Friday, 8 November 2013

Law, Libel and the Pitmans: Some Reconsiderations

The International Forum for Responsible Media, (Inform for short) was set up to debate issues of media responsibility. It is a part of the Guardian Legal Network. It mentions

"An action for libel based on a cartoon depicting two politicians was dismissed on 10 May 2012 by the Royal Court of Jersey (Pitman v Jersey Evening Post [2012] JRC 92)."

This is the case summarised by CTV:

"Deputies Trevor and Shona Pitman lost their court battle to sue the Jersey Evening Post and Broadlands estate agents for defamation. It related to a cartoon published in December 2008.  At a hearing in the Royal Court, the Pitmans claimed the cartoon falsely portrayed them as only going into politics for the money. They claim it damaged their reputation. UK Judge, Commissioner Sir Charles Gray and Jurats Le Breton and Milner disagreed and ruled in favour of the newspaper and estate agents."

The more detailed discussion of the case is interesting. It can be found entitled "Case Law, Jersey: Pitman v Jersey Evening Post, cartoon not defamatory" at the website:

The summary says

"An unusual action for libel based on a cartoon depicting two politicians was dismissed on 10 May 2012 by the Royal Court of Jersey.  Sir Charles Gray, sitting as a Commissioner, with two Jurats (of which, more later), entered judgment for the plaintiffs on the basis that the cartoon was not defamatory (Pitman v Jersey Evening Post"

The comment is very interesting, as it is sharply critical of the outcome. It is worth stating in full:

"As the issue of the meaning of the Cartoon was decided by the "Jurats" there is no reasoned judgment on the meaning issue.  This means that there is no indication of the view taken as to the actual meaning of the Cartoon (save that it was not defamatory).    In accordance with well established law, the Jurats were not bound by the plaintiffs' meanings but should have considered any possible defamatory meaning of the Cartoon"

"The decision on meaning does appear to give rise to difficulties.  Although the context of the advertising section and the attempt at humour have to be taken into account, it is somewhat to see what the Cartoon could have conveyed to an ordinary reasonable reader if not some adverse imputation on the financial motivation or dealings of the plaintiffs."

"The linking of the reference to "4x the salary" with the plaintiffs and what was presumably intended to be  political rosette garnished with money can hardly be intended to convey information about the salary multipliers available to the second defendant's customers.  An ordinary reasonable reader would, surely, have inferred that the plaintiffs had abnormal and amusing degree of attachment to their political salaries."

"The imputation that someone who claims to be an idealist is really in politics for the money would obviously be defamatory.  Given that there was no defence of "honest comment", the plaintiffs would then have succeeded.  Questions as to the amount of actual damage caused by the Property supplement and whether the plaintiffs should have had thicker skins would, of course, have been relevant to damages."

And it is also critical of whether the Jurats over the UK practice of using 12 randomly selected lay people; the crux of the argument is that

"The role of the "Jurats" is interesting more generally. There are 12 Jurats in Jersey, appointed by an Electoral College and serve until they are 72.  The role is unpaid and involves several months' work a year.  As might be expected the Jurats are generally retired people. It might be thought that the advantages of having 12 randomly selected lay people decide on the meaning of words (which has, traditionally, been central to the English law of defamation) is lost if the decision is made by two longstanding members of the Royal Court."

It reminded me very much of G.K. Chesterton's comments about the merits of the jury system, where decision are made by ordinary people, over that of people who have become used to sitting in judgement. His argument is that judges get used to their job, and fail to do it properly precisely because they are too accustomed to it, they tend to lack fresh thoughts as time goes on and become set in their ways:

"Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilization has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets."

"And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it."

Now the Jurats are not specially trained legal experts, but as the comment states, they are not drawn from the same random group as a jury; they may well have become used to deliberating, and deciding, and of course there were only two of them in this instance as well. It does seem strange that the UK requires 12 people to decide, whereas Jersey makes do with only two, not even the Superior Number of the Royal Court. It is notable that Guernsey has jurats rather than jury, but has 12 of them present at a Royal Court sitting.

And the Inform comment makes an extra point about how the Pitman's had effectively to argue with one hand tied behind their backs:

"A final point which arises from this case concerns the interim decision on the admissibility of evidence on innuendo meaning.  At a hearing on 26 March 2012 Sir Charles Gray ruled that it was not permissible for the plaintiffs to adduce evidence to support the innuendo meanings which witnesses understood the words to bear ([2012] JRC 69)."

"It is interesting to note that in reaching this conclusion he differed from the current edition of Gatley on Libel and Slander which states  'Where the claimant has pleaded an innuendo he may, in addition to calling evidence of the extrinsic facts on which he relies, call witnesses to state the meaning in which they understood the words.  The origins of this rule are the same as that which applies to evidence concerning the identification of the claimant.'"

And they conclude:

"In reaching this conclusion Sir Charles Gray relied on the recent decision of the Court of Appeal in Baturina-v-Times Newspapers [2011] 1 WLR 1526 where Sedley LJ expressed the view (without citation of authority) that even in an innuendo case the a claimant is not "entitled without more to put into the witness box a series of witnesses to say on oath what they made of the publication". [56]   This can, however, be contrasted with evidence of what was said by one of the publishees following publication of the words complained of  which Tugendhat J in Lewis v Commissioner of Police ([2011] EWHC 781 (QB)) held was evidence which goes to damages and could also be be relied on as relevant to meaning [68]."

When I first read about the Pitman case, I thought it was unlikely to succeed, and when it failed, the judgment laid down seemed to show that Sir Charles Gray had legal precedent on his side. Having recently read the Inform blog and comments, it appears that other important legal precedents were mentioned but dismissed. The Inform article questions whether that should have been the case, in particular Gatley on libel. That's not to say that the same conclusion may not have been reached, but the article does question whether it was correct not to permit evidence of innuendo by calling witnesses. This, after all, was permitted in Tolley v J S Fry where a caricature of a golfer in an advertisement for Fry's Chocolates led to a defamation case, and witnesses were cited:

"The oral evidence adduced by the plaintiff, apart from his own testimony, was that of a Mr. Storey, an eminent amateur golfer, and Mr. Hobson, a secretary of two well known golf clubs."

That doesn't mean the witnesses testimony will be acceptable, only that it should be heard. This was the case with Felix Onama v Uganda Argus Ltd where the Judge questioned whether a witness (known to the plaintiff) was indeed representative of "the general public as exemplified by the reasonable man" and ruled it out of consideration in summing up.

And it needs to be questioned whether two jurats are sufficient for cases of libel, where both the UK and Guernsey have 12 individuals sitting in libel actions. Even a Superior Number of the Royal Court would be an improvement. That is again not to say they may not have come to the same conclusion, but it would have provided a case less open to accusations of bias.



Nick Palmer said...

I took it that the "4x the salary darling" was a reference to the salary multiplier that Broadlands uses to ascertain how large a mortgage is affordable. Trevor seems to have taken it as implying that, since he and Shona were now in the States together, their joint "salary" was now 4 times what they had before.

Both are defamatory (assuming the Pitman's idealism and integrity is legit) but one is much more so than the other (and is factually untrue too).

It was dirty of Broadlands and the JEP to print something ascribing avaricious tendencies to "opposition" politicians without a balancing cartoon suggesting that more right wing politicians were in it for the favourable business influence/directorships etc they could accrue.

Rob Kent said...

This also does not take into account the Pitmans' contention that one of the Jurats was conflicted because of his involvement in a prior child abuse case which Trevor Pitman has campaigned about. That Jurat should never have been sitting in judgement.

On a more general note, my experience of jury service is that I was always convinced of the defendant's guilt after hearing just the prosecution case. But as soon I heard the defence counsel, especially if they were skilled, I changed my mind again.

What has been happening in Jersey recently - both with Stuart Syvret and the Pitmans - is that they were not even allowed to submit their full defence because their evidence was disallowed by the court, erroneously it seems.

Neither the court nor the public are being exposed to the full defence case which, if presented by a skilled and attacking barrister, would probably destroy the prosecution in both cases.

Justice is neither fair nor transparent in Jersey.

TonyTheProf said...

I believe Trevor only brought up the Jurat and the previous case after they lost, although Stuart Syvret had mentioned it before.

It should be noted that if you look at the chronology in the Sharp report, Jervis-Dykes had not been charged when remark - "there may not even be a case to answer" - was made. Hindsight is wonderful, but suppose a remark like that had been made in the Michael de Vell case? Until a case has been prosecuted, and the evidence comes out, the guilt or innocence of the accused is a matter of opinion.

Far more important, I think, the refusal to admit evidence. They badly needed a lawyer to argue that case.

TonyTheProf said...

I have received a comment from Trevor Pitman which is potentially defamatory.

I am therefore not posting it in its entirety until I have sought legal advice. I would note that he has cited the same matter on his blog, Facebook, Twitter, many times, and his accusations can be read there.

I will however post that he has noted:

"[Jurat] John Le Breton was socializing with a director of the JEP's owning company - even taking her to diner at his own home! Incredible and deeply disturbing all round"

I would like to see factual confirmation of this, but I think it is significant enough to warrant comment.

He has however not mentioned whether he was aware of the legal cases I cite when witnesses were permitted to be called and explain how they saw the innuendo, and in particular Tolley v J S Fry.

I suggests he looks at in detail - the link is given - as it refers to a defamation case relating to a cartoon. It has been cited in numerous libel cases.

The other links given are also worth perusal.