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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hamaiziam & Anor v The Commissioner of Police for the Metropolis [2013] EWHC 848 (QB) (17 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/848.html Cite as: [2013] EWHC 848 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) Rafik Hamaizia (2) Amir Amirani |
Claimants |
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- and - |
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The Commissioner of Police for the Metropolis |
Defendant |
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David Hirst (instructed by Weightmans) for the Defendant
Hearing dates: 10 April 2013
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Crown Copyright ©
Mr Justice Tugendhat :
"Three final defendants have been jailed for their involvement in the lead up to the murder of Marvin Henry. Sentencing took place at the Old Bailey on Thursday 22 December. Rory Faley of Finchley was sentenced for three years for grievous bodily harm and seven years for false imprisonment to run concurrently. Rafik Hamaizia, 19 of North Hill, Highgate was sentenced to three years for grievous bodily harm and six years for false imprisonment to run concurrently. Amir Amirani 21 of Longridge Road, Chelsea was sentenced to 30 months for grievous bodily harm and six years for false imprisonment to run concurrently…
At a previous trial heard earlier this year at the Old Bailey, two further men, McPhee and Irvani were found guilty of the murder of 17 year old Marvin Hill in Mill Hill. On 17 August 2011 Ithai McPhee 22 of no fixed address and Shervin Ivani 20 of St Albans, Hertfordshire were both handed life sentences and ordered to serve a minimum of 30 years each – they were found guilty of murder the same day. They were also sentenced to 12 years for false imprisonment and 3 years for grievous bodily harm to run concurrently. A total of 171.5 years imprisonment have been handed to all five individuals involved in Marvin Henry's murder".
"If and insofar as the words in there natural and ordinary meaning bore and were understood to bear the meaning set out below, they were true in substance and in fact:
5.1 The Claimants were guilty of grievous bodily harm and false imprisonment in relation to their role in the events which led to the murder of Marvin Henry by Ithai McPhee and Shervin Irvani and the Claimants had been imprisoned for those offences.
5.2 On 9 October 2010 a friend of Marvin Henry, Jordan Gharib was held against his will in a North London flat and repeatedly assaulted by a group of youths which included the Claimants.
5.3 The Claimants pleaded guilty to charges of assault and false imprisonment of Jordan Gharib at a trial which was heard together by the charges of murdering Marvin Henry.
5.4 On 17 August the Claimants were convicted of grievous bodily harm and false imprisonments….
5.5 On 22 December 2011 the First Claimant was sentenced to three years imprisonment for grievous bodily harm and six years imprisonment for false imprisonment.
5.6 On 22 December 2011 the Second Claimant was sentenced to 30 months imprisonment for grievous bodily harm and six years for false imprisonment."
APPLICABLE LAW
"52 This Court established in Jameel v Dow Jones that it could be disproportionate to continue proceedings to vindicate a libel, which was initially serious, if the circumstances had changed from those initially thought to apply. The test that this court laid down was whether there was a "real and substantial" tort within the jurisdiction.
53 In Jameel, there was a serious accusation made that two persons were funding terrorists. This appeared in a website publication which was immediately removed and made virtually inaccessible. It was later discovered that only three persons had ever accessed the information while it was on the website. Lord Phillips MR, giving the judgment of this Court, held:
"54 Mr Price's submissions amount, so it seems to us, to asserting that Dow Jones's failure to challenge English jurisdiction stop them from relying at this stage on arguments that could have been advanced in support of such a challenge. We do not accept this. An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. If Dow Jones have caused potential prejudice to the claimant by failing to raise the points now pursued at the proper time, it does not follow that the court must permit this action to continue. The court has other means of dealing with such prejudice. For instance, appropriate costs orders can compensate for legal costs unnecessarily incurred and relief can be made conditional on Dow Jones undertaking not to raise a limitation defence if proceedings are now commenced in another jurisdiction.
55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."
54 This court went on in Jameel in effect to apply the same test in relation to the statements within the jurisdiction as it would have required to be satisfied before giving permission to serve out of the jurisdiction, namely: was there a real and substantial tort within the jurisdiction?
55 In the earlier case of Schellenberg v BBC [2000] EMLR 296, Eady J held that, in deciding whether defamation proceedings should be struck out as an abuse of the process of the court, the relevant question was whether "the game was worth the candle". This approach had been approved by this court in Wallis v Valentine [2003] EMLR 175. Eady J could not accept:
"that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."
56 Eady J accordingly put the test, which was later developed in Jameel, in an accessible way. He captured the point that, while the court must provide a remedy in a case that requires one, the process of the court should not be used in a case where the need has gone away. The expression of Eady J is illuminating and convenient. We, therefore, follow counsel in adopting the words he used to denote the Jameel test."
"The governing principles relevant to meaning . . . may be summarised in this way:
(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 being 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'."
"At any time the court may decide –
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant."
"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused."
ABUSE OF PROCESS – EXTENT OF PUBLICATION
The evidence
"McPhee, Hamaizia, Faley and Irvani were arrested between 28 October 2010 – 19 January 2011. All four men were subsequently charged with Marvin Henry's murder and remanded into custody. Amirani was later arrested on 10 February 2011 and charged on 17 March 2011 with false imprisonment kidnap and serious assault, and remanded into custody."
"The material on this page is for media organisations only. …"
"there was a hung jury in relation to our client and Mr Faley's verdict. Thereafter the murder charges against our client and Mr Failey were dropped and no further action was taken against our client in relation to Marvin Henry".
"7.2 We can also confirm that Marvin Henry's murder trial was held concurrently with a trial involving another individual, Jordan Gharib [the parties adopt different spellings of the victim's name], who was falsely imprisoned and assaulted. This attack took place approximately 3 weeks before Marvin Henry's murder and involved our client, Mr Faley, Mr Irvani, Mr McPhee and along with Amir Amirani, who was not involved in the Marvin Henry proceedings.
7.3 Whilst our client pleaded guilty of the charges of false imprisonment against Mr Gharib, as some of the other individuals denied these charges they were tried in relation to the same. We understand that the decision was taken that the trials in relation to Mr Henry and Mr Gharib should be held at the same time as a number of the same individuals were involved…
7.8 The overall impression upon reading the Publications [i.e. those of 18 and 19 August 2011 complained of in that letter] is that our client was imprisoned as a result of his involvement in the Marvin Henry murder, for which there is no bane or antidote.
7.9 You will appreciate the distinction and significance of reporting that our client was convicted of murder when he was not. You will also appreciate that the Publications have caused our clients significant distress and put his safety at risk.
7.10 Our client was forced into segregation for his own safety and has also been transferred to a different prison … (i.e. to avoid our client meeting Mr Henry's friends in the prisons serving London) as a result of the Publications…
"the Defendant published the press release intending that its contents would be republished by media organisations and the First Claimant and Second Claimant will rely upon such republications consequent on the press release [but none are identified in the pleading]"
"it is admitted that on 23 December 2011 the Defendant published a limited circulation press release … to local and national newspaper, news desks and crime reporters, news agencies, broadcasters, partner agencies and the office of London Mayor".
"The Metropolitan Police press release dated 23 December 2011 was provided to us by a media organisation following the submission by us of a letter of claim to that media organisation. The media organisation sought to rely upon a statutory qualified privilege defence under Section 15 paragraph 9 of Schedule 1 part 2 of the Defamation Act 1996 as to the media article being a fair and accurate copy of a notice issued for the benefit of the public on behalf of an authority performing a government function".
"In relation to the press release [dated 23 December 2011] our understanding is that this document was prepared in order to brief other media agencies about the convictions of the Claimant and his associates and was not accessible by the general public. In those circumstances we have asked you to provide us with information as to how you gained access to this document. To date you have failed to respond".
"It is accepted that the headline … '3 Jailed for Murder of Marvin Henry" is inaccurate. We would contend, however, that the text within the article is not …
On any analysis the murder of Henry and the false imprisonment and assault of Gharib were linked. Gharib was one of Henry's close friends. It was the prosecution case that he was held against his will and assaulted by associates of Irvani, including your client when he refused to agree to set up Henry. Two weeks later Marvin was murdered. It is facile to assert, as you do, that both offences were prosecuted together simply because they involve the same group of defendants.
That said, we would re-emphasise that publication had a limited circulation to the media and so far as we can ascertain none of the subsequent reports of the convictions in the media made any suggestion that the Claimant was sentenced for the murder of Henry…"
"Marvin Henry was involved in a gang feud with an associate of the Claimants, Shervin Irvani. Mr Gharib was apparently seen as a means of getting to Marvin Henry, although the false imprisonment did not result in Mr Henry being accosted. He was eventually murdered by Shervin Irvani and Ithai McPhee, another of the Claimants' associates, on 27 October 2010, some three weeks after Jordan Gharib was held against his will…
The factual position is that the Claimants pleaded guilty to falsely imprisoning and assaulting a man, along with their associates, with the intention of entrapping a friend of that man to settle a score against him".
"the Claimants offer no evidence whatsoever that the press notice dated 23 December 2011 was actually published to anyone… [it] was only available online for a short period of approximately one month… the Claimants have not suggested that any media report named them as having been responsible for the murder of Marvin Henry, and I can confirm that investigations by this firm found none… [para 15] … furthermore, the width of any publication is a relevant factor to any consideration of abuse of process. The court must consider all the circumstances of the claim and the publication. In this instance, the press notice complained of was published for a comparatively short period of time of around a month. There is no evidence that any of those with the ability to access the press notice did so… there is no evidence that any report identified either of the claimants in the manner pleaded in the Particulars of Claim, namely as a murderer of Marvin Henry. … [para 26]"
Discussion
MEANING
ABUSE OF PROCESS – REPUTATION
CONCLUSION