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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butt v The Secretary of State for the Home Department [2019] EWCA Civ 933 (06 June 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/933.html Cite as: [2019] EMLR 23, [2019] EWCA Civ 933 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LADY JUSTICE SHARP
and
SIR RUPERT JACKSON
____________________
DR. SALMAN BUTT |
Appellant |
|
- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
AIDAN EARDLEY (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 20 October 2018
____________________
Crown Copyright ©
Lady Justice Sharp:
Introduction
"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
…
'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.'
'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.'
Notes to editors
- 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
- 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
The libel claim
Meaning
"(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 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) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce 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."
"As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested [in Bukovsky], I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the trial judge's conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as "plainly" or "quite" satisfied…if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere."
"It appears to me to be particularly important where, as here, a judge is providing written reasons for his conclusion as to the meaning to be attributed to the words sued upon, that he should not fall into the trap of conducting an overly-elaborate analysis of the various passages relied on by the respective protagonists. The parties are entitled to a reasoned judgment but that does not mean that the court should overlook the fact that it is ultimately a question of the meaning which would be put on the words …by the ordinary reasonable reader…The exercise is essentially one of ascertaining the broad impression made on the hypothetical reader by the (words) taken as a whole."
"31. Reading the press release as a whole an obvious link is drawn between paragraphs 3 and 7. Both speak of the EAU's analysis of 70 events at institutions of Higher Education. In my view the reasonable reader would understand the press release to be characterising the speakers at those events as 'hate speakers' and 'extremists'. The Claimant is among the speakers who are then identified in paragraph 8. The description of the Claimant's views as being 'contrary to British values' does not, in my view, detract from the point which Miss Skinner makes that, reading the press release as a whole, he was also being characterised as a hate speaker and an extremist.
32. I agree that paragraph 9 is talking about ideas, but, coming immediately after paragraph 8, the reasonable reader would draw the obvious inference that the Claimant is one of those who has promoted the ideas which are described as 'poisonous and pernicious' and in relation to which the new Guidance is directed."
"…it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that."
Honest opinion
"Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, the proceedings in courts of justice or in Parliament, or the publication of a scheme or of a literary work."
"The defence of fair comment is now recognised to be one of the most valuable parts of the law of libel and slander. It is an essential part of the greater right of free speech. It is the right of every man to comment freely, fairly and honestly on any matter of public interest, and this is not a privilege which belongs to particular persons in particular circumstances. It matters not whether the comments are made to the few or to the many, whether they are made by a powerful newspaper or by an individual, whether they are written or spoken: the defence that the words are fair comment on a matter of public interest is open to all. When defendants who wish to rely upon this defence are deprived of it, the importance of the matter is manifest to all; and the character of the defence, as I have just summarized it, is not without importance in the consideration of the facts in the present appeal.
It is now very well established that this defence of fair comment has a wide application. In Merivale v. Carson [(1887) 20 QBD 275 at 280][2] Lord Esher, M.R., made this plain in what is now a celebrated passage: "Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment ... mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this: would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?"
"I do not think it is possible to lay down any rule of universal application. If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and who has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case. It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded. But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply. Comment may then be made without setting out the facts on which the comment is based if the subject-matter of the comment is plainly stated. This seems to me to accord with good sense and the true public interest."
"Honest opinion
(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of was a statement of opinion.
(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
…
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the statement complained of was published by the defendant but made by another person ("the author"); and in such a case the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold that opinion.
…
(8) The common law defence of fair comment is abolished and, accordingly, section 6 of the Defamation Act 1952 (fair comment) is repealed."
"21. 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. As an inference of fact is a form of opinion, this would be encompassed by the defence."
"[Comment is] to be taken as meaning something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark or observation."
"Insofar as the final sentence in the review might be said to be capable of being read as a statement of fact, it was patently intended as a summary of and a commentary on the factual description of the opera set out in the preceding part of the review…The final sentence in the review was patently drawing an inference from the facts which had been set out earlier in the review, and on the principles approved by the House of Lords in Kemsley v. Foot [1952] A.C. 345 it was unmistakeably comment."
"Comment may sometimes consist in a statement of fact, and may be held to be a comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to."
"33. Miss Skinner argues that the words complained of were an assertion of fact and not opinion. She argues that the context was a press release and not a newspaper comment or editorial. Its purpose was to disseminate information rather than provide opinion. The reader would understand it to be factual in nature. The measures which the press release announced implied that the object of those measures and extremism were matters of fact which were capable of identification. Paragraph 7 was also couched as an assertion of fact, rather than opinion. The phrase in paragraph 8 that the Claimant is 'on record as expressing views contrary to British values' again suggests a factual statement about the Claimant's statements.
34. Mr Eardley submits that the press release was expressing an opinion on how the Claimant's views could be characterised. These were views which were 'on record' a phrase which he submitted would be understood as meaning in the public domain. As such, they were, like the publicly expressed views of Sarah Keays, a subject for comment by others. Mr Eardley argued as well that whether views conformed to British values, or were extremist was necessarily a matter of opinion and judgment. People might disagree about the characterisation, but they were inevitably value laden. The press release included the Claimant's name on the basis of the work of the EAU, but it was not the EAU which would have the task of making a definitive determination as to whether the Claimant was someone whose views triggered the new Prevent duty. That would be the task of the HEFCE, but even its role was an evaluative one. The source of the press release was the government, but that did not help the Claimant since a government publication (including a press release) could also include opinion.
Fact or opinion: conclusion
35. In my judgment the words complained of by the Claimant were opinion. I agree with Mr Eardley's submissions. I was not persuaded by Miss Skinner's argument that the phrase 'on record' was ambiguous as to whether it meant publicly available, or on record with the EAU. The test is how that phrase would appear to the ordinary reader. In my view, such a reader would, as Mr Eardley argued, understand the term 'on record' to be a reference to the Claimant's publicly stated views. The press release was commenting or expressing an opinion on those views. That was the case in the immediate context in which the Claimant's name appeared in paragraph 8. The opinion (in that immediate context) was that the Claimant's views were contrary to British values. In my view that conclusion is even clearer in respect of the wider meaning of the words complained of for which the Claimant contends and which I have said the words did indeed bear. Thus, whether someone is a 'hate speaker', an extremist, or someone from whose ideas students need protection are all necessarily matters of opinion.
36. It is nothing to the point that the HEFCE may have to make a determination as to whether an institution has complied with its duties under the new guidance. First, I have to judge the words of the press release, not some hypothetical determination by the HEFCE. Next, any such determination by the HEFCE might itself involve a process of evaluation. In any case, the issue before me arises in the context of a private law action for libel. It is whether the condition in Defamation Act 2013 s.3(2) is satisfied, not whether a determination is one to which a decision maker could legitimately come as a matter of public law."
"Since the subject matter of the press release was the risks posed by speakers on university campuses, the reader would understand this to be a reference to the Claimant's publicly expressed views on social, religious, political or moral issues, since these are the kinds of matters which would be likely to be debated at a university or college. The allusion to the Claimant's publicly available views was brief, but then so too was the allusion to the works of Lord Kemsley in Kemsley v Foot and, as Joseph v Spiller made clear, it is not necessary for the defendant to have specified the foundation for his comment with such clarity that the reader can make his own assessment of the comment's validity."
Sir Rupert Jackson:
Lord Justice Underhill:
Note 1 Report of the Committee on Defamation (Cmnd 5909) 1975.
[Back] Note 2 The passage was also cited in the summing up of Lord Hewart CJ in Stopes v Sutherland House of Lords, Printed Cases, 1924, p.375. [Back]