Neutral Citation Number:  EWCA Civ 1233
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)
Royal Courts of Justice
London WC2A 2LL
Wednesday 18 July 2001
B e f o r e:
THE MASTER OF THE ROLLS
LORD JUSTICE JONATHAN PARKER
– – – – – –
– v –
- NEWS GROUP NEWSPAPERS LIMITED
- SIMON HUGHES
– – – – – –
(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
– – – – – –
MR DESMOND BROWNE QC and MR MATTHEW NICKLIN (Instructed by Messrs Farrer & Co, London, WC2A 3LH) appeared on behalf of the Appellant
MR DAVID PANNICK QC and MR ANTHONY HUDSON (Instructed by North Lambeth Law Centre, London, SE11 4DS) appeared on behalf of the Respondent
– – – – – –
J U D G M E N T
LORD PHILLIPS, MR: This is an appeal from the judgment of His Honour Judge Cox sitting in Lambeth County Court on 7 March 2001. By that judgment he refused an application by the appellant to strike out the particulars of claim under Part 3 of the Civil Procedure Rules (“CPR”), or to give judgment in their favour under Part 24. The application turned on the meaning of “harassment” under the Protection from Harassment Act 1997 (“the 1997 Act”). Judge Cox recognised that this issue was one of general importance and gave permission to appeal. He directed that the appeal should be transferred to this court pursuant to CPR Part 52.14(1).
Under CPR 3.4(2) the court may strike out a particulars of claim where satisfied that it discloses no reasonable grounds for bringing the claim. Under CPR Part 24, the court may give summary judgment in favour of the defendant where satisfied that the claim has no real prospect of success and that there is no other compelling reason why the case should be disposed of at a trial.
The appellants contend that the judge should have found both tests satisfied in that the case pleaded by the respondent disclosed no cause of action and was bound to fail. In this case the appellants had taken out their strike-out application before filing a defence. In such circumstances there is little to choose in practice between the two tests. The court proceeds on the assumption that the facts alleged by the claimants will be proved at the trial and considers whether, on that premise, the claim has any realistic prospect of success. If it does, it is permitted to proceed to trial; if it does not it is struck out unless there is some other compelling reason why the case should go to trial.
Before summarising the facts, it is helpful to set out the material provisions of the 1997 Act. These are as follows:
“1. Prohibition of harassment
(1) A person must not pursue a course of conduct-
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows-
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
2. Offence of Harassment
(1)A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
The section then goes on to deal with the penalty.
“3. Civil remedy:
(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
7. Interpretation of this group of sections
(1) This section applies to the interpretation of sections 1 to 5.
(2) References to harassing a person include alarming the person or causing the person distress.
(3) A ‘course of conduct’ must involve conduct on at least two occasions.
(4) ‘Conduct’ includes speech.”
On 6 July 2000 the first respondents published in their newspaper “The Sun” an article written by the second respondent. It was headed “Beyond a Joke – Fury As Police Sarges Are Busted After Refugee Jest”. The article read:
“Two police sergeants have been demoted to constables over a ‘private’ remark about an asylum-seeker. Mark Pursey and John Saunders also face losing a total of more than £100,000 after their pay and pensions were cut.
They were carpeted by bosses after a black clerk at their station complained about the way they treated a Somali woman trying to reach an asylum centre in Croydon, South London.
The clerk claimed she overheard racist jokes about the Somali woman who was not in the room at the time.
The clerk alleged Saunders, 42, said:
‘She found her way 8,000 miles here from Somalia – surely she can find her way f***ing back’.
But Saunders insisted he only said:
‘She found her way here 8,000 miles from Somalia – surely she can find her way four miles to Croydon’.
A fellow cop said last night: ‘It was essentially light-hearted banter in private and the Somali never heard it. This is political correctness gone mad.’
The incident happened last July at Bishopsgate in the City of London.
The Somali – called Muna Ahmed – said she had been brought to England from France by a man who then robbed her and stole her passport.
She was given meals as cops arranged for her to get to Croydon and gave her money for fares – more than many UK forces would have done.
Pursey and two other officers were in an office away from the front desk discussing transport arrangements for the woman when Saunders arrived.
According to clerk Esther Thomas he then made his racist remark.
She told Pursey: ‘If she was a blonde 6ft Australian you would have treated her differently’. Pursey replied: ‘I’d have taken her out to dinner’. She hit back: ‘You’d like t5o shoot us all’. Pursey said: ‘I’d have you shot if you don’t get on with your work’.
Esther Thomas reported the exchange to her bosses.
And last month the cops were found guilty of ‘behaving in a derisive and racially discriminatory manner’.
Dad-of-two Pursey was also convicted of two procedural lapses.
The pair, who plan to appeal, were reduced to PCs and their annual salaries were slashed by £6,000 a piece. Their pensions will also be reduced.
Dad-of-two Saunders hoped to hold his rank for nine more years and will now lose £54,000.
Pursey planned to serve another six and will lose £36,000.
A woman cop was also found guilty and fined a maximum £7000 after saying of plans to help the Somali: ‘Are we running a taxi service?’ A fourth officer was cleared.”
This article caused a number of readers to write to The Sun. Extracts from their letters were published in the edition of 12 July under the heading:
“Don’t punish cops over a joke made in private
Beyond a Joke
Fury as police sarges are busted after refugee jest
The way we told it …. our story about demoted officers
The Big Issue.”
The letters were introduced by the following comment:
“You were furious over our story about two police sergeants demoted for racism after joking about a Somali woman who wanted help getting to an asylum centre.
The crack – ‘She found her way here 8,000 miles from Somalia, surely she can find her way four miles to Croydon’ – was overheard and reported by a clerk at their station in London. Here are some of your views.”
I quote the more relevant extracts from the letters:
“The treatment of these officers is diabolical. Had it been two black officers and a white asylum seeker it would have been dismissed as the trivial incident it was.
Racism is an evil that must be stamped out but it won’t be destroyed if it is promoted; and that is what these liberal-minded witch finders are doing by crying racism where it doesn’t exist.”
“If the joke had been directed at a white person, no action would have been taken. If the politically correct brigade are saying that black people are less able to laugh at themselves than whites, then that in itself is racist.”
“Has the clerk who reported these two sergeants never witnessed the abuse police officers suffer in the course of their duties?
Or is that all right for them to take? I’m disgusted at the treatment of these officers.”
“Is it any wonder that police morale is so low when two respectable police sergeants are about to lose £100,000 in wages and pensions because a clerk did not like a comment she overheard?
By her actions, this woman has done harm to the working relationship between black and white people. While not condoning racism, sense must prevail.”
“Don’t the police authorities realise they are only putting our backs up even more when they demote two sergeants for making a comment about a black refugee woman? If they had said it about a white person, nothing would have been done.”
On 14 July a follow-up article was published in The Sun, again written by Simon Hughes, which included the following passage about the three officers who had been disciplined:
“All three were hauled in front of a disciplinary tribunal after a black civilian clerk complained about a series of exchanges at Bishopsgate last July.”
The article went on to repeat part of what had appeared in the initial article.
The respondent’s Statement of Case, based on these publications, reads as follows:
“1. On Thursday 6 July the Sun Newspapers, owned and controlled by News Group International Ltd, published an article (‘the article’) written by Simon Hughes, which names the Claimant, Esther Thomas, and described her as a ‘black clerk’. The article was entitled ‘Beyond a Joke’ and said that there was ‘fury as police sarges are busted after refugee jest’. The police officers, both dads of two, were ‘carpeted by bosses after a black clerk at their station complained about the treatment of a Somalia woman….’.
2. The article stated that the incident occurred at Bishopsgate police station.
3. The article amounted to harassment of the Claimant and caused her distress and anxiety.
4. The article was followed by a further article on 12 July in which it was stated that the newspaper’s readers were ‘furious’ over the story. The newspaper received a lot of furious letters from its furious readers. Bishopsgate police station received race hate mail (three letters) addressed to Esther Thomas the same day.
5. Simon Hughes of The Sun wrote a third article on 14 July which was featured on the front page of the newspaper which stated that the police officers ‘were hauled in front of a disciplinary tribunal after a black clerk complained of a series of exchanges….’ The Sun stated that its readers could help one of the racist police officers by helping to pay off her disciplinary fine; to write a cheque to ‘The Sun WPC Fine Fund NGN Ltd’.
6. The articles written by Mr Hughes, approved of by the Editor and published by the newspaper amount to a course of conduct which amounts to harassment of the Claimant. The article was written in an indignant tone which was designed to elicit a reaction.
7. The course of conduct caused the Claimant to be harassed by the Sun’s readers. The course of conduct of itself amounted to harassment. The Claimant claims damages for breach of section 3 of the Protection from Harassment Act 1997.
8. The course of conduct was not reasonable. The Claimant did not have to be described as being black nor should her name and place of work be published. The facts stated in the articles were not accurate. In fact, the police officers were found guilty of race discrimination after both the Claimant and PC Bidmead, and others, gave evidence against the officers. The article incited racial hatred.
9. The articles caused the Claimant to be terrified and scared to go to work. She felt vulnerable to being physically attacked at work or en route to and from work. The Claimant has since transferred by her own choice to a new place of work.”
The author of the Statement of Case is not stated. It was not, however, Mr Anthony Hudson, Junior counsel appearing before us.
The Appellants’ case
Before Judge Cox the appellants argued that, as a matter of statutory interpretation, the meaning of “harassment” in the 1997 Act could not extend to a series of publications in a newspaper. In support of that submission they sought to rely on statements in Parliament when the Bill was being debated under the principle in Pepper v Hart  AC 593. Judge Cox did not consider that that principle was engaged, for he did not find the provisions of the 1997 Act to be ambiguous. He rejected the appellants’ argument of interpretation and dismissed their application.
Before this court, the appellants have abandoned their extreme argument on statutory interpretation. In his skeleton argument on their behalf, Mr Desmond Browne QC put their case as follows:
“Whilst it is just possible to imagine circumstances in which newspaper articles could constitute a course of conduct amounting to harassment – in the same way that people can harass others by unwanted, unsolicited or vitriolic correspondence – such conduct would have to be extreme and be devoid of any true desire either to exercise freedom of speech or to fulfil the newspaper’s responsibility to inform the public.”
It follows that the appellants concede that publication of press articles is, in law, capable of amounting to harassment albeit in only very rare circumstances. This is an important concession, but I consider that it is a concession rightly made. The suggestion that journalistic articles were implicitly outside the ambit of the 1997 Act was, in my view, unarguable. In these circumstances, there can be no question of looking at Parliamentary material in order to resolve ambiguity of statutory interpretation. The issue is whether it is arguable that the publications in question constituted “harassment” having regard to the effect that the respondent alleges they had upon her.
In this context, the appellants seek to place reliance on the “legislative intent” by reference to debates in Parliament and other material. I do not propose to embark upon an elaborate analysis of the extent to which these are admissible as an aid to interpretation. I am prepared to proceed on the basis that the appellants are correct in their contention that the mischief which led to the legislation was the practice of stalking. This much is common ground. Once it is conceded, however, that the 1997 Act applies to activities which go beyond stalking, the fact that the stalking was the principal mischief at which the Act was aimed, affords only limited assistance.
At the heart of the appellants’ case is the effect on the interpretation and application of the 1997 Act of the Human Rights Act 1998 (“the HRA”) and Article 10 of the European Convention on Human Rights (“the Convention”) which that Act incorporates into English domestic law.
Article 10 of the Convention provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Section 12(4) of the HRA provides that where the court is considering whether to grant any relief which might affect the Convention right to freedom of expression:
“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which-
(i)the material has, or is about to, become available to the public; or
(ii)it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.”
The appellants have placed before the court a mass of jurisprudence, both from Strasbourg and this country, on the importance that has to be attached by the courts to freedom of expression and, more particularly, to freedom of the press. Over the last year this court has become extremely familiar with Strasbourg jurisprudence.
The importance that the Strasbourg court attaches to freedom of expression can be satisfactorily illustrated by this typical passage from the judgment of the court in Nilsen and Johnsen v Norman (1999) 30 EHRR 878 at paragraph 43:
“According to the Court’s well-established case law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10(2), it is applicable not only to ‘information’ of ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.”
Strasbourg rightly considers that these principles are of particular importance where the freedom of the press is in play, as is apparent from the following passage, again typical, from the judgment of the Strasbourg court in Observer and Guardian v United Kingdom (1999) 14 EHRR 152 at paragraph 59:
“These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the ‘interests of national security’ or for ‘maintaining the authority of the judiciary,’ it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’.”
Even before the HRA was enacted, English jurisprudence recognised that the principles set out above applied equally in our domestic law: Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, 283-4 per Lord Goff of Chieveley; Derbyshire CC v Times Newspapers Ltd  AC 534 at 550-1 per Lord Keith of Kinkel. More recently Lord Steyn made these observations in Reg v Home Secretary, Ex p Simms  AC 126:
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market:’ Abrams v United States (1919) 250 US, 616, 630 per Holmes J (dissenting).
Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.”
Section 3 of the HRA requires the court, so far as it is possible to do so, to interpret and give effect to legislation in a manner which is compatible with Convention rights. Section 12 of the HRA emphasises the care which the court must take not to interfere with journalistic freedom unless satisfied that this is necessary according to the principles to which I have referred. Both these sections are important when considering the ambit of the criminal offence and the civil tort of harassment created by the 1997 Act in the context of publications by the media. Harassment must not be given an interpretation which restricts the right of freedom of expression, save in so far as this is necessary in order to achieve a legitimate aim. When considering that question, the court is required by section 2 of the HRA to have regard to the Strasbourg jurisprudence.
The appellants have also referred us to extracts from United States decisions in relation to the First Amendment to their constitution. They illustrate the very robust approach that the Supreme Court has shown in upholding freedom of speech. The facts and issues in the cases in question were, however, very different from those which we have to address. Nor is it right to equate the principles that the Supreme Court has developed when considering the First Amendment to the jurisprudence of the Strasbourg court when considering the Convention right of freedom of expression. On this appeal I have not found that the American jurisprudence affords any assistance that is not available on this side of the Atlantic.
Both parties to this appeal recognise the importance of the right of freedom of expression and, in particular, press freedom. Both parties recognise that the duty to give effect to this right is an important consideration to any court when considering whether an offence or civil tort has been committed contrary to the 1997 Act.
Mr Browne, for the appellants, submits that the 1997 Act cannot generally be applied to press publications. If it were, the definition of “harassment” in section 7 would render any series of publications that was calculated to cause an individual distress a crime and a tort, unless proved to be reasonable. It cannot be right, he says, that newspapers should be required to come to court to defend themselves in such circumstances. This submission is forcefully developed in the final section of his skeleton argument.
“It is anathema to the concept of freedom of expression to make it subject to proof by the person who seeks to exercise the freedom that s/he has acted reasonably. That injects precisely the subjective element of ‘approval’ which militates against a true ‘freedom’.
The interpretation advanced by the Respondent (and accepted by the Court below) means that newspapers and broadcasters will be caught in the net of S.1(1) simply on the basis that articles they publish cause the subject distress (see PFHA s7(2). Such a wide definition raises the spectre that legitimate subjects of newspaper reporting will be able to ask any County Court for an injunction to restrain publication leaving it up to the newspaper to satisfy a County Court judge that the terms of its article are reasonable. In turn, that raises the practical reality that unless the newspaper submits its proposed article to the Court in order to demonstrate its reasonableness (ie to discharge its burden of proof), the injunction will be granted. Such a situation is intolerable and represents a state of affairs little short of judicial censorship and/or prior restraint: it is manifestly contrary to Article 10.”
Mr Browne further contends that the defence that the conduct complained of is reasonable, is not adequate to accommodate the right of freedom of speech. Freedom of speech entitles the press to make comments about people which are not reasonable. In support of this submission Mr Browne has referred us to authorities in the field of defamation which make it plain that the defence of fair comment will protect the expression of an opinion which is honestly held, even if the opinion is unreasonable and the maker of the opinion is activated by spite. These submissions require consideration of two questions: (1) what facts have to be alleged in order to plead an arguable case of harassment; (2) what is the nature of the defence that the conduct was reasonable?
The nature of harassment
Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.
The Act does not attempt to define the type of conduct that is capable of constituting harassment. “Harassment” is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.
The fact that conduct that is reasonable will not constitute harassment is clear from section 1(3)(c) of the Act. While that subsection places the burden of proof on the defendant, that does not absolve the claimant from pleading facts which are capable of amounting to harassment. Unless the claimant’s pleading alleges conduct by the defendant which is, at least, arguably unreasonable, it is unlikely to set out a viable plea of harassment.
The nature of reasonable conduct.
Whether conduct is reasonable will depend upon the circumstances of the particular case. When considering whether the conduct of the press in publishing articles is reasonable for the purposes of 1997 Act, the answer does not turn upon whether opinions expressed in the article are reasonably held. The question must be answered by reference to the right of the press to freedom of expression which has been so emphatically recognised by the jurisprudence both of Strasbourg and this country.
Prior to the 1997 Act, the freedom with which the press could publish facts or opinions about individuals was circumscribed by the law of defamation. Protection of reputation is a legitimate reason to restrict freedom of expression. Subject to the law of defamation, the press was entitled to publish an article, or series of articles, about an individual, notwithstanding that it could be foreseen that such conduct was likely to cause distress to the subject of the article.
The 1997 Act has not rendered such conduct unlawful. In general, press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment. A pleading, which does no more than allege that the defendant newspaper has published a series of articles that have foreseeably caused distress to an individual, will be susceptible to a strike-out on the ground that it discloses no arguable case of harassment.
It is common ground between the parties to this appeal, and properly so, that before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve. It is also common ground that such circumstances will be rare.
Mr Pannick QC, for the respondent, offered the example of the editor who uses his newspaper to conduct a campaign of vilification against a lover with whom he has broken off a relationship. Mr Browne rightly submitted that this unlikely scenario was miles away from the facts of this case. He submitted that editorial comment would only amount to harassment if it incited, provoked or encouraged harassment of an individual.
It is not necessary for this court to rule on Mr Pannick’s example, nor to attempt any categorisation of the types of abuse of freedom of the press which may amount to harassment. That is because the parties are agreed that the publication of press articles calculated to incite racial hatred of an individual provides an example of conduct which is capable of amounting to harassment under the 1997 Act. In so agreeing, Mr Browne recognises that the Convention right of freedom of expression does not extend to protect remarks directly against the Convention’s underlying values (see Jersild v Denmark (1994) 19 EHRR paragraph 35 and Lehideux and Isorni v France (1998) 30 EHRR paragraph 53.
This agreement between the parties reduces the central issue in this case to a relatively narrow one. It is Mr Pannick QC’s case for the respondent that she pleaded an arguable case that the series of publications in The Sun were intended to provoke hostility on the part of its readers against her on the grounds of her race.
As to that, Mr Browne has taken two pleading points. The first is that paragraph 3 of the Statement of Case alleges that the article of 6 July amounted to harassment, whereas the 1997 Act prescribes a course of conduct that involves at least two incidents. The second is that there is no pleaded averment that the defendants knew, or ought to have known, that their conduct amounted to harassment. Both these defects are capable of rectification by amendment without causing the appellant any prejudice and they were not taken below or mentioned in the grounds of appeal. They cannot affect the outcome of this appeal.
The substantive argument advanced by Mr Browne is that the respondent’s pleading does not raise even an arguable case of racism. Before the judge the appellants conceded that the tone of their publication was strident, aggressive and inflammatory, but they denied that it was racist. As to this, the judge held:
“It seems to me that the colour of the Claimant’s skin had no bearing whatever on the matters reported unless it was to be implied therefrom that it was because of her race that the Claimant had taken the action she did, action of which the Sun Newspaper profoundly disapproved.”
He held that the adjective “racist” was justified. This court has to consider whether the judge’s conclusion was wrong or, more precisely, whether his conclusion was one which was not fairly arguable.
Mr Pannick submitted that assuming, as we must, that the facts alleged in the Statement of Case are true, the pleading sets out an arguable case that the defendants’ publications were racist. It is his case that the article suggested that the respondent complained of the police sergeants’ comments because of her race, that, but for the fact that she was black, the police sergeants would not have been disciplined, and that both the complaint and the punishments imposed on the sergeants were unjustified.
The first point made by Mr Pannick in support of this submission is that the respondent was referred to as “black” both in the 6 July and 14 July articles. Mr Browne argued that the reference to the respondent’s colour in the former article was legitimate because it was necessary, if her reported comment, “You would like to have us all shot”, was to make sense to the readers. The 14 July article simply repeated much of the earlier article. Mr Pannick challenged this explanation, observing that in the 6 July article the reference to the respondent’s colour came at the beginning and her comment, “You would like to shoot us all”, near the end of the article. Furthermore, the 14 July article did not repeat her comment, so that this explanation could not apply to it. In my judgment, the judge’s conclusion that the reference to the respondent’s colour was gratuitous is at least arguable for the reasons advanced by Mr Pannick.
The next point made by Mr Pannick is that, on the facts alleged in the Statement of Case, the articles gave a misleading impression that it was only because of the action of a black clerk that the sergeants were disciplined. The articles did not record that a white police officer also gave evidence against the sergeants.
Mr Browne submitted that no adverse inference could be drawn from this omission which did not have the effect of making the articles inaccurate. I consider that it is at least arguable that the omission in question reflected an intention that the complaint criticised by The Sun should be seen to have been motivated by the fact that the respondent was black.
Mr Pannick then drew attention to the fact that the respondent was named in the first article and that the address of her place of work was published. Mr Pannick suggested that this was an invasion of the respondent’s right of privacy. Mr Browne challenged his assertion and it is not one upon which we need to rule. It is significant, however, that the Statement of Case alleges that a sequel to the publication of the respondent’s name and address was that she received hate mail and was too terrified to go to her work place. I consider that it is at least arguable that it was foreseeable that the publication would lead Sun readers to address hostile letters to the respondent causing her additional distress.
Finally Mr Pannick turned to the letters published on 12 July. It was his case that it was arguable that the letters had been deliberately selected in order to emphasise the racist element in the story. Mr Browne argued that the Strasbourg jurisprudence showed that it was legitimate for the media to quote racist comments made by others. He suggested that this proposition received support from Jersild v Denmark. In that case a Danish television documentary had included interviews with youths who had expressed highly offensive racist views. The makers of the programme had been fined for making racist statements under the Danish Penal Code. The Strasbourg court ruled that this had violated their right of freedom of expression. An important part of the reasoning of the court was, however, that the makers of the programme had disassociated themselves from the views expressed and that the purpose of compiling the programme was not racist.
The Sun did not disassociate itself from its readers’ letters. The opinions that these expressed were in line with the tone of the article that had provoked them. The letters were critical both of the complaint and of the punishment of the sergeants for allegedly racist remarks and, thus, inevitably, made comments about racism. However, none of the letters ostensibly suggested that the conduct of the respondent which was criticised was attributable to her race. It seems to me that these letters add to the respondent’s case that the appellants were pursuing a course of conduct which they could foresee was likely to cause her distress, but do not, when taken in isolation, add to the respondent’s case that this course of conduct was racist.
When the three publications are considered together, however, and for the reason I have given, I am satisfied that the respondent has pleaded an arguable case that the appellants harassed her by publishing racist criticism of her which was foreseeably likely to stimulate a racist reaction on the part of their readers and cause her distress.
Mr Browne argued that, if the test of whether a series of publications constitutes harassment is to turn on the question of whether the conduct of the publisher is reasonable, this test will lack the certainty that the Strasbourg court requires if it is to find that a restriction on freedom of expression is prescribed by law. On my analysis, the test requires the publisher to consider whether a proposed series of articles, which is likely to cause distress to an individual, will constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed. This is a familiar test and not one which offends against Strasbourg’s requirement of certainty.
For the reasons that I have given, I would dismiss the appeal.
LORD JUSTICE JONATHAN PARKER: I agree.
LORD MUSTILL: I also agree.
Order: Appeal dismissed with costs to be subject to detailed assessment. Case to be transferred to the High Court with an undertaking that, if successful, the defendants will not seek to recover more costs than they would be entitled to recover had the matter proceeded in the County Court. Case to be listed as a multi track case.
(Order does not form part of approved judgment)