(back to preceding text)

5. Everything points towards the public character of the press conference in issue here. The object was to stimulate public pressure to rectify what the Committee as promoters of the conference saw as a grave miscarriage of justice, and publicity was the essence of the exercise. A general invitation to attend was issued to the press. While the attendance of other members of the public was not solicited, nor was admission denied to anyone, journalist or non journalist. Both journalists and other members of the public in fact attended in significant numbers. A public meeting need not involve participation, or the opportunity for participation, by those attending it, but here the opportunity to ask questions and make statements was extended to those attending. Save that the meeting was held at Lord St. Oswald's home, there was nothing whatever private about it.

    The Second Issue

    The second issue is whether a part of the newspaper article which included a passage from the Committee's press release not read aloud at the meeting was a report of the proceedings of "a public meeting."

    The solicitors supported the view, adopted by the judge and favoured by the Court of Appeal, that this passage, not ventilated at the press conference, could not be the subject of a report of the meeting. The newspaper challenged that view, relying on Sharman v. Merritt and Hatcher Limited (1916) 32 T.L.R. 360 and SmithKline Beecham Biologicals SA v. Connaught Laboratories Inc. [1999] 4 All E.R. 498.

    It has become very general practice, not least in legal proceedings, for materials to be reduced to writing and read by the reader to himself when in times past those materials would have been read aloud and at length. The procedure adopted at this conference is a good illustration of the practice. The contents of the press release could have formed the subject of an opening statement by a member of the Committee, but by communicating those contents in written form the time of the audience was saved and press representatives were able to leave with a reliable written record of the Committee's contentions and plans. It seems clear that the press release was treated by the Committee as read even though not read aloud. When a speaker made reference to paragraphs in the press release he did not think it necessary to identify the document he was referring to, but did assume that the questioner would have it. In my view the contents of the press release were as much part of the proceedings of the press conference as if they had been read aloud during the meeting. In the two cases cited, reference was made, albeit unrevealingly, to the materials in question, but for present purposes I do not regard express reference as necessary. The test is whether, assuming the meeting to have been public, the contents of the written press release formed part of the materials communicated at the meeting to those attending. On the present facts, that test was clearly satisfied.

    Anything said by Mr. McKay to Mr. Wilkinson, one to one, after the general press conference had broken up, would not form part of the meeting and could not be the subject of a privileged report, unless it repeated the effect of what had been said at the meeting or written in the press release.

Order

    I would allow the newspaper's appeal on both issues and quash the orders of the Court of Appeal and the judge in favour of the solicitors.

    Since no finding has been made on the fairness and accuracy of the newspaper's report, and it is common ground that this is an issue to be determined by a jury (subject to appropriate judicial direction), I would remit the case to the Queen's Bench Division of the High Court in Northern Ireland for further directions and such further hearing as is ordered. If further directions are required concerning issues other than the fairness and accuracy of the report, directions can be given on those matters also. Questions were raised in argument before the House concerning the respective roles of judge and jury in a case where a statutory defence of qualified privilege is advanced, apart from the issue of fairness and accuracy, but there was no ground of appeal or cross- appeal relating to this matter, no detailed argument was (quite properly) directed to it and the House did not examine the relevant authorities. I would decline to express an opinion on the matter.

    The newspaper must have its costs of the appeal to this House, and in the Court of Appeal. The costs of the first trial before Girvan J. should abide the event of the re-trial, unless ordered otherwise by the Queen's Bench Division.

LORD STEYN

My Lords,

    I am in full agreement with the opinion and reasons of my noble and learned friend Lord Bingham of Cornhill. Given the importance of the issues I will nevertheless summarise the reasoning which led me to this conclusion.

The genesis of the libel proceedings

    The background to the publication in The Times of 24 January 1995 of an article, which led to libel proceedings in Northern Ireland by the solicitors of Private Clegg against The Times, was as follows. On 30 September 1990 at a checkpoint in Belfast Private Clegg fired shots at a car which drove through the checkpoint. The driver and a passenger were shot dead. On 4 June 1993 Clegg was convicted of the murder of the passenger and sentenced to life imprisonment. On 30 March 1994 and 19 January 1995 the Court of Appeal and the House of Lords respectively dismissed Clegg's appeals. The conviction of Clegg was a matter of acute controversy and considerable public concern throughout Britain. By January 1995 there was in existence a committee, called the Clegg Committee, which had been formed to campaign for the release and ultimate acquittal of Private Clegg. The Clegg Committee used the media to enlist public support for this campaign. They were trying to correct what they considered to be a miscarriage of justice. By mid January 1995 the Clegg Committee had obtained about 30,000 signatures to a petition in support of the campaign. On 23 January 1995 the Clegg Committee organised a large scale press conference near Wakefield in furtherance of the campaign. Notices of the press conference had been sent to the Press Association and to individual newspapers, television and radio organisations throughout Britain. Between 50 to 80 people attended the press conference. Reporters from most broadsheets and tabloid newspapers were present. Local papers were also represented. Journalists from television and radio organisations were in attendance. In addition there were some members of the public present. Access to the meeting was not restricted in any way. At the meeting a press release was distributed, statements were made and questions were answered. Defamatory statements were made concerning the solicitors' defence of Private Clegg. On the next day The Times reported those statements. This led to the libel proceedings.

The legal proceedings in Northern Ireland

    The sole ground of defence of The Times, apart from the amount of damages, was that the article was protected by the statutory qualified privilege contained in section 7 of the Defamation Act (Northern Ireland) 1955 read with para. 9 of the Schedule to the Act. The judge withdrew the defence from the jury on the ground that the press conference could not constitute a public meeting within the meaning of para. 9. On this issue the Court of Appeal upheld the ruling of the judge: McCartan Turkington and Breen (a firm) v. Times Newspapers Limited [1998] N.I. 358.

The principal issue

    The principal issue is whether the press conference was a "public meeting" within the meaning of section 7 of the 1955 Act and para. 9 of the schedule thereto. The development by the House of Lords in Reynolds v. Times Newspapers Limited [1999] 3 W.L.R. 1010 of a new common law qualified privilege came too late to be of assistance in this case. It is therefore necessary to concentrate on the point of interpretation regarding the width of the expression "public meeting" in its statutory context.

    It is important to bear in mind that the statutory qualified privilege does not avail the maker of the defamatory statement but only a newspaper publishing a report of it. Moreover, it is relevant to the sensible interpretation of the reach of qualified privilege that it is subject to important statutory safeguards. Section 7 provides as follows:

"7. (1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice.

" (2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances."

" (3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit."

Para. 9 of Part II of the Schedule ("Statements Subject to Explanation or Contradiction") reads as follows:

"9. A fair and accurate report of the proceedings at any public meeting held in the United Kingdom, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted."

On the face of these provisions it is apparent that privilege which attaches to proceedings of a public meeting is subject to the following safeguards:

The meeting must be bona fide and lawfully held for a lawful purpose;

It must be one for the furtherance or discussion of a matter of public concern;

It must be a fair and accurate report of the proceedings;

The report must be of a matter of public concern and for the public benefit;

The defence is lost if the publication is proved to have been made with malice;

The newspaper loses the privilege if it refuses or neglects to publish a requested explanation or contradiction.

It will be necessary to come back to these safeguards.

    There is another preliminary matter to be considered. Counsel for the solicitors emphasised that the wording of para. 9 can be traced back to the Law of Libel Amendment Act 1888. He observed that at that time the phenomenon of press conferences was unknown. This was an invitation to the House to say that press conferences could not have been within the original intent of the legislature. There is a clear answer to this appeal to Victorian history. Unless they reveal a contrary intention all statutes are to be interpreted as "always speaking statutes". This principle was stated and explained in Reg. v. Ireland: [1998] A.C. 147, at 158 D-G. There are at least two strands covered by this principle. The first is that courts must interpret and apply a statute to the world as it exists today. That is the basis of the decision in Ireland where "bodily harm" in a Victorian statute was held to cover psychiatric injury. Equally important is the second strand, namely that the statute must be interpreted in the light of the legal system as it exists today. In the classic work of Sir Rupert Cross (Statutory Interpretation, 3rd ed. (1995), pp. 51-52) the position is explained as follows:

"The somewhat quaint statement that a statute is 'always speaking' appears to have originated in Lord Thring's exhortations to drafters concerning the use of the word 'shall': 'An Act of Parliament should be deemed to be always speaking and therefore the present or past tense should be adopted, and "shall" should be used as an imperative only, not as a future'. But the proposition that an Act is always speaking is often taken to mean that a statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force. Such an approach takes account of the viewpoint of the ordinary legal interpreter of today, who expects to apply ordinary current meanings to legal texts, rather than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice that the latter approach is required". (My emphasis)

In other words, it is generally permissible and indeed necessary to take into account the place of the statutory provision in controversy in the broad context of the basic principles of the legal system as it has evolved. If this proposition is right, as I believe it to be, it follows that on ordinary principles of construction the question before the House must be considered in the light of the law of freedom of expression as it exists today. The appeal to the original meaning of the words of the statute must be rejected.

Freedom of expression

    It is of prime importance to take into account that the qualified privilege of newspapers to report the proceedings of public meetings serves to protect and foster freedom of expression. In Reg. v. Secretary of State for the Home Department, Ex parte Simms [2000] A.C. 115, with the agreement of Lord Browne-Wilkinson and Lord Hoffmann, I drew attention to the values underlying freedom of expression. Speaking generally I said (at 126E-G):

"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market:" Abrams v. United States (1919) 250 U.S. 616, 630. per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."

In Simms there was at stake the asserted right, duly upheld by the House, of prisoners to have access to interviews with investigative journalists in order to challenge their convictions. About their claim I observed that "it is not easy to conceive of a more important function which free speech might fulfil": at 127B-C. The newspaper's role, as watchdog for the public, in reporting the proceedings of a press conference organised to secure the quashing of the conviction of Private Clegg and his release is analogous. As Justice Brandeis memorably observed in Whitney v. California (1927) 274 U.S. 357 at 375-376, "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." After all, as the same great judge said on another occasion, the law must proceed on the basis that "sunlight is said to be the best of disinfectants": New York Times, 15 February 1984.

    In the leading speech in Reynolds v. Times Newspapers Limited [1999] 3 W.L.R. 1010 Lord Nicholls of Birkenhead described freedom of expression as the starting point: at 1022H. In Simms a majority of the Law Lords explicitly treated freedom of expression as the primary right in a democracy, observing that without it an effective rule of law is not possible. Nevertheless, it is not an absolute right. Sometimes it must yield to other cogent interests such as the protection of the reputation of individuals. Even before the coming into operation of the Human Rights Act 1998 the principle of freedom of expression attained the status of a constitutional right with attendant high normative force: see my speech in Reynolds, at 1029H-1030A; compare also Mohammed v. The State [1999] 2 A.C. 111 at 123H. Now, as Lord Nicholls of Birkenhead put it in Reynolds, freedom of expression is buttressed by the Human Rights Act 1998. The Convention fulfils the function of a Bill of Rights in our legal system. There is general agreement that the Human Rights Act 1998 is a constitutional measure: see Wade and Forsyth, Administrative Law, 8th ed., Preface; Starmer, European Human Rights Law, 1999, para. 1.27; Wadham and Mountfield, The Human Rights Act 1998, 1999, para. 4.2.1; Lester & Pannick, Human Rights Law and Practice, 1999, para. 2.04; Coppel, The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts, 1999, para. 1.15. The position is now as Lord Nicholls of Birkenhead felicitously put it in Reynolds: "To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved": at 1023B.

Conclusion on the principal issues:

    My Lords, it is not appropriate to apply the Human Rights Act 1998 directly, as we have been invited to do in this case. That is not to say, however, that the Act is irrelevant. Normal methods of construction can solve the question of construction before us. The question of interpretation before us must, as it is put in Cross, be considered in the light of the legal norms of the contemporary legal system. And freedom of expression is a basic norm of our constitution. Girvan J. and the Court of Appeal held that a gathering did not qualify as a public meeting for the purposes of para. 9 where the organisers had invited to it a group of persons with a particular nexus, rather than throwing it open to the public in general. This is an interpretation which will needlessly complicate a branch of the law where legal certainty is of prime importance. In any event, given the extensive statutory safeguards attached to the privilege, as well as the importance of the press acting as the "eyes and ears" of the public, I regard this interpretation as unnecessarily narrow. In the context a purposive and indeed generous interpretation as to the meaning of "public meeting" in para. 9 is to be preferred.

    In my view the test must be the objective of the organisers of a meeting. It is sufficient to say that when they organise a general press conference to which the media, or an interested sector of the media, are invited in order to publicise to the public at large what the organisers regard as ideas of public concern the requirement of para. 9 that the meeting must be public as opposed to a private one is satisfied. On the facts pertaining to the highly organised press conference in the present case this test is amply satisfied.

    It follows that in my opinion the trial judge erred in ruling as he did, and the Court of Appeal wrongly upheld his rulings.

The subsidiary point

    The article contained a passage from the press release which was available at the press conference but only obliquely mentioned. Counsel for the solicitors argued that to this extent the article was not a report of the proceedings of a public meeting. Given a purposive construction of "public meeting", recognising the role of the press informing the public, this argument cannot prevail. In substance, although not read out, the press release was in reality part of the agenda of the meeting. The technical and artificial argument to the contrary must be rejected.

Conclusion

    For these reasons, as well as the reasons given by Lord Bingham of Cornhill, I would allow the appeal and make the orders proposed by Lord Bingham of Cornhill.

LORD HOFFMANN

My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I would allow the appeal and make the order he proposes.

LORD COOKE OF THORNDON

My Lords,

    Having had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn, I agree, for the reasons given by them, that the newspaper article sued on (including the passage taken from the press release) was a report of the proceedings of a public meeting within the meaning of the Defamation Act (Northern Ireland) 1955, section 7 and the Schedule, paragraph 9.

    It may not be out of place, however, to add some observations on the argument which Lord Lester of Herne Hill Q.C. placed at the fore front when opening the newspaper's appeal. The case was heard in your Lordships' House on the day after the Human Rights Act 1998 came fully into force. Perhaps understandably stimulated by that coincidence, learned counsel began by stressing that this Act has altered the legal landscape. In support of the contention that the provisions for newspaper privilege in the Act of 1955 should be given a wide interpretation, he invoked the new canon of interpretation in section 3 of the Human Rights Act, together with the duty of the court as a public authority under section 6 not to act in a way incompatible with a Convention right, the Convention right to freedom of expression in Article 10, and the special United Kingdom provisions in section 12 emphasising the importance of that right.

    My Lords, with the general spirit of Lord Lester's submissions about the Human Rights Act, and his implicit proposition that in the field of communications the Act has "horizontal" effect, I am in full accord; but it has to be said that in relation to the particular issues in this case the argument based on the Human Rights Act seems to me misconceived. In the first place, the conclusion that this was a report of the proceedings at a public meeting can be reached on ordinary principles of reasonably liberal and purposive contemporary interpretation, as Lord Bingham of Cornhill and Lord Steyn have demonstrated.

Qualified Privilege at Common Law

    In the second place, section 7(4) of the Act of 1955 expressly stipulates that, with an immaterial exception, nothing in that section shall be construed as limiting or abridging any privilege subsisting immediately before the commencement of that Act. (The relevant provisions of the Act have been replaced but they govern the present case.) The statutory privileges conferred on newspapers by section 7 and the Schedule and equivalent legislation are not restrictive of common law privilege. It has recently been recognised by your Lordships' House, in a decision unanimous on this primary point, that at common law, although a new generic privilege for political material is not to be created, qualified privilege is available for dissemination to the general public of information which the public should know. As Lord Nicholls of Birkenhead put it in the leading speech in Reynolds v. Times Newspapers Ltd [1999] 3 W.L.R. 1010, 1018 -

"Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice."

    The opinions in Reynolds were intended to ensure that the common law of England harmonised with human rights jurisprudence in general and the European Convention on Human Rights in particular: see [1999] 3 W.L.R. at 1026, 1029-1030, 1036-1037; 1045-1046; 1055; 1059. As was noted in Reynolds, one of the features of decisions in this field of the European Court of Human Rights has been a careful examination of all the circumstances of a particular case before a decision is reached as to whether freedom of expression is to be treated in the case in hand as the dominant right, prevailing over "restrictions . . . necessary in a democratic society . . . for the protection of the reputation or rights of others . . . " allowed for by Article 10.2. And section 12(4) of the United Kingdom Human Rights Act, enjoining a focus on the particular material published, is consistent with this approach. A very recent illustration of this essentially pragmatic approach is the judgment of the European Court of Human Rights in Bergens Tidende v. Norway (Application no. 26132/95; 2 May 2000).

    Thus the Act of 1955 falls to be seen against the background that the common law of England and Northern Ireland independently provides qualified privilege for material which the media have a duty to communicate to the general public. This is not confined, of course, to material produced as a result of investigative journalism. The main principle for which Reynolds stands is that the classical interest-duty test is adaptable to a great variety of circumstances. In this legal setting the relevant provisions of the Defamation Act add a statutory privilege in one respect narrower and in another possibly wider than the common law. Narrower in that the relevant statutory privilege is confined to reports of the proceedings of public meetings held in the United Kingdom and otherwise satisfying the statutory conditions. Wider in that, if the statutory conditions are all satisfied, a fair and accurate report is automatically protected even if comment has not been sought from the plaintiff and included in the material published. The statute deals with that aspect in section 7(2), providing for the subsequent publication on request of a reasonable letter or statement by way of explanation or contradiction. In that regard the common law is more flexible. An approach to the plaintiff is not always necessary: see Lord Nicholls in Reynolds at 1026 and 1027. And, unlike Reynolds, this is not a case where the newspaper has apparently adopted defamatory allegations as its own: the article purported to be no more than reporting. I think, however, that in the instant case, where nothing representing the answer of the plaintiff solicitors appeared in the article, the common law privilege would be likely to fail as a defence if the report was not fair and accurate; just as the statutory privilege would fail. The issue of fairness and accuracy remains to be determined and is for the jury. But there is nothing incompatible with the Convention right to freedom of expression in this state of the law.