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£75,000
fine for Sunday Mirror article that halted the Leeds United footballer
trial.
Attorney-General v MGN Ltd (18 April 2002,
Divisional Court)
Ban
on Farrakhan stands.
R v Secretary of State for the Home Dept,
ex p Louis Farrakhan (30 April 2002, Court of Appeal)
Prime
Minister turns to PCC not libel courts in political spat.
Tony Blair v The Spectator, The Evening
Standard and The Mail on Sunday, 23 April 2002: Press Complaints Commission
Daily
Mirror appeals in Naomi Campbell case.
Naomi Campbell v MGN Ltd
Last chance for spy writer to reveal assets and personal
finances or risk jail.
Rupert Allason and Westintel Research Ltd v Random
House UK Ltd (19 April 2002, Neuberger J)
Gagging for the Lord Chancellor.
Law Commission on Defamation
Liability of local councils in libel.
Law Commission Paper 163
Defence struck out after meaning determination.
Martine McCutcheon v Can International, Claire Powell
and Alexis Grower (17 April 2002, HHJ Previte QC)
Son of Libyan leader not involved in currency scam.
Saif Al-Islam Gaddafi v Telegraph Group Ltd (18 April
2002, Popplewell J)
Alleged Robbie Williams stalker awarded damages.
Valentina Semenenko v MGN Ltd (16 April 2002, Eady
J)
Attorney-General v MGN Ltd (18 April 2002, Divisional
Court)
The
Sunday Mirror was fined £75,000 for contempt of court following
publication of an article that led to last year's collapse of the ten
week trial of Leeds United footballers Lee Bowyer and Jonathan Woodgate.
They were accused of attacking an Asian student, Sarfraz Najeib, outside
a Leeds nightclub. At last autumn's Hull Crown Court retrial, Woodgate
was found guilty of affray and Bowyer was acquitted on all charges.
The proceedings before Kennedy LJ and Rafferty J were only concerned
with penalty since the newspaper accepted it was guilty under s 2(2)
of the Contempt of Court Act 1981. Under this 'rule' of media contempt,
no intention is necessary for the offence; the complainant only needs
to prove that there was publication of matter which in fact tended to
create a substantial risk that the proceedings would be seriously impeded
or prejudiced.
The Sunday Mirror had published an inside double page spread on 8 April
2001 by reporter Andy Gardner consisting of an interview with Sarfraz's
father Muhammad Narjeib. The father described his own experiences of
being attacked by skinheads and regretted exposing his son to racist
violence by staying in Britain.
The Attorney-General argued that the Sunday Mirror's article was seriously
prejudicial since the jury, which had retired for the weekend, was still
deliberating its verdict. Furthermore, the newspaper's emotive interview
with the victim's father raised the issue that his son's attackers must
have had a racial motive; a factor which Mr Justice Poole had specifically
ruled out at the start of the trial.
The Attorney-General accepted that there was no deliberate attempt to
interfere with the course of justice but the offence was aggravated
because publication flew in the face of the judge's order on the race
issue, was at a critical time and caused distress to witnesses facing
a retrial. Also, the wasted costs of the trial exceeded £1m and
the newspaper failed to explain how or why it came to break assurances
to Sarfraz's father not to publish the article until after the trial.
MGN repeated its unreserved apology for the distress and inconvenience
caused, admitted 'an appalling breach of trust' in its dealings with
Muhammad Narjeib and accepted 'corporate responsibility' for the publication
of the article. The newspaper accepted that the legal advice from its
rota lawyers was wrong and that it was wrong to have run the story even
though it was not a front cover lead and there was no commercial advantage
in its publication.
MGN
pointed to its previous good record, with no adverse finding in contempt
against any Mirror title for over 50 years; to its now strengthened
procedures for checking stories and to a category of offences more serious
than this publication (see Comment
below).
The
court determined that in bringing a long criminal trial to a premature
end there was a substantial interference with the course of justice.
The context of the offending was that prior to the trial there had been
widespread and intense publicity including references to a racial motive
but the judge in his opening had stressed that this was not a factor
in the trial and therefore no newspaper could be unaware of his directions
on the matter. The article was a lavishly illustrated piece, counter
to the court's directions and at the top end of strict liability cases.
The risk to justice was more than remote.
The
court criticised the internal lapses that led to publication and its
traumatic impact on all concerned as well as the publisher's failure
to explain what happened; culpability went wider than wrong legal advice.
However, the court took full account of MGN's admission of liability,
its good past record, the pre-publication precautions it routinely took
and its speedy and repeated apology.
In
setting the penalty it imposed a fine below those paid by newspapers
in the past for more serious intentional offences. It accepted that
deterrence was not a significant factor for MGN; the prospect of the
proceedings was itself of considerable deterrence and matters could
have been worse, there was a retrial rather than a permanent stay. Furthermore,
although they were relevant, any penalty was not related to the costs
thrown away in the original trial. In this case, the gravity of the
offence was such that costs were not a sufficient penalty and the fine
of £75,000 was in addition to agreed costs of £54,000.
Comment
Although not the six figure sum predicted by many lawyers and
commentators, this was, by any comparison with past cases, a very high
fine for a plea of guilty. It more than doubles the highest figure to
date.
The
highest fine to date in a reported case where guilt was admitted, is
£35,000 [£36,750 in today's terms] in Attorney-General v
Associated Newspapers Ltd [1999] COD 190. The trial was aborted after
The Sun published an article after the jury had returned a guilty verdict
in the trial of the Docklands bombers and had retired to consider its
verdicts on further counts. This was said to be an error but a serious
contempt.
The
heaviest fine yet in real terms of £75,000 [£115,000 uplifted
for inflation] resulted from the specific intention to interfere with
the administration of justice in Attorney-General v News Group Newspapers
plc [1989] QB 110, where News Group itself had undertaken to fund a
private prosecution. This was followed by the Sun, in Attorney-General
v News International plc (5 July 1994, Lexis), for publishing a photograph
of a man charged with murder shortly before an identification parade.
The fine was £80,000 [£96,800] with an additional fine of
£20,000 [£24,200] on the editor Kelvin McKenzie.
Seriously
prejudicial contempts in Attorney-General v Associated Newspapers Ltd
[1998] EMLR 711 and Attorney-General v Morgan [1998] EMLR 294 which
occurred before trial but led in each case to a permanent stay, were
said to be 'calculated ' and 'very serious' respectively. There the
fines were £40,000 [£44,400] and £50,000 [£53,500].
In Attorney-General v TVS Television Ltd The Times, 7 July 1989, the
trial was aborted following a publication with no other prejudicial
publications complicating the position and the fine was £25,000
[£38,500].
The
most closely analogous case is Attorney-General v Birmingham Post &
Mail [1999] EMLR 39 when following a prejudicial article, a criminal
trial was halted and started afresh in a new venue. The newspaper was
fined £20,000 [£21,400] and it was said that the effect
on the due administration of justice and discharge of the jury were
aggravating features. The mitigating factors in that case included it
being a first finding of contempt, a regional not a national newspaper
and a mistaken publication brought about by a failure of communication.
The court said that the mistake had been taken seriously and proper
procedures established to guard against a recurrence.
Whilst
MGN's fine was below the level of serious intentional contempts, and
despite its clean record on contempt compared to other tabloids, the
group still holds the record for the heaviest fine ever imposed. In
1949 the Daily Mirror labelled the 'acid bath murderer' George Hague,
'Vampire Killer' just as he was being committed for trial. The newspapers'
editor was jailed for three months and the fine was £10,000 [£197,900
when uplifted for inflation].
Links
News Reports
Sunday
Mirror fined £75,000 for contempt of court
Jessica Hodgson
April 19 2002
Sunday
Mirror admits it was wrong
Jessica Hodgson
April 18 2002
Back to top
R v Secretary of State for the
Home Dept, ex p Louis Farrakhan (Court of Appeal, 30 April 2002)
Louis
Farrakhan remains excluded from Britain after the Court of Appeal headed
by Master of the Rolls Lord Phillips allowed David Blunkett's appeal
against the decision of Turner J in the High Court to allow Farrakhan
to travel to the UK.
On
the evidence before it, the court determined that the Home Secretary's
reason for excluding Mr Farrakhan was 'the risk that his presence in
the country might prove a catalyst for disorder.' and not, 'simply,
or even predominately, in order to prevent him exercising the right
of freedom of expression in this country…'
A
key question for the court was whether Article 10 of the European Convention
on Human Rights protecting Freedom of Expression was engaged. The court
noted, 'as a remarkable fact that almost all the Articles of the
Convention which permit, for specified purposes, restrictions on the
freedoms that they guarantee, do not include in those purposes the exercise
of the control of immigration. This strongly suggests…that its
obligations would apply to the treatment of individuals who were within
the territory of the Member State concerned.'
However,
since the Convention is a living instrument, the court, in accordance
with s 2 of the Human Rights Act 1998, had to have regard to the Strasbourg
jurisprudence when considering whether Art 10 imposes obligations in
relation to an alien who is seeking permission to enter a Member State.
For the purposes of this case the Home Secretary was prepared to accept
that the fact that an individual was neither a citizen of a Member State
nor within the territory of a Member State did not, of itself preclude
the application of the Convention. The Court of Appeal therefore proceeded
on the basis of that concession without examining whether or not it
was correctly made.
The
court reviewed the small number of decisions involving Art 10 and aliens
(Agee v UK (1976) 7 D & R 164, Piermont v France (1995)
20 EHRR 301, Swami Omkarananda and the Divine Light Zentrum v Switzerland
(1997) 25 D & R 105 and Adams and Benn v UK (1997) 88A D
& R 137 and concluded that where:
- entry is refused or an alien expelled for reasons not concerning
the exercise of Convention rights, the fact that those rights cannot
be exercised in the territory from which he is excluded does not violate
the Convention
- a State refuses entry or expels an alien solely to prevent the exercise
of a Convention right within its territory, or as a sanction for exercising
a Convention right, the Convention will be directly engaged
- an alien is refused entry solely to prevent his expressing opinions
within its territory, Article 10 will be engaged. The provisions of
Article 10.2 will then determine whether or not the interference with
the alien's freedom of expression is justified.
The court found that the Home Secretary excluded Farrakhan not '…because
he held views that would be offensive to many. He excluded him because
of the effect that he considered that his admission would have on community
relations and the risk that meetings attended by him would be the occasion
for disorder.'
Mr
Farrakhan's notorious opinions, including racially divisive views, were
a significant factor in the decision and the Home Secretary made reference
to the disturbance outside the Stephen Lawrence Inquiry involving Farrakhan's
supporters. The actions and arrest of members of the Nation of Islam during
that incident gave rise to serious concern that a visit by Farrakhan would
pose a serious threat and that his presence 'would not be conducive to
the public good for reasons of race relations and the maintenance of public
order.'
In
evaluating the risk the Home Secretary had had regard to tensions in the
Middle East current at the time of his decision but despite engaging in
widespread consultation and a very detailed consideration, he had chosen
not to describe his sources of information nor what was said. Although
the Home Secretary may have had good reason for not disclosing his sources,
the court felt that it would have been better had he been less diffident
about explaining the nature of the information and advice he had received.
In
his judgment for the court Lord Phillips MR said the merits of the appeal
were finely balanced but that the Home Secretary had 'provided sufficient
explanation for a decision that turned on his personal, informed assessment
of risk to demonstrate that his decision did not involve a disproportionate
interference with the freedom of expression.'
The
Court of Appeal accepted that for a number of reasons the Home Secretary
should be accorded a wide margin of appreciation in making his decision.
Firstly, because Strasbourg attaches considerable weight to the right
under international law of a State to control immigration into its territory
but also because this is a personal decision of the Home Secretary who
is better placed to make an informed decision than a court and is democratically
accountable.
In
conducting his 'rigorous review' as to whether there were reasonable grounds
to suppose that admitting Mr Farrakhan to this country would involve a
significant risk of civil disorder, Turner J had replaced his own evaluation
of the relevant facts for that of the Minister.
Comment
It might be argued that in reality the threat to "public disorder"
posed by Mr Farrakhan is no more than minimal. As was pointed out in the
court below, this ruling is a restriction on the freedom of expression
of both Mr Farrakhan and UK residents who wish to interact with him. It
can only be a justified restriction if the Home Secretary is privy to
undisclosed information about Mr Farrakhan and/or the proposed visit which
suggests that there is indeed a real threat.
In
legal terms the decision confirms that post Human Rights Act 1998, judicial
review cases that impinge on human rights will no longer apply the 'Wednesbury
unreasonableness' test, but rather the Convention test of 'proportionality'.
Nevertheless, the Home Secretary will still be given a discretion or "margin
of appreciation" for such decisions. This is another example of the
judicial approach to freedom of expression varying depending on the subject
matter. Restrictions will be more likely to be permitted where justified
on the grounds of national security or pubic order. Contrast to cases
involving political speech where the court is less likely to restrict
freedom of expression (e.g. the Prolife and Rusbridger cases reported
last month).
Links
Judgment
News Reports
Farrakhan
ban a victory for Blunkett
Clare Dyer, legal correspondent
May 01 2002
Back to top
Tony Blair v The Spectator, The Evening Standard and The Mail on
Sunday, 23 April 2002: Press Complaints Commission
The
Prime Minister has lodged a complaint about the accusation that he tried
to exploit the death of the Queen Mother to enhance his own role during
the lying in state. All three publications refuse to retract their claims
that the PM had sought greater prominence for himself when the Queen
Mother's coffin arrived at Westminster Hall. Downing Street has denied
the allegations.
Comment
The strategy adopted by the Prime Minister has its own very high
risks. To take issue with the reporting of his own actions is in stark
contrast to his previous complaints which sought to protect his family,
and particularly his children, from unwarranted press attention. Safeguarding
personal privacy is one thing but this latest complaint opens up the
possibility that when future allegations go unchallenged, they will
be taken as true. Taking it on the chin this time around may afford
better long term protection.
Links
News Reports
Blair
goes ahead with press complaint
Michael White, political editor
April 24 2002
Comment
Trial
and error
JDan
Tench
April 29 2002
Back to top
Naomi Campbell v MGN Ltd
MGN
has launched a comprehensive and potentially far reaching appeal against
the decision to award supermodel Naomi Campbell £3,500 in damages
in her claim against the Daily Mirror. The appeal is set to raise important
questions in relation to the law of confidentiality and the Data Protection
Act 1998.
In
essence, MGN says the judge got everything wrong. He failed to adequately
analyse either the facts or the applicable legal principles of Campbell's
claim in breach of confidence and concluded wrongly that the information
disclosed was confidential to Campbell. The newspaper also contends
that the judge adopted mistaken criteria in determining the newspaper's
public interest defence and on Campbell's Data Protection claim he misunderstood
the 1998 Act and failed to address himself to the fundamental principles
of statutory construction. In particular, the paper claims that Morland
J's decision leaves publishers and journalists vulnerable since it throws
doubt over the public interest elements of the Data Protection Act.
MGN
also say that the court granted an inappropriate injunction, awarded
aggravated damages that were wrong in law and made an order for costs
which failed to reflect that Campbell had failed on a number of issues,
recovered only derisory damages and had been guilty of lying to the
court.
Comment
Most decisions in the developing area of the law of confidence/privacy
have been taken on the back of interim injunctions. The Campbell case
is one of the few to have come to trial and the Court of Appeal will be
asked to establish some clear principles applicable to the granting of
final relief. The key issues are likely to be, the threshold for determining
what kind of personal information qualifies as confidential; the extent
of the public interest defence following the coming into force of the
Human Rights Act 1998 and whether a third party must be shown to be dishonest
before attracting liability for receiving and using confidential information.
On a more mundane level, there must be good grounds for questioning whether
it was appropriate to award Campbell 100% of her costs.
Links
Full
Judgment
News Reports
Mirror
wins right to Campbell appeal
Jessica Hodgson
May 02 2002
Back to top
Rupert Allason and Westintel Research Ltd v Random House UK Ltd
(19 April 2002, Neuberger J)
Publisher
Random House sought to commit spy writer Allason to prison for contempt
for his failure to comply with an order of Lloyd J to disclose his assets
and the true state of his personal finances. He was given 18 days to
come clean or risk being sent to jail for a significant time.
The
former Tory MP has failed to pay £200,000 in costs and compensation
after losing his copyright claim last year to authorship of The Enigma
Spy, the posthumous autobiography of the 'fifth' man in the Cambridge
spy ring, John Cairncross. The trial judge, Laddie J, described Allason
at the time as one of the most dishonest witnesses he had ever come
across, 'I have come to the clearest possible conclusion that Mr Allason
has told me untruth after untruth in pursuit of his claim'.
Mr
Justice Neuberger has demanded that Mr Allason now gives a full account
of his family trusts, the share ownership and value of his two companies,
Westintel Research and Westintel Ltd and his income from books written
under his pseudonym Nigel West.
Links
News Reports
Judge
warns Allason he faces jail for contempt
Richard Norton-Taylor
April 20 2002
Back to top
Law Commission on Defamation
The
Law Commission is conducting a feasibility or 'scoping' study for the
Lord Chancellor's Department to identify problems allegedly faced by
defamation defendants such as booksellers and distributors who have
complained that they face gagging writs, gagging letters and tactical
targeting by claimants. Their concern is that they are not always in
the best position to defend themselves since they are not in a position
to judge the truth of any particular work and the strength of a justification
defence. Representations were made by the Booksellers Association that
its members often face the option of either caving in or defending an
action on an unknown basis.
The
extended consultation period for the study has now ended and the Commission
is in the process of writing up the results. They will make recommendations
to the Lord Chancellor and the report will be published on the Law Commission's
website. The Law Commission has also begun preliminary work on internet
publications and is looking at the issues of forum shopping, liability
for online publications and archives and contempt. It intends to instigate
a small round of consultations and hopes to report later in the year.
Back to top
Law Commission Paper 163
Released
on 23 April 2002, this consultative paper examines the legal problems
faced by local authorities in publishing internal inquiry reports where
there is a fear of defamation actions or admissions of liability arising
from the revelation of evidence. The Law Commission took up the issue
after concerns expressed in 'Lost in Care', the report arising from
the public inquiry into abuse of children in North Wales chaired by
Sir Ronald Waterhouse. The Waterhouse Report suggested that in some
circumstances local authorities may be unduly constrained by threat
of legal action or loss of insurance cover from making public, acting
on, and identifying necessary reforms in the light of the results of
inquiries conducted by them, or on their behalf.
The
Law Commission's paper proposes a change in the law of defamation so
that matters of serious public concern can be addressed openly even
if it means that unpalatable information is made more widely available.
The closing date for comments is 31 July 2002 and the contact for further
information is Christina Hughes Law Commission 37-38 John Street Theobalds
Road London WC1N 2BQ 020 7453 1225.
In
Lillie and Reed v Newcastle City Council currently being tried by Eady
J, the local authority appointed a team of investigators to conduct
an examination into alleged child abuse. The ensuing report has resulted
in a libel action by two former nursery school teachers against their
former local authority employer.
Links
www.lawcom.gov.uk
Back to top
Martine McCutcheon v Can International, Claire Powell and Alexis
Grower (17 April 2002, HHJ Previte)
Singer
and former EastEnders actress Martine successfully struck out aspects
of the defendants' justification defence in an application before HHJ
Previte QC. Ms McCutcheon contended that the defamatory article, published
in The Mirror could only be sensible read to mean that she had tried
to avoid paying money owed to her former managers by dishonestly claiming
that it was they who owed her money. The defendants argued that the
article could be justified either by proving that Ms McCutcheon knew
that her assertion was untrue 'or was probably' untrue. The judge decided
the article was not capable of bearing the defendants' lesser meaning.
Back to top
Saif
Al-Islam Gaddafi v Telegraph Group Ltd (18 April 2002, Popplewell J)
With
a libel jury sworn in and three days into the trial, the Sunday Telegraph
offered its 'sincere apologies' to the Libyan leader's son for an article
that falsely alleged that he was involved in a large scale international
currency scam. The paper also agreed to pay a 'substantial' contribution
to the claimant's costs. The newspaper's journalists were spared being
cross examined on their sources, said to be 'black propaganda' by western
government security agencies.
Comment
Neither party emerged from this case with much to show for it. Although,
Gaddafi obtained an apology for the false currency scam allegation,
his brief period in the witness box did little to enhance his reputation.
The "substantial" payment of costs was reported to be just
over £100,000. However, the total costs incurred by Gaddafi were
estimated at over £1 million, which must make it one of the most
costly apologies for a claimant.
Links
News Reports
Gadafy
'sting' untrue, paper admits
Richard Norton-Taylor
April 19 2002
Back to top
Valentina Semenenko v MGN Ltd (16 April 2002, Eady J)
The
Sunday People alleged that the claimant was obsessed with pop star Robbie
Williams and stalked him. The article also alleged that Williams was
frightened and called the police. In a statement in open court the newspaper
accepted the allegations were untrue and that Williams had not been
scared but only contacted the police to stop the claimant communicating
with him. MGN gave an undertaking not to repeat the allegations and
paid the claimant damages.
Links
News
Reports
People
pays out in 'stalker' case
Jessica
Hodgson
April 16 2002
Back to top
© David Price Solicitors & Advocates 2002
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