Dr Salman Butt v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 20 October 2017 |
| Neutral Citation | [2017] EWHC 2619 (QB) |
| Docket Number | Case No: HQ16X03656 |
| Court | Queen's Bench Division |
| Date | 20 October 2017 |
[2017] EWHC 2619 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: HQ16X03656
Lorna Skinner (instructed by Bindmans, LLP solicitors) for the Claimant
Aidan Eardley (instructed by Government Legal Department) for the Defendant
Hearing dates: 17 th October 2017
The Claimant is the Chief Editor of Islam 21C, a publicly accessible website which describes itself as 'articulating Islam in the 21 st Century'. It hosts articles written by the Claimant and others. He describes himself as holding conservative religious views, but not extremist views. He also says that he has spoken at a number of universities at the invitation of student Islamic societies.
In September 2015 the government published a press release ('the press release') with the title 'PM's Extremism Taskforce: tackling extremism in universities and colleges top of the agenda.' It referred to work by a government body called the Extremism Analysis Unit ('EAU') and government plans for a 'new duty to stop extremists radicalising students on campuses'.
The press release continued (the parties have helpfully added paragraph numbers which, while not in the original, make reference easier and which I also include):
'[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, tackle gender segregation at events and support students at risk of radicalisation 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 educational 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. The guidance also sets out that institutions must have appropriate IT policies, staff training and student welfare programmes in place to recognise and respond to signs of radicalisation. This is all part of the government's one nation strategy to confront and ultimately defeat the threat of extremism and terrorism, top of the agenda today at the first Extremism Taskforce meeting of this Parliament chaired by the Prime Minister.
[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….'
[Paragraph 4 was a quotation from the Prime Minster, David Cameron about the importance of public institutions challenging extremism. Paragraph 5 had a quotation from the Universities Minister, Jo Johnson, who had written to the National Union of Students on the same subject].
'[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.'
The press release then included a section headed 'Notes to editors' which in part said the following:
'[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 College, 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.'
Paragraph 10 gave examples of people who had committed terrorist related offences while at a UK university. Paragraph 11 gave examples of people who have attended a UK university, had been convicted of their role in terrorism and who were likely to have been at least partially radicalised during their studies. Paragraph 12 named some radicalised foreign fighters who had studied in the UK.
The Claimant began proceedings in the Administrative Court challenging the lawfulness of the government's revised Prevent Duty Guidance (as referred to in the press release) as well as asserting private law remedies for libel, breach of statutory duty under the Data Protection Act 1998 and a claim under the Human Rights Act 1998. By a consent order dated 25 th August 2016, the private law claims were transferred to the Queen's Bench Division to continue as a claim under CPR Part 7. As it happens, the remainder of the public law claim was dismissed by Ouseley J. on 26 th July 2017 (see R (Butt) v Secretary of State for the Home Department [2017] EWHC 1930 (Admin), [2017] 4 WLR 154).
For the purposes of the libel claim, the Claimant's Particulars of Claim set out the terms of the press release and pleads that in their natural and ordinary meaning the words complained of meant and were understood to mean that,
'the Claimant 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 Defendant says that in their natural and ordinary meaning the words complained of meant and were understood to mean that
'the Claimant is someone who has expressed views contrary to British values.'
She does not admit that the words did, or were likely to, cause the Claimant serious harm and, accordingly, she does not admit that they were defamatory of him.
While this is the Defendant's primary position, her second line of defence relies on the defence of 'honest opinion'. Formerly known at common law as the defence of Fair Comment, it has now been replaced by the statutory defence in the Defamation Act 2013 s.3. The Defendant relies on the meaning just set out, but also seeks to defend as honest opinion, if 'the words bore the meaning contended for by the Claimant (or some variant thereof)'. The defence does not plead truth nor publication on a matter of public interest.
On 14 th July 2017 Senior Master Fontaine ordered that there should be a trial of the following preliminary issues:
i) The natural and ordinary meaning of the words complained of;
ii) Whether the statement complained of was a statement of opinion;
iii) If opinion, whether the statement complained of indicated, in general or specific terms, the basis of the opinion.
It was this trial which I heard on 17 th October 2017.
The legal principles to be applied
There was little dispute of substance between the parties as to the legal principles which I should apply.
Meaning
The principles are captured by the well-known passage in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14] where Sir Anthony Clarke M.R. said,
'(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive 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 a man who is not avid for scandal 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 read the publication in question. (7) In determining the range of permissible defamatory meanings, the court should rule out any meaning which "can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation…"…(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"'.
I add the following:
i) My task is not to identify a range of permissible meanings (see Jeynes principle (7)), but to determine what meaning or meanings the press release in fact had. However, while the end result of the exercise is more refined, the approach is still the same – see Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17 at [17].
ii) In ordinary discourse, it is common to speak of the same words meaning different things to different people. The common law set its face against that. It gave juries (and now, most usually, judges) the task of determining the meaning which the words complained of bore. This, 'the single meaning rule' is now well established. The Defendant has pleaded that this rule has not been carried over into the statutory honest opinion defence. However, Mr Eardley on the Defendant's behalf did not ask me to rule on that contention at the present hearing. He was content for me to proceed on the basis that the 'single meaning...
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