Livingstone v Adjudication Panel for England
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS: |
| Judgment Date | 19 October 2006 |
| Neutral Citation | [2006] EWHC 2533 (Admin) |
| Date | 19 October 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1789/2006 |
[2006] EWHC 2533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/1789/2006
Mr James Maurici (instructed by Mayer, Brown, Rowe and Maw LLP) for the Appellant
Mr Timothy Morshead (instructed by the Solicitor to the Standards Board for England) for Mr Steven Kingston, Ethical Standards Officer
Hearing dates: 4 & 5 October 2006
This is an appeal pursuant to s.79(15) of the Local Government Act 2000 (the 2000 Act) by Mr Ken Livingstone, the Mayor of London, against the decision of a Case Tribunal of the Respondent which decided that the appellant had failed to comply with the Code of Conduct of the Greater London Authority. On 24 February 2006 the Tribunal directed that the appellant should be suspended for a period of four weeks from 1 March 2006. That suspension was itself suspended by Ouseley J pending the determination of this appeal.
The Respondent itself has not appeared but the Ethical Standards Officer (ESO) whose report led to the hearing before the Tribunal and who presented the case against the appellant, has presented arguments in favour of upholding the decision that there has been a failure to comply with the Code of Conduct. He did not present any argument in support of the sanction. This was consistent with his approach to the hearing before the Tribunal, where counsel on his behalf had said:-
"… we can indicate to you now that for our part we will certainly not be pressing you to exercise your powers of, for example, suspension or disqualification in relation to the Mayor, as is plain from the fact that Mr Kingston would otherwise have referred the matter to the Monitoring Officer under paragraph (c)."
The absence of an appearance by the Respondent is consistent with its usual practice, which is to leave to the ESO the task of making representations and adducing arguments to the court on its behalf. But in a letter of 15 March 2006 to the court, the President referred to the fact that 'a large part of the first two days of the Case Tribunal's hearing was taken up with considering the appellant's arguments that the Case Tribunal did not have jurisdiction to deal with the matter because of alleged procedural defects on the part of the ESO who had investigated the matter'. He went on to indicate that there was some dispute whether the Case Tribunal should have considered those arguments and he asked the court, if possible, to give some guidance on the point. Neither counsel had raised the issue in their very helpful and full skeleton arguments and at the outset of the hearing I asked each if he would be good enough to give some thought to it. They helpfully did so, but I am conscious that I have not been asked to nor have I gone into the issue in any depth.
The President of the Tribunal and those who act as chairmen of the Case Tribunal, are, as I understand, legally qualified. Whether or not that is so, it seems to me, that the Tribunal must have the power to ensure that it does have jurisdiction to consider a case and so can decide, if the question is raised, whether there have been any defects of procedure such as to render it unfair or outside the Tribunal's jurisdiction to proceed. It can and should decide, for example, whether to proceed would be so unfair to the individual whose conduct was under investigation as to render it an abuse of the process to proceed. But it must, I think, apply the law as set out in the statutory provisions, which of course include the relevant Regulations and the relevant Code of Conduct, unless the Code in question does not comply with the Regulations. It cannot entertain arguments that go to the vires of any of the statutory provisions: these must be addressed to this court through a claim for judicial review. While I must emphasise that these observations are not based on full argument, I did not understand counsel to dissent from them. Mr Morshead did raise a caveat, with which I agree, that in a given case the Tribunal might properly consider that it was more appropriate for a particular issue to be put to this court by way of judicial review rather than decided by it and so adjourn the hearing for that to be done.
This case arose as a result of a brief interchange between the appellant and a reporter of the Evening Standard, Mr Oliver Finegold, in the evening of 8 February 200The appellant had been hosting a reception at City Hall for Chris Smith, M.P., to mark the twentieth anniversary of his making public that he was gay. The news editor of the Evening Standard had decided that a reporter and a photographer should go to City Hall and wait outside to photograph and try to have words with those leaving the reception. It seems that no other representatives of the media attended and it was, to the appellant's knowledge, rare if not unique for the Evening Standard to have decided that such action should be taken. According to Mr Finegold, when interviewed by the ESO, he had been sent there 'to try and chat to some of the guests that were leaving the City Hall, and to write a nice piece about Chris Smith's party for celebrating twenty years of coming out as being gay'. It is to be noted that no piece, whether nice or otherwise, appeared in the Evening Standard about the reception. It was only because the relevant interchange, which was recorded on tape by Mr Finegold, was leaked to and so reported by another paper that the complaint which led to the Tribunal decision was made.
As he left City Hall when the reception was ended, the appellant was confronted by Mr Finegold and the photographer. The tape commences with the appellant saying:-
"You've got one of me already".
which makes it obvious that he was photographed. The tape, which lasts for 35 seconds overall, continues as follows:-
"OF. Mr Liv(?) … Evening Standard. How did –
[?]. [?someone in the background]
KL. Oh how awful for you.
OF. How did tonight go?
KL. Have you thought of having treatment?
OF. How did tonight go?
KL. Have you thought of having treatment?
OF. Was it a good party? What did it mean to you?
KL. What did you do before? Were you a German war criminal?
OF. No, I'm Jewish. I wasn't a German war criminal-
KL. Ah right.
OF. … I'm actually quite offended by that. So how did tonight go?
KL. Well you might be, but actually you are just like a concentration camp guard. You're just doing it 'cause you're paid to aren't you?
OF. Great, I've got you on record for that. So how did tonight go?
KL. It's nothing to do with you because your paper is a load of scumbags –
OF. How did tonight go?
KL. … It's reactionary bigots …
OF. I'm a journalist. I'm doing my job …
KL. … and who supported fascism.
OF. … I'm only asking for a simple comment. I'm only asking for a comment.
KL. Well work for a paper that isn't …
OF. I'm only asking for a comment.
KL. … that hadn't a record of supporting fascism.
OF. You've accused me …
There is a five second silence on the tape, following which an unidentified person can be heard to make a sound which might be 'right' or humph."
It is clear that Mr Finegold pursued the appellant as he was walking away and should have appreciated that he was not willing to answer any questions. The ESO described what the appellant did as a 'non-verbal indication that he did not want to be interviewed', but went on to say that politicians in high profile roles "must expect to be approached by journalists at inopportune or tiresome moments." In his statement to the Assembly on 14 February 2005, following the passing of a resolution calling on him to apologise for his remarks, the appellant said:-
"The idea that you can pursue someone along the street, when they clearly do not wish to be interviewed by you, barking the same question in your face again and again, that too disfigures journalism."
The ESO quarrelled with the word 'barking', but that is entirely immaterial. The comment made by the appellant was in my view entirely appropriate.
It is important to understand the appellant's frame of mind when confronted by Mr Finegold. He had been the target of the Daily Mail in particular, which was owned by Associated Newspapers who also owned the Evening Standard. In the statement to which I have already referred, he described how he had been persecuted by the Mail Group in particular. Journalists had been despatched to try to obtain comments or information adverse to him from his family and his partner and from neighbours. The conduct he described was disgraceful and has not been disputed by the Mail Group. In addition, he loathed and despised Associated Newspapers because of its past record of pre-war support for anti-Semitism and Nazism and what he regarded as its continuing racist bigotry, hatred and prejudice. Whether or not all would regard that as a reasonable view of the approach of the newspapers owned by Associated Newspapers, it was a view which he honestly held. Part of the bigotry which he believed to exist was an anti-gay attitude. Thus he was suspicious of the motives of the Evening Standard news editor in sending a reporter and a photographer to wait outside the reception, having regard to what it was celebrating, with a view to seeing who had attended it.
While he did not give evidence in person to the Tribunal or speak directly to the ESO, his statements made to the Assembly were in evidence. There was in reality no issue of fact which needed to be decided. There was one matter in dispute, but that was not directly material to the issue...
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