IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
(HIS HONOUR JUDGE COX)
London WC2A 2LL
Wednesday 18 July 2001
B e f o r e :
LORD JUSTICE JONATHAN PARKER
|- v -|
|1. NEWS GROUP NEWSPAPERS LIMITED|
|2. SIMON HUGHES|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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
Crown Copyright ©
"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."
"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."
"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."
"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."
"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."
"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."
"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 Appellants' case
"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."
"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."
"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."
"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."
"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'."
"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."
"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."
The nature of harassment
The nature of reasonable conduct.
"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."