Barron MP & Ors v Collins MEP

The principles to be applied in determining these issues are not in dispute. The right approach to the determination of meaning was described by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 [14]:

“(1)

The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) …. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.”

Freedom of political expression is one of the most important freedoms. A consequence is, as Laws LJ observed in Waterson v Lloyd [2013] EMLR 17 at [66], that the third principle - that the court should avoid over-elaborate analysis when determining meaning - has particular resonance in the context of political speech. The seventh principle is also of particular importance in such a context.

In Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB). [2015] 1 WLR 971 [88]-[98] I considered the principles applicable to the determination of whether a statement is an opinion as opposed to a factual statement. Miss Wilson relies in particular on what I said at [88]:

“The statement must be recognisable as comment, as distinct from an imputation of fact: Gatley on Libel and Slander, para 12.7. Comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc’: Branson v Bower [2001] EMLR 800, 12. The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams Press Ltd [1958] 2 WB 275, 313. The subject matter and context of the words may be an important indicator of whether they are fact or comment: Singh's case, paras 26 and 31.”

This was a summary of the position at common law. The Defamation Act 2013 has abolished the common law defence of fair comment and replaced it with the statutory defence of honest opinion. However, neither Counsel suggests that this has altered the principles relevant to this case. Indeed, both Counsel have referred me to s 3(2) of the Act and its Explanatory Note 21 as endorsing the common law approach I set out in Yeo. Section 3(2) sets out the first condition for the statutory defence of honest opinion: “The first condition is that the statement complained of was a statement of opinion.” The Explanatory Notes state at [21] that:-

“... condition 1 is intended to reflect the current law and embraces the requirement … that the statement must be recognisable as comment as distinct from an imputation of fact. It is implicit in condition 1 that the assessment is on the basis of how the ordinary person would understand it ...”

Ms Wilson also draws attention to the next sentence of the same paragraph of the Explanatory Notes: “As an inference of fact is a form of opinion, this would be encompassed by the defence.” I agree that a statement expressed as an inference will often be an expression of opinion. This is reflected in the passage from Branson v Bower that I cited in Yeo at [88]. It is not submitted, however, and I do not understand it to be the law, that any statement about a matter, the facts of which cannot be within the personal knowledge of the speaker, is to be treated as an inference and hence a statement of opinion.

Ms Wilson has addressed me about the criterion of “verifiability” which has featured in some of the common law cases as a means of resolving the fact/opinion issue. She points out that this is not expressly reflected in the Act, or the Explanatory Notes. She warns against using this as a yardstick, drawing attention to Gatley on Libel and Slander, 12^th ed at §12.10 in which the editors, having noted that the common law lacked clarity as to whether the verifiability of a statement is an applicable criterion, observe that, “If the ability of an audience to recognise words as comment is key, then it is not obvious why the verifiability or otherwise of the inference should be important”.

Ms Wilson doubtless makes this point lest I conclude that the offending statement is verifiable, and for that reason a statement of fact. This is a potentially important issue. The European Court of Human Rights has repeatedly emphasised the importance of drawing a careful distinction between matters of fact and value judgments, holding that it is wrong to require a Defendant to prove the truth of a “value judgment” as these are not susceptible of proof: see, for instance, Lingens v Austria (1986) 8 EHRR 407 at para 46. However, it is not necessary for me to decide in this case whether verifiability has any part to play in the court’s approach under domestic law, as Mr Millar QC has not invited me to adopt that criterion. The way the statement would strike the ordinary reasonable listener and viewer is a sufficient criterion, for present purposes at least.

It is common ground that the fact that the statement complained of is political speech has some bearing on the approach I should take to the fact/opinion issue. Ms Wilson relies on what I said in Yeo at [97] about statements made in a political context:

“the court should be alert to the importance of giving free rein to comment and wary of interpreting a statement as factual in nature, especially where as here it is made in the context of political issues. In drawing the distinction the court should consider what the words in their context indicate to the reader about the kind of statement the author intends to make.”

Mr Millar does not dispute this, and acknowledges that the boundaries of political criticism are very wide. He points out, however, that the law does nevertheless protect politicians against defamatory imputations of fact. He reminds me of what the European Court of Human Rights said in Lingens at para 42: that the protection of reputation “extends to politicians too, even when they are not acting in their private capacity”.

In identifying the issues for decision, and in setting out the applicable principles, I have dealt with the meaning issue, and the fact/opinion issue, in that order. This is convenient. However, in the Singh case that I mentioned in Yeo at [88] (British Chiropractic Association v Singh [2010] EWCA Civ 350, [2011] 1 WLR 133) the Court of Appeal pointed out at [32] that it may not always be appropriate to decide the issues in that order. To do so “may stifle the answer” to the second question.

Ms Wilson invites me to avoid that risk by approaching the question of whether the words complained of in this case are opinion before determining their meaning. I have been alive to the risk, to which I referred in Yeo at [96]. What I have done to cater for it in this case is to consider the two questions together. That seems to me to be the approach that will best reflect the experience of the ordinary viewer and listener of the Defendant’s speech in September 2014.

Counsel, whilst acknowledging the risks of over-elaboration, have presented me with competing analyses of the Defendant’s speech. Mr Millar submits that it started by presenting in paras 2 and 3 the issue which the speech is going to be about, and making clear in para 4 that the issue offers – according to the Defendant – a specific example that is symptomatic of a more general “failure” of British politics. At paragraph 6 the Defendant referred to a “scandal”, before going on to set out details of the abuse, drawn from the Jay Report. Mr Millar draws attention to the allegation of “political” failure in paragraph 11, which he says would lead the listener to expect detail of that failure to be given later. Paragraph 13 was aimed at the Labour run Council, and its failings, as explained in the report, but this does not serve to exclude other political failures, he submits.

Paragraph 16 expressed the Defendant’s anger with “those people in the position of power who could have intervened but chose not to”. This, submits Mr Millar, cannot be understood as limited to the local Councillors and officers in the light of what follows. At paragraphs 19 to 22 the Defendant told her listeners that there was a category of people “directly involved”, some of whom have resigned, “others” of whom have not; and she presented the three Labour MPs as among the “others”, and as people who knew about the abuse and failed to act. The words “I am convinced”, which could in principle represent comment, are in their context presented as an inference of fact about the extent of the Claimants’ knowledge. Paragraphs 33 and 34 ram home the message of the speech, says Mr Millar. The targets of the attack on “the Labour Party” in these paragraphs have been identified to the audience earlier, and include the three MPs. This is underlined by the three uses of the word “together” and the allegation that “they conspired”.

In summary, submits Mr Millar, it is clear law that there is greater latitude for attacks on politicians than on others, but there are still some limits. The ordinary listener is not unfamiliar with hearing allegations of fact in political speeches. Here, the Defendant could have chosen her words so as to make clear that what she was saying was an inference or opinion, but she did not. He suggests that the political context has a double edge to it. The speech would have had less impact if it had been presented as opinion, “hedged around” with qualifications. The Defendant, he submits, cannot have it both ways. She was an MEP putting herself forward to the conference as a person who had studied and knew about the facts of the abuse scandal, who was making factual allegations directed clearly at the Rotherham MPs.

For the Defendant, Ms Wilson invites me to start by focusing on the nature of the occasion and the hypothetical reasonable audience member. She submits that the speech was a rallying call issued from the platform at a party conference, eight months before a general election, at a time when it was known there would be such an election. The immediate audience of UKIP activists, members, or sympathisers will have been aware of these circumstances, as will viewers of the BBC Parliament channel and others, who would all have been close observers of politics.

Ms Wilson submits that the speech divided clearly into parts. It set out some of Professor Jay’s findings, making numerous references to “the report”. Only then did the Defendant go on to set out her own views: first her personal reaction to those findings (at 15-18), and then her views as to what needed to be done going forward (19-31, which is where the reference to “three Labour MPs” appears). The speech did not conflate those who definitely knew about the scale of abuse with the MPs, submits Ms Wilson. It drew a distinction between the Councillors and the MPs. The Councillors “knew” (para 13) and were condemned at paras 7 – 14; but the MPs were amongst the “others” (para 21) who still had “questions to answer”.

When the Defendant said she was “convinced” that the MPs knew details she was clearly indicating, Ms Wilson submits, that she could not believe, based on the background she had set out, that the local MPs at the time were completely ignorant of the scale of the problem. It would be clear to listeners that this was an inference from the fact that the MPs were in the same political party, representing the same constituents, and spending time in that constituency. No-one hearing the speech would have thought that the Defendant had information going beyond the report, or had conducted her own parallel investigation and unearthed evidence about the “three Labour MPs”. Her words would have been seen as holding political opponents to account, questioning their record. The concluding passage in paras 33 and 34 were and would be understood as “political hyperbole”, submits Ms Wilson, aimed broadly at the Labour Party without implicating the MPs individually.

As Ms Wilson submits, it is important to have in mind from the outset the nature of the occasion, and the audience. The statements complained of were part of a rallying call to the ‘party faithful’ and the speech was made to audiences, reasonable members of which can be taken to have understood, and made allowance for the fact, that political expression will often include opinion, passion, exaggeration, and even inaccuracy of expression.

At the same time, party conferences are not occasions on which the audience expects, or is often given, impromptu speeches in which the words used are chosen in the heat of the moment. As a rule, the audience’s expectation of a speech made in that context is that it will be prepared and considered carefully. The way this speech was delivered would not have suggested to its audience that it was any exception to this rule. The recording shows that the speech was delivered in a measured way, from a prepared script or notes, to which the Defendant referred frequently. In my judgment the reasonable audience member will have understood the Defendant’s words to be ones that had been chosen, weighed, and considered before they were delivered.

Audiences at or of political party conferences are also used to hearing speakers make allegations against rival parties, their leaders and members. Where the speaker is due to contest an election it is usual, for obvious reasons, to hear criticism and allegations directed at those who are the speaker’s opponents for a particular seat. Here, the audience knew from the introduction and the speech itself, if they did not know it anyway, that the Defendant was a prospective Parliamentary candidate, selected to fight for the Rotherham seat against an incumbent Labour MP at the coming election.

With these points in mind I viewed the BBC recording once, knowing from the application notice and the introductory parts of the skeleton arguments what the issues were, but before reading the meaning complained of, or the detail of Counsel’s skeleton arguments. The clear impression I took from the speech was that the Defendant was deliberately making direct allegations against the three Labour MPs for Rotherham of knowing about the sexual abuse and choosing not to take any action. I made a note of the meanings that I took from the speech. There were three.

The first was that each of the three Rotherham MPs “knew many of the details of the scandalous child sexual exploitation that took place in Rotherham over a period of sixteen years, in the course of which an estimated 1,400 children were raped, beaten, plied with alcohol and drugs, and threatened with violence by men of Asian origin, yet deliberately chose not to intervene but to allow the abuse to continue.”

The other meanings that I drew from the speech were that the MPs “acted in this way for motives of political correctness, political cowardice, or political selfishness”, and that each “was thereby guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators and made the Claimants just as culpable as the perpetrators.”

I arrived at these three separate meanings because, in the process of forming a view, I was conscious of the need to determine at the same time whether the words would be taken as expressing factual imputations or opinions. The first meaning represents the factual imputations I considered that the Defendant made in her speech. The other two meanings encapsulate what I considered to be expressions of opinion.

Having reached these initial views I have reconsidered them in the light of Counsel’s skeleton arguments, and again in the light of the oral arguments presented at the hearing. I have not been persuaded to depart from my initial conclusions.

I do not accept Ms Wilson’s central argument, that the speech drew a clear distinction between the allegations it levelled at local Councillors and officers, and those it aimed at the three MPs. The overall theme and message of the speech was that there were Labour Party politicians in positions of power in Rotherham who knew about the sexual abuse and chose to do nothing about it for political motives. The way the Defendant presented the matter was that the guilt of the local politicians had been exposed by the Jay Report, but the three MPs were also guilty in the same way.

Nor do I accept Ms Wilson’s submission that the concluding passages of the speech were rhetorical hyperbole aimed not at the MPs but more generally at the Labour Party as a whole. In my judgment those concluding passages were, as is so often the case in any speech, the parts that were most significant in framing the overall message conveyed.

I do not agree with all of Mr Millar’s submissions. It is in my judgment artificial to suggest that the “others” in paragraph 20 were presented as others “directly involved”. However, my conclusions on the meaning of the Defendant’s speech are similar to those he urged on me.

I would identify the essential features of my own response to the speech, drawing on the notes I made when first viewing it, as follows. Paragraphs 3 to 6 set the scene. They explained the Defendant’s role as a prospective Parliamentary candidate for Rotherham Central, identifying her opponents as the “Labour mafia” which had held the constituency in its grip for 18 years, and identifying her theme as an issue involving “political correctness” and “lack of moral courage” which was a “scandal”. This part of the speech set up the listener to expect criticism of national, not just local politicians.

The key section of the speech for present purposes then picked up at paragraph 16 where the Defendant identified the group with which she was angry: “people in the position of power who could have intervened but chose not to”. That group clearly included the local Councillors and officers that she had referred to earlier, in particular at paragraph 13. But the Defendant made clear in paragraphs 19 to 22 that her anger did not stop with them.

It is true that some of the wording used in those paragraphs is indicative of expressions of opinion. The Defendant spoke of “questions to answer”, and “possible” charges. But she also provided the answer to the “questions”, when she said she was “convinced” that the MPs knew many of the details of what was happening. As she said this, the Defendant accompanied her words with emphatic pointing. Even then, if the Defendant had said no more about the abuse and the role of the Labour Party she might have left the audience with the impression that she was saying no more about the MPs than that (a) they had questions to answer about their role in respect of the abuse, and (b) in her opinion the answer was that they knew about it and that it should be a crime to take no action in such circumstances. The Defendant returned to her theme, however, in the concluding passages of the speech. These provided a rousing climax directed clearly, in my opinion, at the MPs as well as others.

I was struck by the Defendant’s reference in paragraph 29 to the need for “us”, that is UKIP, “to make sure that Rotherham has a leadership with a clean pair of hands” and “leadership that will put its own political agenda aside”. I heard those as statements in which the Defendant contrasted herself as the prospective Parliamentary candidate, with clean hands, with the incumbent MPs. The speech then reached its finale with the references to the Labour Party in paragraphs 32 and 33. Those references, at this point, indicated to me and would in my judgment indicate to the ordinary reasonable listener the Labour Party politicians who have been referred to earlier in the speech. The use of the word “together”, repeated three times in those paragraphs, naturally and clearly suggests that the Defendant is aiming her words at the Labour politicians collectively. The word “conspired” lends still greater weight to the collective nature of the allegation. Again, this part of the speech was accompanied by emphatic hand gestures.

As indicated in paragraph 33 above, I accept that the motives referred to in paragraphs 3, 4, 14 and16 of the speech were presented as matters of opinion. I accept that the same is true of the “political purposes” attributed in paragraph 33. But the allegations of a conspiracy to allow abuse and keeping quiet “together” were not presented as matters of opinion at all. They were presented as factual conclusions. Nor were those allegations qualified in any other way. I reject Ms Wilson’s argument that the meaning was at Chase Level 2, which is not in my judgment a tenable view.

For these reasons I find that the words complained of bore the meanings I have set out in paragraphs 32 and 33 above, and that the first of those meanings is an allegation of fact, whilst the others are expressions of opinion.

Words can be the subject of a claim for defamation if, but only if, they would be understood by reasonable people who knew the Claimant to refer to him. It is usually enough if the Claimant is named. If not named, there may be a reference to some office or position held by the Claimant which would be enough to enable an ordinary reasonable person who knows the Claimant to identify them as the person referred to. The test is an objective one, involving once again an assessment of the response of the hypothetical ordinary reasonable reader, viewer or listener to the words complained of. The Defendant’s intentions are not the criterion, although the issue could in principle be affected by what the words used would indicate to the ordinary reasonable reader about the Defendant’s intentions.

Here, the third Claimant was at the time of the Defendant’s speech one of the “three Labour MPs for the Rotherham area” (paragraph 21 of the speech). Mr Millar’s first proposition is that in those circumstances the conclusion that the Defendant’s words referred to her is so obvious as to be a “no-brainer”. He elaborates this by pointing out that it is settled law that where defamatory words refer to a limited class of persons any person who shows that they fall within that class can normally sue for defamation. Ms Wilson accepts that in many contexts, the reference in para 21 to would suffice to refer to the third Claimant but submits that this is not so in the context of this speech.

Ms Wilson submits that those in the audience who knew the third Claimant, and knew she was Rotherham’s MP at the time of the speech, would also have known that “she had only just arrived on the political scene” and that a major feature of the child abuse scandal in Rotherham was that it had gone on for many years until it attracted national publicity. This was general knowledge, in particular after the publication of the Jay Report, but it is, in any event, clear from para 7 of the speech submits Ms Wilson. The reasonable hearer/ viewer would therefore not have understood “Labour MPs” to refer to the third Defendant who “was running a hospice at the relevant time.”

Although it has not been put this way it is implicit in these submissions that the ordinary reasonable reader would have taken the Defendant to be levelling her accusations at Denis MacShane, and not the third Claimant. In my judgment these submissions are ill-founded. That is because they depend, on a proper analysis, on adding to the store of knowledge of the audience facts which are not matters of general knowledge and which are not, at this stage, established to be matters of special knowledge possessed by members of the audience.

The principles as to reference are, as Counsel agreed, similar to those which apply to meaning. Both can be affected by the knowledge of the readership or audience. Words may be defamatory either in their natural and ordinary meaning, considered in the light of matters of general knowledge, or by way of true innuendo, that is, because of some particular special knowledge possessed by some or all of those to whom they are addressed. Equally, words may refer to a person on their face in the light of general knowledge, or by virtue of a “reference innuendo”: because of some special knowledge possessed by some audience members. The same is true in reverse: special knowledge may cause words that are on their face defamatory to bear an innocent meaning (a “reverse innuendo”), or mean that words that appear to refer to A are taken instead to refer to B (a “reverse reference innuendo”).

Here, the Defendant’s words referred on their face to “the three Labour MPs for the Rotherham area”. The third Claimant was one of those. It may be that there were audience members, it may even be that there were many, with knowledge of (a) the duration of the child sex abuse scandal (b) when the third Claimant was elected (c) what she had been doing before that (d) that her predecessor was Denis MacShane, also a Labour MP. It may be that a reasonable audience member who knew these things would have concluded that the Defendant was aiming her words at Mr MacShane and not the third Claimant. But I do not accept that any of these were matters of general knowledge, and none of them were spelled out in the speech.

The speech did tell the audience that the abuse had gone on over sixteen years, but not when it ceased. Although Denis MacShane was mentioned in the speech, and referred to as “MacShame”, the audience was not told the cause of his shame, how and when the third Claimant came to be MP or any similar matters. Nothing was said to indicate to the listener that the Defendant was targeting her main allegations at the former Labour MP, as opposed to her current opponent for the Rotherham seat.

I therefore conclude that although it is open to the Defendant to seek to prove that by way of innuendo her words will have been understood by some – perhaps many - to refer to Mr MacShane and not to the third Claimant, those words in their natural and ordinary meaning referred to the third Claimant.

This trial has required me to consider only how the Defendant’s words would have struck the ordinary reasonable member of her audience. It has been no part of my task to determine whether the meanings that I have found the words to bear are, or may be, defensible. In deciding the preliminary issues I have applied well-established principles of law. As I have noted, the law relating to meaning, and to the distinction between fact and comment, makes some allowance for the need to give free rein to political speech. But the nature of the principles means that there are limits on the protection that can be given to political speech by those means.

The law must accommodate trenchant expression on political issues, but it would be wrong to achieve this by distorting the ordinary meaning of words, or treating as opinion what the ordinary person would understand as an allegation of fact. To do so would unduly restrict the rights of those targeted by defamatory political speech. The solution must in my judgment lie in resort, where applicable, to the defences of truth and honest opinion or in a suitably tailored application of the law protecting statements, whether of fact or opinion, on matters of public interest, for which Parliament has provided a statutory defence under s 4 of the Defamation Act 2013.