IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
London WC2A 2LL
Monday 23 July 2001
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE JONATHAN PARKER
|MRS VICTORIA MANDEVILLE GILLICK|
|- v -|
|1. BROOK ADVISORY CENTRES|
|2. DR MARGARET JONES|
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 MATTHEW NICKLIN (Instructed by Messrs Bindman & Partners, London, WC1X 8QB)
appeared on behalf of the Respondent
Crown Copyright ©
The pleaded claim
"2 (1) The First Defendant .... has centres open to the general public in a number of cities in England and Scotland where it offers counselling and advice on sexual relationships, contraception, pregnancy and abortion to young women and to children under 16. It supplies contraceptives free of charge to those who consult it. It also publishes Factsheets and other material for use in schools, colleges and youth clubs and for those in the medical and teaching professions and the media.
(2) The Second Defendant is Chief Executive of the First Defendant.
5. In April 1996 the First Defendant began publishing and distributing and the Second Defendant authorised the publishing and distributing of a Factsheet entitled:
'Teenage Conceptions: Statistics and Trends'
The said Factsheet was republished by the Defendants with updated statistics in the Winter of 1998.
Both the 1996 and 1998 editions of the said Factsheet contained the following words which are defamatory of the Claimant:
"Teenage pregnancy...the trends over the last 25 years
After the introduction of free contraception on the NHS in 1975, teenage conception rates for the 15-19 age group steadily declined, reaching the lowest recorded figure in 1983. In the 1980s the downward trend was reversed. By 1990 the rate had risen by 23%.
What caused the teenage conception rate to rise in the 1980s
Fears over confidentiality. The legal case taken by Victoria Gillick in the early 1980s confused young people over their rights to confidential advice and deterred many from seeking contraceptive help. Although the case concluded in 1985 in favour of young people's rights, fear and uncertainty lingered on among teenagers and professionals working with them."
The correct approach.
"The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities and without any of the former Order 18 Rule 19 overtones. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strained or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation but also for the purpose of evaluating any defences raised, in particular, justification and fair comment.
The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naive or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task."
The nature of the defamatory meaning alleged:
"It will be for the jury to decide what the words complained of actually meant in their context. At this stage I am satisfied that within the spectrum of meanings of which the words were reasonably capable is the meaning that Mrs Gillick was in some sense to blame for the girls' deaths and therefore morally responsible to a culpable degree."
The judge's reasoning
"In 1983 she took proceedings against the Department of Health and Social Security, and also a local health authority, seeking a declaration that a circular relating to family planning services was unlawful, in the sense that it reflected advice to the effect that professionals giving advice on birth control should not contact the parents or guardians of the persons receiving that advice even if they were under the age of 16, that of course being the age of consent. The action was dismissed by Mr Justice Woolf on 23 July 1983. An appeal was allowed by the Court of Appeal on 20 December 1984. That decision was reversed by a majority in the House of Lords in October 1985. The dissentients were Lord Templeman and Lord Brandon of Oakbrook. The litigation was of great significance for the medical profession and others involved in giving confidential advice on contraception and also, presumably, for many of those who wished to obtain such advice. There would have been a good deal of uncertainty, and no doubt also scope for confusion as to the rights and obligations of such people. In particular, during the period between the decision of the Court of Appeal and that of the House of Lords, those under 16 who wished for confidential advice would in many cases have been turned away.
This was undoubtedly a matter of public interest, and there was considerable divergence of opinion. It is clear also that in many cases opinions were held with conviction and expressed with fervour. Certainly, Mrs Gillick took her stand on the basis of strongly held personal, and, I believe, also religious beliefs."
"I must focus on the test which it is right for me to apply to the facts of this case. In that regard, Mr Nicklin poses the question whether right-thinking members of society could conclude that an unintended contribution towards a rise in teenage pregnancies, as a by-product of litigation pursued through the courts, merited disapproval or opprobrium towards the person responsible. He suggested that it is clear from the historical background that Mrs Gillick was in her litigation motivated solely by a desire to protect her own family interests and did not intend in any way to cause adverse consequences to others.
It seems to me that no reasonable person would think the worse of Mrs Gillick for having pursued her genuine convictions through the courts, despite the fact that there were, or may have been, some undesirable but incidental social consequences, any more than a right-thinking person would think the worse of Lords Justices Eveleigh, Parker and Fox, or of Lords Templeman and Brandon, each of whom for their various reasons was in favour of upholding Mrs Gillick's central thesis."
"There is a huge and unfounded assumption in these words, namely that readers in 1996 will know or be able to recall in some detail what this 'legal case' was all about. The footnote reference to my name says only: 'Mrs Victoria Gillick v West Norfolk and Wisbech Area Health Authority 1985' which explains nothing, and only serves to highlight my name still further.
Lawyers, doctors and social historians might be assumed to know the details of this particular case from the early 1980s. Likewise the Defendants, who had strongly opposed it at the time. But we cannot and must not assume that in 1996 the ordinary man and woman in the street, let alone young people, were familiar with it to any extent, or even at all.
The absence of any explanation of this 'legal case', such as its cause and intentions, its various legal stages and rulings, and even the crucial fact that it applied only to girls under 16, meant that the ordinary reasonable reader had to accept the case at its face value and guess for himself what it was all about.
Indeed, by omitting even the briefest details of the 'legal case', the Defendants effectively ensured not only that a clear link would be made in the reader's mind between the person named and the untoward consequences then described, but also that the reader was the more likely to 'read between the lines' and engage in some loose thinking of his own.
Irrespective of whether the reader recalled the 'legal case' or not, and whatever he may have believed my motives were in taking it, the words complained of would still lead him to the same inevitable conclusion, namely that I had prevented young people from getting the contraceptive help they needed, and as a result they became pregnant.
A disinterested reader such as a lawyer might accept this conclusion uncritically as a simple statement of fact. But I submit that for the ordinary reasonable layman it would hold most unfavourable implications, the most reasonable ones being that I was to blame for the girls becoming pregnant; it was my fault because I brought the case in the first place which prevented them from being able to protect themselves from pregnancy; and whether or not I intended such a disastrous outcome, the fact remained that I was the cause of it and was therefore morally responsible for what happened to these teenagers."