Attorney-General v News Group Newspapers Plc
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,SIR GEORGE WALLER |
| Judgment Date | 30 April 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0430-1 |
| Docket Number | 86/0384 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 1986 |
[1986] EWCA Civ J0430-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE LEGGATT)
Royal Courts of Justice.
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Parker
and
Sir George Waller
(Not Present)
86/0384
MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the (Plaintiff) Respondent.
MR. C. GRAY, Q.C. and MR. M. WARBY (instructed by Messrs. Allen & Overy) appeared on behalf of the (Defendants) Appellants.
In this appeal we have been called upon to consider the interaction of two fundamental freedoms—the right to free speech and the right to an unprejudiced trial by jury.
Freedom of speech
On the 11th March, 1984 the newspaper "Mail on Sunday" contained an article alleging that, during the M.C.C. tour of New Zealand in that year, Mr. Ian Botham had smoked marijuana in public places in Hamilton, Christchurch and Wellington, had committed criminal offences by possessing and supplying a prohibited drug, namely cocaine, in Wellington and behaved in an unseemly manner during the Test Match at Christchurch. On the 8th April, 1984 the same newspaper contained a further article alleging that he had committed criminal offences by offering to supply marijuana to two girls in an hotel in Auckland and had "encouraged the girls, whom he had never met previously, to have sex with him."
On the 13th March and the 9th April Mr. Botham issued writs for libel against Mr. Stewart Steven, the editor of "Mail on Sunday" and Associated Newspapers Group plc its publishers. The defendants by their defences entered pleas of justification. In these circumstances the rule in Bonnard v. Perryman [1891] 2 Ch. 269 inhibited Mr. Botham from obtaining an injunction restraining the defendant editor and publishers from repeating the allegations and they remained free to do so if they wished, subject always to the risk that if at the trial they failed in the plea of justification, any award of damages would be likely to be very considerably increased.
Mr. Justice North had granted an interlocutory injunction restraining the repetition of an alleged libel. On appeal to the Court of Appeal, this order was set aside, Lord Justice Kay dissenting. The judgment of the majority was delivered by Lord Coleridge C.J. with the concurrence of Lord Esher M.R. and Lords Justices Lindley, Bowen and Lopes. All the members of the court, including Lord Justice Kay, held that there was jurisdiction to impose a prior restraint upon the threatened publication of a libel. The disagreement was as to how the discretion to grant such relief should be exercised. As to that Lord Coleridge said, at page 284 of the report:
"But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, M.R., in Coulson v. Coulson—'To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable.' In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial,—on which further it is not desirable that the Court should express an opinion before the trial. Otherwise, an injunction might be granted before the trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained. Upon the whole we think, with great deference to Mr. Justice North, that it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification."
The right to an unprejudiced trial
At common law conduct which tended to interfere with the course of justice in particular legal proceedings constituted a criminal contempt of court regardless of intent to do so. This was known as the "strict liability rule." In the years prior to the enactment of the Contempt of Court Act 1981 the courts were on numerous occasions confronted with the problem of the conflict between their duty to prevent the commission of criminal contempts under the rule and their duty to refrain from interfering with the right of free speech under the rule in Bonnard v. Perryman.
Sometimes writs were issued with the genuine intention of seeking compensation for defamation and orders preventing any repetition, but sometimes the writs were issued with the sole purpose of stifling discussion. The latter were popularly, or in some quarters "unpopularly", known as "gagging writs." I will return to the authorities to which we were referred on the resolution of this conflict, but first I must advert to the change in the law effected by the Contempt of Court Act 1981.
The first and most important aspect to note is that the Act did nothing to create any new or wider offence of contempt of court than had theretofore existed and had no application to conduct intended to interfere with the course of justice. Thus section 6 provided that:
"6. Nothing in the foregoing provisions of this Act—
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(a) prejudices any defence available at common law to a charge of contempt of court under the strict liability rule;
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(b) implies that any publication is punishable as contempt of court under that rule which would not be so punishable apart from those provisions;
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(c) restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice."
The Act prohibited the bringing of proceedings for a contempt of court under the strict liability rule other than by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it (section 7). However, this section has been held to be confined in its effect to proceedings in relation to contempts of court alleged already to have been committed. It has no application to, and does not inhibit, applications for injunctive relief in respect of apprehended future contempts of court. On the other hand, in deciding whether or not to grant such relief the court is concerned to consider whether, in the light of the other provisions of the Act, the defendant would have a defence if he committed the acts sought to be restrained. If he would, there would be no basis upon which a restraining order could be made.
The Act provided specific defences to a charge of contempt of court under the strict liability rule in relation to innocent publication or distribution, contemporary reports of proceedings and discussion of public affairs. The latter, although not directly relied upon in the present proceedings, is worthy of note for the light cast upon it by some of the authorities to which we were referred. It is contained in section 5 which provides that:
"5. A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion."
For present purposes the most important provision of the Act is contained in section 2 which limits the application of the strict liability rule, as it previously existed, by reference to the nature of the conduct complained of, the risk of interference with the course of justice, the seriousness of the interference (if it were to occur) and the stage which has been reached in any proceedings which might be interfered with. It provides:
"2 (1) The strict liability rule applies only in relation to publications, and for this purpose 'publication' includes any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public.
(2) The strict liability rule...
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