SUMMARY
SEX DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
Claimant complained that misogynist comments at work had created
an offensive environment for her, and that she therefore had been subject to
sexual harassment. The Employment Tribunal thought she grossly exaggerated
what had happened and albeit there were some such comments spread over time,
this did not in context amount to harassment. Held the ET was entitled so to
hold.
THE HONOURABLE MR
JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
This is an appeal from a Judgment of the Employment Tribunal sitting in East London delivered on 29 March 2010. After a hearing that had lasted some two
weeks and a further four days of deliberation, the Tribunal dismissed claims
that the Claimant had suffered a detriment for making a public interest
disclosure, that she had been subject to sexual harassment and had been
victimised for complaining of sexual harassment.
Background
2.
The Judgment is long. It records a litany of complaints, but at the
outset of dealing with the facts the Tribunal went to some length to express
and explain a conclusion as to the Claimant’s credibility. It found that the
Claimant had exaggerated most of the incidents of which she had complained, had
invented others, could take some comments and blow them up into something
entirely different, and had attributed some misfortunes to malevolent conduct
against her without there being any proper reason to do so. It found at a
later stage that she had been motivated by a hostility towards a fellow
employee in some of her complaints.
3.
Understandably, the Claimant has described those findings as being
damning, an assessment that Mr Hare, for the Respondent, has sought to
emphasise in his submissions to us. We should make it plain that in her
submissions to us Ms Weeks has appeared the soul of moderation, and has
put her case without any apparent rancour, with cogency and with some skill,
despite plainly being no lawyer. We are however bound by the findings that the
Tribunal made as to credibility, which include the finding at paragraph 59
that where there was a conflict of evidence the Tribunal would, for the reasons
it expressed as to the deficiencies of Ms Weeks’ evidence, prefer the
evidence of other witnesses. The Tribunal was not averse from commenting on
the credibility of some witnesses called for the Respondent. In one instance,
it felt that Mr Sweeney had not been frank with the Tribunal, and, in
respect of another, it felt that his evidence had been muddled and unreliable;
but overall its assessment was that it could not rely upon the Claimant where
there was a conflict.
4.
The Claimant sought to appeal on a number of issues that were purely
issues of fact. It was plain to us that she did not accept many of the factual
findings but equally that she now accepts that, short of perversity or material
misapprehension of the evidence, this Tribunal must accept the conclusions as
to fact of the Tribunal below, which include, sadly for her in this case, that
as to her credibility. When, upon a third revision of the Notice of Appeal,
the matter came before HHJ Birtles for hearing, he identified two
potential matters of law, and, despite the wide canvas originally drawn, they
remain the only two points argued before us. They are that the Tribunal could
not properly have reached the conclusion it did as to sexual harassment in
paragraphs 233‑236 of its Judgment, nor could it reach the conclusions it
did as to victimisation contrary to section 4 of the Sex Discrimination Act
(SDA) that it did between paragraphs 238 and 241.
5.
It is unnecessary for present purposes to set out the facts in any
greater detail than needed to resolve those issues of law. The background to
sexual harassment was the factual findings that the Tribunal made as to an
event in October 2006. Mr Sweeney circulated to his colleagues an
animated cartoon described as “The screaming woman”. It consisted of a cartoon
of an elderly woman holding her hands up, her top drops away, and her nipples
are depicted as being twisted by a pair of hands. Mr Sweeney said he did
not recall sending it. He gave evidence he did not recognise the picture. The
Tribunal did not accept his evidence as to that.
6.
At paragraph 73 the Tribunal said:
“It seems that the tone of conversation in the staff room [we
interpose to say that the Claimant was employed as a teacher at the Newham College of Further Education] was from time to time ‘unfortunate’. Mr Sweeney
acknowledged that reference had been made to ‘girlie chat’, to women directors
who ‘did nothing but look nice’, remarks had been made about ‘power dressed
women’ and the ‘Principle’s [sic] harem’.”
7.
The Tribunal commented:
“Whilst we accept that these particular expressions may have
been used once only, it is likely that similar things were said too.”
8.
At paragraph 74 they continued:
“Some time in June 2007 a Mr George Goldsmith was
giving a demonstration on something called ‘digital brain’. He was answering a
question from Mr Sweeney and at the same time the Claimant was talking to
somebody else, Claudette Pervil. The conversation was across Mr Sweeney,
he couldn’t hear what was being said, he held up his hand and said, ‘hang on’
explaining that he could not hear. In reaction, the Claimant said, ‘how dare
you’ and in a subsequent argument Mr Sweeney told her not to be a drama
queen.”
9.
Those findings are underpinned by a finding made in paragraph 75
that a fellow teacher, a Ms Francis, made a complaint in June 2007 in
the course of which she made reference to Mr Sweeney’s use of the
expressions “girlie chatter” and “female power‑dress”. The Tribunal had
to determine whether the sending of that email and the use of those expressions
constituted harassment such that section 4A of the SDA 1975, which
was then applicable, was satisfied. Section 4A reads, so far as material,
as follows:
(1) For the purposes of this Act, a person subjects a woman to
harassment if—
(a) he engages in unwanted conduct
that is related to her sex or that of another person and has the purpose or
effect—
(i) of violating
her dignity, or
(ii) of creating an intimidating,
hostile, degrading, humiliating or offensive environment for her,
(b) he engages in any form of
unwanted verbal, non‑verbal or physical conduct of a sexual nature that
has the purpose or effect—
(i) of violating
her dignity, or
(ii) of creating an intimidating,
hostile, degrading, humiliating or offensive environment for her […].
(2) Conduct shall be regarded as having the effect mentioned in
sub‑paragraph (i) or (ii) of subsection (1)(a) or (b)
only if, having regard to all the circumstances, including in particular the
perception of the woman, it should reasonably be considered as having that
effect.”
10.
That there was a bad environment generally within the staff room was
acknowledged by the Tribunal in a number of paragraphs; see, in particular,
paragraph 99, when that was reported to the Respondent by another
employee, Mr Carey, but where the reasons for saying that the environment
was vile had, as the Tribunal set out, nothing to do with a bullying or sexist
environment and had everything to do with ineffective management and the role
of some employees in the trade union. Similarly, there were references on a
number of occasions to strained relationships causing a poor environment or bad
atmosphere, which were summed up, perhaps, by the Tribunal saying at
paragraph 222:
“The Claimant complained that she was ostracised by her male
colleagues in her staff room. As we have just observed, there probably was
what might be described as a bad atmosphere, but she has greatly overstated
it. Mr Sweeney and Mr Watson attempted to be civil and
professional. What ever the atmosphere in the staffroom, it was nothing to do
with the fact that her colleagues were male.”
11.
Although the question, in any case alleging harassment, may be thought
to be more to do with the fact that the victim is of the sex she or he is than
the sex of the perpetrators, this is, in context and in effect, a finding that
the conduct toward her, though unacceptable, was nothing to do with her sex.
At paragraph 228.9, in the context of dealing with the allegations that
she had been subjected to a detriment by reason of making public interest
disclosures, a finding that ultimately does not come for appeal here, the
Tribunal repeated that they did not find that the Claimant had been ostracised
but that there was an unpleasant atmosphere not deliberately created by the
Respondent and not ignored by the Respondent; that the colleagues were male was
irrelevant.
12.
When the Tribunal came to deal specifically with the case in respect of
sexual harassment, it said this, in paragraphs that deserve to be quoted in
full:
“233. Has the Claimant proven facts from which we could
conclude, absent an explanation from the Respondent, that she has been
subjected to Sexual Harassment? She has proven that in October 2006 Mr Sweeney
sent the ‘Screaming Woman’ cartoon. We also accept that expressions such as
‘power dressed women’ and the ‘Principal’s Harem’ were used. Mr Sweeney
did make reference to ‘girlie chat’ and he referred to the Claimant as a ‘drama
queen’. These are facts from which we could conclude that the Claimant has
been subjected to conduct related to her sex which has the purpose or effect of
violating her dignity and of creating an intimidating, hostile, humiliating or
offensive environment for her.
234. Has such an environment been created? What of the
Respondent’s explanation? Mr Sweeney used the expression ‘drama queen’
once to the Claimant, in the context of an argument between them following the
demonstration of ‘digital brain’. Similarly, references were made once only to
the ‘Principal’s Harem’, to ‘Power Dressed Women’ (neither aimed at the
Claimant) and to ‘girlie chat’. Mr Sweeney claimed not to recall the
‘screaming women’ cartoon, but we did not believe him about that. We were
troubled by this. We do believe that if the Claimant was offended by such
remarks she would have said so. It is surprising she did not protest about the
cartoon when she received it, though that she was an agency worker may have had
something to do with that. Applying the 3 step approach recommended in Richmond Pharmacology [Ltd v Dhaliwal
[2009] IRLR 336]:
234.1. Did the Respondent engage in unwanted
conduct? The cartoon and the remarks were unwanted conduct. Although no
protest was made by the Claimant at the time, we accept that the Claimant did
not ‘want’ to hear these expressions or receive that cartoon.
234.2. We do not find that the purpose
of Mr Sweeney (or his colleagues) was to create the proscribed adverse
environment. Nor in the circumstances, do we consider that these particular
words or similar that may have been used could reasonably have been considered
as having that effect, even having regard to the Claimant’s perception. The
cartoon was the most troubling aspect, but taking all the surrounding facts
into consideration: the context of the comments, their very occasional use, the
lack of objection at the time and the timing of the objection raised; on
balance we find that they did not have and should not reasonably be regarded as
having, the proscribed effect.
234.3. The comments/cartoons were of
course, related to the sex of others, though not of the Claimant. The only
comment directed at the Claimant was ‘drama queen’ which may be directed at a
person of either sex.
235. We considered whether on the basis of these facts, the
inference should be drawn that Mr Sweeney had also informed the Claimant
and Ms Francis that women were less competent than men and not suitable
for teaching in colleges, telling the Claimant that women are unstable and
neurotic, that all women are drama queens, that pregnant women are a burden the
cost of whom was outrageous and not worth it, or that he made jokes about the
difficulty of telling a difference between a fat women [sic] and a pregnant
women [sic]. Our conclusions are that having regard to the demeanour of Mr Sweeney,
these allegations are outrageously fantastic and beyond any credibility what so
ever. We find that these words and expressions were not used.
236. The Claimant suggested that Mr Harris [he being the
Respondent’s director of young people’s academy] had threatened her with
suspension and that this was an act of sexual harassment. Mr Harris did not
threaten her with suspension. His conduct of the meeting between himself,
Mr Carey and the Claimant was appropriate […] was reasonable and could not
be described as conduct that related to the Claimant’s sex or of a sexual
nature.”
13.
We shall deal with the appeal in respect of those findings first before
we turn to the appeal in respect of victimisation.
The harassment appeal
14.
For the Appellant, it is said that the Tribunal took into account
factors it should not have taken into account. Thus the fact that the unwanted
conduct was not directed at the Claimant, the fact that the terms used had been
used on occasion only, and the timing of the objection used were irrelevant
considerations. Therefore, because the Tribunal had had regard to those
matters, it had not adopted the correct legal approach. In the grounds of appeal
the Claimant supported her contention that it was wrong to take into account as
part of the circumstances that the unwanted conduct in large part was not
directed at her. She draws attention to the fact that it does not defeat a
claim for harassment that the comments found to create the intimidating,
hostile, degrading et cetera environment are made to others. Where comments
are made that are gender‑specific and derogatory towards women generally,
she might rightly be offended.
15.
That is supported by reference to the case of Moonsar v Fiveways Express
Transport Ltd [2005] IRLR 9. That was a case in which a woman
data entry clerk shared an office with men who on three occasions downloaded
pornographic images to a screen or screens in the room where they were all
working. The Tribunal declined to find that there had been sex
discrimination. It was argued, for her, that the Tribunal should have, but did
not, consider that the burden of proof had shifted, as it should have done, for
the employer to explain the conduct. The Appeal Tribunal accepted that point;
since there had been no explanation by the employer in the circumstances of
that case, there was no explanation to satisfy the burden of proof, and
therefore the matter was remitted to the Tribunal with a declaration that
discrimination had been made out.
16.
Here, as the Tribunal has expressed itself, there was evidence to be set
against the inference that might otherwise be drawn from the circumstances that
the Tribunal set out. The error the Tribunal in Moonsar fell
into of not regarding the burden of proof as shifted did not apply to the
present case, where the Tribunal held the opposite. Moonsar is
therefore, as it seems to us, of no real assistance.
17.
The Notice of Appeal adopted as the skeleton argument seeks to rely also
upon Driskel v Peninsula Business Services Ltd
[2000] IRLR 151. That was a case in which, summarising, a single act was
regarded as being capable, as the Tribunal had found, of amounting to
discrimination. That case was heard and determined upon law that pre‑dated
the introduction of a detailed code proscribing sexual harassment. The
Tribunal here was not asked to consider this case as one of sexual
discrimination under section 1 of the SDA 1975 but under
section 4A. Thus, although we would entirely accept that a single act or
a single passage of actions may be so significant that its effect is to create
the proscribed environment, we also must recognise that it does not follow that
in every case that a single act is in itself necessarily sufficient and
requires such a finding.
18.
The Appellant complained to us that the circulation of the cartoon would
have been a sufficient single act as per Driskel to have created
the environment of which the Act speaks. As to the cartoon, we should say
this. As we indicated during the course of the hearing, we regarded the
cartoon as described by the Tribunal as being offensive, disgusting and
unacceptable. The industrial members would add that in any well‑regulated
organisation they would expect anyone who circulated such a cartoon to be the
subject of disciplinary action. None of us felt in the least comfortable with
the suggestion that in some way it might have been acceptable conduct, but, to
be fair to Mr Hare, he does not, in his submissions for the Respondent,
suggest that it was.
19.
However, we have to recognise that it is not for us to make a judgment
about the impact of such a cartoon upon those in the workplace, and the
Claimant in particular; that is the task for the Tribunal. Mr Hare, in
his submissions, points out that where a Tribunal has properly directed itself
in law and appeared to apply its self‑direction to the facts it has
found, then its conclusion as to whether what has happened has had the purpose
or, separately viewed, the effect of violating the dignity of the employee
concerned or of creating an intimidating, hostile, degrading, humiliating or
offensive environment for her is a decision of fact. He submits that as such
it can only be set aside if the conclusion is perverse, and he asks us,
whatever our distaste for what is reported may be, to acknowledge that we
cannot conclude, in the circumstances of this case, that the decision necessarily
was perverse. He supports that approach by arguing here that in Dhaliwal
the Employment Appeal Tribunal gave a clear direction as to the questions that
a Tribunal should answer. It did so at paragraphs 10 and 17.
Each of the matters suggested by the formal analysis conducted by the Tribunal
was identified by the Tribunal here; that is not in serious dispute before us.
Accordingly, he is right here to submit, as we see it, that the Tribunal
directed itself properly in law subject only to the points raised in the Notice
of Appeal.
20.
As to those, we would say this. A decision of fact in a context such as
this must be sensitive to all the circumstances. Context is all‑important.
The fact that unwanted conduct was not itself directed at the Claimant is a
relevant consideration. It does not prevent that conduct being harassment, and
will not do so in many cases, but we cannot say it is an irrelevant
consideration. Indeed, Ms Weeks, in the course of her submissions,
realistically accepted that that might well be so. The timing of an objection
has an evidential importance. It may mean that the individual complaining of
conduct after the event did not in fact perceive the conduct as having the
offensive qualities spoken of in section 4A(1)(a)(ii) or 4A(1)(b)(ii)
of the Act. We would urge caution for a Tribunal in placing too much weight
upon timing. Where conduct is directed toward the sex of the victim, it may be
very difficult for the victim personally, socially and, in particular, in some
circumstances, culturally, to make any immediate complaint about it. The fact
of there being no immediate complaint cannot prevent a complaint being
justified, but equally we cannot say that it is a factor that a Tribunal is not
entitled to consider as part and parcel of the overall circumstances that it
has to gauge. The fact that terms that are plainly related to gender, such as
“girlie chat”, “power‑dressed women” and “harem”, are used only once in
the course of a fairly lengthy period of time, again, would not prevent in an
appropriate case, and with appropriate surrounding circumstances, those
comments being seen to create the environment spoken of.
21.
However, it must be remembered that the word is “environment”. An
environment is a state of affairs. It may be created by an incident, but the
effects are of longer duration. Words spoken must be seen in context; that
context includes other words spoken and the general run of affairs within the
office or staff‑room concerned. We cannot say that the frequency of use
of such words is irrelevant. For example, if the conclusion of the Tribunal
here had been that the words were used all the time, in effect, in regular
conversation, one would have expected the ultimate conclusion to be very
different and to have required the Respondent as employer of the other staff
concerned to have given some explanation as to its action or inaction about
it. It seems therefore that none of the factors that the Tribunal says it took
into account amongst others could be said to be a factor it should not have
taken into account. In our view, therefore, the Tribunal cannot be said to
have been in error by taking account of irrelevant factors. Their weight is
another matter: but, short of a perverse conclusion, is a matter for the Tribunal
and not for us to judge.
22.
The one matter we have left is the question of the cartoon. The
Tribunal was plainly troubled by the cartoon; we can well see why it was.
Mr Hare argues that it was not perverse of the Tribunal to fail to find
that that had in itself created the environment of which the Claimant
complained. To find that it had created the proscribed environment would
require: first, that she gave evidence that it had; secondly, that that
evidence was believed; and thirdly, that the Tribunal thought that it was
behaviour that could in all the circumstances reasonably be regarded as having
the proscribed effect. The Tribunal on balance found here that the cartoon did
not, with everything else, have that effect; in other words, it did not accept
what the Claimant said about the effect on her. The environment spoken of by
the Act is the environment “for her”, i.e. for the complainant. It accepted
that the conduct had been unwanted, but that is a different question.
Ms Weeks argued that, as was recognised in Dhaliwal, the
logical analysis which involves separating off the questions that have to be
answered by a Tribunal should not obscure that findings of fact on each may be
interrelated. We accept that, but it does not mean that conduct that is
unwanted is conduct that creates the proscribed environment.
23.
Mr Hare emphasised that part of the context to which the Tribunal
had to have regard here was the highly critical way in which the Tribunal had
approached the evidence of the Claimant herself. The conclusion it came to was
in respect of a cartoon that on the findings of fact was one of a number of
emails sent by Mr Sweeney that he thought might be amusing, in respect of
which there was no complaint of the inappropriate nature of any other. Perversity
is a very high hurdle. The cases use a variety of expressions, to which it is
unnecessary to refer, save that the finding must be shown as wholly
impermissible or one that would excite astonished gasps from a reader. We
cannot say here that the finding of fact that there was no such environment as
the Claimant claimed, in a context in which her claims in respect of other
matters had been seen as heavily overstated, was perverse, and we must reject
the appeal under this head.
24.
We should not leave it, however, without noting that there was criticism
of the approach of the Tribunal to evaluating the evidence of Mr Sweeney
in paragraph 235. Taken in isolation, the Tribunal decided to accept Mr Sweeney’s
evidence because of his “demeanour”. Later, when the Tribunal determined on
7 September 2010 that, because of the conduct of the hearing by her,
the Claimant should pay the Respondent some costs, it said in its Judgment (Reasons
given 23 December 2010) that it had used a rather strong expression
in describing the allegations as “outrageously fantastic and beyond any
credibility” because her allegations had been blown up such that the Claimant
was suggesting that the individuals concerned were making statements which
indeed were of that nature. Having heard evidence, says the Tribunal, from the
individuals concerned, its view of the allegations was that they had been blown
up to such a degree that they became outrageously fantastic and beyond
credibility.
25.
The finding of fact that the expressions were not used was one that the
Tribunal was entitled, if approached properly, to come to. The reason for that
conclusion does not rest upon the finding in respect of Mr Sweeney in
isolation but, as Mr Hare points out, in respect of all the material that
the Tribunal had set out in respect of all the witnesses, and must take into
account not only the deficiencies it found in Mr Sweeney’s evidence in
part but also the view that it had expressed, and as to which there can be, as
we said at the beginning, no appeal, of the Claimant herself. Accordingly, as
it seems to us, the Tribunal was entitled to take the view it did on this part
of the appeal: the word “demeanour” did not sit in isolation. Reading the
Tribunal Judgment as a whole, the conclusion it reached as to what Mr Sweeney
had or had not done was based on the totality of material which justified that
conclusion.
The appeal on victimisation
26.
Section 4(1) of the SDA 1975 provides, so far as relevant:
“A person (‘the discriminator’) discriminates against another
person (‘the person victimised’) in any circumstances relevant for the purposes
of any provision of this Act if he treats the person victimised less favourably
than in those circumstances he treats or would treat other persons, and does so
by reason that the person victimised has […].”
27.
A list of protected acts is then set out, as to which it is common
ground that the Claimant had taken at least one of those protected acts. Sub-section (2):
“Subsection (1) does not apply to treatment of a person by
reason of any allegation made by him if the allegation was false and not made
in good faith.”
28.
The Tribunal was concerned here with an allegation made on
17 September 2008, set out at paragraph 184. The Claimant had
alleged that she had heard Mr Watson say to a student entering his
classroom and in the presence of a male colleague that he would only allow her
into the classroom if she was prepared to “take the two of them on”, and he
then moved towards her using “intimate body language”; two similar incidents
had been seen “last year”. At paragraph 240 the Tribunal said this:
“In respect of the allegation raised in September 2008,
whilst we have made no finding as to whether the allegation is true or not
(because the allegation is raised contemporaneously and it is the delay in the
September 2007 allegation that particularly convinced us of its falsehood)
we never the less find that the motive of the Claimant was to give vent to her
grudge against Mr Watson. The allegation was not made in good faith, that
being so and applying s4(2) again, s4(1) is disapplied and the Claimant cannot
rely on it.”
29.
It is common ground now before us that the Tribunal there made a mistake
of law. It viewed section 4(2) as providing that sub-section (1) did
not apply if either falsity or lack of good faith were established. It is
common ground that both must be established if sub-section (1) is to be
disapplied. However, the provision in section 4(1) requires two further
things to be established before a Claimant can succeed: first, that she has
been treated less favourably than in those circumstances the employer treats,
or would treat, other persons; and secondly, that that is by reason of her
having committed a protected act. The Tribunal said at paragraph 241:
“In any event, the less favourable treatment relied upon by the
Claimant in this respect is the Back to Work interview with Mr Whitmore.
We have found that was not conducted as the Claimant alleges. It did not
amount to less favourable treatment. Mr Whitmore did not work for the
Respondent, nor did he have any connection with the Respondent; he was a
complete stranger to them. He was not acting under any form of inappropriate
instruction from the Respondent. The manner in which the interview was
conducted by Mr Whitmore was just as it would have been for any other
person referred to him, whether or not such allegations had been raised by that
individual.”
30.
This is a paragraph in which the Tribunal concluded that neither of the
two further matters that we have identified had been substantiated. It, again,
is a finding of fact. The Claimant criticised the nature of the Back to Work
interview because, she said, the Tribunal had accepted that on the occasion
concerned in November 2008, when she had seen an occupational health
advisor, Mr Whitmore, at a meeting designed to secure arrangements for her
to return to work after her illness, he had been more concerned with advising
her that she should work elsewhere. The Tribunal had accepted that he had
admitted in evidence that if she did leave the employment of the college, “she
would not be without money because of the dole” (paragraph 188). This was
hardly, she submitted, an appropriate Back to Work interview, when the advice
was to turn her in the other direction. She gave more detailed evidence about
her case (see paragraph 185). Her case was, in part, that
Mr Whitmore had been instructed to say to her words such as that she
should drop all the allegations she was making against the Respondent and that,
if not, “men would get her on the dole queue or on the street”.
31.
The Tribunal (paragraph 189) did not accept that that had been said.
She complains to us that the Tribunal had found Mr Whitmore’s evidence to
be muddled and unreliable, and such it did. However, the Tribunal had here to
evaluate his evidence and her evidence, both of which it had found to be
flawed, in the light of the overriding probabilities of the case. The
conclusion it came to was one of fact. It seems to us that it cannot be
characterised as perverse. It cannot be said to be reached in material
misapprehension of fact; the Tribunal was therefore entitled to come to that
conclusion. It having done so, the Tribunal was entitled to express the
overall conclusion it did at paragraph 241. It follows that, despite the
error of law in its application of the statute under section 4(2), the
conclusion to which the Tribunal came upon its findings of fact, which it was
entitled to make, was plainly and unarguably right. It follows that the appeal
on victimisation must also be dismissed.
Conclusion
32.
Ms Weeks, though plainly concerned about aspects of the Judgment,
recognised that she had those two grounds to advance before us and could not
realistically ask us to examine other matters more widely. She invited us to
consider whether we might look at fresh evidence, but we declined to do so. It
was not a ground of appeal she had permission to advance to us, and we should
add, in part at any rate, has been the subject of a decision by
Rt Hon Sir Richard Buxton, as he now is, on
25 February 2012, when refusing leave to appeal upon the grounds then put
forward to him. It follows that, whatever our views may be as to the nature of
the offensive cartoon, the appeal must be, and is, dismissed.
