by D.J Webb
The libel case pursued by the former government minister, Andrew Mitchell, against The Sun newspaper over allegations that he called the policemen manning the gates of Downing Street “plebs” is worthy of comment. It should be noted first of all how childish our politics has become, with playground-style allegations replacing substantive political debate. Does any adult in the country really care if Mitchell called the police “plebs”? Would not such a comment be more than justified in the case where a lowly policeman was refusing to open the gate to allow a government minister to cycle home?
In the context, however, where our distant and “out-of-touch” Establishment is trying to convince us they do not regard us as “plebs” (=the plebeians, in contrast to them, the patricians), the charge, such as it is, is held to be politically toxic. The police do not come out of this incident at all well, with one police officer sent to prison for a year for misconduct in a public office (a charge that if preferred in all the applicable cases would see the prisons full of politicians, senior policemen and civil servants). Apparently, in order to make the pleb charge stick, the policemen involved fabricated evidence from “members of the public” who a CCTV camera showed were not there that Mitchell actually used the offending word. Hours and hours of police time have been spent on this case. Apparently, senior policemen are so free of any real duties in pursuing violent criminals that they can devote enormous resources to determining whether a government minister said the word “plebs”.
I have long argued that the real problem with the policeman refusing to open the gate to a cycling minister is that the policeman was obstructing the Queen’s Highway. In a free society, public highways are open to the public. In terms of English Common Law, anyone can drive or walk down Downing Street. It has not been gazetted under the relevant law as a restricted area. Until relatively recently, any member of the public could walk down the street and stand outside 10, Downing Street, the official residence of the prime minister. While the Irish terrorist campaign put paid to that—and there are legitimate security concerns that have led to the placement of gates in Downing Street—the correct and lawful approach is to officially gazette the street as a restricted area. As things currently stand, however, there was no reason why Mitchell should not be allowed to cycle out of the gates, and the policeman involved was indeed behaving like a “pleb”, or at the very least a “jobsworth”, by refusing to open the gate. A certain degree of annoyance on Mitchell’s part was justifiable.
However, whatever the rights and wrongs of this absurdly minor incident, the use of libel laws to prevent free comment has to be considered a bad thing. The ultimate aim of such libel suits is that the newspapers would be unable to publish any statement that a minister was said to have made without an audio recording of that statement. Until recently, libel laws were even more restrictive in England. The onus is placed on the defendant to prove the truth of an allegation, and the huge cost of defending such suits frequently leads to a settlement, even where a settlement is manifestly unjust. But our libel laws were tinkered with at the beginning of this year, when the Defamation Act 2013 came into force, adding a new “serious harm threshold” to weed out vexatious litigation. Claims that statements made on Internet forums and social-media sites such as Twitter could lead to libel suits now need to factor in the possibility that a judge will rule that no “serious harm” had been occasioned. The new law extends the public interest defence and provides some protection for website operators charged with allowing defamatory comments to be hosted on their sites.
These new defences were not used by The Sun on this occasion. The Sun rather cited other occasions when Mitchell had been rude to members of the police force, leading the judge to conclude that Mitchell probably had uttered the offending word to the policeman on duty in Downing Street. Mitchell had claimed £150,000 for libel, but the costs of the libel action are now likely to run to around £3m. He has been ordered to pay an interim £300,000 and will probably have to find the balance eventually.
We should welcome the failure of the libel suit on this occasion. Successful libel suits should be a rarity in a free society, where people are able to use publicity to put matters straight and have no need for a judicial ruling on a private conversation. In cases of serious harm, and where the public interest and fair comment defences are not applicable, libel law does have a (minor) part to play in our legal system.
Another factor in these lawsuits is the cost. Someone who is not independently wealthy can neither mount a libel suit against someone else nor defend himself against such a suit. The other side may be able to afford very expensive legal representation. This sort of thing needs to be clamped down upon, as it means that justice is largely off-limits to the “plebs”. Given the utterly minor nature of many of the matters under discussion in libel suits, and the way in which such suits are spun out for no apparent reason, I see no reason why suits such as Plebgate should not have had a one-day maximum imposed by the judge at the start of the legal hearing. There were no great matters of importance to be determined, and after allowing everyone to speak once, a full-day hearing would in fact have been excessive for the available matters for discussion.
For this reason, I think libertarians need to think along the lines of controlling the length of court cases, placing legal maximums on the amount of money that can be spent by an opponent—£3m is an excessive cost—and even on insisting on dealing with matters as minor as Plebgate in the small claims court, with no legal representation permitted by either side. Lawyers have become a parasitic interest, and one that largely depends on legislation and state intervention. It is time to cheapen and accelerate justice, with the very first step in a court case being to decide whether a matter is so minor as not to require a judicial hearing at all. Mitchell’s case could (and should) have been dismissed by the judge before a £3m bill was run up.
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I agree. In particular, the idea that this effectively trivial matter could cost £3M is beyond absurd.
I also in general agree that the cost of justice should be a significant matter for libertarian thought. We of course tend to say that free markets should rule, but defending oneself legally is not a free market matter. If I am wrongly accused of murder, this is not money I am choosing to spend; it is not a matter of subjective value to attend court. I do not claim to have any answers, but it’s something that we need to discuss, I think.
Leaving aside this specific case (I was not at the gate in question – I do not know what was said) and also the absurd cost of the government legal system (I agree the cost is absurd – due to the lawyers guild, white collar union, and so on) the general record of the present government when it comes to freedom of the press is very poor.
Although we all get angered by the behaviour of journalists from time to time, the lively and diverse press is one of the glories of this country. People who would prefer the bland establishment “liberal left” press of the United States to the diverse and interesting British press (for all its faults) baffle me.
Sir Max Mosely started the recent decline of press freedom in this country. He got involved in a prostitute event with uniforms German spoken and so on, and then (somehow) got a judge to award him money against a newspaper that reported his (Sir Max Mosely’s Nazi prostitute event antics) – if Sir Max wishes to sue then please engage in legal action against Mr Paul Marks of Kettering, Northamptonshire NOT the Libertarian Alliance blog, which has nothing whatever to do with me calling him a sexual pervert who has spent a lot of money on efforts to censor the press and media both in Britain and Continental Europe. Censorship being an old dream of his late father the Fascist Leader (and admirer of Mr Adolf Hitler) Sir Oswald Mosely.
Organisations such as “Hacked Off” (backed by Sir Max Mosely) started to look for ways of attacking the press.
Telephone “hacking” has long been illegal – but that was not enough for such organisations as “Hacked Off” they wanted to use the newspaper practice (at least as common with “left” newspapers such as the Daily Mirror as with “right” newspapers such as the News of the World) as an EXCUSE for wider press censorship.
The case of a murdered little girl gave them the golden opportunity they were seeking. People employed by the “News of the World” had illegally “hacked” the little girl’s telephone seeking for information that would help them crack the case (trying to solve criminal cases being an old practice of the popular press). It was falsely (falsely) reported in the vile “Guardian” newspaper (a case of the pro censorship “left” helping the pro censorship “right” – the “Guardian” has served the cause of evil, both in Britain and around the world, for the best part of a century) that messages on the murdered little girl’s mobile telephone were DELETED by the News of the World people – this was not true, but was used as the excuse for a massive attack.
Remember “hacking” telephones was already illegal – but the attack was not really about that, it was about setting up a system of censorship (the dream of both the “Red Left”, the Guardian and so on, and the “Brown Right”, Sir Max Mosely and so on) under terms such as “responsible journalism” and an “independent body” – and all the normal language of pro censorship people.
The “hacking” was an EXCUSE – and, to his lasting shame, Mr David Cameron went along with some (although not all) the demands – partly because he was in a difficult position (having employed as his chief of communications the very person who had ordered the “hacking” – Mr “Andy” Coulson).
Time marches on – and evil never sleeps. Now vile organisations such as “Child’s Eyes” and “Stop Page Three” are using the photographs of ladies with bare breasts on page THREE of the Sun to demand that the FRONT PAGES of newspapers be covered up so that “the children” do not see them. It is so often “the children” who are used as an excuse for tyranny.
Why cover up the FRONT pages of newspapers (in supermarkets and so on) if you are upset about page THREE?
Because the Page Three thing is a another EXCUSE for censorship (just as “Hacking” was an EXCUSE for censorship). It is the headlines that the “Red Left” (like the “Brown Right” wish to cover up. They wish to cover up, literally cover up OPINIONS they do not like – bury opinions they do not like.
Law costs a huge amount due the fact that entry is restricted via licensing and you can’t, at least in criminal cases, get someone to defend you other than a certified barrister. If you allowed the parties to allow to use whoever they so wished the cost would certainly fall. Further, high expense of a public run court system is no surprise as its existence is not contingent of the satisfaction of consumers. Obviously therefore we’d expect a private court system to be cheaper and more efficient.
More fundamentally however, is that all libel and slander laws ought to be abolished. You cannot own your own reputation as it resides in other peoples minds. Obviously legalising both could lead to a huge increase in the level of such action which could in principle harm the accusee. However given the increase in volume and, possibility, severity of claims it would require a greater level of proof to believe the claims for most people- those people who believe anything they read will continue to do so. At the moment, due to their relatively infrequent occurrences, people do tend to believe what turn out to be false claims, such as the John Leslie rape allegations, since they consciously or sub-consciously think, why would they publish if it wasn’t true and they can be prosecuted for libel/slander?
Thrilled to see DJ Webb is back. I’ve enjoyed everything of yours I’ve read.
Thank you, Keir. I’ll try not to disappoint you in future articles!
I’m also pleased to see you posting again, David!
This country just seems to be getting worse and worse.
It is hard to believe that in a sane society something like this could even be an issue worthy of a conversation on the street, never mind see the inside of a court room and thousands of hours of time and investigations, leading to a £3Million bill.
Some of the articles on this site this year have made me appreciate a particular criticism that can be made of the liberal-elite and their generation of henchmen that have already spawned the nation from hell and who are currently being nurtured through the grinder of schools, colleges and universities.
There is such hysteria over every little thing now, it is like there are armies of the professionally offended just sat around waiting for something to jump on. As has been stated here, it is another form of the puritanical movement only this time sheltered under the umbrella of international socialism and various offshoots of such an agenda.
But why is this? I think there is something psychologically damaged within the public, the media and the various national institutions now.
It is not normal behaviour, in fact, it is reverting back to some kind of child-like state where the rational discourse of the ‘grown ups’ becomes quieter and quieter amongst the raucous din of various rabble rouser groups and issue hijackers.
It does not matter how small the incident may be, or how passive something was said, everything is now scrutinised for potential offence to somebody. Yet quite often is not out of any genuine “outrage” but more as 1) a means to deliver a mouthpiece for their groups moral high grounds and for their ‘organisations’, and for 2) Political expediency.
The twisting of the comments by Mark Reckless earlier this month was but one small example, which led to some media driven mass hysteria. But it has become so blatant now that surely people can see it for what it is? – ie Fake outrage being manufactured for a purpose? I do hope so!
It has become some kind of national pastime, some kind of national neurosis, some strange country where all manners of horrors and injustices are taking place, yet people are in deep trouble for a tweet or a curt comment to some jobsworth arm of the state apparatus.
This was once more the bread and circus act of the elites and their media handlers who crave it to fill their rolling 24 hour news facilities, but now everybody seems to be getting in on the act and the attitude of it all is seeping into future generations as the normal state to be in.
There was an interesting article in the Spectator this week about this kind of thing : http://www.spectator.co.uk/features/9376232/free-speech-is-so-last-century-todays-students-want-the-right-to-be-comfortable/ – it is a good read.
I don’t know much about libel laws, but if cases are to be held, they should be over things more serious than allegedly calling some plebs, plebs. The whole thing is a farce, and now Mr Mitchell has made the hounds and the lawyers very happy by being caught up in it all.
Paul Marks-
Just a general point on the press in reply to your post; I myself find it hard to call our lively and diverse press a “glory”. I remember saying in a discussion about the proposed press censorship system that while I oppose it of course, my violin for the press as they actually are is very tiny indeed. So tiny you cannot hear it. My impression of the press is that they are generally absolute scumbags; from a libertarian perspective they are a major driving force of State expansion and repressive legislation, not least in terms of censorship. Their rallying cry appears to be “censor everyone else, but not us!” and think they must have some special right to speak which the rest of us are not fit to have. They routinely attack Common Law principles as “leniency” and “loopholes” and shriek about “victims’ justice”. As a libertarian, I demand a free press, but as a libertarian I consider “the press” to mean all speech, and as a libertarian I have no sympathy for these arseholes at all.
I have to say the Downing Street PC’s claim for £200,000 in damages for “libel” from Mitchell should be dropped. Having established the facts in the court of public opinion, the policeman should let things lie – but he has a counterclaim for “libel” in – and the newspapers today suggest Mitchell is going to pay it. What I want to know is where MY money for libel is? I wasn’t there – but if everyone is going to get something – what about ME? Where’s MY £200,000?
Anyone who sues for libel deserves to lose. I’m sure if I looked into my memory, I could find instances where libel actions have been used to vindicate characters of spotless integrity. But the libel plaintiffs who stick there most are James Goldsmith, Robert Maxwell, Jeffrey Archer, Sonia Sutcliffe, the scumbag Aldington, Liberace, Winston Churchill (v Lord Alfred Douglas), Oscar Wilde, and many others whose suits do not meet with my approval.
Oh, I’ve just remembered a case from the 1980s. The Sun newspaper accused Elton John of taking part in a series of “degraded sex acts,” in the course of which he consumed prodigious quantities of champagne, cannabis and cocaine. I understand that his tastes are eclectic, and have little doubt that he is no stranger to illegal substances. But the newspaper report was so grotesque that I disbelieved it out of hand. I find it hard to believe that his reputation was lowered in the eyes of any reasonable man.
The only practical justification for the libel laws is that they provide an alternative to duelling and hired assassins. Since neither is part of our way of life, I suggest it should be made even harder than it now is to bring a libel action.
As noted by CB above, part of the problem with libel laws is they act as an apparent vindication of the press. People presume what they read must be true if the newspaper’s lawyers deemed it fit to print. People lose their cynicism. It’s the same with advertising. If you have an ASA, people assume that adverts are “legal decent honest and truthful” and trust them. Where there is (or was, anyway) no such regulation, people recognise that adverts may be nonsense, which is why nobody trusts internet adverts for herbal viagra and the like.
I can to some extent see both sides of this argument. If some press baron decides he doesn’t like Fred Bloggs and runs an article every day saying Fred Bloggs is a paedo, that might not only be ruinous but physically dangerous for Fred, and he may have no other significant outlet through which to repudiate the charges. Arguably the libel laws keep some kind of a lid on that. But in practise, they seem to be mostly a playground for the wealthy. And as we see these days, it has just turned into “anonymous accuser X claims that Fred is a paedo” anyway.
A brilliant article by Dan Hodges at http://www.telegraph.co.uk/news/politics/conservative/11265602/Andrew-Mitchell-had-no-chance-in-his-Plebgate-libel-case.html argues the judge handed down a perverse decision. I think claims by the policeman involved that he “could not remember” who he phoned for 40 seconds immediately after the Plebgate incident (the phone call was caught on CCTV) could have been seen in a different way by the judge. I do think Mitchell was unlucky to lose the libel case, given the evidence of police misconduct in this case. It’s just that I think it was fortuitous he did lose, as it tends to reduce the utility of libel suits in the future – and the court of public opinion is a much better forum for such petty arguments.