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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Butt v Secretary of State for the Home Department  EWHC 2619 (QB) (20 October 2017)
Cite as:  EWHC 2619 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Salman Butt
|- and -
|Secretary of State for the Home Department
Aidan Eardley (instructed by Government Legal Department) for the Defendant
Hearing dates: 17th October 2017
Crown Copyright ©
Mr Justice Nicol :
' 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.
 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.
 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].
' 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 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.
 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.
 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.'
'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.'
'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.
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.
The legal principles to be applied
'(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) 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  EWCA Civ 136;  EMLR 17 at .
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 rule' did continue to apply even in the new statutory context.
iii) No evidence is admissible on the issue of meaning, other than the publication itself.
iv) Both parties said that I could, and should take account of the context in which the words complained of appeared. However, since evidence is limited to the publication in question, the relevant context has to be only so much (if anything) as can be inferred about the context from the publication itself plus (so far as relevant) 'matters of universal notoriety … that is to say matters which any intelligent viewer or reader may be expected to know' – Fox v Boulter  EWHC 1435 .
v) In determining the meaning of the words complained of, I am not confined to the alternatives put forward by the parties.
Fact or 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.'
'The statement must be recognisable as comment, as distinct from an imputation of fact: Gatley on Libel and Slander para 12.7. Comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc": Branson v Bower  EMLR 800, 12. The ultimate determinant is how the words would strike the ordinary reader: Grech v Odhams Press Ltd  2 QB 275, 313. The subject matter and context of the words may be an important indicator of whether they are fact or comment Singh's case, paras 26 and 31.'
Reference to basis for opinion
'the second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.'
'the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.'
' There are a number of reasons why the subject matter of the comment must be identified by the comment, at least in general terms. The underlying justification for the creation of the fair comment exception was the desirability that a person should be entitled to express his view freely about a matter of public interest. That remains a justification for the defence, albeit that the concept of public interest has been greatly widened. If the subject matter of the comment is not apparent from the comment this justification for the defence will be lacking. The defamatory comment will be wholly unfocussed.
 It is a requirement of the defence that it should be based on facts that are true. This requirement is better enforced if the comment has to identify, at least in general terms, the matters on which it is based. The same is true of the requirement that the defendant's comment should be honestly founded on facts that are true.
 More fundamentally, even if it is not practicable to require that those reading the criticism should be able to evaluate the criticism, it may be thought desirable that the commentator should be required to identify at least the general nature of the facts that have led him to make the criticism. If he states that a barrister is "a disgrace to his profession" he should make it clear whether this is because he does not deal honestly with the court, or does not read his papers thoroughly, or refuses to accept legally aided work, or is constantly late for court, or wears dirty collars and bands.'
'where the comment identified the subject matter of the comment generically as a class of material that was in the public domain. There was no need for the commentator to spell out the specific parts of that material that had given rise to the comment.'
Potential interdependence of the issues
Meaning: the parties' submissions
Fact or opinion: the parties' submissions
Fact or opinion: conclusion
Whether the press release indicated the basis of the opinion: the parties' submissions and conclusion
The natural and ordinary meaning of the words complained of
Whether the statement complained of was a statement of opinion
If opinion, whether the statement complained of indicated, in general or specific terms, the basis of the opinion