England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		5th April 2006

MR JUSTICE MITTING:

1. Sometime yesterday afternoon there was put up on the web site of Respect, the unity coalition, two photographs of a journalist called Mazher Mahmood. Mazher Mahmood is an investigative journalist employed by the News of the World whose speciality is investigating those suspected of having committed crimes, particularly of deception; those who have represented themselves to the public as being other than they are, including politicians, and those who, in the opinion of Mr. Mahmood, can properly be exposed to the adverse gaze of the public.
2. For that purpose he has over the years established a number of identities other than his own under the guise of which he conducts his investigations, frequently involving recorded interviews with the subjects of his investigations. He has achieved very considerable success and on his own estimate has contributed to the bringing to justice of some 130 people accused of crimes. He has given evidence in many cases in his own name in public courts, I think I am right in saying in recent years without the benefit of screens but in one current case with the benefit of screens which prevent the public in the public gallery from seeing him. Clearly for the purpose of that work the fewer the number of people able to recognise him the better from his own point of view and from the point of view of his employer.
3. It seems, although the information I have about this is incomplete, that some time in the recent past he sought to conduct a covert interview with Mr. George Galloway MP. The circumstances in which this occurred are disputed. It is Mr. Galloway's view, as stated by Mr. Price who has appeared for him today, that Mr. Mahmood attempted to get him to behave in a way which was discreditable, a way in which he would not have dreamt of behaving but for the attempt by Mr. Mahmood. The attempt was, according to Mr. Galloway, entirely unsuccessful. It excited in Mr. Galloway, not perhaps for the first time the view that, in the interests of others like him who might be targeted by Mr. Mahmood, his identity should be more widely broadcast so that potential victims of his investigations should have the opportunity of recognising him and so avoiding the, in his view, unfair jeopardy in which they may be placed.
4. Yesterday at about 6.30 p.m. without notice to Mr. Galloway or to the second respondent, Mr. McKay, the press officer of the Respect political party, I granted an overnight injunction restraining further publication by anybody of the two photographs on the web site - indeed of any photograph of Mr. Mahmood. The precise terms of the order that I made may themselves be open to criticism but for present purposes that is not material.
5. Mr. Price, for Mr. Galloway and Mr. McKay, submits that I should not grant a further injunction even for a short time because of the impact of sections 12(1), (2) and (4) of the Human Rights Act 1998. They provide:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) 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..."

6. The impact of that section was considered by the House of Lords in Cream Holdings Ltd. & Ors. v. Banerjee & Anor. [2005] 1 AC 253. The general test is whether or not it is more likely than not that an injunction would be granted at trial, but the test is a flexible one as Lord Nicholls made clear in para.22:

"There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.

A little later:

"But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."

7. Save for one matter in respect of which I require Mr. Galloway to prepare forthwith a witness statement, I am satisfied on the submissions that I have heard and the evidence that I have read that it is not necessary for me to grant a short-term injunction to permit all necessary material to be put before me to permit a judgment to be made as to whether or not it is more likely than not that the claimant will succeed at trial.
8. The one respect in which I do require evidence is as to the circumstances in which Mr. Galloway came by copies of the two photographs. There is a disagreement as to fact as to those circumstances, upon which his evidence is necessary. The two photographs, according to Mr. Mahmood, were obtained in these circumstances. First, a photograph taken by a colleague of his employed by the News of the World as a passport photograph. Mr. Mahmood was conducting an investigation into fake passports at the time and used the photograph to obtain one from a gang which he then exposed as providers of fake passports. He says, and there is no reason to doubt his evidence, that a copy of that photograph was stolen by a former employee of the News of the World and provided to the Observer. It is now clear that that photograph was published on at least one occasion by the Observer in 2001 and possibly also in June 2003.
9. Mr. Galloway, I am told, obtained a photograph from a web site on which it was published in the very recent past, put out by the Albanian Mail. It is common ground that the image did appear on that web site and I have no reason to doubt that that is where Mr. Galloway obtained it from. As to its publication on that web site, Mr. Mahmood's evidence is that once it was realised that it was published there, steps were taken to persuade the publisher to remove it, which steps it was thought had succeeded without opposition. It seems that it was by mistake that it appeared again in the very recent past.
10. The second photograph is a full length photograph of Mr. Mahmood in Sheikh's robes. He says that that photograph was taken during the course of an investigation into another person in August 2005 by, he believes, one of his colleagues. Mr. Galloway says that the image was obtained from the target of that investigation and that the photograph was itself taken by the target of that investigation. There is clearly a dispute of fact there which eventually may be of some significance.
11. All that I can say is that it seems on the material that I have, and will have when Mr. Galloway files his witness statement, that there is no reason to doubt that he obtained the photograph from the source that he identifies. Mr. Mahmood does not assert, as he does in relation to the earlier photograph, that it was stolen by a former employee of News of the World, and I can see no other rational explanation for its coming into Mr. Galloway's possession than the one that is advanced on his behalf.
12. Accordingly, and for present purposes I believe that it is more likely than not that the source of the photograph will be that identified by Mr. Galloway rather than that believed by Mr. Mahmood.
13. Mr. Mahmood's claim is based on a number of possible causes of action. First and foremost, the right of privacy. This, as is now well known, has grown out of the obligation of confidence, formerly recognised by the law, in relation to information communicated in confidence. But it has expanded and the fetters upon it have been lessened in recent years. The present position I believe to be authoritatively stated in Campbell v. MGN Ltd. [2004] 2 AC 457. In Lord Nicholls dissenting speech he observed in para. 14:

"The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' it not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information."

In para. 17 he observed:

"... the values enshrined in articles 8 and 10 [of the European Convention on Human rights] are now [required to be considered as] part of the cause of action for breach of confidence."

He identified the touchstone for liability in para.21 as follows:

"Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy."

14. In his speech as part of the majority, Lord Hope observed in para.92 that:

"The underlying question in all cases where it is alleged that there has been a breach of the duty of confidence is whether the information that was disclosed was private and not public. There must be some interest [2003] QB 195... In some cases, as the Court of Appeal said in that case, the answer to the question whether the information is public or private will be obvious. Where it is not, the broad test is whether disclosure of the information about the individual ('A') would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities."

15. The facts of Campbell v. MGN Ltd. are not of direct relevance because they concerned photographs taken in a street, albeit outside a clinic which was being attended by the claimant for reasons that were plainly part of her private life.
16. Informed by those principles, my view is that at trial the claimant would not establish that there was any right of privacy or of confidence in either of the two photographs. The first photograph, the passport photograph, was certainly obtained in circumstances which were not public, but it was not obtained for any purpose that could possibly be considered private or domestic. It was obtained for the purpose of permitting him to undertake an investigation, the results of which were made public. If the test, which for present purposes I suspect is not truly applicable, propounded by Lord Hope were applicable, then the publication of the photograph would not, in my view, give offence to Mr. Mahmood. It would cause him anxiety and concern and would be disagreeable to him, but it would be disagreeable to him principally because it would restrict his activities, or he would think it would restrict his activities as an investigative journalist. The wider the currency that is given to his image, the less will he be able to undertake the kind of investigations that he does.
17. I am reinforced in that conclusion by section 85 of the Copyright Designs and Patents Act 1988 which provides:

"(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have -

(a) copies of the work issued to the public,

(b) the work exhibited or shown in public...

and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right."

18. This is clearly not a photograph taken for a "private and domestic purpose". It is taken for the purposes of work, something quite separate from the activity described by those common place English words which, taken together, envisage ordinary home life or something close to it.
19. Mr. Spearman has drawn my attention to Hanover v. Germany [2005] EMLR 379 in which the European Court of Human Rights held that Princess Caroline of Monaco's Article 8 rights had been infringed by the publication of photographs of her and her family engaged in ordinary domestic activities. That case does not seem to me to be in point. This photograph is not one of Mr. Mahmood engaged in ordinary domestic activities or in any activity which could be described as private; it is simply a photograph of his face.
20. As far as the second photograph is concerned, the one of him in the flowing robes, that too was not taken in circumstances falling within Lord Hope's test. If taken by the target, as Mr. Galloway believes and as I for present purposes accept to be the case, then it was taken in circumstances which give Mr. Mahmood no right to claim privacy. He was investigating the target. If the target chose to take steps to identify him during the investigation or even if the photograph was merely taken quite innocently as part of a social occasion, it is in no sense an invasion of Mr. Mahmood's right to privacy or of his Article 8 rights that that photograph should be broadcast. He would, one assumes, have been aware that the photograph was being taken when it was. As with everybody who consents to have a photograph taken in the circumstances which I have described, he can be taken to have consented to its subsequent publication.
21. Of greater concern is Mr. Mahmood's assertion that if his identity is broadcast, his right to life and to personal physical integrity will be jeopardised. He points in para. 11 of his witness statement to incidents in which threats have been made to his life and safety by those who have been the subject of criminal investigations and prosecutions resulting from his own investigations. It is to be observed that the last of them was made in September 2003.
22. Mr. Spearman submits that the publication of photographs of Mr. Mahmood would provide valuable information to those who may wish to cause serious harm to Mr. Mahmood. I disagree. For photographs of Mr. Mahmood to be of any use to such people they would have to have a whole package of further information, not least information as to his whereabouts and habits. Armed with such information, the photographs might be of some assistance, but one would have expected anybody who had got that information also to have been able to obtain at a minimum a description - more likely a photograph – of Mr. Mahmood to permit them to inflict whatever harm it was that they might have in mind.
23. I am satisfied that the true purpose of this application is not protection of Mr. Mahmood's life and physical integrity but the protection of his earning capacity and position as an investigative journalist and his utility to his employers in that respect. Neither of those beneficial objectives are the subject of the European Convention. Accordingly, it would not, in my view, be at all likely that any court would extend rights of privacy to include and uphold those rights.
24. It is submitted by Mr. Spearman that it is in the public interest that Mr. Mahmood's identity should be protected by injunction. That is debatable. Mr. Galloway's view is that it is in the public interest that his identity should be exposed so that people like him are not subject to the activities of a man whom he regards as an unscrupulous agent provocateur. Were I to have to decide the case on the balance of where the public interest lay, I would decide it in favour of Mr. Mahmood because it seems to me that his track record establishes that on balance his activities have been in furtherance of the public interest by bringing criminals to book rather more than they have been against the public interest by encouraging those who might not otherwise have committed crimes to do so. But that is not an issue that I could possibly determine at this stage in the proceedings.
25. The mere fact that it might be, in a sense, generally beneficial to the public that Mr. Mahmood's identity should be protected could not itself give rise to or support a cause of action based on confidence or privacy. It is but a factor to be borne in mind. In my view, it is a factor that would have to be weighed, and weighed with care, against Mr. Galloway's right under Article 10 to give public vent to the views that he holds.
26. I turn finally to the Data Protection Act. I deal with this highly complex subject very briefly. I am sure that in so doing I do not do it full justice, but it seems to me on superficial perusal of the Act that it does not contain any provision for a court by injunction to short-circuit the statutory rights of those in respect of whom an infringement may have occurred. Those rights are to give notice to the data controller and to apply to the court, if the data controller does not respond after 21 days appropriately, for damages and rectification, blocking, erasure or destruction where the data is inaccurate. None of those remedies could possibly apply on the facts of this case at this stage.
27. Accordingly, applying, as I am obliged to, section 12 of the Human Rights Act, I conclude that it is more likely than not that this claim would at final trial fail. Accordingly, I am obliged to refuse the injunction sought.

MR. PRICE: My Lord, it is five past five, so the injunction terminated at five o'clock.

MR. JUSTICE MITTING: Yes.

MR. PRICE: No doubt my learned friend and I can put together an order recording the undertaking that has been proffered that you require.

MR. JUSTICE MITTING: Yes.

MR. PRICE: My client is grateful to your Lordship. I would ask for costs of this application. I do so on the basis that there has been — well, first of all, my client is a defendant and he has successfully contested the grant of the injunction.

MR. JUSTICE MITTING: Well, he has won.

MR. PRICE: He has won.

MR. JUSTICE MITTING: So therefore on ordinary principles he is entitled to costs.

MR. PRICE: Yes. In any event, for what it is worth, he signified his intention to publish the material a week ago in an article in the Guardian. Mr. Mahmood said he did not take it seriously and that is why he left ---

MR. JUSTICE MITTING: These are very minor matters by contrast to the major one, that he has won.

MR. PRICE: Yes, my Lord.

MR. JUSTICE MITTING: Yes, Mr. Spearman?

MR. SPEARMAN: Well, it does not sound a very promising start on costs.

MR. JUSTICE MITTING: No.

MR. SPEARMAN: But the position is that it is only one part of the action. Your Lordship plainly has a practice in these matters or has a view on this case.

MR. JUSTICE MITTING: It is not just me, everybody does. It is a discrete question.

MR. SPEARMAN: Yes.

MR. JUSTICE MITTING: The answer is either yes or no and, as far as you are concern, it has turned out to be no.

MR. SPEARMAN: Yes. But what I say, in terms of practice, what I mean is that many judges take the view that the appropriate order is either costs in case or the successful party's costs in case, which is obviously less favourable for the... party rather than an outright order and some judges take the view that costs reserved is best. But if I say costs in case is the right order, then the result follows the merits at the end of the day which obviously at this stage your Lordship is only able to form a provisional view about.

MR. JUSTICE MITTING: Quite, but, as I think everybody recognises, the substance of these cases is in the interim application and not later on.

MR. SPEARMAN: Yes.

MR. JUSTICE MITTING: Save very occasionally when well known fashion models are engaged.

MR. SPEARMAN: That is often the way, my Lord, but if that is so, then the case will go away sooner or later on a costs in case order. So I would say it ought to be costs in case or, at the very worst, defendants' costs in case.

MR. JUSTICE MITTING: The claimant will pay the defendants' costs to be assessed on a detailed basis if not agreed.

MR. PRICE: Just for the avoidance of doubt, if we cannot agree those costs now, we can pursue the assessment now. As your Lordship says it is possible ---

MR. JUSTICE MITTING: Indeed. My intention is that because you have won on a discrete issue you are entitled to have your costs the moment that they have been assessed.

MR. PRICE: I am grateful, my Lord.

MR. JUSTICE MITTING: Any other matters?

MR. SPEARMAN: My Lord, two small things. The question of time for compliance with the undertaking as to the further evidence.

MR. JUSTICE MITTING: Yes. I can see no reason why that cannot be done overnight.

MR. SPEARMAN: Yes. So something like midday tomorrow or something of that sort.

MR. JUSTICE MITTING: By 4.00 p.m. tomorrow.

MR. SPEARMAN: 4.00 p.m. tomorrow. The other is, and I will not take long on this, may we have permission to appeal?

MR. JUSTICE MITTING: On what basis?

MR. SPEARMAN: On the basis that we have a real prospect of success.

MR. JUSTICE MITTING: I think it is something you will have to ask the Court of Appeal for. I refuse the application.

MR. SPEARMAN: And would your Lordship extend the injunction to give us the time to ask the Court of Appeal for a short period such as 24 hours?

MR. JUSTICE MITTING: Mr. Price?

MR. PRICE: My Lord, this is precisely what section 12 is designed to avoid. I think in A v. B this issue arose and that was a case of real principle. I do not need to take you to para. 115 in Campbell, Baroness Hale's speech where she says in terms that there is no right to one's own image and one cannot complain about the publication of a photograph ---

MR. JUSTICE MITTING: All that is being sought now is an overnight stay pending an application to the Court of Appeal for permission to appeal.

MR. PRICE: My Lord, yes, but then if this stay is granted, there will be a further stay until the appeal is heard.

MR. JUSTICE MITTING: No. That is up to the Court of Appeal.

MR. PRICE: If your Lordship is prepared to grant the stay and to effectively hold the ring, that is what you are being asked to do ---

MR. JUSTICE MITTING: Ordinarily, if I had made my ruling by, let us say, half past two, then I would have granted a stay for half an hour to enable Mr. Spearman to go up to the Court of Appeal and say: "Can I have a stay, please, as well as permission to appeal?" But because of the time of day, if I refuse a stay now, then a member of the Court of Appeal is going to have to be disturbed outside normal business hours to consider an application.

MR. PRICE: Alternatively, no application would be made. This is, with respect — I know time is moving on but, with respect, this is an important issue if this stay is granted in effect — well, I mean, if a stay is granted — let us think this through logically. At the moment the order has been discharged.

MR. JUSTICE MITTING: Yes.

MR. PRICE: There is no order. There is nothing to stay.

MR. JUSTICE MITTING: I can re-impose it for a short period. That is the effect of ----

MR. PRICE: But that is what section 12 is telling you you cannot — your Lordship cannot do that having ruled on that that section 12 is not satisfied.

MR. JUSTICE MITTING: Can you give me the page number again? (After a pause): 1108.

MR. PRICE: 1108. But the position now is that there is no restriction on Mr. Galloway's freedom of expression. The order has expired and your Lordship has refused to continue it. So it is not a question of granting a stay. Your Lordship is going to have to grant an injunction in the same terms —

MR. JUSTICE MITTING: In circumstances where I have already said that I do not believe he will get one at final trial.

MR. PRICE: And we have not had any particularisation of the basis of the appeal, and Lord Woolf in A v. B makes it absolutely clear that these matters are supposed to come before the judge, be dealt with by the judge, so that if freedom of expression is to prevail, that freedom of expression can be exercised. There is simply no jurisdiction basis to make the order in any event. Furthermore, before the order was going to be made, your Lordship would need to have some cogent grounds on which your Lordship's order might be overturned, and it is incumbent upon the judge at first instance... whether permission to appeal should be granted and whether a stay should be granted. If the judge at first instance forms the view that there should be no permission and there should be no stay, the judge exercising his own discretion without worrying what the Court of Appeal may do, the net result is that if this claimant wants to go to the Court of Appeal, he is going to have to go to the Court of Appeal now. The timing issue is all his own fault because this notification was made last week and Mr. Mahmood did not take it seriously. That is in his own witness statement. He did not think it was serious. So it was not until six o'clock yesterday afternoon that he decided maybe it is serious, notwithstanding that clear statement of intention in the media that —

MR. JUSTICE MITTING: What about what Lord Nicholls says at p.262B-C that "circumstances where this may be so", that is where you do not apply the ordinary standard, "include those mentioned above" and they are:

"... where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."

MR. SPEARMAN: I hate to interrupt my friend but in fact more germane is the end of 18 on p.260, the very last sentence:

"So if a judge refuses to grant an interlocutory injunction preserving confidentiality until trial, the court ought not to be powerless to grant interim relief pending the hearing of any interlocutory appeal against the judge's order."

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: That is expressly envisaging where you are not satisfied that it is likely but you apply the lesser standard in all the circumstances to give the protection over an application to the Court of Appeal.

MR. JUSTICE MITTING: Yes. I am entitled, I think, to require you to undertake to apply to the Court of Appeal tomorrow.

MR. SPEARMAN: Yes.

MR. JUSTICE MITTING: For permission to appeal and for a stay or for continuation of the injunction pro tern. I am minded at the moment to extend the injunction until 4.00 p.m.

MR. SPEARMAN: Yes.

MR JUSTICE MITTING: So as to ensure that you do bring the matter before the Court of Appeal within a short time frame.

MR. SPEARMAN: Yes, I understand that, but is your Lordship saying that we have only got until 4.00 p.m. tomorrow to apply to the Court of Appeal?

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: That is right?

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: Not that I have got to undertake to you that I definitely will appeal.

MR. JUSTICE MITTING: No, no, of course not. If you do not

MR. SPEARMAN: Then that is the end of that.

MR. JUSTICE MITTING: -- then the whole thing lapses.

MR. SPEARMAN: Yes. We have got until 4.00 p.m. tomorrow to do it. There is a stay pending that.

MR. JUSTICE MITTING: Yes. Mr. Price, I think I have got to do that otherwise, if I am wrong, then the value of the claim to the claimant is lost as a result of what would be held necessarily to be my error.

MR. PRICE: Yes. Well, I mean, that could be said of any application.

MR. JUSTICE MITTING: I appreciate that.

MR. PRICE: And the net result is that it just gets put off.

MR. JUSTICE MITTING: It gets put off for 23 hours.

MR. PRICE: Yes. But practically then the Court of Appeal have got to be summoned —

MR. JUSTICE MITTING: No, there is no problem about doing that because the matter can be put before a single Lord Justice tomorrow morning without any difficulty. But I am terribly reluctant to cause a single Lord Justice, let alone a full court, to be assembled at this time. They are very busy people, they have plenty to do and it is unreasonable to impose upon them additional burdens if it can be avoided. I am going to continue an injunction until 4.00 p.m. tomorrow. I think in view of the submissions that have been made to me, it ought not to be an "against the whole world" injunction but against the two ---

MR. SPEARMAN: My Lord, that, with the greatest of respect, is just a matter of form.

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: It is a question of taking out the words in para.l. If you go to our skeleton argument, it is a question of taking out the words "and any person with notice of this order" from the wording.

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: And then that can just go. Then that is just a matter of putting the usual words that tell people that if anybody gets notice and they frustrate it, they will be in trouble, putting it colloquially.

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: But those words can come out.

MR. JUSTICE MITTING: Yes. Subject to that, I will extend your injunction until 4.00 p.m. tomorrow.

MR. SPEARMAN: I am obliged, my Lord.

MR. JUSTICE MITTING: Thank you, both. Will you lodge a draft, please?

MR. SPEARMAN: Yes, my Lord.

MR. JUSTICE MITTING: Mr. Spearman, it is probably better coming from you as you have had the conduct of it so far.

MR. SPEARMAN: Yes.

MR. JUSTICE MITTING: Thank you.

MR. SPEARMAN: In the morning?

MR. JUSTICE MITTING: Yes.

MR. SPEARMAN: Thank you very much. Thank you very much indeed for the time.

MR. JUSTICE MITTING: Not at all.