thirty journalists and a number of others, but the numbers may have been greater. No check was made on the identity or credentials of those attending the meeting, and no one was turned away. A press release was made available to all those attending but was not read aloud during the proceedings, although brief reference was made to it orally by one of the speakers. Copies of a petition in support of Mr. Clegg were given out for signature by those who wished to sign. When the press conference began, statements were made by members of the Committee, including Mr. McKay, some of whose observations were critical of the solicitors, although he modified these to some extent on being pressed. Those attending were invited to ask questions or make statements. A number of questions were asked, including several by Mr. Barker, and observations were made. After the questions were over, a number of journalists, including Mr. Wilkinson, approached the top table to speak to members of the Committee individually and Mr. Wilkinson took the opportunity to put some further questions to Mr. McKay concerning criticisms of the solicitors made in the press release.
A measure of statutory protection has been granted to newspaper reports of proceedings of public meetings for over a century. Section 2 of the Newspaper Libel and Registration Act 1881 provided:
This provision was replaced by a more elaborate provision in section 4 of the Law of Libel Amendment Act 1888, which so far as relevant provided:
To give effect to the Report of the Committee on the Law of Defamation (Cmd. 7536) chaired by Lord Porter, the Defamation Act of 1952 was enacted: this Act did not (save for one section) extend to Northern Ireland, but was followed in Northern Ireland by the Act of 1955, which governs this case and which was in terms indistinguishable for present purposes from the English Act. It repealed section 4 of the 1888 Act. Section 7 of the 1955 Act, corresponding to section 7 of the 1952 Act, provided:
The Schedule referred to was in two parts. Part I listed newspaper statements privileged without explanation or contradiction. These were reports of proceedings in certain legislatures, international organisations and courts, Commonwealth courts, courts martial and official public inquiries, and certain official documents. Part II listed statements privileged subject to explanation or contradiction. Paragraph 9, the provision at the heart of this appeal, extended such privilege (subject to section 7) to:
The other paragraphs in Part II extended the same privilege to the findings and decisions of certain learned, professional, commercial and sporting bodies; to reports of proceedings at certain specified meetings and sittings provided they were not meetings or sittings "admission to which is denied to representatives of newspapers and other members of the public"; to reports of proceedings at general meetings of certain public corporations; and to reports or summaries of official notices issued for the information of the public. In both parts of the Schedule privilege was conditional upon the report being fair and accurate.The Judge's Ruling
Relying on earlier Northern Ireland authority, Girvan J. held that "a press conference specially called by a number of individuals to give publicity to their views and plans is not a public meeting." The nub of his reasoning is found in the following paragraph.
The judge was accordingly satisfied that the evidence did not establish that Mr. Wilkinson had attended and reported on a public meeting falling within paragraph 9. He also held that Mr. Wilkinson's article was not in any event a report of the meeting, since it included material which had been contained in the press release and obtained from Mr. McKay personally but which had not been aired in the general part of the proceedings. This conclusion he expressed in this way:
The judge accordingly instructed the jury as a matter of law that the meeting Mr. Wilkinson had reported on was not a public meeting and therefore that the occasion was not a privileged one. The solicitors were accordingly entitled to succeed on liability and the only issue for the jury was damages.
The Court of Appeal Judgment
The Court of Appeal's judgment contains a number of findings helpful to the newspaper. It concluded that a press conference could constitute a meeting for purposes of paragraph 9: a meeting was no more than an assembly of persons who had gathered together (although I would, for my part, understand the expression to connote some degree of organisation or pre-arrangement to bring the meeting about). It held that the part of the article which retailed what had been said at the press conference qualified as a report for purposes of the paragraph; it did not matter that the article also contained material not relating to the press conference. The court noted the absence of any suggestion that the meeting had not been bona fide or not lawfully held for a lawful purpose. It held it to be "indisputable" that the question of Mr. Clegg's conviction constituted a matter of public concern. The court was of opinion that questions of fairness and accuracy would have been questions for the jury, had the newspaper otherwise been entitled to privilege. The court expressed some doubt about the construction of the expression "furtherance or discussion of any matter of public concern" but said:
The court accordingly concluded that the fact that the press conference was avowedly called to assist the cause of the campaign in favour of Mr. Clegg's release did not of itself take it outside the definition in paragraph 9 of a public meeting. But on the central question giving rise to this appeal the court agreed with the trial judge. It held (at p. 373):
The court rejected a submission by the newspaper that the term "restricted" at the end of paragraph 9 was intended to refer to a section of the public as distinct from the public as a whole. The court expressed the opinion (at p. 373) that:
The court inclined to the view (at p. 376) that the portion of the article which retailed a passage of the press release not repeated during the press conference itself was not a report of the proceedings; nor was anything said to Mr. Wilkinson by Mr. McKay in their conversation part of the report, since the court considered that the press conference had ended before that time.
The First Issue
The first and major question for decision is one of statutory construction: whether the press conference on 23 January 1995 was a public meeting within the meaning of section 7 of and paragraph 9 of the Schedule to the 1955 Act.
Lord Lester of Herne Hill Q.C. for the newspaper criticised the construction of paragraph 9 adopted by the judge and the Court of Appeal as narrow, technical and liable to infringe the freedom of expression which should be enjoyed by the press. He urged that a broad, realistic and contemporary construction should be given to paragraph 9, relying on the development of our common and statute law, the European Convention, the Human Rights Act 1998 and the recognition by courts, here and abroad, of the crucial role of the press in contributing to the proper functioning of a modern democratic society. While the right of freedom of expression could never be absolute, and the need to protect personal reputations against unjustified attack called for a measure of legal protection, such protection was given by section 7 and paragraph 9 on the construction contended for. A meeting was to be regarded as public if those who arranged it showed an intention that it should be so, whether by inviting members of the public or some of them to attend or by inviting the press with a view to securing wider publicity for the proceedings. On the facts here it was plain that the meeting was intended to be public. The closing words of paragraph 9 ("whether the admission . . . is general or restricted") were to be read as words of extension, not limitation: if a meeting was otherwise public it mattered not whether the public at large or only some of the public were invited or free to attend. The judge and the Court of Appeal had put too narrow a construction on those words also.
Mr. Lavery Q.C. for the solicitors supported the construction adopted by the judge and the Court of Appeal. The European Convention and the Human Rights Act had no bearing on the construction of section 7 and paragraph 9, which were not curtailing but extending the right to free expression. The issue concerned the scope of that legislative extension. A public meeting was a meeting of members of the public attending as such in response to an invitation by the organisers of the meeting. A press conference was something different. Both the Faulks Committee in 1975 in its Report on Defamation (Cmnd. 5909) and the Irish Law Reform Commission in its Report on The Civil Law of Defamation in 1991 had recommended the extension of statutory qualified privilege to cover some press conferences. Neither recommendation had been given legislative effect. It was not for the courts to grant a privilege which Paliament had declined to grant, despite an opportunity to do so in the Defamation Act 1996.
I am of the clear opinion that the press conference held on 23 January was a public meeting within the meaning of section 7 and paragraph 9. I reach that conclusion for these reasons.
1. In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.
2. Sometimes the press takes the initiative in exploring factual situations and reporting the outcome of such investigations. In doing so it may, if certain conditions are met, enjoy qualified privilege at common law, as recently explained by this House in Reynolds v. Times Newspapers Limited  3 W.L.R. 1010. In the present case the role of the press is different. It is that of reporter. The press then acts, in a very literal sense, as a medium of communication. Since 1881 a series of statutory provisions cited above has granted newspapers qualified privilege in relation to certain reports in certain closely defined circumstances. By section 7(1) of the 1955 Act the protection is granted only to a report published in a newspaper as defined. The privilege is not granted to the author of the statement complained of, who is liable if the statement is defamatory unless he has some other defence. The privilege is lost if malice is proved. By section 7(2) the enjoyment of qualified privilege is conditional on the grant of a right of reply to the complainant, if the case falls within Part II of the Schedule. By section 7(3) there is no privilege if the publication is of a matter the publication of which is prohibited by law, or if the matter published is not of public concern or if its publication is not for the public benefit. By section 7(4) any privilege enjoyed at common law is preserved. The reports of proceedings privileged under Part I of the Schedule have to be fair and accurate and have (subject to one very limited exception) to be of proceedings in public. The reports privileged under Part II of the Schedule have also to be fair and accurate: further safeguards are provided by close definition (save in paragraph 9) of the bodies whose findings, decisions or proceedings are the subject of report. In paragraph 9, the privilege covers only fair and accurate reports of proceedings at a public meeting held in the United Kingdom, and then only if the meeting is bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern. The grant of privilege inevitably deprives a complainant of a remedy he would otherwise enjoy if a defamatory statement is made concerning him, but section 7 and paragraph 9 give a very considerable measure of protection to those liable to be injured.
3. The effect of the legislation in 1955 was to grant qualified privilege to newspaper reports of public meetings, subject to the stringent conditions just noted. This grant (as in 1881, 1888 and 1952) must have been intended to enable citizens to participate in the public life of their society, even if only indirectly, in an informed and intelligent way. Since very few people could personally witness any proceedings or attend any meeting in question, it was intended to put others, by reading newspaper reports, in a comparable position. The privilege was not extended to newspaper reports of the proceedings of private bodies and private meetings, because those are proceedings which by definition the public do not witness and to which the public do not have access: the object was not to put the newspaper reader in a better position than one who was able to attend the proceedings or meeting in person.
4. Although the 1955 reference to "public meeting" derives from 1888, it must be interpreted in a manner which gives effect to the intention of the legislature in the social and other conditions which obtain today. The statutory language does not, despite the words "that is to say", define what is meant by "public", but limits the categories of public meeting whose proceedings may be entitled to privilege. I see no warrant in the statutory language for the nexus test adopted by the judge and the Court of Appeal. Thus "public", a familiar term, must be given its ordinary meaning. A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. Press representatives may be regarded either as members of the public (as made clear by the language of paragraph 10 of the Schedule) or as the eyes and ears of the public to whom they report. A meeting is private if it is not open to members of the public and if it is not intended that the proceedings of a meeting should be communicated to the public, unless perhaps by the body which holds the meeting. The closing words of paragraph 9 are intended to make clear that a meeting is not to be regarded as other than public because admission is not open to all members of the public but is subject to some restriction. A press conference, attended by members of the press and perhaps other members of the public, has become an important vehicle for promoting the discussion and furtherance of matters of public concern, and there is nothing in the nature of such a conference which takes it outside the ordinary meaning of "public meeting."