QUEEN'S BENCH DIVISION
Strand. London. WC2A 2LL
B e f o r e :
MR JUSTICE TUGENDHAT
MRS JUSTICE NICOLA DAVIES DBE
| Regina on the application of Philip James Woolas
|- and -
|The Parliamentary Election Court
|- and -
|Robert Elwyn James Watkins
||First Interested Party
| -and -
|The Speaker of the House of Commons
||Second Interested Party
Miss Helen Mountfield QC and Mr James Laddie (instructed by K & L Gates LLP) for the
First Interested Party
Hearing dates: 16 and 17 November 2010
Crown Copyright ©
Lord Justice Thomas:
This is the judgment of the court to which we have each contributed.
i) Can this Court judicially review a determination on a point of law made by an election court for a parliamentary election? This point has never before arisen for decision.
ii) Did the Election Court apply the correct legal test to its determination that the statements it found had been made were statements "in relation to the personal character or conduct" of Mr Watkins? The last substantial case on this issue was in 1911.
Summary of our conclusions
ISSUE 1: CAN THE DETERMINATION OF THE ELECTION COURT ON AN ISSUE OF LAW BE JUDICIALLY REVIEWED?
(i) The current position in relation to election courts
(ii) The applicable principles
"all the characteristics of the court in question in order, not to dignify it with a name or status, but to ascertain whether in substance it should be subject to the judicial review jurisdiction of the High Court. In the fulfilment of that task various factors may be relevant; the nearest one gets to a general principle is the " underlying policy" to which Robert Goff LJ [in Muldoon] refers, namely that tribunals (and the context shows that courts are included) of limited jurisdiction should generally be subject to judicial review."
Laws LJ then made clear that the High Court was itself not subject to review as a court whose jurisdiction was truly unlimited. Designation of a court as a superior court of record was not determinative. Other courts not subject to review:
"are exceptional cases whose immunity is justified by reason of their "having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate". While the two courts referred to by Robert Goff LJ were designated superior courts of record by the relevant statutes, in substance it is their possession of this status, their proximity in kind to the High Court, that confers their immunity."
He concluded at paragraph 77 that the question was:
"should either institution properly be regarded in all the circumstances as having a status so closely equivalent to the High Court that the exercise of the power of judicial review by the High Court is for that reason inappropriate? Put another way, and to use the language of my earlier discussion of the exclusion of judicial review by statute does either body constitute in effect an alter ego of the High Court? There has to be an impartial authoritative judicial source of statutory interpretation, independent both of the legislature and of the persons affected by the application in practice of the relevant texts. Such a source is either the High Court or its alter ego."
"Judicial policy in this context can and should correspond with legal principle. It seems to us that there are two principles which need to be reconciled in order to arrive at a proper judicial policy. One is the relative autonomy with which Parliament has invested the tribunals as a whole and the [Upper Tribunal] (UT) in particular. The other is the constitutional role of the High Court as the guardian of standards of legality and due process from which the UT, for reasons we have given, is not exempt. Although central government has opposed this appeal, its interest in ensuring that departures from legality and due process do not occur is at least as great as that of private individuals."
We should add that we were not referred on this issue to any decisions of the Scottish courts; the law of Scotland appears to be different - see the decision of the Inner House delivered by the Lord President in Eba v Advocate General for Scotland 2010 SLT 1047.
(iii) The constitutional origins of the election court
"Fifthly, That there is not the highest standing Court in this land that ought to enter into competency [competition], either for dignity or authority, with this High Court of Parliament, which with your Majesty's royal assent gives laws to other Courts but from other Courts receives neither laws nor orders.
Sixthly and lastly, We avouch that the House of Commons is the sole proper judge of return of all such writs and of the election of all such members as belong to it, without which the freedom of election were not entire: And that the Chancery, though a standing Court under your Majesty, be to send out those writs and receive the returns and to preserve them, yet the same is done only for the use of Parliament, over which neither the Chancery nor any other Court ever had or ought to have any manner of jurisdiction ..."
"This confidence will speedily be destroyed, if, after the heat and excitement of a contested election, a Judge is to proceed to the scene of recent conflict, while men's passions are still roused, and, in the midst of eager and violent partisans, is to go into all the details of electioneering practices, and to decide on questions of general or individual corruption, not unfrequently supported or resisted by evidence of the most questionable character. The decision of the Judge given under such circumstances will too often fail to secure the respect which judicial decisions command on other occasions. Angry and excited partisans will not be unlikely to question the motives which have led to the judgment. Their sentiments may be echoed by the press. Such is the influence of party conflict, that it is apt to inspire distrust and dislike of whatever interferes with party objects and party triumphs."
i) A petition challenging an election was to be presented to the Court of Common Pleas. The trial was to be conducted before a judge of one of the three superior courts of common law - Queen's Bench, Common Pleas and Exchequer to be chosen from a rota selected by the judges (s.11(13)).
ii) If a petition raised an issue of law, an application could be made to the Court of Common Pleas to state it as a special case; the Court of Common pleas could then direct that it be stated as a special case and heard before the Court of Common Pleas (s. 11 (9), (16)).
iii) In all other cases, the judge chosen from the rota would hear the trial in open court without a jury. At the conclusion of the trial (s.11(13) ) that judge would:
"determine whether the Member whose Return or Election is complained of, or any and what other Person, was duly returned or elected, or whether the Election was void, and shall forthwith certify in Writing such determination to the Speaker, and upon such Certificate being given such Determination shall be final to all Intents and Purposes"
iv) S.l2 gave effect to the amendment to the bill allowing a question of law to be reserved:
"Provided always, that if it shall appear to the Judge on the trial of the said Petition that any Question or Questions of Law as to the Admissibility of Evidence or otherwise require further Consideration by the Court of Common Pleas, then it shall be lawful for the said Judge to postpone the granting of the said Certificate until the Determination of such Question or Questions by the Court, and for this purpose to reserve any such Question or Questions in like manner as Questions are usually reserved by a Judge on a Trial at Nisi Prius"
v) On the receipt of the Certificate of the judge and any report from the judge, the House of Commons would enter this into their journal and give the necessary directions consequent on the Certificate (s. 13)
vi) Ss.28-30 made provision for the power and jurisdiction of the judge and constituted the court a court of record:
"29. On the trial of an Election Petition under this Act the Judge shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority as a judge of one of the superior Courts and as a Judge of Assize and Nisi Prius, and the Court held by him shall be a Court of Record.
30. The Judge shall be attended on the Trial of an Election Petition under this Act in the same manner as if he were a judge sitting at Nisi Prius ..."
"The expression "election court" means the judges presiding at the trial of an election petition, or if the matter comes before the High Court, that court."
(iv) The relevant factors
(a) The powers of the parliamentary election court and the limits of its jurisdiction under the 1983 Act
i) A parliamentary election court (with its origins in the 1868 Act) is constituted under s.l 23 of the 1983 Act to try parliamentary election petitions presented to the High Court in accordance with ss. s.120 and 121. s.123 provides:
"(1) A parliamentary election petition shall be tried by—
(a) two judges on the rota for the trial of parliamentary election petitions, and the judges for the time being on that rota shall, unless they otherwise agree, try the election petitions standing for trial according to their seniority,
and the judges presiding at the trial of a parliamentary election petition are hereinafter referred to as the election court.
(2) The election court has, subject to the provisions of this Act, the same powers, jurisdiction and authority as a judge of the High Court (or, in Scotland, a judge of the Court of Session presiding at the trial of a civil cause without a jury) and shall be a court of record."
ii) A local election court (with its origins in the 1872 Act) is constituted under s.130 (1) which provides that a petition questioning a local election in England and Wales is to be tried by an election court of a person qualified and appointed under that section of the 1983 Act. The person is a person who meets the criteria for judicial appointment (s.130(2)); he is appointed from amongst those selected by judges on the rota for parliamentary election petitions (s.l30(5)). The 1983 Act provides by s.130(5) that
"The election court has for the purposes of the trial the same powers and privileges as a judge on the trial of a parliamentary election petition".
iii) The 1983 Act refers to both types of election court as an "election court". They generally have the same broad powers. The procedure of the elections courts are set out in sections 138-146 and s.l57. S.140(1) provides that:
"Witnesses shall be summoned and sworn in the same manner as nearly as circumstances admit as in an action tried in the High Court, but this subsection does not apply to Scotland in relation to an election of councillors."
iv) Various provisions give the High Court powers to determine issues such as the amount of security for costs (s.136) and the power to fix the date for the hearing of the petition (Rule 9 of The Election Petition Rules 1960 (as amended)). However, it is not necessary to set them out, as they are not of any determinative significance. They are, as the court concluded in Muldoon, provisions dealing with matters where it is not practicable for an election court to deal with them, as it may not have been constituted.
v) At the end of the trial of a parliamentary election petition a very similar provision for finality and certification to the Speaker by the election court as was made in the 1868 Act (as set out under paragraph 25.iii) above) is made by s.144:
"(1) At the conclusion of the trial of a parliamentary election petition, the election court shall determine whether the member whose election or return is complained of, or any and what other person, was duly returned or elected or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.
(2) The election court shall forthwith certify in writing the determination to the Speaker.
(3) If the judges constituting the election court—
(a) differ as to whether the member whose election or return is complained of was duly elected or returned, they shall certify that difference and the member shall be deemed to be duly elected or returned;(b) determine that the member was not duly elected or returned but differ as to the rest of the determination, they shall certify that difference and the election shall be deemed to be void."
The section then provides that the House of Commons shall enter the Certificate and any report in their journals and give directions consequent upon the Certificate and any report.
vi) The parliamentary election court has no power over the consequences of its certificate and report. These are a matter for Parliament or follow automatically from the certificate and report (see for example the provisions to which we have referred in paragraph 5 above). It cannot in any way mitigate the consequences of its findings.
(b) The composition of the parliamentary election court and its designation as a court of record
(c) The provisions in relation to the statement of a case
"(1) If, on the application of any party to a petition made in the prescribed manner to the High Court, it appears to the High Court that the case raised by the petition can be conveniently stated as a special case, the High Court may direct it to be stated accordingly and the special case shall be heard before the High Court.
(4) If it appears to the election court on the trial of an election petition that any question of law as to the admissibility of evidence or otherwise requires further consideration by the High Court, the election court may postpone the granting of a certificate until the question has been determined by the High Court, and for this purpose may reserve the question by stating a case for the decision of the High Court."
Provision is made for an appeal from the High Court to the Court of Appeal under s.157(1):
"No appeal lies without the special leave of the High Court from the decision of the High Court on any question of law, whether on appeal or otherwise, under the foregoing provisions of this Part of this Act, and if leave to appeal is granted the decision of the Court of Appeal in the case shall be final and conclusive."
(d) The effect of the provision as to finality
(e) The constitutional relationship between the election court, the House of Commons and the High Court
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all."
In our view, despite the fact that a parliamentary election court is comprised of judges of the High Court, they do not act in that capacity; they are constituted as a tribunal of limited jurisdiction with the attributes we have set out. In our view therefore the right of judicial review is not excluded.
(vi) The scope of judicial review
(vii) Should a request have been made for a special case under s.l46(4)?
ISSUE 2: DID MR WOOLAS MAKE FALSE STATEMENTS OF FACT IN RELATION TO A CANDIDATE'S PERSONAL CHARACTER OR CONDUCT?
(1) The decision of the Election Court on the meaning of s.106
"A person who, or any director of any body or association corporate which—
(a) before or during an election,(b) for the purpose of affecting the return of any candidate at the election,
makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true."
"A politician for his public conduct may be criticised, held up to obloquy: for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."
(2) The facts as found by the Election Court
(i) The background
2001 a census identified 9% of the population as Asian and 8.5% as Muslim. In 2001, there were race riots in Oldham in the run-up to the General Election.
(ii) The first statement: Choose
"Did you know?
Interesting facts about our Lib Dem candidate".
Three matters were set out. The text in respect of the second read:
"He's reneged on his promise to live in the constituency. He had said, "I've got my eye on Lees - you can still get tripe in the Co-Op". You can't of course but he does talk it."
"It has been submitted on behalf of [Mr Woolas] that this was a criticism of his political conduct. His promise to live in the constituency was "part of the campaign", made to establish his commitment to the constituency and to establish his credibility with the electorate. However, the statement also relates directly to his personal character or conduct. A person who breaks his promise is untrustworthy. To say that someone is not worthy of trust is to attack his "honour, veracity and purity". It was described by [Mr Woolas] in evidence as a politician's promise.
Whilst we accept that promises made by politicians may not be honoured because of changes in political circumstances, this particular promise cannot fall into any such category. The performance of [Mr Watkins'] promise was within his control and so a failure to honour it reflected on his personal trustworthiness."
(iii) The second statement: The Examiner
"Extremist Muslim activists target Woolas.
Under that heading was a large photograph of demonstrators holding placards the most prominent being one which stated:
"BEHEAD THOSE WHO INSULT ISLAM"
Under that picture was a box which contained the following:
"Watkins accused of wooing extremist vote
Voters of Oldham East and Saddleworth are asking the question, "why are the extremists urging a vote for Watkins?" In face of Woolas' tough stance and a Conservative candidate who is against their views, the extremists are backing the Liberal Democrat. In his attempts to woo the vote he has called for Israel to be isolated from arms sales - but not Palestine.
Woolas told a rally of moderate Muslims in Clarksfield "The Lib Dems are weak and blow with the wind. Don't let them pander to extremists". The rally gave him a standing ovation!"
A picture of Mr Watkins was alongside the text.
"75. We have reached the clear conclusion that the statement that [Mr Watkins] attempted to woo, that is, to seek the electoral support of Muslims who advocate violence, in particular to [Mr Woolas], is one of fact. The statement describes certain conduct by [Mr Watkins], namely, that he sought the electoral support of persons who advocate violence, in particular to [Mr Woolas]. It does not appear to us to be a value laden judgment in its context. By contrast, the statement in the adjacent article that "if militants are allowed to succeed no moderate MP of any party will be safe" is a comment. But when The Examiner sought to establish a link between extremist Muslims and [Mr Watkins] it did so by alleging that he had made attempts to woo the extremist vote. It is true that the conduct relied upon as evidencing such attempts was a political statement by [Mr Watkins], namely, calling for arms sales to Israel to be stopped. But The Examiner did not limit itself to stating that [Mr Watkins] had called for arms sales to Israel to be stopped. It went further and alleged that in making that call [Mr Watkins] had a particular intention or purpose, namely, to woo, that is to attract, the vote of extremist Muslims. We do not consider that that further statement is a value laden judgment. It clearly ascribes a particular intention or purpose to [Mr Watkins] when he called for arms sales to Israel to be stopped. As has been said more than once in the law reports a statement about a man's intention can be a statement of fact.
76. To refer to someone as an extremist can of course be a value laden judgment. However, in the context of the article of which complaint is made, "the extremist vote" is simply shorthand for Muslims who advocate extreme violence. We do not consider that the use of the word adjective "extremist" in the article prevents its meaning from being a statement of fact."
"[Mr Watkins] had attempted to woo the vote, that is, that he had attempted to seek the electoral support, of Muslims who advocated violence, in particular to [Mr Woolas]."
".... In our judgment, to say that a person has sought the electoral support of persons who advocate extreme violence, in particular to his political opponent, clearly attacks his personal character or conduct. To adopt the language of Gibson J. in the North Louth Case, as did Lord Ross in Fairbairn, such a statement attacks his "honour" and "purity" in that it suggests that he is willing to condone threats of violence in pursuit of personal advantage. That is also an attack on his political conduct (because the advantage sought was an electoral victory) but that does not put the attack outside the protection afforded by s.l06 if his personal character is also attacked."
(iv) The third statement: Labour Rose
"Extremists rant as Phil Woolas defies death threats"
Under it was an article with sub headings:
One extremist website has even created a competition for the most imaginative ways to kill Phil Woolas. You would think that any serious politician should condemn such actions. But you'd be wrong.
"Lib Dem Pact with the devil
One of these groups has endorsed the Liberal Democrat candidate Elwyn Watkins. It is remarkable that neither he nor any other Liberal Democrat has rejected this endorsement or condemned the group's actions. Maybe it's because the Liberal Democrats are giving amnesty to thousands of illegal immigrants."
Underneath the text was the same picture of demonstrators as had been used in The Examiner
"101. ....Reading the first page as a whole we consider that the ordinary and reasonable reader would understand the Labour Rose to be saying, not that [Mr Watkins] had actually made an agreement with Muslim extremists, but that he had not rejected their endorsement of him and was refusing to condemn their threats of violence. A "refusal" conveys the meaning that [Mr Watkins] knew of the threats of violence.
102. The statement "it is remarkable" that [Mr Watkins] had not rejected the endorsement of him by an extremist group is a comment. However, it is a comment as to a fact, namely, that [Mr Watkins] had not rejected the endorsement of him by an extremist group or condemned their actions. That was a statement of fact.
103. The group which had endorsed him was stated as a fact to be "one of these groups", that is, one of the groups which had threatened violence to [Mr Woolas]. The question, "Why is Elwyn Watkins refusing to condemn the extremists", implies a statement of fact, namely, that he has so far refused to condemn the threats of violence said to have been made by the extremists. The use of the word "refusing" implies a further statement of fact, namely, that he was aware of the threats of violence; otherwise, how could he refuse to condemn their actions? Although these are implied statements we consider that they would be so appreciated by the ordinary and reasonable reader on a first reading of the Labour Rose."
"[Mr Watkins] had refused to condemn extremists who advocated violence against [Mr Woolas]"
"To say that [Mr Watkins] was aware that an extremist group had threatened violence to his political opponent and had refused to condemn such threats is, in our judgment, an attack on the personal character or conduct of [Mr Watkins]. It is an attack on his "honour" or "purity" because, like the statement in The Examiner, it suggests that he is willing to condone threats of violence in pursuit of personal advantage. That is also an attack on his political conduct (because the advantage sought was an electoral victory) but that does not put the attack outside the protection afforded by section 106 if his personal character is also attacked."
(v) Findings as to Mr Woolas' dishonesty and negligence
(3) The approach to the construction of s.106
(i) The penal nature of the provision requires certainty
(ii) The imposition of criminal liability for negligent statements
(iii) The scope of those affected
(iv) The effect of Parliament's re-enactment of the cases in the light of decisions on its meaning
"Parliament is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions. If therefore Parliament has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that Parliament approves of that decision and adopts it. This is an aspect of what may be called tacit legislation."
i) No court has laid down a general definition
ii) A distinction must be drawn between a false statement of fact which relates to the personal character or conduct of the candidate and a false statement which relates to the political or public position, character or conduct of the candidate. In giving the judgment in Cockermouth, Darling J said:
"I think the Act says that there is a great distinction to be drawn between a false statement of fact, which affects the personal character or conduct of the candidate, and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind this statute would simply have prohibited at election times all sorts of criticism which was not strictly true, relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement must relate to the personal character and conduct. One can easily imagine this kind of thing. To say of a person he was fraudulent bankrupt, it would be necessary, probably, to give examples; but that sort of thing would undoubtedly be within the statute..."
In the Attercliffe Division of the City of Sheffield (1906) 5 O'M & H 218 Grantham J said much the same at 221:
"It is a great pity that in elections at the present time so many false statements are made and that votes are obtained in that way. We cannot go beyond the language of the Act, which is limited to false statements made with reference to the personal character or conduct of the candidate, leaving him therefore to be still exposed to unfriendly attacks with regard to his political views. But if his opponent goes beyond that and makes false statements of fact with regard to the private conduct of his rival, then the Legislature has said that it is an illegal practice, which will vitiate the election."
Similarly Madden J said in North Louth at page 166:
"Reading the section I find that the false statement must relate to personal character or conduct, "personal" as distinguished from "public" and it must be one of fact. In the present instance the contrast is between "personal" and "political"...
The primary object of this statute was the protection of the constituency against acts which would be fatal to the freedom of election. There would be no true freedom of election, no freedom of opinion of the constituency if votes were given in consequence of the dissemination of a false statement as to the personal character or conduct of a candidate."
iii) The facts of Cockermouth illustrate what can clearly be viewed as statements in relation to political conduct. During the election campaign of 1900 in the middle of the second Boer War statements were made about a sitting MP who was a candidate for re-election that he did nothing other than taking the part of the Boers (page 163) and he had voted against money and supplies for the Boer War when the enemy was besieging British towns and wrecking British homes (page 164). In The Attercliffe District of Sheffield a statement in respect of a candidate's conduct of "hounding" a popular councillor by ensuring his prosecution for corruption (which others had tried to hush up) were thought by Walton J obviously to relate to public acts and public conduct only; they did not impute any personal advantage to the candidate.
iv) Some statements may without much argument be said to relate to the personal character or conduct. In Bayley v Edmunds (a case decided a few days after the 1895 Act was enacted) the statement alleged that the candidate hypocritically, feeling in his conscience he was doing wrong, locked his workmen out not caring whether he starved them; that sometime later he found his conscience reproved him and he would not starve them any longer. The very brief report indicates that the view of Lord Esher MR was that the Act was intended to strike at something derogatory to the personal character of the candidate and that the statement made was such a statement. It was in fact a statement as to his conduct as a businessman, not as a politician. Similarly the statements in Sunderland related to the conduct of the candidate as a businessman and thus in respect of his personal conduct.
v) What may in certain circumstances be perfectly innocent statements may come within the prohibition if spoken about a candidate without reference to a political issue. As Pollock B said in Sunderland at page 62:
"Supposing any gentleman in a country constituency was to say of his adversary that he had shot a fox and, he said it for the purpose of working upon the minds of the constituency during an election, that would certainly come within the meaning of the Act. Again if any person in a constituency, where one of the Members was a temperance man, were to say that he had seen him drink a glass of sherry - a perfectly innocent act - that would also bring him within the Act."
vi) It is clear from Cockermouth that one cannot simply imply from a statement attacking the political position of a candidate that the statement also reflects on his personal character - i.e. he was supporting the Queen's enemies.
there is argument as to what they in fact established.
(v) The effect of Article 10
"...Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system....The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the "conditions" necessary to "ensure the free expression of the opinion of the people in the choice of the legislature .... For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely..."
i) The restrictions under s.106 of the 1983 Act were consistent with Article 10(2) on the basis of the guidance given by Lord Bingham in R v Shayler  1 AC 247 at paragraph 23 and the judgment of the Strasbourg court in Bowman v United Kingdom at paragraph 42. s.l06 was directed at protecting the right of the electorate to express its choice at an election on the basis of facts and competing policy arguments rather than on false assertions as to the personal character or conduct of the candidates. As false statements of that kind might distort the electorate's choice and, as the section did not interfere with the right to make statements which related to the public or political character of a candidate, it was a proportionate interference. It was therefore not necessary to give the section any different meaning to that which it had been given in the cases (see paragraphs 36-47).
ii) The court should only find an illegal practice in clear cases (see paragraphs 74- 5).
iii) The court should determine whether the consequences were proportionate (see paragraphs 208-9).
"In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach."
"... freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues."
"The main argument in favour of protecting freedom of expression, even in cases of inaccurate defamatory statements, is the encouragement of uninhibited debate on public issues. But the opposite argument is equally strong: the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism. Moreover, such debates may be suppressed if the potential participants know that they will have no remedy in the event that false defamatory accusations are made against them. The prohibition of defamatory speech also eliminates misinformation in the mass media and effectively protects the right of the public to truthful information. Furthermore, false accusations concerning public officials, including candidates for public office, may drive capable persons away from government service, thus frustrating rather than furthering the political process".
"...the applicant was a politician. During an election campaign an opponent had said in a flyer that the applicant was in the habit of putting the interests of his electors second. The applicant accused his opponent of criminal libel, but the prosecutor's office terminated the investigation on the ground that the flyer concerned the applicant as a candidate rather than as a public official and so its publication was not a matter for a public prosecution. Then, acting as a private prosecutor, the applicant submitted an indictment for libel. The district court dismissed the indictment on the ground that the opponent's statement was a value judgment within the limits of acceptable criticism of a politician. The applicant complained of a violation of his article 8 rights. The European Court held that there had been no such violation."
"Dr. László Karakó, in his capacity as a member of the Fidesz... in the Regional General Assembly, regularly voted against the interests of the county. Moreover, in the debate concerning the route of the M3 highway, he did not support the version favourable to the county, with which - aside from the county - he probably harmed his own electoral district the most."
"For the Court, personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society - perhaps rightly so - but not one's integrity, which remains inalienable. In the Court's case-law, reputation has only been deemed to be an independent right sporadically (see Petrina v. Romania, no. 78060/01, 14 October 2008, BAILII:  ECHR 1899, and Armoniene v. Lithuania, no. 36919/02, 25 November 2008, BAILII:  ECHR 1526) and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant's private life. However, in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant's reputation alone which was at stake in the context of an expression made to his alleged detriment".
"A limitation on freedom of expression for the sake of the applicant's reputation in the circumstances of the present case would have been disproportionate under Article 10 of the Convention."
"Nothing in the Convention may be interpreted as implying for any ... person any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".
(4) Our conclusion in relation to the statements made
(i) North Louth and Fairbairn
The word "personal" no doubt in reference to character and conduct is restrictive, but I doubt if the sole antithesis is "political". "Public," or any other position to which comment and criticism would apply, would equally well fit the distinction. A general recommending officers for promotion who had lent him money, a Minister who betrayed Cabinet secrets to a foreign friend, would be guilty of official and political misconduct, which, as a matter of public concern, would merit comment; but such conduct would at the same time involve personal delinquency. If such person was candidate at an election, and a false charge of the above character was made, would it not be a false statement as to both personal character and conduct?
...For the purpose in hand, the only difference between corruption and wilful and dishonourable breach of duty is one of degree not principle. Each relates to personal character and personal conduct.
If a candidate at an election professed to have been a consistent supporter by his vote of Old Age Pensions or of Trade Unions, and a leaflet falsely charged him with having opposed them by his votes, would not the statement affect his veracity and honour even more than his political character?
As the Lord Chief Baron observed in O 'Shee's Case [there is no surviving report], there is no sharp dividing line separating what is personal from what is political or otherwise.
The passage from the judgment of Madden J:
"... to represent a candidate who comes forward as a member of a Parliamentary party, bound by pledge to seek no favours from any administration, as a place-hunter, obtaining from the Government of the day lucrative employments for himself and his family and friends, is to accuse him of political misconduct. Whether he has sought for and obtained such favours is a question of fact, and a question of fact relating to his personal conduct. A false statement of fact relating to his personal conduct may be used for the purpose of representing a candidate as guilty of either private immorality or public immorality, political or otherwise, and it is in either case equally within the statute"
"every false statement in relation to the public character of a candidate may in one sense reflect upon the candidate's personal character, but before there can be an illegal practice in terms of the statute, the false statement of fact must be directly related to the personal character of conduct of the candidate"
(ii) Our view
(iii) The allegation in Choose: reneging on a promise in respect of a political position
(iv) The statements in The Examiner and Labour Rose