England and Wales High Court (Queen's Bench Division) Decisions
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Cite as: [2010] EWHC 2702 (QB)
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QUEEN'S BENCH DIVISION
ELECTION COURT
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
B e f o r e :
____________________
| ROBERT ELWYN JAMES WATKINS |
Petitioner |
|
| - and - |
||
| PHILIP JAMES WOOLAS |
Respondent |
____________________
Gavin Millar QC and Anthony Hudson (instructed by Steel & Shamash) for the Respondent
Hearing dates: 13-16 September 2010
____________________
Crown Copyright ©
- This is the Judgment of the Court.
- In the General Election held on 6 May 2010 Philip Woolas ("the Respondent"), who was the sitting MP for Oldham East and Saddleworth ("OES"), retained his seat, defeating his nearest rival, Robert Elwyn Watkins ("the Petitioner"), by 103 votes. The Respondent was the candidate of the Labour Party. The Petitioner was the candidate of the Liberal Democratic Party.
- By a petition issued pursuant to section 120 of the Representation of the People Act 1983 (RPA 1893) the Petitioner has contested the result of the election. He alleges that the Respondent was guilty of an illegal practice contrary to section 106 of the RPA 1983, namely, before the election and for the purpose of affecting the return, he made or published several false statements of fact in relation to the Petitioner's personal character or conduct which he had no reasonable grounds for believing to be true and did not believe to be true.
- The alleged false statements of fact were published in three election addresses sent to voters shortly before the election. These election addresses were drafted by members of the Respondent's election team. The Respondent made suggestions as to what should and should not be in the addresses and approved them in their final form to ensure that they contained nothing objectionable. He has accepted responsibility for them. He said that he was aware that there was a prohibition against making false statements in relation to a candidate's personal character or conduct but he denied that the election addresses evidenced any illegal practice contrary to section 106 of the RPA 1983.
- If he is guilty of an illegal practice then section 159(1) of the RPA 1083 requires that his election shall be void. In addition he will be incapable of being elected to the House of Commons for three years; see section 160(4) and (5).
- Section 106 and its predecessors have governed what may and what may not be said during an election campaign since 1895.
- The constituency of OES was a new constituency in 1997 following significant boundary changes. It is the largest constituency in Greater Manchester and has always been regarded as a marginal seat. The electorate in 2010 was 70,984. In a census taken in 2001 9% of the population was identified as Asian and 8.5% as Muslim. The Respondent said that his majority of 3,590 was exceeded by the number of Muslims in the constituency.
- The constituency covers the eastern part of Oldham (which includes the ward of St Mary, of which Glodwick is a part) and the areas of Shaw, Crompton and Saddleworth, which include the village of Delph.
- In 2001 there were race riots in Oldham in the run-up to the General Election. In 2006 the Cantle Report noted that efforts had been made to improve community relations but "segregation and divisions between Oldham's communities are still deeply entrenched."
- Since May 1998 the Petitioner has worked as a personal assistant and business adviser to Sheikh Abdullah Ali Alhamrani. The Sheikh lives in Saudi Arabia, where most of his business interests are, but he holidays in the United Kingdom and has bought plant and equipment and professional services from UK firms for textile factories in Saudi Arabia. The Petitioner worked initially in Saudi Arabia for about 4 years before he moved to Germany, where he worked for about 2 years. On behalf of the Sheikh he has travelled widely. The last time he travelled to Saudi Arabia was in February 2010.
- He said in evidence that he has no formal written contract of employment but is paid for such work as he undertakes for the Sheikh. The amount of remuneration is a matter for negotiation. Payment varies and there can be some time between completing the work and payment. He said that he was self-employed and was not a director of a company anywhere in the world from which he drew income. His gross earnings from the Sheikh for the calendar year 2008 were £19,994. He estimated that this was probably for some 30 days work. For the calendar year 2009 his gross earnings were £107,844 and for the calendar year 2010 to 25th August, £18,076.
- From May 2004 until 18th March 2010, the Petitioner was the councillor for the Healey ward of the Rochdale Metropolitan Borough Council. In that capacity he was paid an annual allowance of £7,500; for some time until May 2008, he received an additional special responsibility allowance of some £7,000 as chairman of Rochdale Township. The Petitioner accepted that he failed to attend council meetings for nearly 6 months between April and October 2008 and so was close to losing his seat.
- He was selected as the Liberal Democratic Party candidate for OES in September 2007.
- The Petitioner made a number of donations to the OES constituency Liberal Democratic Party. His evidence, which we accept, was that all his donations were personal and were disclosed to the Electoral Commission. His donations between September 2007 and September 2009 in the form of cash and in payment of bills totalled £11,890. Between September 2009 and the election on 6th May 2010 his donations totalled £27,014, making total donations of £38,904. He agreed that his contributions were some 25% of the total sum donated to the constituency party between April 2001 and June 2010. He said that many candidates across the country who wish to be elected contribute to the cost of their campaign.
- Before being elected to Parliament in 1997 the Respondent had a career in television and communications. Thus from 1986-1988 he had been a researcher for TVS, from 1988-1990 a television producer for the BBC on Newsnight and from 1990-1991 a political producer on Channel 4 News. Between 1991 and 1997 he was Head of Communications at the GMB trades union.
- In 2003 he was appointed Deputy Leader of the House of Commons. In 2005 he was appointed Minister of State with responsibility for local government. In 2007 he was appointed Minister for the Environment and in 2008 was appointed Minister of State for Borders and Immigration.
- The Respondent's election agent was Mr. Fitzpatrick. He was not a party to these proceedings. Nevertheless it was part of the Petitioner's case as evidenced by the Petition that Mr. Fitzpatrick was guilty of an illegal practice. For that reason, before he gave evidence and pursuant to section 160(1) of the RPA 1983, this court gave him notice of that allegation in order that he might have the opportunity of being heard and of calling evidence in his defence. He did not wish to take either opportunity. At the conclusion of his evidence and before submissions the court again gave him an opportunity to make submissions which he declined. However, in circumstances where a detailed case that he had committed an illegal practice was not put to him in cross-examination and where no submissions were made as to why he should be found guilty of an illegal practice we do not propose to consider whether he was guilty of an illegal practice. We do not consider that it would be appropriate to do so.
- The election campaign, for the purposes of election expenses, is divided into two parts, the "long campaign" and the "short campaign". The latter is the three week period from the calling of the election by the Prime Minister until polling day. In 2010 that was the period from 12 April until 6 May. The election addresses of which complaint is made were distributed to the electors in the latter part of that campaign, and particularly in the last week of that campaign.
- The first election address of which complaint is made was published on 21 April 2010. A copy of it is appended to this judgment as appendix 3. It consisted of 4 pages. On page two there was a box which, so far as material, contained the following:
- The second election address of which complaint is made was in the form of a newspaper, "the Saddleworth and Oldham Examiner", printed in the week before the election on Friday 30 April and distributed over the following weekend. A copy of it is appended to this judgment as appendix 1. It consisted of 8 pages.
- On pages 4 and 5 was an article entitled "Watkins accused of wooing extremist vote". The text of the article said:
- On the last page of the address was an article entitled "Loads-a-money." It referred to an estimate by local printers that the Petitioner had posted over 500,000 leaflets to voters in the last 5 months. It then said:
- The third address of which complaint is made was entitled Labour Rose and was published in the week of the election. A copy of it is appended to this judgment as appendix 2. It consisted of 2 pages. The main article on the first page was entitled "Extremists rant as Phil Woolas defies death threats". The first column in this article reported that extremist groups from outside OES had made death threats against the Respondent and that extremist groups inside OES had threatened him with violence on the streets. The second column said "You would think that any serious politician should condemn such actions. But you'd be wrong." The third column in this article was headed "Lib Dem Pact with the devil". It stated:
- The second page returned to the question of expenses and was headed "The most expensive Oldham election ever?" In essence it repeated the content of the "Loads- a-Money" article in the Examiner.
- Thus the subject matter of the election addresses of which complaint is made involved where the Petitioner lived, his attitude to Muslim extremists and his election expenses.
- Section 106, which substantially re-enacts section 91 of the Representation of the People Act 1949, which itself re-enacted sections and 1 and 3 of the Corrupt and Illegal Practices Prevention Act 1895, provides as follows:
- Section 106 makes provision for the circumstances in which a person is liable for an illegal practice committed by his agent but, as we have already stated, the Respondent has accepted responsibility for the election addresses of which complaint is made in this petition. No submission was made on his behalf that any illegal practice alleged against him was not committed by him personally but by others on his behalf.
- The consequences of such an illegal practice are set out in sections 159 and 160 as follows:
- In 1911 an Irish election court had to consider a large number of challenges to the result of an election in North Louth, one of which concerned breach of sections 1 and 2 of the Corrupt and Illegal Practices Prevention Act 1895, the predecessor to section 106. The judgments in that case, reported as The North Division of the County of Louth (1911) 6 O'M & H 103, explain, in a manner which must, in the light of Parliament's re-enactment of the section in the knowledge of those judgments, be considered authoritative. That was accepted by both parties. Madden J. explained the section in the following terms at pp. 165-66 of the report:
- The judgments also make clear that an untrue statement of fact may relate to the personal character of a candidate even though it also relates to his public or political character. Madden J. said, at p. 171:
- To the same effect is the judgment of Gibson J. at p.158:
- In Fairbairn v Scottish National Party (1979) SC 393 Lord Ross, when holding that a prima facie claim for breach of the predecessor of section 106 had not been out, accepted:
- Lord Ross referred to the following statement by Gibson J. in The North Louth Case:
- Lord Ross concluded that a statement which suggested that Mr. Fairbairn did not collect his constituency mail from the House of Commons Post office was an attack on his character as a political representative but did not amount to an attack on his honour, veracity or purity.
- We shall follow the same approach as that followed by Gibson J. and Lord Ross when determining whether a statement relates to a candidate's personal character or conduct. That approach must be taken as reflecting the intention of Parliament when enacting section 106 of the RPA 1983 (see paragraph 29 above).
- Since passing the Representation of the People Act 1893 Parliament has given statutory effect to the European Convention on Human Rights ("ECHR"). Counsel made extensive submissions on the protection afforded by article 10 of the ECHR to the right of freedom of expression, the extent to which section 106 interfered with that right and whether or not section 106 was compatible with the right to freedom of expression.
- The most material provisions of the ECHR are Articles 10 and 8 and Article 3 of the First Protocol.
- Article 10 provides as follows:
- Article 8(1) provides as follows:
- Article 3 of the First Protocol to the ECHR provides as follows:
- Since section 106 of the RPA 1893, when read with sections 159 and 160, not only empowers this court to declare the Respondent's election as a Member of Parliament void but also disables the Respondent from standing for election for three years on account of statements made by him to the electorate during an election we accept that the Respondent's Article 10 rights are engaged by these proceedings.
- In determining whether the restrictions and penalties imposed by sections 106 of the RPA 1983 are justified pursuant to article 10(2) we have been guided by the speech of Lord Bingham in R v Shayler [2003] 1 AC 247 at para.23:
- In applying that guidance we have also borne in mind that freedom of expression is particularly important in the context of elections as stated in Bowman v United Kingdom (1998) 26 EHRR 1 at para.42:
- The restrictions and penalties on freedom of expression contained in the RPA 1983 are obviously prescribed by law. We consider that they are directed to the objective of protecting the reputation and rights of others. In the North Louth Case Madden J. said, as already noted in paragraph 29 above:
- Thus section 106 is directed at protecting the right of the electorate to express its choice at an election, which right is protected by Article 3 of the First Protocol. Section 106 seeks to ensure that the electorate expresses its opinion in the choice of the legislature on the basis of facts and competing policy arguments rather than on false assertions as to the personal character or conduct of the candidates. That can properly be described as a pressing social need. Section 106 is also directed at protecting the reputation of candidates at an election which is protected by article 8 of the ECHR. In truth the two interests, that of the electorate and of other candidates, overlap or converge. False statements which relate to a candidate's personal character or conduct distort, or may distort, the electorate's choice and hence the democratic process.
- The interference with freedom of expression in section 106 and the penalties imposed for breach of section 106 appear to us to be proportionate to the legitimate aim of that section. As was made clear both in the North Louth Case and by Lord Ross in Fairbairn the section does not interfere with statements, whether true or not, which relate to the public or political character of a candidate but only with untrue statements, in the truth of which there was no reasonable belief, which relate to a candidate's personal character or conduct. That, in our judgment, is a proportionate interference.
- We therefore do not consider it necessary to give section 106 any different meaning from that which it has long been understood to have in order to ensure that it is compatible with article 10 of the ECHR. Indeed, we did not understand Mr. Gavin Millar QC, counsel for the Respondent, to submit that that was necessary. He did however submit that the court, when deciding whether the election addresses in this case breach section 106, should use the obligation to justify an interference with the right of freedom of expression as a check on its reasoning by asking the question, is it necessary and proportionate to penalise this speech in a democratic society by avoiding the election and disqualifying the Respondent from standing for election to Parliament for three years? We have therefore kept well in mind, when considering the allegations made by the Petitioner and the issues raised by them, that, to the extent that they succeed, they will interfere with the right to freedom of expression and impose penalties. For this reason, quite apart from the burden and standard of proof to which we shall next turn, the court should only find an illegal practice contrary to section 106 in clear cases.
- It is common ground between the parties both that the petitioner has the burden of proving the respondent is guilty of the alleged illegal practice and that, although these proceedings are civil in their nature, the standard of proof is not on the balance of probabilities but is the criminal law standard of proof beyond reasonable doubt, that is to say we must be sure the respondent is guilty of the alleged illegal practice.
- Section 160(1) provides (see paragraph 26 above) that if the petitioner establishes that the respondent before or during the election made or published a false statement of fact for the purpose of affecting the return of the petitioner at the election the respondent shall be guilty of an illegal practice "unless he can show that he had reasonable grounds for believing or did believe the statement to be true". Helen Mountfield QC, counsel for Petitioner, submitted that once the petitioner has proved the factual and mental elements of the alleged ill-practice, the statutory language is clear and the respondent has the burden of proving to the ordinary civil standard of the balance of probabilities that he had reasonable grounds for believing or did believe the statement to be true.
- Article 6(2) of the ECHR provides:
- In detailed submissions Ms. Mountfield argued that Article 6 did not oblige the court to read down section 106 so as to require the respondent to discharge only an evidential burden of proof, rather than the legal burden of proof. She said that the respondent's Article 10 right to impart information and ideas was not the only Article 10 right engaged - the electorate of OES had its right "to receive information and ideas freely" - and that it is the positive obligation of the state to put in place a framework in which such rights can be protected and vindicated.
- She referred the court to R -v- Johnstone [2003] UKHL 28 and to Sheldrake -v- Director of Public Prosecutions; Attorney General's Reference (No 4 of 2002) [2004] UKHL 43.
- In Johnstone Lord Nicholls of Birkenhead, with whose opinion their lordships agreed, said (at paragraphs 48-51) the derogation from the presumption of innocence requires justification and that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence. He said:
- In Sheldrake the House of Lords stated (at paragraph 30) that Johnstone was binding on lower courts. Following a review of the Convention and the Strasbourg jurisprudence on the Article 6 right to a fair trial, Lord Bingham of Cornhill (with whose opinion their lordships agreed) said (at paragraph 21):
- Ms. Mountfield submitted that although a breach of section 106 of RPA 1983 can be prosecuted in criminal proceedings brought by the Director of Public Prosecutions the section also provides a civil remedy for a candidate who has lost unfairly a chance to be elected; she submitted that section 106 has an extremely important objective in a democratic society, to ensure elections take place under conditions in which the free will of the electorate can be expressed without it being misled unjustly and to offer redress if they are misled; it follows that section 106 should be interpreted so as to give full effect to that objective as required by Article 3 of Protocol 1 of the ECHR; that the primary judgment on the correct division between the elements of the offence (which is not one of strict liability) and the elements of the defence is for the legislature and should only be disturbed on review if it breaches human rights standards; that section 106 achieves a careful balance and there is no Convention reason for the court to interfere with that balance; that the context is critical and so a candidate for election can be expected to have some appreciation of the issues involved and it cannot be disproportionately onerous to impose the burden of proving belief and reasonable grounds for belief on the respondent because it is comparatively easy for someone to establish his state of mind; in contrast, it would be disproportionately difficult to combat the mischief at which section 106 RPA 1983 is aimed, since it would require the petitioner to prove, beyond reasonable doubt, a negative in relation to facts within the respondent's exclusive knowledge.
- Mr. Millar submitted that the section should not be so construed, that Article 6(2) and Article 10 of the ECHR are relevant considerations, that the effect of an adverse finding against the respondent will be to overturn the decision of the electorate in the constituency of OES and that the section should be read down in accordance with section 3 and Schedule 1 of the Human Rights Act 1968 to require of the respondent only the evidential burden of adducing evidence of his reasonable grounds for believing that the statement was true and that if that burden is discharged, the legal burden passes to the petitioner to prove, to the criminal standard, that he had no such reasonable grounds or belief. He submitted that it is not unworkable to read the section down. He submitted that in the Crown Court and in magistrates' courts the prosecution is required daily to prove the dishonesty of defendants and to disprove evidence of defendants as to their states of mind.
- Our view is that in the absence of public policy grounds - as in Johnstone where "given the importance and difficulty of combating counterfeiting and given the comparative ease with which an accused can raise an issue about his honesty, overall it is fair and reasonable to require a trader, should need arise, to prove on the balance of probability that he honestly and reasonably believed the goods were genuine" (paragraph 53) - there must be compelling reasons for any reversal of the burden of proof. That the matters to which the burden of proof relates are matters within the personal knowledge of the respondent is not of itself a sufficient reason. In a rape trial where the issue is consent, if the complainant gives evidence that she did not consent, the defendant must discharge the evidential burden of adducing evidence of his belief in her consent. If he does not he will be convicted because the inference will be that he did not have such belief. Similarly, in a theft trial where the issue is the defendant's honest belief as to ownership of the alleged stolen property, the evidential burden as to that is on the defendant. Yet in both instances, if the evidential burden is discharged, the legal burden of proving guilt and in particular the defendant's state of mind is on the prosecution, as it is throughout the trial. And so if the petitioner establishes both the factual and mental elements of the alleged illegal practice, in the absence of any explanation from the respondent, the inference would almost certainly be that he did not have reasonable grounds for believing in the truth of what was published.
- Allegations of an illegal practice in elections are very serious indeed; they go to the probity and reputation of the persons against whom they are made and if proved have what are in effect penal consequences. In the present case the reputation of a long-standing member of parliament and a former minister of state is in issue. We are not persuaded that there are any factors which justify a reversal of the burden of proof and have concluded that section 106 must be read down so that there is no more than an evidential burden on the respondent.
- It is common ground that the complaints raised by the Petitioner give rise to the following issues:
- The first three questions require the court to consider the meaning and effect of the election addresses in their context. For that reason we propose to address those questions before narrating the course of events which led up to the issue of the election addresses. Those events are relevant to the truth or falsity of the statements made and to the question whether or not the Respondent reasonably believed them to be true. They do not affect the meaning and effect of the election addresses.
- It is common ground that in ascertaining the meaning of the election addresses it is necessary to consider what the words used would mean to the ordinary and reasonable reader of them in the constituency. Such a reader is neither naive nor unduly suspicious. He would not analyse the words like a lawyer and so the court should be wary of conducting an over elaborate analysis of the words used or of taking an over literal approach; see Skuse v Granada Television (1996) EMLR 278 at 285-287 (per Sir Thomas Bingham MR). The natural and ordinary meaning may be inferred by an ordinary reader using his ordinary personal general knowledge and experience of worldly affairs. The meaning should be the true meaning in the context of the publication; see The North Louth case per Gibson J. at pages 158-160.
- Mr. Millar submitted that the court should consider whether the words complained of were statements of fact in relation to the Petitioner's personal character or conduct before attempting to formulate the meaning of the words. In support of that submission he relied upon a comment by Lord Judge CJ in British Chiropractic Association v Dr. Singh [2010] EWCA Civ 350. In that case the Court of Appeal held that the judge at first instance in a libel action had made a mistaken assessment as to the meaning of an article and had wrongly characterised it as a statement of fact. At paragraph 32 Lord Judge said:
- Whilst we will take care to ensure that our assessment as to the meaning of the election addresses does not stifle our assessment of the question whether such meaning is a statement of fact in relation to the personal character or conduct of the Petitioner we find it logically difficult in the present case to consider whether the election addresses contain statements of fact with regard to the personal character or conduct of the petitioner without first addressing the meaning of the election addresses. We note that Lord Judge does not say that that is an impermissible approach. We shall however, when considering whether the meaning contains a statement of fact with regard to the personal character or conduct of the Petitioner, review that meaning to ensure that our consideration of meaning has not stifled our consideration of the question whether it contains a statement of fact with regard to the personal character or conduct of the Petitioner.
- The article complained of appears on pages 4 and 5 of the Examiner. We accept Mr. Millar's submission that the whole of the two pages must be read together. On the left hand side of page 4 appears an Editorial. The first, and longer, part of that Editorial contrasted the Respondent's "robust" approach to immigration with the "weak" policy of the Liberal Democrats on immigration which would give citizenship to hundreds of thousands of illegal immigrants. To like effect is an article spread over pages 4 and 5 that the Respondent's "straight talking" had made him a target of "extremist Muslim activists". That article was illustrated by a photograph taken in 2006 in London of protestors bearing banners calling for those who insult Islam to be killed. The legend under the photograph said: "Militant extremists are trying to manipulate decent Oldham Muslims to defeat Immigration Minster Woolas." The second, and shorter, part of the Editorial said that there had been "death threats made to Phil Woolas in extremist Muslim election leaflets."
- We have, earlier in this judgment, quoted the article which referred to Mr. Watkins. It is immediately beneath the photograph and legend. It is headed "Watkins accused of wooing extremist vote" and its text stated, in particular:
- We shall first consider the meaning of this article. Our understanding is that there is much common ground between the Petitioner and the Respondent as to the meaning of this article. It was submitted on behalf of the Petitioner that the article means that he sought the support of persons who advocate violence. It was submitted on behalf of the Respondent that the article means that the Petitioner was seeking to persuade Muslim voters (in particular those the Respondent characterised as "extreme Muslim" voters) in OES to vote for him. The dispute between the parties, as it appeared in argument, was as to the identity of those whose vote the Petitioner was wooing or seeking. Mr. Millar submitted that those whose vote was being sought were those who would be attracted by the Petitioner's pro-Palestinian stance. He did not accept, as submitted on behalf of the Petitioner, that those whose vote was being sought were Muslims who advocated violence.
- The ordinary and reasonable reader would, in our judgment, understand the "extremist vote" referred to in the article to be Muslim extremists who advocated violence. We reach that conclusion for these reasons:
- We have considered whether this is an over-elaborate or too literal an approach to the meaning of the "extremist vote" alleged to have been sought or wooed by the Petitioner. We do not consider it is. We consider that it is the plain and clear meaning of the article in its context. We have considered whether the "extremist vote" can fairly be said to be those who would be attracted by the Petitioner's alleged pro-Palestinian stance and not those extremist Muslims who advocate violence. We do not consider that it can be. First, such an interpretation requires the ordinary and reasonable reader to ignore the references in the adjacent article, photograph and editorial to militant extremist Muslims who in the article are said to have distributed "hate leaflets" about the Respondent, in the photograph are shown as advocating violence and in the editorial are said to have made death threats to the Respondent. Second, it is a strained interpretation of "extremist vote" to say that it refers to those who are pro-Palestine. Whilst "extremists" may be pro-Palestinian, many "moderates" are also.
- Mr. Millar submitted that the underlying fact which would have been known to voters in OES was, as stated in the adjacent article, that one extremist Muslim group, the Muslim Public Affairs Committee, was urging Muslims to vote tactically for the Petitioner and so defeat the Respondent. He further submitted that the question asked by the article, "why are the extremists urging a vote for Watkins?", links the article with that suggested underlying fact. We do not consider that these submissions assist Mr. Millar in arguing that the article does not identify the extremist vote as those who advocate violence. The article could have answered the question put in the article by making a statement about the extremists, namely, that they like the "weak" Liberal democratic policy on immigration or the Petitioner's policy statement on stopping arms to Israel. But instead, the article made a statement about the Petitioner, namely, that he had attempted to woo, that is, to seek the electoral support of the extremist vote, that is, of those who advocate violence.
- In his schedule provided after the close of submissions Mr. Millar submitted that in its proper context the meaning of the article was that the Petitioner and the Liberal Democrats were "weak" and "blow with the wind." This is what the Respondent is reported in the article as having said at a rally of moderate Muslims. But the article in the Examiner was not restricted to a comment on the suggested weakness of Liberal Democratic policy on immigration. It went further and alleged that the Petitioner attempted to woo, that is, sought the support of extremist Muslims who advocated violence. That was not a comment on his immigration policy but a statement as to the type of voter from whom he sought support.
- We therefore consider that the ordinary and reasonable reader of the Examiner in OES would have understood the article in question to say that the Petitioner attempted to woo, that is, to seek the electoral support of Muslims who advocated violence, in particular to the Respondent.
- Having concluded that the Examiner stated that the Petitioner sought the electoral support of persons who advocated violence, in particular to Mr. Woolas, it is necessary to consider whether that is a statement of fact or of opinion.
- It was submitted on behalf of the Petitioner that such a statement is one of fact. By contrast it has been submitted on behalf of the Respondent that the statement is a heavily value laden conclusion. Mr. Millar submitted that there were two heavily value laden conclusions in the article. The first was that the group concerned are "extremists", which was said to be a value laden judgment and one which was not about the Petitioner. The second, which was about the Petitioner, was that he attempted to woo the extremist vote by calling for Israel to be isolated from arms sales - but not Palestine. That was said to be an opinion about why the Petitioner had taken this political position.
- In determining this question we have borne in mind that, having regard to the importance of free speech in general and to the importance of free speech in the particular context of a general election, and having regard to the requirement that a breach of section 106 must be established to the criminal standard of proof, a statement should only be characterised as one of fact where there is a clear assertion of fact. We have also asked whether and if so to what extent the statements are value laden in their context; cf British Chiropractic Association v Singh [2010] EWCA Civ 350 at paras.22 and 27. We have borne in mind that what may appear to be a statement of fact may be an inference from other matters and therefore a comment or judgment; see Gatley on Libel and Slander 11th ed. at para. 12.6-12.7.
- We have reached the clear conclusion that the statement that the Petitioner attempted to woo, that is, to seek the electoral support of Muslims who advocate violence, in particular to the Respondent, is one of fact. The statement describes certain conduct by the Petitioner, namely, that he sought the electoral support of persons who advocate violence, in particular to the Respondent. 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 the Petitioner 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 the Petitioner, namely, calling for arms sales to Israel to be stopped. But the Examiner did not limit itself to stating that the Petitioner had called for arms sales to Israel to be stopped. It went further and alleged that in making that call the Petitioner 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 the Petitioner 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.
- 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.
- The article does state why the Petitioner has taken a certain political position but it does so in a manner which suggests that the stated reason is factually true. The text of the article is unequivocal. Had the article said, without using the device of a rhetorical question, that whilst it was not known why the Petitioner had adopted a certain political position one possible explanation was that he had done so in order to woo, that is, to seek the support of certain persons, such a statement could be interpreted as one of opinion and not of fact.
- In considering this question we have reviewed our assessment of the meaning of the article. We have asked ourselves whether the statement in the article is not that the Petitioner has attempted to woo, that is, attract the support of the extremist vote by his policy stance on arms to Israel but merely that the Respondent's opinion is that that is the reason why he has adopted that policy stance.
- We remind ourselves that we are to give the statement the meaning which it would have for the ordinary and reasonable reader in OES. Such a reader would not subject the Examiner to detailed analysis. We should seek to give the article in the Examiner the meaning which the ordinary and reasonable reader would give it on a first reading; cf Hayward v Thompson [1982] 1 QB 47 at pp.61.
- Our conclusion remains that the meaning of the article is that the Petitioner has attempted to woo, that is to seek the support of, the extremist Muslim vote. That is because the statement is clear and unqualified.
- Finally, we must consider whether the statement related directly to the personal character or conduct of the Petitioner. In making that statement the Respondent relied upon a political statement by the Petitioner, namely, that he called for arms sales to Israel to be stopped. However, the circumstance that a statement has a political aspect to it does not prevent the statement from relating directly to the Petitioner's personal character or conduct; see the North Louth Case above. The question is whether the statement attacks the Petitioner's personal character or conduct even if it also attacks his political character or conduct.
- Whilst there may well be instances where it is difficult to decide whether a statement directly relates to a person's personal character or conduct we do not consider that the present is such a case. 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 Fairburn, 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 section 106 if his personal character is also attacked.
- The last page of the Examiner contained an article concerning the Petitioner's election expenses, the source of his funding and whether it had been declared in accordance with the law.
- The Examiner stated that the likely cost of printing and distributing over 500,000 leaflets was in excess of £200,000. It further stated that the Petitioner had not declared donations of anything like that sum as he was required by law to do.
- Having stated that "no-one knows where the money is coming from" the Examiner referred to the fact that the Petitioner worked for Sheikh Abdullah Ali Alhamrani. The article concluded with the following:
- Adjacent to the article was a picture of the Petitioner surrounded by £50 notes. The legend to the photograph asked where was the money coming from. Below the photograph was a box listing a number of questions which needed to be answered. One was whether the Petitioner had declared all donations to the Electoral Commission. Another was whether any of the money same from the Sheikh. And the last was whether the Sheikh was trying to buy the election of a British MP.
- It was submitted on behalf of the Petitioner that the meaning of the "Loads-a- Money" article was that he had committed an electoral offence and was corrupt. It was submitted on behalf of the Respondent that he had made a comment by way of deduction or observation in that he deduced that the cost of the leafleting campaign was probably in excess of £200,000 and that this may have come from the Sheikh. The Petitioner was offering his deduction to the reader. It was accepted on behalf of the Respondent that if his deduction was correct then the Petitioner had been guilty of discreditable conduct as a matter of fact.
- The statement as to the likely cost of the leafleting campaign was not stated to be a deduction by the Respondent. The source of the figure was not stated in terms. The reference to local printers and distribution companies suggests that the source may have been them. But whatever the source, the statement is unqualified and unequivocal - the likely cost of the campaign is "£200,000 +". We consider that the statement would be understood by the ordinary and reasonable reader to be an estimate of the likely cost of the campaign by someone without access to the actual cost.
- The statement that the Petitioner "hasn't declared anything like £200,000 in donations" immediately after informing the reader that politicians are required by law to register donations" clearly implies that the Petitioner has breached the law by spending a sum of money in excess of that which had been declared.
- The article states that no-one knows where the money is coming from and asks the question where is it coming from, as does the box of questions. However, the article, in our judgment, plainly suggests the answer to that question, namely, the Sheikh. It carries a photograph of the Sheikh and states that that "even the Ashcroft money can't match a Sheikh". In their context, the questions asked are rhetorical.
- A rhetorical question is a recognised way of making a statement. Thus in the North Louth Case Gibson J. said, at p. 157:
- We must now consider whether those statements were of fact or of opinion. The statement that the likely cost of the election campaign was "£200,000 +" was only a statement of fact in the sense that it was a statement that such an estimate had been made. The implied statement that the Petitioner had breached the law by spending a sum of money in excess of that which had been declared was a statement of fact.
- The questions asking where the money came from and whether the Sheikh was trying to buy the election of an MP were rhetorical and were, in their context, statements of fact that the money came from Sheikh Abdullah Ali Alhamrani who was trying to buy the election of the Petitioner.
- Finally, we must consider whether these statements related to the personal character or conduct of the Petitioner. Although it is not disputed that the allegations made were of discreditable conduct it was submitted on behalf of the Respondent that such conduct was "unquestionably about his political/public conduct". We agree that the Petitioner's political conduct was attacked but, as explained in the North Louth Case, such an attack can at the same time relate to his personal character or conduct. In our judgment, to state that a candidate has breached the law directly relates to his personal character or conduct because it attacks his "honour" and "purity".
- Similarly, to say that a candidate has accepted undeclared money from a foreign donor who is seeking to buy the election of an MP is an attack on the personal character or conduct of the candidate. Both statements attack his "honour" and "purity".
- The Labour Rose was printed and distributed in the last week of the election campaign. It was a leaflet consisting of 2 pages. The first page carried an article entitled "Extremists rant as Phil Woolas defies death threats" and, in a separate article, contrasted the Respondent's "tough stance" on immigration with the Petitioner's policy which would give "hundreds of thousands of illegal immigrants the right to stay in Britain". It thus returned to the topics covered by pages 4 and 5 of the Examiner.
- The main article again included an edited version of the now familiar 2006 London photograph and referred to death threats against the Respondent by extremist groups outside OES as well as threats of violence to him on the streets of OES by extremist groups inside OES. It further stated that one extremist web site had created a competition for the most imaginative ways to kill him. It then said:
- The text under the photograph identified the Muslim Public Affairs Committee (by referring to its website) as having stated their intention to replace the Respondent with a candidate who would represent the views of Muslims in OES.
- The separate article on the first page also asked "Why is Elwyn Watkins refusing to condemn the extremists."
- It was submitted on behalf of the Petitioner that this article contained a statement that the Liberal Democrats had made an agreement (a pact) with the extremist groups (the devil) who had made threats of violence against the Respondent.
- This is the literal meaning of the sub-heading highlighted in red, "Lib Dem pact with the devil". However, the ensuing sentences do not refer to an agreement but to a failure by the Petitioner to reject an endorsement of him by "one of these groups" and a failure to condemn their actions. The further short article asked why the Petitioner was refusing to condemn the extremists. 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 the Petitioner 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 the Petitioner knew of the threats of violence.
- The statement "it is remarkable" that the Petitioner 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 the Petitioner had not rejected the endorsement of him by an extremist group or condemned their actions. That was a statement of fact.
- 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 the Respondent. 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.
- To say that the Petitioner 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 the Petitioner. 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.
- The Loads-a-Money article was repeated in the Labour Rose save that the reference to the estimate of "£200,000 +" being the cost of printing and distributing over 500,000 leaflets was omitted, as was the box of questions.
- However, it has been accepted on behalf of the Respondent that the article refers the reader back to the article in the Examiner and reminds the reader that the Petitioner's campaign probably cost £200,000. The submissions made in relation to the article in the Examiner were repeated, namely, that it contained no statements of fact and in any event concerned his political not his personal conduct were repeated. For the reasons we have given when dealing with the article in the Examiner we are unable to accept those submissions. In our judgment the article in the Labour Rose contains a statement of fact that the Petitioner has breached the law and has accepted undeclared donations from the Sheikh. These statements are an attack on his personal character and integrity.
- The Election Communication distributed on or about 21 April (see paragraph 19 above) stated that the Petitioner had reneged on his promise to live in the constituency.
- There can be no doubt that this is a statement of fact; it is described as an "interesting fact".
- It has been submitted on behalf of the Respondent 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 the Respondent 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 the Petitioner's promise was within his control and so a failure to honour it reflected on his personal trustworthiness.
- Having considered the meaning and effect of the election addresses as they would be understood by the ordinary and reasonable reader in OES (and reviewed such meaning for the reason stated in paragraph 63 above) it is necessary to consider whether the statements about the Petitioner were true and if not whether the Respondent believed them to be true and had reasonable grounds for believing them to be true. In order to do that it is necessary to narrate the events leading up to the publication of the addresses.
- On 8th September 2007, the Petitioner, following his selection as the Liberal Democrat candidate and who then lived in Rochdale, was reported in the Oldham Chronicle, a local newspaper, as saying he planned to relocate to Lees imminently. In the same newspaper on 20th September 2008, he was reported as saying that his intention was still to live in the constituency, "probably in Lees" - a village he described on his website on 26th November 2008 as "a traditional Lancashire village" - but the housing market was unfavourable; he said he would "definitely" move into the constituency before the next election.
- On 16th February 2010, the Petitioner entered into an assured shorthold tenancy for 3 High Street, Delph for 6 months and on the unchallenged evidence moved into occupation and commenced living there. The lease has since been extended for a further 6 months.
- The evidence established that the Respondent's election team had heard reports that the Petitioner had leased a house in the constituency. Indeed, a letter was deliberately planted in the edition of the Oldham Chronicle for 9th March 2010 by John Battye, a Labour Party volunteer, questioning whether this was a long term arrangement. The Petitioner's response was printed in the edition of the paper for 18th March 2010 confirming that he had moved in to a house in Delph. There was further correspondence on the issue in the editions for 30th March and 9th April 2010.
- Joseph Fitzpatrick, the Respondent's election agent, said in his witness statement that "we had received no reports of him having actually moved into the constituency when we printed the Election Address." In cross-examination he was asked about the Petitioner's letter to the Oldham Chronicle. He replied that the letter could have been a false statement. His evidence, which demonstrated a concerning bias against the Petitioner and liberal democrats in general, was not reliable. We have concluded that the Respondent's election team had undoubtedly heard reports of the Petitioner having moved into the constituency.
- On 13th January 2009 the Petitioner had issued a press release on his web site entitled "Elwyn Watkins calls for Israeli withdrawal from Gazza." The text of the release stated that he was backing Liberal Democratic calls for an end to arms sales from the UK to Israel.
- Later that year, as the end of Ramadan approached (stated in evidence to be on or about 20th September 2009), the Petitioner sent a letter to Muslim constituents in OES. He informed the addressees that he had called for an end to sales of arms to Israel.
- On 22nd February 2010, the Respondent wrote to Nick Clegg, the leader of the Liberal Democrat party. The letter was headed "Your candidates call for ban on Arms Sales to Israel." He referred to the Petitioner's call for a ban on arms sales to Israel and asked whether this was Liberal Democrat national policy. "Is it really your policy that any ban on arms sales should only apply to one middle East country namely Israel." The letter was copied to the Jewish Chronicle.
- On 24th February 2010 Douglas Dowell, Correspondence Manager in the office of Mr. Clegg, replied stating that the Liberal Democrats had called for an EU arms embargo on Israel, which policy did not reflect a judgment on Israel as compared to other countries but was tied to the humanitarian and political situation in Gaza.
- On 1st March 2010 the Petitioner issued a press release entitled "Phil Woolas MP in confusion over arms sales." The release referred to the Respondent's letter to Mr. Clegg. It said as follows:
- Mr. Fitzpatrick, the Respondent's election agent, accepted that he had seen this press release. The Respondent was not asked whether he had seen it.
- On 4th March 2010 the Jewish Chronicle referred to the Respondent's letter to Mr. Clegg. The chronicle reported the Petitioner's response in these terms:
- The Chronicle wished Mr. Woolas to comment on election leaflets issued by a Labour candidate in another constituency which stated that she was "fighting for economic sanctions against Israel" but reported that he was unable to comment.
- The Respondent (and his election agent Mr. Fitzpatrick) denied any knowledge of the article in the Jewish Chronicle reporting what the Petitioner had said in response to the Respondent's letter. This is surprising. We would have expected, in circumstances where the Respondent's letter to Mr. Clegg had been copied to the Jewish Chronicle, that the web site of that journal would have been carefully monitored by the Respondent's election team. It is even more surprising in circumstances where it is apparent from the article in the Jewish Chronicle that Mr. Woolas had been asked to comment. Mr. Fitzpatrick accepted in cross-examination that one member of his team checked up on what Mr. Woolas' political opponent was saying so that they were "up to speed" with what he was saying and doing. We would have expected that such checks would have revealed the Jewish Chronicle article.
- The Petitioner's election expenses return stated that his election expenses were £26,530.91 for the "long campaign" from 1 January 2010 to 11 April 2010 and £9,715.71 for the "short campaign" from 12 April to 6 May 2010. These sums were less than the sums permitted by law for the two campaigns, namely, £28,599.75 and £10,754.65.
- There was unchallenged evidence from the Respondent's election team, in particular Mr. Battye, that they were struck by the quantity and quality of election leaflets distributed by the Petitioner's election team. Mr. Battye gave evidence in a written statement that he estimated the costs incurred by the Petitioner's election team as having been in the region of £200,000. It is unclear from his statement how this very large sum was reached but the Petitioner chose not to cross-examine upon it.
- One element in Mr. Battye's estimate was evidence which the Respondent's election team had received from a former Liberal Democrat volunteer, Ms. McGladdery. It is necessary to mention her evidence because Ms. McGladdery gave evidence before us which contradicted the Petitioner's evidence as to his election expenses.
- Her evidence was that in March 2009 (when she was working part-time as a cleaner) she responded to a request from the OES constituency Liberal Democrat party for volunteers to deliver leaflets, for which she was not paid. After delivering a number of leaflets on several days she was asked if she would like to work as a telephone canvasser in the constituency office. Julie O'Brien started work in the office shortly after her. Ms. McGladdery said the Petitioner took her for a drink to a public house across the road from the office where he told her he could not pay her much but he could help her and said the most he could pay her from his earnings from his work with the Sheikh was £3 an hour. She was not expecting any remuneration but she was then paid weekly on Friday in cash. This arrangement continued and she was eventually working for 30 hours, being paid £100. She said that she was not paid if the Petitioner was away. In her witness statement she said she started to log her working hours in a diary. When cross-examined she said she was asked by the Petitioner to record her hours in a diary. This had not been said in her witness statement. The first entry in that diary was on 10th August 2009.
- The Petitioner denied making any such payments to Ms. McGladdery. He addressed the allegations in his second statement dated 8th September 2010. He said he was in Saudia Arabia from 19-26 November and so was not in England on 22 November. He produced his e-ticket which confirmed his evidence.
- Ms. McGladdery's diary entry for 22 November records 30 and half hours and states "paid" followed by a signature. In her witness statement she said there was a dispute in late November over the number of hours which ended up with Kevin Dawson (who is the husband of a local Liberal Democrat councillor) countersigning her diary. In her evidence in re-examination she said that Mr. Dawson signed the entry for 22 November because the Petitioner was away and so she had to have Kevin Dawson sign to say that she had been paid. This contradicted both her evidence that she was only paid when the Petitioner was in the country and the reason given in her statement for Mr. Dawson's signature in her diary.
- In circumstances which it seems may well have involved a difference of opinion between Ms. McGladdery and Julie O'Brien, Ms. McGladdery stopped working for the Liberal Democrats at the end of 2009. In February 2010 she went to the constituency office of the Respondent to complain about a number of issues which she alleges arose during her time as a volunteer worker for the Liberal Democrat party in the constituency. These included her allegation that she was paid less than the minimum wage as a volunteer worker and that the Petitioner had made undeclared donations of more than £30,000.
- These allegations were denied by the Petitioner in credible evidence which we consider was in no way undermined by the evidence of Ms McGladdery. We concluded that she was an unreliable witness, for several reasons. First, we have already referred to inconsistencies between her statement and her oral evidence. Second, her complaint about being paid the minimum wage does not ring true. Her own evidence was that she was a volunteer. She therefore expected no payment yet the Petitioner offered to pay her (and other volunteers) as much as he could afford from his own earnings. Further, if she was entitled to the minimum wage she made no complaint at the time. She said that she did not ask to be paid the minimum wage because she was being harassed by the Liberal Democrats. However, she said the harassment began in October 2009 yet, on her evidence, she had been paid less than the minimum wage for months before that. Third, when cross-examined she could not explain where the figure of £30,000 came from. Fourth, in addition to complaining about the Petitioner to the Electoral Commission and to HM Revenue and Customs she made complaints about a number of Liberal Democrat councillors and also complained to the RSPCA alleging that Julie O'Brien had ill-treated her cat. In her oral evidence she added a further complaint against the Liberal Democrats; they had thrown stones at her windows. We were not persuaded that there was substance in any of these complaints and concluded that they demonstrated, unhappily, a preparedness on her part to make unfounded complaints. Fifth, although her evidence of payments is seemingly corroborated by the entries she made in her diary from August 2009, we have concluded that the entries were not made contemporaneously and we are therefore unable to regard such entries as reliable corroboration. The Respondent agreed when cross-examined that facts alleged in election addresses should be checked and should be backed up by reliable evidence. We consider that on any objective assessment the allegations made by Ms. McGladdery were not reliable.
- The Respondent published extracts from his diary in the Independent newspaper on 9th July 2010. He agreed, when cross-examined, that these extracts were accurate. They, together with email communications involving, variously, Joseph Fitzpatrick (his constituency agent), Steven Green (an advisor on political communications and producing election material), John Battye (a volunteer) and the Respondent provide contemporaneous evidence of the state of mind of both the Respondent and members of his election team.
- On 2nd January 2010 he wrote in his diary that "immigration was the second biggest issue after the economy" and they [the Tories] "have to attack our credibility and try to slaughter me." He wrote of his concerns that "the drip, drip attacks" on him, the "hapless" Minister for Immigration in the Labour Government, would have a very damaging effect and that it was "a constant effort to protect" himself. On 6th January he wrote that he had told the North West Labour Party that his chances of holding the seat were slim. He wrote that "the white Tory vote will go for the Lib Dem because they'd sooner have a Lib Dem whose views they oppose!" On 17th January, he wrote that the coverage in the media about immigration was such that the voice of the government was not being reported. "We will lose the election because we are not able to get our message over". On 2nd February, he wrote "I'm pretty convinced I am going to lose".
- Mr. Green discussed the campaign with Mr. Fitzpatrick at a meeting between 4th and 30th March 2010. Mr. Fitzpatrick told him that the Respondent's campaign group were concerned that the Petitioner was winning the publications war.
- On 18th March the Respondent wrote "My own chances are unknown but with the polls nearer today its not impossible". On 28th March he wrote "The feeling of not knowing [the outcome] is weird. On the one hand I want to be free of all that crap and nastiness. [On the other hand], I am addicted to politics".
- On 8th April he wrote "I fear our campaign is not strong, there is a sense that we will do what we have to do but I suspect most people, like me, are worried about their financial future." The Respondent said in cross-examination that his concerns were twofold; if he was re-elected there would be less by way of parliamentary expenses; if he lost the election he would be without a job.
- On 17th April Mr Fitzpatrick emailed Mr Green to say things were not going as well as he had hoped; he said "we need to think about our first attack leaflet" and mentioned a newspaper format and calling it 'the Examiner'. The Respondent, in his evidence, explained that the purpose of an attack leaflet was to criticise an opponent and he was aware of the proposal to publish an attack leaflet.
- On 18th April Mr Green, in an email exchange involving the Respondent, provided a draft election leaflet. He referred to "some mild attack" inside which included a reference to the Petitioner, having promised to move into the constituency, taking "a house in Delph for the election period." He also said "it seems to me a lot hangs on the attack Watkins stuff but it is too early to go hard in this leaflet. We might have to take risks with it later."
- On 21st April the final version of the election address was prepared. It contained the allegation that the Petitioner had reneged on his promise to live in the constituency.
- On 23rd April the Respondent wrote that the campaign was "very, very flat", that he was not enjoying it and "there is a collective angst that our national campaign is uninspiring".
- On 25th April Mr Fitzpatrick emailed Mr Green "I think we need to go strong on the militant Moslem angle and explain to our community what is happening". Mr Green replied "Like it! It is going to be hard to write to minimise offence to some though. Perhaps we need to get a Moslem to read it and comment". Mr. Fitzpatrick replied "We are picking up the vibe that Phil is going to lose. Tory voters are talking of voting Lib Dem because they don't want to vote Tory and they hate Labour more than they dislike the Lib Dems. If we can convince them that they are being used by the Moslems it may save him and the more we can damage Elwyn (the petitioner) the easier it will be to stop the Tories from voting for him".
- The Respondent said in evidence there had been discussions about this; he said there had been a number of vicious campaigns, particularly in the North West, by extremist groups, and particularly the MP AC but also others, against sitting labour party members, himself included, who had been accused of being anti-semitic and he was determined to bring that to the attention of the wider public. He accepted there was no connection in that email between the Petitioner and militant Moslems.
- On 25th April hustings were held. The Israeli Palestinian conflict was discussed. The Petitioner said, as part of his comment on the conflict, that "we have to stop selling arms to Israel that they use against the Palestinians." After the Conservative candidate stated that he favoured a "two state solution" he was asked by the Respondent whether he supported the end of the state of Israel. He replied that he did not. The Respondent then asked "And you would condemn those people who have threatened me including my life about that issue. You condemn that?" The Conservative candidate replied that he would "absolutely" condemn that. The Respondent said "thank you". The transcript of the hustings does not record that a similar question was asked of the Petitioner by the Respondent.
- On 26th April Mr Fitzpatrick wrote to Mr Green to say he wanted to have the Examiner printed on the following Friday (30th April). Mr Green replied that he needed as much time as possible and needed a good photograph of the Petitioner for the publication. Mr Fitzpatrick replied he would ask for photos at the next event. He added "I am convinced this newspaper is shit or bust, we are losing it. So? No pressure then."
- The Respondent when asked about this said he did not think it was a correct assessment of his chances; he said there are "ups and downs" in every campaign. We reject this evidence because it is in conflict with his diary entries. The clear inference from the diary entries and emails is that the Examiner was intended to turn the electoral tide against the Petitioner.
- On 27th April Mr Fitzpatrick wrote to Mr Green to ask him "Could we get away with Muslim Extremist in the Target Piece". Mr Green replied, copied to the Respondent, with a copy of the latest version of the Examiner, "Latest includes Muslim story - see what you think!".
- Mr Fitzpatrick replied "I think its fabulous ... I do think we need to do an article on the game plan and the numbers to explain to the white community how the Asians will take him out. I have been speaking to several Asian colleagues and they all assure me that Phil will only get 1500 to 2000 votes. Kasif [the Conservative] asking for support as a Muslim is very strong and Musud [a Liberal Democrat councillor] has stitched up his clan and the Bengalis. If we don't get the white folk angry he's gone".
- The Respondent was cross-examined about the e-mail exchanges on 27 April. It was suggested to him that the use by Mr. Fitzpatrick of the phrase "Could we get away with Muslim extremist in the Target Piece" indicated a preparedness to push the boundaries of normal election publications. He rejected that; he said it was "getting away with it in the context of how do you ensure that you maximise your vote." When he was asked if he knew about the strategy of getting the "white folk angry", he answered "I don't think I knew that the word 'angry' had been used" and added that his strategy as in other elections had been to make people aware of what was happening as a response to the target objective of the MP AC and other similar organisations who were trying to defeat him and other candidates; he agreed that while MP AC was urging voters to vote for the Petitioner, there was no suggestion that the Petitioner was in any kind of agreement with them. In a later answer he said the ideas put up by Mr Fitzpatrick were of a different order and of a different strategy and he rejected them.
- In so far as the Respondent was suggesting in his oral evidence that he did not agree with Mr. Fitzpatrick's strategy we are unable to accept that evidence. We have concluded that he knew and approved of Mr Fitzpatrick's decision that the white voter had to be persuaded not to vote for the Petitioner by associating the Petitioner with extremist muslims, although he (the Respondent) had some concerns as to how far the strategy should go. However, we are not sure that the email correspondence evinced a recognition by the Respondent and his team that the suggested attacks on the Petitioner might breach the law. Whilst some remarks are open to that interpretation there is an alternative explanation, namely, that since the attacks also involved attacks on extremist Muslims the Respondent risked losing some of the Muslim vote. This is supported by the email dated 25 April in which it was recognised that offence might be caused to Muslims.
- On 28th April, Mr. Fitzpatrick emailed to Mr. Green saying that the Respondent (and other members of the election team) shared his concerns "about attacking Muslims too much, but I am convinced that it's game over. All the work he has done in the Asian community will count for nothing. They are going to vote on Religious ground and they don't care that they will lose a good man. The Tories will not vote for an Asian but will vote against Gordon Brown and the Labour Party. I believe that every white member of the community that reads the paper and learns what is happening will vote for Phil and will tell his mates to read the paper. If you are concerned, please shift the focus to MPACUK, our Asian supporters call them a bunch of madmen and terrorists, and I am sure we can attack them as much as you like. If we can get people to log onto their website we could increase Phil's majority."
- On 29th April at 0131 Mr. Green sent a draft of the Examiner to both the Respondent and Mr. Fitzpatrick. It contained the "Loads-a-Money" article. It also contained the article entitled "Extremist Muslim activists target Woolas" article and a draft of the "Watkins accused of wooing extremist article". He asked for comments before the 10am printing deadline. Some comments were made at 0541 by Cath Ball, an adviser to the Labour Party. She said she had found the draft upsetting and had been told it had been toned down. The Respondent said in evidence he had regarded that draft with distaste. Cath Ball's comments were considered by Mr. Green who replied at 0837. Referring to the articles concerning extremist Muslims he said, in an email copied to Mr. Woolas, "The centre pages are much toned down from what I was asked to include. The issue is not that the extremist campaign itself is effective or not but whether we can use the campaign to galvinise (sic) the white Sun-reading voters".
- At 1058 Mr. Fitzpatrick emailed Mr. Green saying "I am sorry to report that the comrades are going to try and rewrite sections of the leaflet. I have urged Phil to only ask for slight amendments to the centre spread but he seems to think that the deadline is a moveable feast. I know that this happened with the freepost leaflet but they never seem to learn."
- At 1143 the Respondent emailed Mr. Green suggesting some corrections. At 1228 he made other suggestions, in particular, to the text of the article entitled "Watkins accused of wooing extremist vote". He also asked whether there was room for a 50 word box on "the death threat leaflet". At 1348 Mr. Green revised the draft and sent it to the Respondent and Mr. Fitzpatrick. This appears to have been the draft which was printed save for some typographical amendments.
- On the same day, following the publicised embarrassment of the Prime Minister in Rochdale after a confrontation with Mrs. Gillian Duffy, the Respondent wrote in his diary "I can't see Labour recovering from this nationally; we may come third. Locally we will be very lucky to hang on".
- The Respondent said in evidence that he disagreed with Mr Green saying that the issue was whether the campaign could be used to galvanise the vote of the "white Sun reading voters". We are unable to accept that evidence because it is contradicted by the contents of the emails leading to the decision to publish the Examiner.
- He was asked why he had not said that he disagreed with the strategy and replied that it was because he was rushing out to see John Prescott and only had 30 seconds. While he may at that particular moment have been in a hurry, he had plenty of time to dissociate himself from the strategy in his emails timed at 1143 and 1228 on 29th April when he suggested amendments.
- In his re-examination the Respondent suggested that when he made amendments to the "Watkins accused of wooing extremist vote" article (in particular by adding the comment, "The Lib Dems are weak and blow with the wind") he did not have in mind the layout of the page in which the article was placed and that he was not aware of its juxtaposition with the other contents of that page. However, the layout had been sent to him (see paragraph 151 above) and he must have been aware that immediately above the article was the photograph of what in the legend were described as "militant extremists" advocating violence. It must have been obvious to him, as it would have been to the ordinary reader, that the "extremist vote" allegedly being wooed by the Petitioner was that of extremists who advocated violence.
- On 30th April Mr. Fitzpatrick emailed Mr. Green saying "Everyone thinks the newspaper is fantastic....I think that we stick with the game plan all the way now. The Tories are out of it now, the're not voting for Kashif, we have to get them voting for Phil, rather than Lib Dem.. Repeat the target, the mad Muslims. Ask the question "Stand by yer man?! For evil to succeed etc. Reuse the photo of the mad Muslims and the behead sign...."
- The Examiner was distributed over the weekend.
- On Sunday 2nd May, the Respondent wrote in his diary "It's moving our way but nationally it's a car crash".
- On Monday 3rd May at 0528 Mr. Fitzpatrick told Mr. Green by email that "the response from your newspaper has been so good Phil was telling me last night ....he now seems to think he is going to survive."
- Later that day the election team, including the Respondent, discussed by email the content of what became the Labour Rose. On 4th. May Mr. Fitzpatrick reported to Mr. Green that "Phil thinks its fine, as he said its shit or bust...."
- On 4th May the Petitioner issued an election address headed "Labour...an apology". The text said:
- We now turn to consider whether the statements made in the election addresses were false.
- The Examiner stated that the Petitioner attempted to woo, that is, to seek the electoral support of Muslims who advocate violence, in particular to the Respondent.
- Counsel for the Petitioner submitted that the statement was false. It was said that there were no Muslim extremists in Oldham who had advocated violence against the Respondent and that, even if there were, the Petitioner had not sought the electoral support of such Muslim extremists.
- The Respondent gave unshaken evidence that as a Home office minister responsible for immigration matters he had been subject to threats of violence. We do not consider that the Petitioner has shown that he was not subject to such threats. Indeed, the Respondent disclosed evidence of such a threat received by e-mail at the House of Commons.
- But this threat did not appear to be from a Muslim source. By contrast, the threats of violence referred to in the Examiner referred to threats of violence by Muslim extremists in the context of the Oldham East and Saddleworth election. Thus the editorial mentioned "death threats made to Phil Woolas in extremist Muslim election leaflets." Similarly, the legend beneath the photograph of depicting protestors making threats of violence stated that "militant extremists are trying to manipulate decent Muslims to defeat Immigration Minister Woolas." The case of the Petitioner, put clearly in cross-examination of the Respondent, was that there were no such threats. The Respondent maintained in evidence that there were such threats.
- The editorial referred to death threats in election leaflets and the main article stated that one extremist group, the Muslim Public Affairs Committee ("MPAC"), had distributed "hate leaflets".
- The Respondent disclosed two leaflets which were said to support what had been said in the Examiner. The first was a leaflet known as Radar published by "the Fun Loving Radical (Mohammed Dawoodji, 39 Legrams Lane, Bradford BD7 1NH)." Only one page of it was in evidence. It was said to be the death threat to Mr. Woolas mentioned in the editorial in the Examiner. The message in the leaflet was that the Respondent in his capacity as a Labour minister for immigration was making it more difficult and expensive for Muslims to get ESOL qualifications. The reader was invited to wonder how Muslims in Oldham could in good conscience vote for any labour candidate in the forthcoming elections. A list of Muslim councillors and their addresses was given. It was said that they will reasonably be expected to help Mr. Woolas to get elected. The reader was invited to contact the Muslim councillors and find out how they could consider assisting the Labour Party without being labelled Chamchas (which we were told meant sycophants). The leaflet ended with the following advice in capitals: "Remember if there is no one to vote for who will treat Muslim with justice then just don't vote". At the bottom of the page, having stated by whom Radar was published, the following was stated in very small print: "Anyone considering making death threats with regard to this publication should also include their name and address as Radar is offering a free hamper of goodies for the most imaginative and menacing communication."
- It was suggested that this was an incitement to others to make a death threat. This seems unlikely because the publisher's name address and postal code was given. It is possible that the publisher contemplated that death threats may be made to him or at any rate "with regard to this publication". Whatever its meaning, it cannot fairly be regarded as a death threat by extremist Muslims (or by Radar or its publisher) to the Respondent.
- The second leaflet was said to be the hate leaflet mentioned in the article about extremist Muslims in the Examiner. It was published by the Muslim Public Affairs Committee of PO Box 55136 London N12 7UY and printed in Batley WF17 6JQ. It was obviously distributed within OES because it refers to "Your local MP and Immigration Minister Phil Woolas." It is undated but we assume that it was published during the election campaign. Reference is made to the General Election 2010. It listed five policy positions of the Respondent and two things which he had said to Muslims. It referred to three items he had claimed for by way of expenses. At the bottom of the page is the statement "No vote = No change." The second page made certain philosophical and theological statements concerning voting. Reference was made to Muslims being under attack in every corner of the world and from the Government of the UK. It urged readers to get involved and join Operation Muslim Vote and help mobilise more Muslims to use their vote intelligently. It said "Your Vote is Your Voice".
- This leaflet did not threaten violence to the Respondent. The most that can be said is that it identifies policy stances or statements of the Respondent which are considered to be not in the interest of Muslims and urges Muslims when voting to select the candidate who will best protect Muslim interests. To describe that as a "hate" leaflet is extravagant.
- When re-examined the Respondent said that his evidence that MPAC was an extremist organisation was in fact based upon what third parties, in particular reporters, had told him and what he had heard on a Channel 4 documentary. Mr. Fitzpatrick gave similar evidence of what third parties had told him. Without particulars this cannot be viewed as reliable evidence. In any event, the Examiner referred to death threats in election leaflets and hate leaflets. None has been disclosed in evidence. The Respondent in fact accepted, in response to a question from the Court, that there was no leaflet produced by MPAC which suggested physical violence.
- Had there been threats of violence made in election leaflets by Muslims groups we have no doubt that they would have been disclosed and shown to us. Two leaflets were disclosed and shown to us but they did not contain death threats against the Respondent. They were leaflets which criticised policy stances and statements of the Respondent as being against the interests of Muslims. In the result we are sure that there were no such death threats as were referred to in the Examiner. The suggestion in the Examiner that extreme Muslim organisations had made threats of violence to Mr. Woolas in the context of the election in Oldham East and Saddleworth was therefore false. It follows that the allegation that the Petitioner attempted to woo the vote of extremist Muslims who threatened violence against the Respondent was false, because there were no such Muslims.
- Further, if (and contrary to our finding) there were threats of violence to the Respondent made by Muslim extremists in the context of the election, it is necessary to consider whether the statement that the Petitioner sought the electoral support of the Muslim extremists who made such threats of violence was true or false.
- In his statement, which stood as his evidence in chief, the Petitioner gave evidence as to his meetings with Muslims in the constituency. None of that evidence can be described as seeking the support of extremist Muslims who advocate violence.
- There was no evidence adduced on behalf of the Respondent that the Petitioner had sought the support of such Muslim extremists. It was indeed a striking feature of the cross-examination of the Petitioner that a positive case that he "wooed", that is, sought the support of, extremist Muslims who advocate violence vote was not put to him. The only case put was that the Petitioner was aware that MPAC was calling for Muslims to vote for him and that he did not state openly or at all that they should not vote for him. But there was no reliable evidence that MPAC advocated violence. Extracts from the MPAC website showed that MPAC did not wish to see the Respondent re-elected and urged Muslims to vote for the Petitioner. But Counsel for the Respondent did not refer us to an MPAC web-site entry which could be said to advocate violence. In those circumstances a failure by the Petitioner to reject the endorsement of MPAC cannot evidence a case that the Petitioner wooed the support of extremist Muslims who advocated violence.
- The Examiner alleged that the Petitioner had attempted to woo the extremist vote by calling for arms sales to Israel to be stopped but not arms sales to Palestine. It is true that his press release in January 2009 and letter to Muslims in September 2009 at the end of Ramadam were attempts to woo the Muslim vote. But they cannot fairly be described as attempts to woo the vote of extremist Muslims who advocate violence. Neither publication called for an end to arms sales to Palestine. But the Petitioner said in his evidence that as there were no arms sales to Palestine no calls for any such sales to be ended were needed. There was no challenge to this evidence. When the Respondent raised the question during the campaign the Petitioner made clear in his own web site and in his interview with the Jewish Chronicle in early March 2010 that arms should not be sold to either side in the conflict. It is therefore clear that, contrary to the allegation in the Examiner, the Petitioner had not attempted to woo the extremist vote by calling for arms sales to Israel to be stopped but not arms sales to Palestine.
- The Labour Rose alleged that the Petitioner had refused to condemn Muslim extremists who had advocated violence. There was no reliable evidence of death threats by extremist Muslims against the Respondent in the context of the election and therefore there was nothing for the Petitioner to condemn. The Respondent has said in his evidence that there were "plenty of opportunities" for the Petitioner to have condemned the actions of the extremists. Two were mentioned. First, the Respondent mentioned the hustings on 25th April 2010 and said that he invited his opponents to condemn threats to kill him. He said that the Conservative candidate did so but that the Petitioner was silent on the matter. Second, he said that he thought that that the Examiner might have prompted such a statement from him but it did not.
- The record of the hustings on 25th April 2010 to which we were referred (see paragraph 143 above) showed that the Respondent asked the Conservative candidate whether he condemned those who had threatened the Respondent's life. The Conservative candidate replied that he would. Contrary to the evidence of the Respondent he did not ask that question of the Petitioner. It therefore cannot be said that he refused to condemn such actions at the hustings.
- On or about 4th May 2010 the Petitioner issued an election flyer calling upon "Labour" to apologise for the lies, smears and totally false allegations made against the Petitioner "over the last few days" This was plainly a reference to the Examiner. In these circumstances we do not consider that the absence of a condemnation of the death threats mentioned in the Examiner amounts to a refusal to condemn such actions.
- The allegation in the Labour Rose was therefore untrue.
- There seems no reason to doubt that the Respondent's election team were struck by the number and quality of election leaflets distributed by the Petitioner. The Petitioner accepted that his team had distributed well in excess of 500,000 leaflets whilst the number distributed by the Respondent's team appears to have been significantly less. Indeed counsel for the Petitioner suggested to the Respondent that he had been "outgunned" by the Petitioner, with which he agreed. Mr. Battye, one of the Respondent's election team, gave evidence that he estimated that the costs of producing, printing and distributing the Petitioner's election leaflets was in the region of £200,000. Although no clear evidence was given as to precisely how this estimate was made we have no reason to doubt that such an estimate was made. Mr. Battye's evidence was not challenged. The statement in the Examiner that an estimate of the Petitioner's election expenses in the sum of "£200,000 +" had been made (our emphasis) was therefore true.
- However, it was a striking feature of the cross-examination of the Petitioner that there was no challenge to the Petitioner's election expenses having been as stated in the returns to the Electoral Commission. Mr. Millar accepted during submissions that there had been no such challenge. The Respondent therefore accepted that the Petitioner's expenses were as declared to the Commission, namely, approximately £36,000 (see paragraph 24 above). Further, the Petitioner gave evidence that no donations to his campaign were made by the Sheikh. He was not challenged on that evidence and no evidence was adduced which suggested that the Sheikh had made any donations. We are therefore satisfied that the statements made in the Examiner and in the Labour Rose that the Petitioner had breached the law by not declaring all his expenses and that the Petitioner had accepted undeclared donations from the Sheikh were untrue.
- Mr. Millar submitted that the allegation that the Petitioner had reneged on his promise to live in the constituency was true because the Petitioner had promised in September 2007 to move into the constituency "imminently and in November 2008 to move "as soon as possible". He had not honoured these promises because it was not until February 2010 that he moved. However, the meaning of the election address to the ordinary reasonable reader in OES was that the Petitioner had promised to live in the constituency and in breach of that promise did not do so. It was not that the Petitioner had promised in 2007 and 2008 to move into the constituency "imminently" and "as soon as possible" but had broken that promise by reason of delaying his move into the constituency until February 2009.
- There was no challenge to the Petitioner's evidence that he had lived in the constituency since February 2010 (see paragraph 112 above). Thus the Respondent accepted that the Petitioner had lived in the constituency since February 2010. We are therefore satisfied that the allegation made in the election address distributed on or about 21st. April 2010 that the Petitioner had reneged on his promise to live in the constituency was untrue.
- Finally, we must consider the question whether there were reasonable grounds to believe that the statements made in the election addresses were true and whether the Respondent believed them to be true.
- Mr. Millar submitted that for the purposes of section 106 of the RPA 1983 it was sufficient that the Respondent had reasonable grounds for believing in the truth of the meaning he understood the article to have, even though that was not the meaning which the ordinary and reasonable reader understood the article to have. This argument was based upon an analogy with the decision in Bonnick v Morris [2003] 1 AC 300. In that case the Privy Council held, at paragraphs 17-28, that for the purposes of determining whether, in the context of a defamation action, a journalist had acted responsibly, it was permissible to take account of the meaning which a journalist thought an article had even though that is different from the meaning which the article had to the ordinary reasonable reader. "A journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views." In that case "the defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers." It was submitted that there should be the same flexible approach when determining, for the purposes of section 106, whether a politician had "reasonable grounds for believing, and did believe" that a statement he had made was true.
- This is an important submission with regard to the extent of the defence of reasonable belief afforded by section 106. However, it is unnecessary for us to decide whether it is correct because the statements in the three election addresses of which complaint is made are not ambiguous. Their meaning is so obvious that we do not consider the Respondent can say that he understood their meaning in any different sense. We will therefore consider whether the Respondent had reasonable grounds for believing and did believe that the statements made in the election addresses were true by reference to the meaning which we consider that they would convey to the ordinary and reasonable reader and must have conveyed to the Respondent.
- The Respondent gave evidence that he "believed ....that the Petitioner was taking this prominent political stance [calling for an end to arm sales to Israel whilst saying nothing about arms sales to Hamas] in an opportunistic attempt to attract political support from the more extreme British Muslim voters in Oldham East." This was stated in paragraph 39 of his statement which stood as his evidence in chief. Likewise, in his re-examination he said that the consequence of the Petitioner's strategy was "to seek support from the people who might vote for extremist views". The premise of this belief, as clearly stated in the Examiner, was that the Petitioner was calling for an end to arms sales to Israel but not for an end to arms sales to Palestine.
- The Examiner and the Labour Rose were printed and distributed in the last week of the campaign, between 30th April and 6th May 2010. Long before this, in early March 2010, the Petitioner had made clear that he did not support the sale of arms to either side in the Middle East conflict.
- Surprisingly, both the Petitioner and Mr. Fitzpatrick gave evidence that the article in the Jewish Chronicle on 4th. March had not been seen by them. That is surprising because one would have expected the Labour party election team in the constituency to have monitored the internet for reports of their opponent and to have found the article in the Jewish Chronicle, especially in circumstances where the Respondent had copied his letter to Mr. Clegg to the Jewish Chronicle. However, the Petitioner's web site entry of 1st March must have been seen by the team. Mr. Fitzpatrick accepted that he did see it.
- The Respondent was not asked whether he saw it but since he had raised the matter with Mr. Clegg it would have been reasonable to ask his team, before making the serious allegation in the Examiner, whether the Petitioner had made any further statement on his web site about the matter. Mr. Woolas accepted in cross- examination that before publishing election addresses it was necessary to check the facts. If he did make that enquiry he would have been informed of the web site entry dated 1 March. In that event he would not have had any reasonable ground to believe in the truth of the statement in the Examiner that the Petitioner's policy was one-sided. If he did not make that enquiry his failure to do so, would, in our judgment, be unreasonable, having regard to the gravity of the charge he was making in the Examiner. Whilst there are grounds for believing that the Respondent must have seen the web site entry we cannot be sure that he did. However, we are sure that the Respondent had no reasonable grounds to believe what was alleged to be the Petitioner's policy stance.
- Since the Respondent had no reasonable grounds to believe what was said in the Examiner as to the Petitioner's policy stance it follows that he cannot have had reasonable grounds for believing in the truth of the allegation that the Petitioner attempted to woo the extremist vote. No other grounds were suggested as support for the suggestion that the Petitioner had attempted to woo the vote of extremist vote.
- Further, in circumstances where the Respondent has not referred us to an election leaflet or other communication from a Muslim making a death threat against him we do not consider that he had reasonable grounds to believe that extremist Muslims had made such threats against him.
- We are also satisfied that that the Respondent did not in fact believe that the Petitioner had sought the support of Muslim extremists who advocated violence. The Respondent did not say he had such a belief and there were no grounds for such a belief.
- In considering the question of reasonable belief we have reviewed our decision that the statement in the Examiner that the Petitioner had attempted to woo the support of those who advocated violence was an untrue statement with respect to his personal character or conduct. We are conscious that the statement that the Petitioner called for an end to arms sales to Israel but not to Palestine, albeit untrue, was a statement as to his political conduct. Had that been the limit of the statement in the Examiner and, for example, a contrast had been drawn between that policy stance and a policy stance of the Respondent there would have been no question of the statement falling foul of section 106. However, in addition to making that statement, the Examiner stated that the Petitioner had attempted to woo the support of those who advocated violence. That additional statement, whilst clearly being in respect of the Petitioner's political conduct, was also in respect of his personal character or conduct because it stated that he was prepared to overlook threats of extreme violence in pursuit of an advantage. Using the language of the North Louth case such a statement attacks the Petitioner's "honour" or " purity". No person, whether or not he was a politician, would wish that to be said of him. There can have been no reasonable grounds for believing in the truth of that statement because there were no reasonable grounds for believing in the truth of the premise upon which the statement was based, namely, that the Petitioner called for an end to arms sales to Israel and not to Palestine.
- The Respondent's diary and the email correspondence between members of the Respondent's election team, including the Respondent, explain why the Respondent was willing to make statements in the truth of which he had no reasonable grounds to believe. By the last week of the campaign, after the Prime Minster's confrontation with Mrs. Duffy, he was pessimistic as to his chances of success in his own election. "I can't see Labour recovering from this nationally; we may come third. Locally we will be very lucky to hang on". His agent, Mr. Fitzpatrick, was very pessimistic. "I am convinced that it's game over." Mr. Fitzpatrick's assessment was that it was necessary to find a means of persuading the Tories in the constituency to vote for the Respondent. "If we can convince them that they are being used by the Moslems it may save him and the more we can damage Elwyn the easier it will be to stop the Tories from voting for him". The Respondent and his election team were aware that some Muslims wished to cause the Respondent to lose his seat and, to that end, were persuading Muslims to vote for Petitioner. They in turn wished to persuade the "white folk" to vote for the Petitioner. To do so they had to get them "angry". The chosen method or strategy was to suggest that there were Muslim extremists who advocated violence, in particular to the Respondent, and that the Petitioner was attempting to seek the support of such Muslims. This was, we consider, one of the methods by which it was hoped to "damage" the Petitioner.
- Although the Examiner was approved by the Respondent there can, we think, be little doubt that the instigator of that allegation was Mr. Fitzpatrick. Mr. Fitzpatrick had a very low opinion of "Liberal Democrat campaign technique" which he said was to send "a different message to a different group". Thus he said, when cross- examined on this matter, that the Petitioner made one statement to the Asian community (in his 2009 letter to Muslims), that he was opposed to arms sales to Israel, and a different statement to the white community who read his web site entry dated 1st March 2010, that he was opposed to selling arms to either side. This was a wholly unreasonable attitude to take. The statement on the web site dated 1st March 2010 was not addressed to any particular community, any more than the press release dated 13th January 2009 (calling for an end to arms sales to Israel) was addressed to any particular community. Both were available to be read by all. The web site dated 1st March 2010 was a clear statement that the Petitioner's policy stance was not one-sided in the manner suggested in the Examiner. Nevertheless, Mr. Fitzpatrick was willing to say that the Petitioner's stance was one-sided in order to "damage" him.
- The Respondent went along with that. It was the last week of the campaign and he was pessimistic as to his chances of success. In his cross-examination he was reluctant to accept that the strategy of his election team was to link the Petitioner with extremist Muslims who, it was being suggested, were threatening violence. Yet it is, we consider, plain that that was the strategy and that the "wooing" article in the Examiner identified such a link.
- The Respondent has sought to explain the reason for this allegation with reference to the hustings on 25 April and to events after the publication of the Examiner. This was a serious allegation and we do not consider that either the hustings or the events after the publication of the Examiner gave the Respondent reasonable grounds for alleging that the Petitioner had refused to condemn the action of extremist Muslims who advocated violence. The Petitioner was not asked at the hustings to condemn threats of violence against the Respondent. There was therefore no basis at all for saying that he refused to condemn such action, even assuming that such threats had been made against the Respondent by Muslims during the campaign. The Examiner referred to death threats to the Respondent in extremist Muslim election leaflets. None was produced in evidence. But assuming that there were such threats the Examiner did not call upon the Petitioner to condemn such threats. His response was to issue an election flyer on 4 May referring to the "totally false allegations" about him. In these circumstances we do not consider that his failure to condemn the alleged threats over the weekend of 1st and 2nd May and the distribution of the Labour Rose on 4th May provides any basis for saying that he refused to condemn such threats.
- We are satisfied that the Respondent did not believe that the statement in the Labour Rose was true. In his cross-examination he was reluctant to accept that the Labour Rose stated that the Petitioner had refused to condemn the actions of extremists who had made death threats against the Respondent. We consider that this reluctance stemmed from an appreciation that what was said in that article was not true.
- This too was a serious allegation, namely, that the Petitioner had broken the law and had received undeclared donations from the Sheikh. However, there was, as we have already observed, concern within the Respondent's election team as to the amount and therefore the source of the money being spent by the Petitioner's election team. The Respondent gave evidence that Mr. Battye explained his estimate of "£200,000 +" to him, that it was known that the Petitioner worked for the Sheikh and that the Petitioner did not appear to be personally wealthy. Although, as we have already observed, it is not clear how Mr. Battye reached the figure of "£200,000 +" he was not cross-examined as to that estimate and in those circumstances we do not consider that the Petitioner has discharged the legal burden of proving that the Respondent lacked reasonable grounds for making this allegation.
- The Respondent did not suggest that he believed that the Petitioner did not live in the constituency when the election address was distributed in April 2010. His case was that he believed that the Petitioner had delayed in moving into the constituency and that he had reasonable grounds for believing that. This is stated in his witness statement ("the Petitioner had reneged on his promise to move into the constituency imminently when selected") and confirmed by Mr. Millar's schedule ("PW believed that EW had gone back on that promise to move into and live in the constituency between September 2007 and February 2010"). However, as we have said, that was not the meaning of the "interesting fact" in the election address (see paragraph 19 above).
- By contrast with the evidence and case of the Respondent, the statements of Mr. Battye and Mr. Green suggest that they believed that the Petitioner did not live in the constituency and was only using the address in Delph as an "accommodation" address for the purposes of the election. However, we do not consider that they had reasonable grounds for this belief. Having heard reports that the Petitioner had moved into the constituency simple enquiries at the address in Delph by the Respondent's election team would have revealed that the Petitioner was living there. It does not appear that they were made. The most that was done was to search, first, the Land Registry which revealed that the Petitioner did not own the property and, second, the Electoral Register, which, until 1st May, showed the Petitioner still to be registered in Oldham. In circumstances where no inquiries had been made at the address in Delph neither register gave reasonable grounds for believing that the Petitioner's statement to the Oldham Chronicle that he had "recently moved into a lovely terraced house in Delph, as my neighbours will be able to tell you" was untrue.
- For the reasons which we have given we are sure that the Respondent made statements of fact in relation to the personal character or conduct of the Petitioner which he had no reasonable grounds for believing were true and did not believe were true. Those statements were as follows:
- The Respondent is therefore guilty of an illegal practice. That illegal practice was committed by him. We shall so report to the Speaker as required by sections 144 and 158 of the RPA 1983. Section 144 requires the court to determine whether the election of the Respondent as a Member of Parliament is void. We have determined that his election is void pursuant to section 159 of the RPA 1983 because the Respondent is personally guilty of an illegal practice.
- If the only breach of section 106 of the RPA 1983 had been that stated in paragraph 207(iii) above we would have questioned (in response to the question posed by Mr. Millar and noted in paragraph 47 above) whether it was necessary and proportionate to penalise such speech by declaring the election void and disqualifying the Respondent from standing for election to Parliament for three years. However, there were in addition the breaches stated in paragraph 207(i) and (ii) above which we consider of such seriousness that such concerns do not arise. We are satisfied that the statutory penalties for the illegal practices committed by the Respondent are both necessary and proportionate. No submission to the contrary was made.
Teare and Griffith Williams JJ:
The constituency
The Petitioner
The Respondent
The Respondent's election agent
The election addresses
"Did you know?
Interesting facts about our Lib Dem candidate.
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."
"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. !"
"The likely cost? A cool £200,000+ for printing and distribution.
Political rivals are accusing the Lib Dems of trying to buy the election but their candidate Elwyn Watkins is laughing all the way from the bank.
No-one knows where the money is coming from. Politicians are requird by law to register donations so the public can judge if the money is properly obtained. But Watkins hasn't declared anything like £200,000 in donations.
What is known is that Elwyn Watkins is the personal assistant to Saudi Arabian billionaire Sheikh Abdullah Ali Alhamrani.
Political donations from overseas are illegal. Eevn the Ashcroft money can't match a Sheikh."
"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...."
The Representation of the People Act 1983
"(1) 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 a 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."
"159(1) If a candidate who has been elected is reported by an election court personally guilty or guilty by his agent of any corrupt or illegal practice his election shall be void....
160(4) Subject to the provisions of subsection (4A) and section 174 below, a candidate or other person reported by an election court personally guilty of a corrupt or illegal practice-
(a) shall during the relevant period specified in subsection (5) below be incapable of-(ii) being elected to the House of Commons, or(iii) holding any elective office; and(b) if already elected to a seat in the House of Commons, or holding any such office, shall vacate the seat or office as from the date of the report.
(5) For the purposes of subsection (4) above the relevant period is the period beginning with the date of the report and ending-(a) ....(b) in the case of a person reported personally guilty of an illegal practice, three years after that date.
"The Act of 1895 afforded a further protection to constituencies and to candidates. The mischief against which it was directed was an abuse of the right of free discussion by the dissemination among a constituency of false statements of fact, written or spoken, in relation to the personal character or conduct of a candidate....
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....
A public man in his candidature, as in Parliament, is liable to misrepresentations as to his public character or conduct, and it can be readily understood why the Legislature has not thought fit to protect either the constituency or the candidate against misrepresentations of this kind... It has drawn the line of defence at a false statement of fact in relation to personal character or conduct....
The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate...."
".. .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."
"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 as at an election, and false charge of the above character was made, would it not be a false statement as to both personal character and conduct.?"
"that every false statement in relation to thee 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."
"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."
The European Convention on Human Rights
"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....
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."
"Everyone has the right to respect for his private and family life, his home and his correspondence."
"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."
"It is plain from the language of article 10(2), and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with article 10(2) only if it is prescribed by law, is directed to one or more of the objective specified in the article and is shown by the state concerned to be necessary in a democratic society. "Necessary" has been strongly interpreted....One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2)...."
"...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..."
"The Act of 1895 afforded a further protection to constituencies and to candidates. The mischief against which it was directed was an abuse of the right of free discussion by the dissemination among a constituency of false statements of fact, written or spoken, in relation to the personal character or conduct of a candidate....
The primary protection of this statute was the protection of the constituency against acts which would be fatal to freedom of election. There would be no true freedom of election, no real expression of the opinion of the constituency, if votes were given in consequence of the dissemination of a false statement as to the personal character of conduct of a candidate...."
Burden and standard of proof
That must be so because sections 168 and 169 of the RPA 1983 make provision for prosecution on indictment of those allegedly guilty of corrupt practice and for the summary prosecution of those allegedly guilty of illegal practice, section 106(1) refers to a person being guilty of an illegal practice and section 160(4) of the RPA 1983 provides that those reported by an election court to be personally guilty of a corrupt or illegal practice are subject to the penal consequence of severe electoral disqualifications. In R -v- Rowe, ex parte Mainwaring and Others [1992] 1 WLR 1059 the Court of Appeal was satisfied that it would not be desirable to have a different standard of proof in different courts on the same issue.
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law"
"A sound starting point is to remember that if an accused is required to prove a fact on the balance of probability to avoid conviction, this permits a conviction in spite of the fact-finding tribunal having a reasonable doubt as to the guilt of the accused: see Dickson CJ in R -v- Whyte (1988) 51 DLR (4th) 481,493. This consequence of a reverse burden of proof should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons. The extent and nature of the factual matters required to be proved by the accused, and their importance relative to the matters required to be proved by the prosecution, have to be taken into account. So also does the extent to which the burden on the accused relates to facts which, if they exist, are readily provable by him as matters within his own knowledge or to which he has ready access. In evaluating these factors the court's role is one of review".
"From this body of authority, certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular .
The issues
a. What is the meaning of the election address of which complaint is made?
b. Do the election addresses amount to a statement of fact?
c. Are any such statements of fact in relation to the Petitioner' personal character or conduct?
d. Are such statements false?
e. Did the Respondent believe them to be true and have reasonable grounds for believing them to be true?
"It may be said that the agreed pair of questions which the judge was asked to consider ...was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory even if they amount to no more than comment.. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second."
The Examiner: "Wooing the extremist vote"
"....In his attempts to woo the vote he has called for Israel to be isolated from arms sales - but not Palestine."
a. Immediately above the article is a photograph of demonstrators advocating violence, indeed death, to those who insult Islam. That photograph is part of an article which refers to "militant Muslims".
b. The legend below that photograph, and so immediately above the article, refers to "militant extremists".
c. In addition, the editorial below and to the left of the article, refers to death threats made to the Respondent in "extremist Muslim election leaflets".
d. The juxtaposition of the article with regard to the adjacent article, photograph and editorial therefore identifies the "extremist vote" as the vote of extremist militant Muslims who advocate violence, in particular to Mr. Woolas.
The Examiner: Loads-a-Money
"Political donations from overseas are illegal... Even the Ashcroft money can't match a Sheikh."
"That a libel couched in an interrogative form, or worded as rumour - "It is rumoured that"- should not be deemed capable of being a statement of fact is manifestly not law."
The Labour Rose: "Lib Dem Pact with the devil"
"You would think that any serious politician should condemn such actions.
But you'd be wrong.
Lib Dem Pact with the devil [highlighted in red]
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."
The Labour Rose: "The most expensive Oldham election ever?"
The Election Communication: Reneging on his promise
Events concerning the Petitioner's intention to live in the constituency
Policy statements concerning arms to Israel
"Elwyn Watkins had called for a ban on arms sales to Israel in the wake of the bombardment of Gaza in the Winter of 2008- 2009.
One year later, Mr. Woolas has written to Nick Clegg to ask if this is official Liberal Democrat policy.
Commenting, Elwyn Watkins said, "There are many countries that we should not be selling arms to in the Middle East and elsewhere, because of the way that we suspect they will be used, including Israel. We should not be selling arms to either side in this conflict."
"[My comments are] supported by quite a few million people. It's not an anti-Israel thing. I would not sell rockets to Hama either. I was following the party line. I would equally condemn Hamas. Hizbollah or whoever targets civilians."
The Petitioner's election expenses
The election campaign
"Labour owes you an apology. Over the last few days, they have descended down into the gutter in their attempt to hold onto this seat....Labour have now resorted to lies, smears and totally false allegations about the Liberal Democrats and me personally...."
Falsity
Wooing the extremist vote and refusing to condemn their actions
Election expenses
Living in the constituency
Belief
Wooing the extremist vote
Refusal to condemn actions of extremists
Election expenses
Living in the constituency
Conclusion
(i) The statement in the Examiner that the Respondent 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 the Respondent.
(ii) The statement in the Labour Rose that the Petitioner had refused to condemn extremists who advocated violence against the Respondent.
(iii) The statement in the election address that the Petitioner had reneged on his promise to live in the constituency.
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No.
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6th DAY OF MAY 2010
Annexe 1
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IN THE HIGH COURT OF JUSTICE
Case No.
QUEEN'S BENCH DIVISION
IN THE MATTER OF THE REPRESENT ATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6 th DAY OF MAY 2010
Annexe 2
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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No.
IN THE MATTER OF THE REPRESENTATION OF THE PEOPLE ACT 1983
AND IN THE MATTER OF A PARLIAMENTARY ELECTION FOR THE CONSTITUENCY OF OLDHAM EAST AND SADDLEWORTH HELD ON THE 6 DAY OF MAY 2010
Annexe 3
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