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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Turkington and Others v. Times Newspapers Limited (Northern Ireland)  UKHL 57 (2nd November, 2000)
Cite as:  EMLR 1,  4 All ER 913,  3 WLR 1670,  2 AC 277,  UKHL 57,  UKHRR 184,  NI 410, 9 BHRC 497
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Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Cooke of Thorndon Lord Millett
TURKINGTON AND OTHERS (PRACTISING AS McCARTAN TURKINGTON BREEN)
TIMES NEWSPAPERS LIMITED
ON 2 NOVEMBER 2000
LORD BINGHAM OF CORNHILL
On 24 January 1995 The Times published an article relating to the subject of a press conference which had been held the day before. The press conference had been organised by an informal Committee formed to secure the release and vindication of Private Lee Clegg, who had been convicted of serious criminal offences allegedly committed while he had been serving as a private soldier in the Parachute Regiment in Northern Ireland. He had been sentenced to life imprisonment and to a concurrent term of 4 years'. The Times article made critical reference to the plaintiffs in these proceedings, a firm of solicitors practising in Belfast ("the solicitors") who had represented Mr. Clegg at his trial and on his unsuccessful appeal to the Court of Appeal in Northern Ireland. In these proceedings the solicitors sued Times Newspapers Limited as publishers of The Times ("the newspaper"), claiming damages for libel. They succeeded before Girvan J. and a jury, and again on the newspaper's appeal to the Court of Appeal. Although other issues were canvassed before the trial judge and the Court of Appeal, the newspaper's appeal to this House raises only the question whether the judge and the Court of Appeal were right to rule, as they did, that the newspaper was not in all the circumstances entitled to rely on the defence of qualified privilege afforded by section 7 of and paragraph 9 of the Schedule to the Defamation Act 1955 of Northern Ireland. This question has been sub-divided into two issues for decision, which are set out below.
The lucid and comprehensive judgment of the Court of Appeal delivered by Carswell LCJ ( N.I. 358) gives a full account of the facts giving rise to this appeal as understood by that court. I give only the barest summary needed to understand the issue.
The membership of the Clegg Committee included some former senior officers in the Parachute Regiment; Mr. McKay, Mr. Clegg's English solicitor who had by this time taken over his representation; a clerical supporter of Mr. Clegg; and Lord St. Oswald. They decided to hold a press conference to drum up support for Mr. Clegg at Lord St. Oswald's home in Yorkshire on 23 January 1995. Representatives of the press were invited to attend. One of those who did attend was Mr. Wilkinson, the northern correspondent of The Times, who was despatched by his newsdesk to cover the conference and in due course wrote (with others) the article complained of. Among others who attended was a Mr. Barker, a former member of the Parachute Regiment, who was not a journalist: he read of the forthcoming press conference in his local paper, spoke on the telephone to Lord St. Oswald, and attended at the press conference without any objection being taken to his presence. It is not entirely clear on the evidence how many people attended the press conference. It would seem that there were about thirty journalists and a number of others, but the numbers may have been greater. No check was made on the identity or credentials of those attending the meeting, and no one was turned away. A press release was made available to all those attending but was not read aloud during the proceedings, although brief reference was made to it orally by one of the speakers. Copies of a petition in support of Mr. Clegg were given out for signature by those who wished to sign. When the press conference began, statements were made by members of the Committee, including Mr. McKay, some of whose observations were critical of the solicitors, although he modified these to some extent on being pressed. Those attending were invited to ask questions or make statements. A number of questions were asked, including several by Mr. Barker, and observations were made. After the questions were over, a number of journalists, including Mr. Wilkinson, approached the top table to speak to members of the Committee individually and Mr. Wilkinson took the opportunity to put some further questions to Mr. McKay concerning criticisms of the solicitors made in the press release.
A measure of statutory protection has been granted to newspaper reports of proceedings of public meetings for over a century. Section 2 of the Newspaper Libel and Registration Act 1881 provided:
This provision was replaced by a more elaborate provision in section 4 of the Law of Libel Amendment Act 1888, which so far as relevant provided:
To give effect to the Report of the Committee on the Law of Defamation (Cmd. 7536) chaired by Lord Porter, the Defamation Act of 1952 was enacted: this Act did not (save for one section) extend to Northern Ireland, but was followed in Northern Ireland by the Act of 1955, which governs this case and which was in terms indistinguishable for present purposes from the English Act. It repealed section 4 of the 1888 Act. Section 7 of the 1955 Act, corresponding to section 7 of the 1952 Act, provided:
The Schedule referred to was in two parts. Part I listed newspaper statements privileged without explanation or contradiction. These were reports of proceedings in certain legislatures, international organisations and courts, Commonwealth courts, courts martial and official public inquiries, and certain official documents. Part II listed statements privileged subject to explanation or contradiction. Paragraph 9, the provision at the heart of this appeal, extended such privilege (subject to section 7) to:
The other paragraphs in Part II extended the same privilege to the findings and decisions of certain learned, professional, commercial and sporting bodies; to reports of proceedings at certain specified meetings and sittings provided they were not meetings or sittings "admission to which is denied to representatives of newspapers and other members of the public"; to reports of proceedings at general meetings of certain public corporations; and to reports or summaries of official notices issued for the information of the public. In both parts of the Schedule privilege was conditional upon the report being fair and accurate.The Judge's Ruling
Relying on earlier Northern Ireland authority, Girvan J. held that "a press conference specially called by a number of individuals to give publicity to their views and plans is not a public meeting." The nub of his reasoning is found in the following paragraph.
The judge was accordingly satisfied that the evidence did not establish that Mr. Wilkinson had attended and reported on a public meeting falling within paragraph 9. He also held that Mr. Wilkinson's article was not in any event a report of the meeting, since it included material which had been contained in the press release and obtained from Mr. McKay personally but which had not been aired in the general part of the proceedings. This conclusion he expressed in this way:
The judge accordingly instructed the jury as a matter of law that the meeting Mr. Wilkinson had reported on was not a public meeting and therefore that the occasion was not a privileged one. The solicitors were accordingly entitled to succeed on liability and the only issue for the jury was damages.
The Court of Appeal Judgment
The Court of Appeal's judgment contains a number of findings helpful to the newspaper. It concluded that a press conference could constitute a meeting for purposes of paragraph 9: a meeting was no more than an assembly of persons who had gathered together (although I would, for my part, understand the expression to connote some degree of organisation or pre-arrangement to bring the meeting about). It held that the part of the article which retailed what had been said at the press conference qualified as a report for purposes of the paragraph; it did not matter that the article also contained material not relating to the press conference. The court noted the absence of any suggestion that the meeting had not been bona fide or not lawfully held for a lawful purpose. It held it to be "indisputable" that the question of Mr. Clegg's conviction constituted a matter of public concern. The court was of opinion that questions of fairness and accuracy would have been questions for the jury, had the newspaper otherwise been entitled to privilege. The court expressed some doubt about the construction of the expression "furtherance or discussion of any matter of public concern" but said:
The court accordingly concluded that the fact that the press conference was avowedly called to assist the cause of the campaign in favour of Mr. Clegg's release did not of itself take it outside the definition in paragraph 9 of a public meeting. But on the central question giving rise to this appeal the court agreed with the trial judge. It held (at p. 373):
The court rejected a submission by the newspaper that the term "restricted" at the end of paragraph 9 was intended to refer to a section of the public as distinct from the public as a whole. The court expressed the opinion (at p. 373) that:
The court inclined to the view (at p. 376) that the portion of the article which retailed a passage of the press release not repeated during the press conference itself was not a report of the proceedings; nor was anything said to Mr. Wilkinson by Mr. McKay in their conversation part of the report, since the court considered that the press conference had ended before that time.
The First Issue
The first and major question for decision is one of statutory construction: whether the press conference on 23 January 1995 was a public meeting within the meaning of section 7 of and paragraph 9 of the Schedule to the 1955 Act.
Lord Lester of Herne Hill Q.C. for the newspaper criticised the construction of paragraph 9 adopted by the judge and the Court of Appeal as narrow, technical and liable to infringe the freedom of expression which should be enjoyed by the press. He urged that a broad, realistic and contemporary construction should be given to paragraph 9, relying on the development of our common and statute law, the European Convention, the Human Rights Act 1998 and the recognition by courts, here and abroad, of the crucial role of the press in contributing to the proper functioning of a modern democratic society. While the right of freedom of expression could never be absolute, and the need to protect personal reputations against unjustified attack called for a measure of legal protection, such protection was given by section 7 and paragraph 9 on the construction contended for. A meeting was to be regarded as public if those who arranged it showed an intention that it should be so, whether by inviting members of the public or some of them to attend or by inviting the press with a view to securing wider publicity for the proceedings. On the facts here it was plain that the meeting was intended to be public. The closing words of paragraph 9 ("whether the admission . . . is general or restricted") were to be read as words of extension, not limitation: if a meeting was otherwise public it mattered not whether the public at large or only some of the public were invited or free to attend. The judge and the Court of Appeal had put too narrow a construction on those words also.
Mr. Lavery Q.C. for the solicitors supported the construction adopted by the judge and the Court of Appeal. The European Convention and the Human Rights Act had no bearing on the construction of section 7 and paragraph 9, which were not curtailing but extending the right to free expression. The issue concerned the scope of that legislative extension. A public meeting was a meeting of members of the public attending as such in response to an invitation by the organisers of the meeting. A press conference was something different. Both the Faulks Committee in 1975 in its Report on Defamation (Cmnd. 5909) and the Irish Law Reform Commission in its Report on The Civil Law of Defamation in 1991 had recommended the extension of statutory qualified privilege to cover some press conferences. Neither recommendation had been given legislative effect. It was not for the courts to grant a privilege which Paliament had declined to grant, despite an opportunity to do so in the Defamation Act 1996.
I am of the clear opinion that the press conference held on 23 January was a public meeting within the meaning of section 7 and paragraph 9. I reach that conclusion for these reasons.
1. In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.
2. Sometimes the press takes the initiative in exploring factual situations and reporting the outcome of such investigations. In doing so it may, if certain conditions are met, enjoy qualified privilege at common law, as recently explained by this House in Reynolds v. Times Newspapers Limited  3 WLR 1010. In the present case the role of the press is different. It is that of reporter. The press then acts, in a very literal sense, as a medium of communication. Since 1881 a series of statutory provisions cited above has granted newspapers qualified privilege in relation to certain reports in certain closely defined circumstances. By section 7(1) of the 1955 Act the protection is granted only to a report published in a newspaper as defined. The privilege is not granted to the author of the statement complained of, who is liable if the statement is defamatory unless he has some other defence. The privilege is lost if malice is proved. By section 7(2) the enjoyment of qualified privilege is conditional on the grant of a right of reply to the complainant, if the case falls within Part II of the Schedule. By section 7(3) there is no privilege if the publication is of a matter the publication of which is prohibited by law, or if the matter published is not of public concern or if its publication is not for the public benefit. By section 7(4) any privilege enjoyed at common law is preserved. The reports of proceedings privileged under Part I of the Schedule have to be fair and accurate and have (subject to one very limited exception) to be of proceedings in public. The reports privileged under Part II of the Schedule have also to be fair and accurate: further safeguards are provided by close definition (save in paragraph 9) of the bodies whose findings, decisions or proceedings are the subject of report. In paragraph 9, the privilege covers only fair and accurate reports of proceedings at a public meeting held in the United Kingdom, and then only if the meeting is bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern. The grant of privilege inevitably deprives a complainant of a remedy he would otherwise enjoy if a defamatory statement is made concerning him, but section 7 and paragraph 9 give a very considerable measure of protection to those liable to be injured.
3. The effect of the legislation in 1955 was to grant qualified privilege to newspaper reports of public meetings, subject to the stringent conditions just noted. This grant (as in 1881, 1888 and 1952) must have been intended to enable citizens to participate in the public life of their society, even if only indirectly, in an informed and intelligent way. Since very few people could personally witness any proceedings or attend any meeting in question, it was intended to put others, by reading newspaper reports, in a comparable position. The privilege was not extended to newspaper reports of the proceedings of private bodies and private meetings, because those are proceedings which by definition the public do not witness and to which the public do not have access: the object was not to put the newspaper reader in a better position than one who was able to attend the proceedings or meeting in person.
4. Although the 1955 reference to "public meeting" derives from 1888, it must be interpreted in a manner which gives effect to the intention of the legislature in the social and other conditions which obtain today. The statutory language does not, despite the words "that is to say", define what is meant by "public", but limits the categories of public meeting whose proceedings may be entitled to privilege. I see no warrant in the statutory language for the nexus test adopted by the judge and the Court of Appeal. Thus "public", a familiar term, must be given its ordinary meaning. A meeting is public if those who organise it or arrange it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. Press representatives may be regarded either as members of the public (as made clear by the language of paragraph 10 of the Schedule) or as the eyes and ears of the public to whom they report. A meeting is private if it is not open to members of the public and if it is not intended that the proceedings of a meeting should be communicated to the public, unless perhaps by the body which holds the meeting. The closing words of paragraph 9 are intended to make clear that a meeting is not to be regarded as other than public because admission is not open to all members of the public but is subject to some restriction. A press conference, attended by members of the press and perhaps other members of the public, has become an important vehicle for promoting the discussion and furtherance of matters of public concern, and there is nothing in the nature of such a conference which takes it outside the ordinary meaning of "public meeting."
5. Everything points towards the public character of the press conference in issue here. The object was to stimulate public pressure to rectify what the Committee as promoters of the conference saw as a grave miscarriage of justice, and publicity was the essence of the exercise. A general invitation to attend was issued to the press. While the attendance of other members of the public was not solicited, nor was admission denied to anyone, journalist or non journalist. Both journalists and other members of the public in fact attended in significant numbers. A public meeting need not involve participation, or the opportunity for participation, by those attending it, but here the opportunity to ask questions and make statements was extended to those attending. Save that the meeting was held at Lord St. Oswald's home, there was nothing whatever private about it.
The Second Issue
The second issue is whether a part of the newspaper article which included a passage from the Committee's press release not read aloud at the meeting was a report of the proceedings of "a public meeting."
The solicitors supported the view, adopted by the judge and favoured by the Court of Appeal, that this passage, not ventilated at the press conference, could not be the subject of a report of the meeting. The newspaper challenged that view, relying on Sharman v. Merritt and Hatcher Limited (1916) 32 T.L.R. 360 and SmithKline Beecham Biologicals SA v. Connaught Laboratories Inc.  4 All ER 498.
It has become very general practice, not least in legal proceedings, for materials to be reduced to writing and read by the reader to himself when in times past those materials would have been read aloud and at length. The procedure adopted at this conference is a good illustration of the practice. The contents of the press release could have formed the subject of an opening statement by a member of the Committee, but by communicating those contents in written form the time of the audience was saved and press representatives were able to leave with a reliable written record of the Committee's contentions and plans. It seems clear that the press release was treated by the Committee as read even though not read aloud. When a speaker made reference to paragraphs in the press release he did not think it necessary to identify the document he was referring to, but did assume that the questioner would have it. In my view the contents of the press release were as much part of the proceedings of the press conference as if they had been read aloud during the meeting. In the two cases cited, reference was made, albeit unrevealingly, to the materials in question, but for present purposes I do not regard express reference as necessary. The test is whether, assuming the meeting to have been public, the contents of the written press release formed part of the materials communicated at the meeting to those attending. On the present facts, that test was clearly satisfied.
Anything said by Mr. McKay to Mr. Wilkinson, one to one, after the general press conference had broken up, would not form part of the meeting and could not be the subject of a privileged report, unless it repeated the effect of what had been said at the meeting or written in the press release.
I would allow the newspaper's appeal on both issues and quash the orders of the Court of Appeal and the judge in favour of the solicitors.
Since no finding has been made on the fairness and accuracy of the newspaper's report, and it is common ground that this is an issue to be determined by a jury (subject to appropriate judicial direction), I would remit the case to the Queen's Bench Division of the High Court in Northern Ireland for further directions and such further hearing as is ordered. If further directions are required concerning issues other than the fairness and accuracy of the report, directions can be given on those matters also. Questions were raised in argument before the House concerning the respective roles of judge and jury in a case where a statutory defence of qualified privilege is advanced, apart from the issue of fairness and accuracy, but there was no ground of appeal or cross- appeal relating to this matter, no detailed argument was (quite properly) directed to it and the House did not examine the relevant authorities. I would decline to express an opinion on the matter.
The newspaper must have its costs of the appeal to this House, and in the Court of Appeal. The costs of the first trial before Girvan J. should abide the event of the re-trial, unless ordered otherwise by the Queen's Bench Division.
I am in full agreement with the opinion and reasons of my noble and learned friend Lord Bingham of Cornhill. Given the importance of the issues I will nevertheless summarise the reasoning which led me to this conclusion.
The genesis of the libel proceedings
The background to the publication in The Times of 24 January 1995 of an article, which led to libel proceedings in Northern Ireland by the solicitors of Private Clegg against The Times, was as follows. On 30 September 1990 at a checkpoint in Belfast Private Clegg fired shots at a car which drove through the checkpoint. The driver and a passenger were shot dead. On 4 June 1993 Clegg was convicted of the murder of the passenger and sentenced to life imprisonment. On 30 March 1994 and 19 January 1995 the Court of Appeal and the House of Lords respectively dismissed Clegg's appeals. The conviction of Clegg was a matter of acute controversy and considerable public concern throughout Britain. By January 1995 there was in existence a committee, called the Clegg Committee, which had been formed to campaign for the release and ultimate acquittal of Private Clegg. The Clegg Committee used the media to enlist public support for this campaign. They were trying to correct what they considered to be a miscarriage of justice. By mid January 1995 the Clegg Committee had obtained about 30,000 signatures to a petition in support of the campaign. On 23 January 1995 the Clegg Committee organised a large scale press conference near Wakefield in furtherance of the campaign. Notices of the press conference had been sent to the Press Association and to individual newspapers, television and radio organisations throughout Britain. Between 50 to 80 people attended the press conference. Reporters from most broadsheets and tabloid newspapers were present. Local papers were also represented. Journalists from television and radio organisations were in attendance. In addition there were some members of the public present. Access to the meeting was not restricted in any way. At the meeting a press release was distributed, statements were made and questions were answered. Defamatory statements were made concerning the solicitors' defence of Private Clegg. On the next day The Times reported those statements. This led to the libel proceedings.
The legal proceedings in Northern Ireland
The sole ground of defence of The Times, apart from the amount of damages, was that the article was protected by the statutory qualified privilege contained in section 7 of the Defamation Act (Northern Ireland) 1955 read with para. 9 of the Schedule to the Act. The judge withdrew the defence from the jury on the ground that the press conference could not constitute a public meeting within the meaning of para. 9. On this issue the Court of Appeal upheld the ruling of the judge: McCartan Turkington and Breen (a firm) v. Times Newspapers Limited  N.I. 358.
The principal issue
The principal issue is whether the press conference was a "public meeting" within the meaning of section 7 of the 1955 Act and para. 9 of the schedule thereto. The development by the House of Lords in Reynolds v. Times Newspapers Limited  3 WLR 1010 of a new common law qualified privilege came too late to be of assistance in this case. It is therefore necessary to concentrate on the point of interpretation regarding the width of the expression "public meeting" in its statutory context.
The Statutory provisions
It is important to bear in mind that the statutory qualified privilege does not avail the maker of the defamatory statement but only a newspaper publishing a report of it. Moreover, it is relevant to the sensible interpretation of the reach of qualified privilege that it is subject to important statutory safeguards. Section 7 provides as follows:
Para. 9 of Part II of the Schedule ("Statements Subject to Explanation or Contradiction") reads as follows:
On the face of these provisions it is apparent that privilege which attaches to proceedings of a public meeting is subject to the following safeguards:(a)
The meeting must be bona fide and lawfully held for a lawful purpose;(b)
It must be one for the furtherance or discussion of a matter of public concern;(c)
It must be a fair and accurate report of the proceedings;(d)
The report must be of a matter of public concern and for the public benefit;(e)
The defence is lost if the publication is proved to have been made with malice;(f)
The newspaper loses the privilege if it refuses or neglects to publish a requested explanation or contradiction.
It will be necessary to come back to these safeguards.
The appeal to the original intent of the statute:
There is another preliminary matter to be considered. Counsel for the solicitors emphasised that the wording of para. 9 can be traced back to the Law of Libel Amendment Act 1888. He observed that at that time the phenomenon of press conferences was unknown. This was an invitation to the House to say that press conferences could not have been within the original intent of the legislature. There is a clear answer to this appeal to Victorian history. Unless they reveal a contrary intention all statutes are to be interpreted as "always speaking statutes". This principle was stated and explained in Reg. v. Ireland:  AC 147, at 158 D-G. There are at least two strands covered by this principle. The first is that courts must interpret and apply a statute to the world as it exists today. That is the basis of the decision in Ireland where "bodily harm" in a Victorian statute was held to cover psychiatric injury. Equally important is the second strand, namely that the statute must be interpreted in the light of the legal system as it exists today. In the classic work of Sir Rupert Cross (Statutory Interpretation, 3rd ed. (1995), pp. 51-52) the position is explained as follows:
In other words, it is generally permissible and indeed necessary to take into account the place of the statutory provision in controversy in the broad context of the basic principles of the legal system as it has evolved. If this proposition is right, as I believe it to be, it follows that on ordinary principles of construction the question before the House must be considered in the light of the law of freedom of expression as it exists today. The appeal to the original meaning of the words of the statute must be rejected.
Freedom of expression
It is of prime importance to take into account that the qualified privilege of newspapers to report the proceedings of public meetings serves to protect and foster freedom of expression. In Reg. v. Secretary of State for the Home Department, Ex parte Simms  A.C. 115, with the agreement of Lord Browne-Wilkinson and Lord Hoffmann, I drew attention to the values underlying freedom of expression. Speaking generally I said (at 126E-G):
In Simms there was at stake the asserted right, duly upheld by the House, of prisoners to have access to interviews with investigative journalists in order to challenge their convictions. About their claim I observed that "it is not easy to conceive of a more important function which free speech might fulfil": at 127B-C. The newspaper's role, as watchdog for the public, in reporting the proceedings of a press conference organised to secure the quashing of the conviction of Private Clegg and his release is analogous. As Justice Brandeis memorably observed in Whitney v. California (1927) 274 U.S. 357 at 375-376, "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." After all, as the same great judge said on another occasion, the law must proceed on the basis that "sunlight is said to be the best of disinfectants": New York Times, 15 February 1984.
In the leading speech in Reynolds v. Times Newspapers Limited  3 WLR 1010 Lord Nicholls of Birkenhead described freedom of expression as the starting point: at 1022H. In Simms a majority of the Law Lords explicitly treated freedom of expression as the primary right in a democracy, observing that without it an effective rule of law is not possible. Nevertheless, it is not an absolute right. Sometimes it must yield to other cogent interests such as the protection of the reputation of individuals. Even before the coming into operation of the Human Rights Act 1998 the principle of freedom of expression attained the status of a constitutional right with attendant high normative force: see my speech in Reynolds, at 1029H-1030A; compare also Mohammed v. The State  2 AC 111 at 123H. Now, as Lord Nicholls of Birkenhead put it in Reynolds, freedom of expression is buttressed by the Human Rights Act 1998. The Convention fulfils the function of a Bill of Rights in our legal system. There is general agreement that the Human Rights Act 1998 is a constitutional measure: see Wade and Forsyth, Administrative Law, 8th ed., Preface; Starmer, European Human Rights Law, 1999, para. 1.27; Wadham and Mountfield, The Human Rights Act 1998, 1999, para. 4.2.1; Lester & Pannick, Human Rights Law and Practice, 1999, para. 2.04; Coppel, The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts, 1999, para. 1.15. The position is now as Lord Nicholls of Birkenhead felicitously put it in Reynolds: "To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved": at 1023B.
Conclusion on the principal issues:
My Lords, it is not appropriate to apply the Human Rights Act 1998 directly, as we have been invited to do in this case. That is not to say, however, that the Act is irrelevant. Normal methods of construction can solve the question of construction before us. The question of interpretation before us must, as it is put in Cross, be considered in the light of the legal norms of the contemporary legal system. And freedom of expression is a basic norm of our constitution. Girvan J. and the Court of Appeal held that a gathering did not qualify as a public meeting for the purposes of para. 9 where the organisers had invited to it a group of persons with a particular nexus, rather than throwing it open to the public in general. This is an interpretation which will needlessly complicate a branch of the law where legal certainty is of prime importance. In any event, given the extensive statutory safeguards attached to the privilege, as well as the importance of the press acting as the "eyes and ears" of the public, I regard this interpretation as unnecessarily narrow. In the context a purposive and indeed generous interpretation as to the meaning of "public meeting" in para. 9 is to be preferred.
In my view the test must be the objective of the organisers of a meeting. It is sufficient to say that when they organise a general press conference to which the media, or an interested sector of the media, are invited in order to publicise to the public at large what the organisers regard as ideas of public concern the requirement of para. 9 that the meeting must be public as opposed to a private one is satisfied. On the facts pertaining to the highly organised press conference in the present case this test is amply satisfied.
It follows that in my opinion the trial judge erred in ruling as he did, and the Court of Appeal wrongly upheld his rulings.
The subsidiary point
The article contained a passage from the press release which was available at the press conference but only obliquely mentioned. Counsel for the solicitors argued that to this extent the article was not a report of the proceedings of a public meeting. Given a purposive construction of "public meeting", recognising the role of the press informing the public, this argument cannot prevail. In substance, although not read out, the press release was in reality part of the agenda of the meeting. The technical and artificial argument to the contrary must be rejected.
For these reasons, as well as the reasons given by Lord Bingham of Cornhill, I would allow the appeal and make the orders proposed by Lord Bingham of Cornhill.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I would allow the appeal and make the order he proposes.
LORD COOKE OF THORNDON
Having had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn, I agree, for the reasons given by them, that the newspaper article sued on (including the passage taken from the press release) was a report of the proceedings of a public meeting within the meaning of the Defamation Act (Northern Ireland) 1955, section 7 and the Schedule, paragraph 9.
It may not be out of place, however, to add some observations on the argument which Lord Lester of Herne Hill Q.C. placed at the fore front when opening the newspaper's appeal. The case was heard in your Lordships' House on the day after the Human Rights Act 1998 came fully into force. Perhaps understandably stimulated by that coincidence, learned counsel began by stressing that this Act has altered the legal landscape. In support of the contention that the provisions for newspaper privilege in the Act of 1955 should be given a wide interpretation, he invoked the new canon of interpretation in section 3 of the Human Rights Act, together with the duty of the court as a public authority under section 6 not to act in a way incompatible with a Convention right, the Convention right to freedom of expression in Article 10, and the special United Kingdom provisions in section 12 emphasising the importance of that right.
My Lords, with the general spirit of Lord Lester's submissions about the Human Rights Act, and his implicit proposition that in the field of communications the Act has "horizontal" effect, I am in full accord; but it has to be said that in relation to the particular issues in this case the argument based on the Human Rights Act seems to me misconceived. In the first place, the conclusion that this was a report of the proceedings at a public meeting can be reached on ordinary principles of reasonably liberal and purposive contemporary interpretation, as Lord Bingham of Cornhill and Lord Steyn have demonstrated.
Qualified Privilege at Common Law
In the second place, section 7(4) of the Act of 1955 expressly stipulates that, with an immaterial exception, nothing in that section shall be construed as limiting or abridging any privilege subsisting immediately before the commencement of that Act. (The relevant provisions of the Act have been replaced but they govern the present case.) The statutory privileges conferred on newspapers by section 7 and the Schedule and equivalent legislation are not restrictive of common law privilege. It has recently been recognised by your Lordships' House, in a decision unanimous on this primary point, that at common law, although a new generic privilege for political material is not to be created, qualified privilege is available for dissemination to the general public of information which the public should know. As Lord Nicholls of Birkenhead put it in the leading speech in Reynolds v. Times Newspapers Ltd  3 WLR 1010, 1018 -
The opinions in Reynolds were intended to ensure that the common law of England harmonised with human rights jurisprudence in general and the European Convention on Human Rights in particular: see  3 W.L.R. at 1026, 1029-1030, 1036-1037; 1045-1046; 1055; 1059. As was noted in Reynolds, one of the features of decisions in this field of the European Court of Human Rights has been a careful examination of all the circumstances of a particular case before a decision is reached as to whether freedom of expression is to be treated in the case in hand as the dominant right, prevailing over "restrictions . . . necessary in a democratic society . . . for the protection of the reputation or rights of others . . . " allowed for by Article 10.2. And section 12(4) of the United Kingdom Human Rights Act, enjoining a focus on the particular material published, is consistent with this approach. A very recent illustration of this essentially pragmatic approach is the judgment of the European Court of Human Rights in Bergens Tidende v. Norway (Application no. 26132/95; 2 May 2000).
Thus the Act of 1955 falls to be seen against the background that the common law of England and Northern Ireland independently provides qualified privilege for material which the media have a duty to communicate to the general public. This is not confined, of course, to material produced as a result of investigative journalism. The main principle for which Reynolds stands is that the classical interest-duty test is adaptable to a great variety of circumstances. In this legal setting the relevant provisions of the Defamation Act add a statutory privilege in one respect narrower and in another possibly wider than the common law. Narrower in that the relevant statutory privilege is confined to reports of the proceedings of public meetings held in the United Kingdom and otherwise satisfying the statutory conditions. Wider in that, if the statutory conditions are all satisfied, a fair and accurate report is automatically protected even if comment has not been sought from the plaintiff and included in the material published. The statute deals with that aspect in section 7(2), providing for the subsequent publication on request of a reasonable letter or statement by way of explanation or contradiction. In that regard the common law is more flexible. An approach to the plaintiff is not always necessary: see Lord Nicholls in Reynolds at 1026 and 1027. And, unlike Reynolds, this is not a case where the newspaper has apparently adopted defamatory allegations as its own: the article purported to be no more than reporting. I think, however, that in the instant case, where nothing representing the answer of the plaintiff solicitors appeared in the article, the common law privilege would be likely to fail as a defence if the report was not fair and accurate; just as the statutory privilege would fail. The issue of fairness and accuracy remains to be determined and is for the jury. But there is nothing incompatible with the Convention right to freedom of expression in this state of the law.
Nor can I see anything incompatible with the Convention right in the enactment of a specific and limited statutory privilege not abridging common law privilege. Section 3(1) of the Human Rights Act is uncompromising and very important. "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." If section 7 and paragraph 9 of the Schedule in the Defamation Act (Northern Ireland) 1955 were the only relevant rules of law, it might well be necessary to stretch their language beyond its natural and ordinary ambit. They are not; the legislation expressly leaves intact the common law privilege, which complies with the Convention; section 3(1) is not needed.
Common law privilege has not been pleaded in this case. In view of the decision now being given that the meeting was a public one within the meaning of the statute, this may no longer be important. As already suggested, it seems to me that both under the statute and at common law the crucial question might be whether the report is fair and accurate, bearing in mind that it did not report that on questioning from the floor Mr McKay modified the criticism of the solicitors by referring to the advantage of hindsight and saying "No, I don't identify any particular faults at this stage. I'm concerned about areas that weren't looked at at the trial . . . "
The reasons why qualified privilege at common law was not pleaded as an alternative do not much matter, but at least until Reynolds it would seem that the legal profession in England may not have been fully alive to the possibility of a particular rather than a generic qualified privilege for newspaper reports where the circumstances warranted a finding of sufficient general public interest. Although Blackshaw v. Lord  Q.B. 1 had recognised that possibility, the judgments in the Court of Appeal may have been somewhat discouraging, especially a reference by Stephenson L.J. at 27 to "extreme cases." Blackshaw was a case where information identifying a departmental officer responsible for an administrative blunder had allegedly been extracted from a press officer by a process of questioning by a journalist likened to extracting a tooth. It was far from a plain case of circumstantial qualified privilege. Defences of "public figure " or "public official" privilege as a category have commonly been struck out (see the unreported cases listed in Carter-Ruck on Libel and Slander, 5th ed. (1997) 145, n.4). Reynolds confirms that there is no such general category affording a defence in English common law. The alternative of an approach limited to the particular circumstances seems to have been left largely unexplored in England.
The legitimacy of such an approach had been recognised in New Zealand in Templeton v. Jones  1 NZLR 448, 460, but privilege was rejected on the facts of that case. A more important case is Parlett v. Robinson (1986) 30 D.L.R. (4th) 247. There, after attempting unsuccessfully to have the Solicitor-General of Canada order a public inquiry into his allegations of misuse of inmate labour in penitentiaries, the defendant, a Member of Parliament, defamed the plaintiff, a departmental psychologist, in a news conference and later on television. The British Columbia Court of Appeal held, applying Canadian authority partly English-derived, that the publication was not unduly wide and was protected by qualified privilege at common law. The analogy with the present case is obvious. That decision is entirely consistent with Reynolds. It seems to me that Reynolds was less a breakthrough than a reminder of the width of the basic common law principles as to privilege, although undoubtedly it is much more encouraging of their invocation than previous English decisions. If the spirit of Reynolds is followed, there will be less need to try to bring marginal cases within some species of statutory privilege. But, like Lord Bingham and Lord Steyn, I do not see this as a marginal case: it is fairly within the statute.
Judge and Jury
In Reynolds the question of the respective functions of judge and jury in common law qualified privilege was relevant in deciding the nature of the privilege and the extent of the new trial which was to take place. The question was argued and determined in this House. It was a part of the case on which the opinions delivered were not unanimous. The majority opinion was stated by Lord Nicholls, after giving a list of matters to be taken into account (depending on the circumstances), in the following passage,  3 W.L.R. at 1027 -
Thus it is settled that at common law in England (and Northern Ireland), while issues of primary fact are for the jury in the event of dispute, it is for the judge to rule on issues of public interest. Indeed a judicial value judgment based on the established primary facts is at the heart of Reynolds privilege. The settled principle is the same as regards fair comment. The question arises, however, whether the position is similar under section 7(3) of the Defamation Act (Northern Ireland) 1955, which provides -
In Kingshott v. Associated Kent Newspapers Ltd.  1 Q.B. 88 the Court of Appeal, in a judgment delivered by Bingham L.J. (as he then was), held that under the equivalent section 7(3) of the Defamation Act 1952 questions of public concern and public benefit were for the jury. The judgment accepted, however, that whether the privilege has been exceeded by the inclusion of extraneous matter was for the judge. On the existence of the privilege the court distinguished the leading common law case of Adam v. Ward  A.C. 309 chiefly on the ground that the predecessor of section 7(3) never fell to be considered in that case and that no reference had been made there to certain earlier cases under the statute in which public concern and public benefit were regarded as for the jury. Boston v. W.S. Bagshaw & Sons  1 W.L.R. 1126, a case under the section in which a different view was acted upon, was distinguished as having merely reflected received opinion rather than consideration after argument.
In Reynolds the majority left the statutory question open: I have to refer to my own speech at 1047-1048 where there is some discussion of Kingshott. Contrast Lord Steyn at 1038. The question was not fully explored in argument in the present case. I agree that it should not be determined now. It may be appropriate to record that during the hearing Lord Lester said that after mature consideration the advisers to The Times preferred the view that the evaluation issue is more appropriately for the judge. He also went as far as to say that it would be nonsensical to have the allocation of responsibility differing as between common law and statutory privilege. But your Lordships are not in a position to rule on this question. In any event it may be of no importance in the present case. Even if, under the statute, issues of public concern and public benefit are for the jury, that does not apply if only one answer is open. I agree with Carswell L.C.J. that, if the report is found by the jury to have been fair and accurate, it would be perverse to find that the matter published was not of public concern and its publication not for the public benefit. Reference of those issues to the jury is thus superfluous on any view.
I add only that this case is yet another instance of the vagaries of juries in libel cases on which I dwelt in Reynolds. The jury's award of damages had to be cut virtually in half.
I agree with the allowance of the appeal and the order for remission proposed by Lord Bingham of Cornhill.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I would allow the appeal and make the order he proposes.