Dr. Salman Butt v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Sharp,Sir Rupert Jackson,Lord Justice Underhill
Judgment Date06 June 2019
Neutral Citation[2019] EWCA Civ 933
Docket NumberCase No: A2/2017/3115/6

[2019] EWCA Civ 933

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Nicol J: [2017] EWHC 2619 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

Lady Justice Sharp

and

Sir Rupert Jackson

Case No: A2/2017/3115/6

Between:
Dr. Salman Butt
Appellant
and
The Secretary of State for the Home Department
Respondent

Lorna Skinner (instructed by BINDMANS LLP) for the Appellant

Aidan Eardley (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 20 October 2018

Judgment Approved by the court for handing down

(subject to editorial corrections)

If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.

Lady Justice Sharp

Introduction

1

On 17 September 2015, the Home Office published on the www.gov.uk website a Press Release entitled “PM's Extremist Task Force: Tackling Extremism in Universities and Colleges Top of the Agenda” (the Press Release). Amongst the individuals named in the Press Release was Dr Salman Butt, the Chief Editor of a website called Islam21C.

2

The Press Release, which we were told was still available on the website, says as follows (paragraph numbers have been added to reflect the numbering used by the parties and the court below: paragraph 4 is not complained of):

“PM's Extremism Taskforce: tackling extremism in universities and colleges top of the agenda.

From:

Prime Minister's Office, 10 Downing Street, Home Office, Department for Business, Innovation and Skills, The Rt Hon David Cameron MP and Jo Johnson MP

A new duty to stop extremists radicalising students on campuses is scheduled to come into force by 21 September 2015

1. For the first time, universities and colleges in the UK will be legally required to put in place specific policies to stop extremists radicalising students on campuses,…as part of the government's plans to counter extremism.

2. The updated Prevent duty guidance, scheduled to come into force at all UK higher and further education institutions by 21 September, requires establishments to ensure they have proper risk assessment processes for speakers and ensure those espousing extremist views do not go unchallenged…

3. Last year at least 70 events featuring hate speakers were held on campuses, according to the government's new Extremism Analysis Unit, established to support all government departments and the wider public sector to understand extremism so they can deal with extremists appropriately…

4. Prime Minister David Cameron said:

‘I said in July that tackling extremism will be the struggle of our generation, one which we will defeat if we work together.

All public institutions have a role to play in rooting out and challenging extremism. It is not about oppressing free speech or stifling academic freedom, it is about making sure that radical views and ideas are not given the oxygen they need to flourish. Schools, universities and colleges, more than anywhere else, have a duty to protect impressionable young minds and ensure that our young people are given every opportunity to reach their potential. That is what our one nation government is focused on delivering.’

5. As part of this work, the Universities Minister, Jo Johnson has written to the National Union of Students to remind them of their responsibilities in preventing radicalisation and challenging speakers. In the letter he says:

‘Universities represent an important arena for challenging extremist views. It is important there can be active challenge and debate on issues relating to counter terrorism and provisions for academic freedom are part of the Prevent guidance for universities and colleges. It is my firm view that we all have a role to play in challenging extremist ideologies and protecting students on campus Ultimately, the Prevent strategy is about protecting people from radicalisation. It is therefore disappointing to see overt opposition to the Prevent programme…The legal duty that will be placed on universities and colleges highlights the importance that government places on this.’

6. The Business Secretary has also instructed the Higher Education Funding Council for England (HEFCE), as the lead regulator for higher education in England, to monitor universities' implementation and compliance with the duty. Continued failure to comply could ultimately result in a court order.

Notes to editors

7. The Extremism Analysis Unit (EAU) has been established to support all government departments and the wider public sector to understand extremism so they can deal with extremists appropriately. In 2014 there were at least 70 events involving speakers who are known to have promoted rhetoric that aimed to undermine core British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs, held on university campuses.

8. Queen Mary, King's College, SOAS and Kingston University held most events. Events included the hosting of 6 speakers that are on record as expressing views contrary to British values, including Haitham Al-Haddad, Dr Uthman Lateef, Alomgir Ali, Imran Ibn Mansur (aka ‘Dawah Man’), Hamza Tzortis and Dr Salman Butt.

9. Institutions are already required to pay regard to their existing responsibilities in relation to gender segregation, as outlined in the guidance produced in 2014 by the Equality and Human Rights Commission. The Prevent Duty Guidance makes it a legal requirement (Section 29 of the Counter-Terrorism and Security Act 2015). The duty is about protecting people from the poisonous and pernicious influence of extremist ideas that are used to legitimise terrorism.

10. People committing terrorist-related offences while at a UK university:

• Erol Incedal, a law student at London South Bank University (LSBU), who was found guilty of possession of a bomb-making manual, in November 2014

• Afsana Kayum, sentenced in March 2015 to 18 months in jail, for possession of a record containing information useful in the commission of terrorism contrary to the Terrorism Act — Kayum was a law student at the University of East London (UEL) at the time of her arrest

11. People who have attended a UK university and been convicted of their role in terrorism and have likely been at least partially radicalised during their studies:

• Umar Farouk Abdulmutallab, convicted in 2012 of attempted murder and terrorism, after trying to bomb a passenger flight to Detroit in 2009 — during his time at UCL, he had repeatedly contacted extremists who were under MI5 surveillance;

• Roshonara Choudhry, who tried to assassinate the Labour MP Stephen Timms in May 2010 just weeks after dropping out of KCL because of its work with Israeli institutions and its research centre studying radicalisation

12. Radicalised foreign fighters who have studied in the UK:

• Aqsa Mahmood, a radiography student at Glasgow Caledonian University, who dropped out of her course and travelled to Syria in late 2013

• David Souaan, convicted, in December 2014, of preparing for terrorist acts — Souaan was a student at Birkbeck, University of London when he was arrested in May 2014 as he attempted to travel to Syria for a second time

• Rashed Amani, believed to have travelled to Syria in March 2014 — Amani had been enrolled on a Business Studies course at Coventry University

• Zubair Nur, reported to have travelled to Syria in March 2015, after it emerged that Royal Holloway, University of London had contacted his parents to inform them he had not attended lectures since January.”

3

On 26 October 2016, Dr Butt issued proceedings in respect of the Press Release in the Administrative Court. Those proceedings included a private law claim for damages and related relief, together with public law claims for Judicial Review. In the public law claims Dr Butt challenged the lawfulness of the Government's revised Prevent Duty Guidance described in the Press Release, i.e. the guidance issued pursuant to section 29 of the Counter Terrorism and Security Act 2015. Dr Butt's claim for Judicial Review was subsequently dismissed by Ouseley J: see [2017] EWHC 1930 (Admin), a decision that was upheld, save in one limited respect, by the Court of Appeal (The Master of the Rolls, Sharp and Irwin LJJ): see [2019] EWCA Civ 256.

4

The private law claim (or the “Press Release claim” as it became known) included a claim for damages for libel for the publication of the Press Release, as well as claims for breach of statutory duty under section 4(4) of the Data Protection Act 1998 and under section 6(1) of the Human Rights Act 1998. These private law claims were transferred by consent to the Queen's Bench Division on 26 August 2016, to proceed as ordinary civil claims; and it is these proceedings, specifically, the claim for libel, with which this appeal is concerned.

The libel claim

5

In the Particulars of Claim for the purposes of his libel claim, Dr Butt attributed to the Press Release the following natural and ordinary meaning: that [Dr Butt] is an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected. In her Defence, the Secretary of State denied that the Press Release bore that meaning, and contended that the words complained of meant and were understood to mean only that Dr Butt is someone who has expressed views contrary to British values.

6

The Secretary of State also relied on the defence of honest opinion pursuant to section 3 of the Defamation Act 2013 (the 2013 Act). The pleaded Particulars of honest opinion were that (i) insofar as it referred to Dr Butt, the Press Release was a statement of opinion, namely that Dr Butt was someone who has expressed...

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