UK: Freedom Of Expression - Made in Strasbourg

Last Updated: 18 January 2007
Article by Nicholas Dobson

Freedom of expression and the degree to which this can lawfully be limited has been a noticeable theme in recent cases. Article 10 of the European Convention on Human Rights confers a qualified right of freedom of expression including the 'freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.'

However, the Article cannot be used to prevent member states from requiring the licensing of broadcasting, television or cinema enterprises. And, since the exercise of these freedoms 'carries with it duties and responsibilities' the right also:

'. . .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.'

So the right to freedom of expression is subject to specified limitations which are assessed case by case. This article takes a brief look at freedom of expression in three different contexts: the Code of Conduct, the duty of confidence and the right of peaceful assembly.

Freedom of Expression and the Code of Conduct

In Murphy v. Ethical Standards Officer of the Standards Board for England [2004] EWHC 2377 (28 October 2004), a Macclesfield District councillor unsuccessfully challenged a finding that he had participated in the proceedings of the Council's Planning Committee with a personal and a prejudicial interest. Amongst his contentions was that there had been a breach of his right to freedom of expression. In rejecting this, Keith J pointed out (amongst other things) that:

'The exercise of one's right to freedom of expression is expressly subject to such conditions as are necessary in a democratic society and for the protection of the rights of others. There is an obvious need to protect the reputation of local authorities as one of the democratic elements of society. In that connection, there is a need to maintain public trust and confidence in the decision-making process of local authorities. The provisions of the Code which are engaged in the present case are plainly intended to ensure that that trust and confidence is not misplaced.'

Councillor Sanders of Peterborough also sought to rely on Article 10 when he was found to have breached the Code of Conduct in that he had failed to treat others with respect and his conduct could reasonably be regarded as bringing his office or authority into disrepute. However,Wilkie J on 7 June 2005 in Sanders v Kingston [2005] EWHC 1145 (Admin) considered that the remarks in issue amounted to '. . .little more than an expression of personal anger. . .' and do '. . . not contain anything which could be dignified with the description of a political opinion or the importation of information.'

In coming to this view Wilkie J noted and apparently accepted submissions about the higher level of protection afforded to political expression. These included a passage cited from Jerusalem v Austria (2003) 37 EHRR 25 where the Court had (amongst other things) said (at paragraph 36) that:

'. . . while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attention to its pre-occupations and defends its interests. Accordingly, interference with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the court.'

However, in the particular circumstances surrounding Councillor Sanders the words and writing in question were found not to 'constitute political expression which attracts the higher level of protection'.

Mayor of London, Ken Livingstone, successfully pleaded freedom of expression (amongst other arguments) regarding allegations that he had breached his Authority's Code of Conduct when making the well-charted 'concentration camp guard' remarks to an Evening Standard journalist (see Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin)). Although Collins J considered that Mr. Livingstone was not expressing a political opinion (political expression attracting a high degree of protection) and was 'indulging in offensive abuse of a journalist', nevertheless:

'Anyone is entitled to say what he likes of another provided he does not act unlawfully and so commits an offence under, for example, the Public Order Act.'

Collins J demonstrated the width of the freedom of expression right in citing passages from Hoffman LJ in R. v Central Television plc [1994] 3 All ER 641.

'Freedom means. . . the right to say things which 'rightthinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute . . .It cannot be too strongly emphasised that outside the established exceptions. . .there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.’

However, how this will fare in the context of the Code of Conduct when the provisions in the Local Government Bill (which remove any applicable limitations to members acting only in their official capacity), find their way into law, remains to be seen.

Freedom of Expression and the Duty of Confidence

An action brought by the Prince of Wales against Associated Newspapers for breach of confidence and infringement of copyright has given rise to some useful guidance from the Court of Appeal in this area. The case concerned handwritten journals kept by Prince Charles which were provided to the newspaper by an employee of the Prince in breach of her contract of employment (see HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776).

Lord Phillips CJ (giving the judgment of the Court) said that there was an important public interest in the observance of duties of confidence. For those who engage employees, or who enter into other relationships that carry with them a duty of confidence 'ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential'. However, in the light of the Human Rights Act the test is one of proportionality i.e. 'whether a fetter of the right of freedom of expression is, in the particular circumstances, "necessary in a democratic society"'. Nevertheless, Lord Phillips pointed out that '. . .a significant element to be weighed in the balance is the importance in a democratic society of upholding duties of confidence that are created between individuals'. And the fact that the information in question is a matter of public interest is not enough to justify publication. Consequently:

'. . .the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.'

The court therefore needs to consider whether, having regard to the nature of the information and all relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.

Lord Phillips also noted that in applying the test of proportionality, the nature of the relationship that gives rise to the duty of confidentiality may be important. The Court consequently agreed with the view expressed by the Court of Appeal in Campbell v Frisbee [2002] EWCA Civ 1374:

'. . .it is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the right of freedom of expression, than a duty of confidence than is not buttressed by express agreement'.

However, in the instant case the Court equally considered that: '. . .the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case.'

Breaching the Peace

The House of Lords in R. (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 had to consider the interaction of Article 10 with Article 11 (freedom of peaceful assembly and freedom of association with others) with the common law power to prevent a future breach of the peace.

In this case the Claimant with others had been travelling from London to Gloucestershire by coach with the intention of demonstrating at an RAF base against the war in Iraq. When in the light of intelligence received the police stopped, boarded and searched vehicles including the coach in question they found some items which were capable of being used offensively. The Claimant refused to give her name and address when asked.

Since the police concluded that the coach passengers were heading for the air base and were likely to cause a breach of the peace the coaches were returned to London with a police escort which prevented them from stopping or leaving the motorway. The Claimant submitted (amongst other things) that:

(i) the police action in stopping the coach and not allowing it to proceed to the air base was an interference by a public authority with the exercise of her rights under articles 10 and 11;

(ii) whilst the interference by the Chief Constable in this case was for a legitimate purpose it was (a) not prescribed by law (because not warranted under domestic law) and

(b) was not necessary in a democratic society. This was because it was premature and indiscriminate and accordingly disproportionate.

Her contentions were upheld. As to the common law power to prevent a future breach of the peace, Lord Bingham pointed out that every constable, and also every citizen, has this power and '. . .is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur.' As he pointed out the instant appeal was concerned only with the third of these situations. Lord Diplock in the leading and binding authority of Albert v Lavin [1982] AC 546 had said that

'. . .every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.'

Beldam LJ in Foulkes v Chief Constable of the Merseyside Police [1998] 3 All ER 705 had subsequently expressed the view that:

'. . . the words used by Lord Diplock and in the other authorities show that where no breach of the peace has taken place in his presence but a constable exercises his power of arrest because he fears a [future] breach, such apprehended breach must be about to occur or be imminent.'

Regarding the rights of freedom of expression and of peaceful assembly, Lord Bingham said that neither of these rights is absolute and their exercise may be restricted if such restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends. Therefore, the protection of Articles 10 and 11 may be denied if the demonstration is unauthorised and unlawful or if conduct is such as actually to disturb public order.

Nevertheless, Lord Bingham also noted that any prior restraint on freedom of expression calls for the most careful scrutiny. For the 'Strasbourg court will wish to be satisfied not merely that a state exercised its discretion reasonably, carefully and in good faith, but also that it applied standards in conformity with Convention standards and based its decisions on an acceptable assessment of the relevant facts'. He also noted the powers of the police in respect of processions and assemblies in Part II of the Public Order Act 1986. In the circumstances he was persuaded that the interference by the Chief Constable with the Claimant's right to demonstrate at a lawful assembly at RAF Fairford was not prescribed by law. In coming to this conclusion he gave weight to certain considerations including (amongst others):

  1. It would be surprising if, alongside the carefully defined powers and duties in the Public Order Act 1986 (which created offences and defences) there existed a common law power and duty, exercisable and imposed not only by and on any constable but by and on every member of the public, bounded only by an uncertain and undefined condition of reasonableness. In the 1986 Act Parliament plainly appreciated the need for appropriate police powers to control disorderly demonstrations but was also sensitive to the democratic values inherent in recognition of a right to demonstrate.
  2. At the relevant time section 24(7) of the Police and Criminal Evidence Act 1984 provided that a constable may arrest without warrant (a) anyone who is about to commit an arrestable offence; (b) anyone who he has reasonable grounds for suspecting to be about to commit a breach of the peace'. Lord Bingham did not accept that this measure included a general test of reasonableness. Also, if Parliament had intended to confer a power of anticipatory arrest whenever it was reasonable to do so, it would have enacted accordingly.
  3. Lord Bingham found '. . . little support in the authorities for the proposition that action short of arrest may be taken to prevent a breach of the peace which is not sufficiently imminent to justify arrest.' In the circumstances, it was 'wholly disproportionate' to restrict the exercise of the Claimant's rights under Articles 10 and 11 'because she was in the company of others some of whom might, at some time in the future, breach the peace'.

Conclusion

Freedom of expression is a strong right. Whilst as noted it is not absolute and is subject to specified limitations there does need to be persuasive justification for it lawfully to be transgressed. And such justification was not made out in Laporte. As Hoffman LJ indicated (see above) it cannot be too strongly emphasised that:

'. . . outside the established exceptions (or any new ones which Parliament may enact in accordance with its obligations under the convention) there is no question of balancing freedom of speech against other interests. It is a trump card which always wins'.

However, there can equally be other public interests, e.g. in maintaining trust and confidence in local authority decisionmaking and in the duty of confidence which may in the circumstances (as with the Prince of Wales case) outweigh the right to freedom of expression.

But, where Convention rights are in issue, it will always be necessary to carry out a carefully, contextually sensitive proportionality balance of lawful means against legitimate ends and of the interests of the individual against those of the wider community. For since the Human Rights Act 1998, the scales of justice are increasingly using weights and measures made in Strasbourg.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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