“59. Mr Brinkworth also wanted to show the situations faced by HCEAs in their daily work, interacting with creditors and debtors, and thereby illustrate the consequences of growing levels of indebtedness. 60. Mr Brinkworth pitched the idea to Mr Raikes, who agreed to commission the series. Mr Raikes intended that the series would reveal as never before the process of enforcement, and the consequences of debt for all concerned. He was particularly keen that BFL should try and get interviews with both creditors and debtors. He agreed with Mr Brinkworth’s intention to give context to each segment by including relevant statistics. Thus each story would serve as a real life example of a much wider problem, giving it immediacy in the minds of viewers. Mr Raikes hoped that the programme would attract a large audience and trigger a nationwide discussion of the issue. He therefore believed that broadcasting the series would be of significant public interest. 61. In order to make the series, BFL needed to follow the activities of a company employing HCEAs. Originally BFL worked with High Court Solutions, but from the second series BFL worked with DCBL. BFL operated two or three film crews for four-day blocks of filming in various locations. Each crew followed a pair of DCBL HCEAs attempting to enforce around three to five writs a day. The crews were embedded with the HCEAs, and would usually only be notified by DCBL the day before each enforcement of the relevant locations. BFL usually received a copy of the writ, but no other information, in advance. 62. Mr Brinkworth did not attend any of the filming. Ms Crook only attended occasionally, but had overall control on a day-today basis. 63. Each programme consisted of four stories i.e. four enforcement actions. When making series 4, BFL attended the execution of 720 writs of possession or control, of which only 120 were broadcast. Series 3 consisted of fewer programmes, but the ratio was about the same. 64. Once filming ended each day, the cameraman (Mr Rea in the case of the Programme) would provide the rushes to Ms Crook and prepare a story synopsis for each enforcement. After that, each story would be reviewed, including by Ms Crook, to see if it should be included in the series. A rough-cut of the programme would be assembled by the editing team, and sent to BFL’s in-house lawyer Jan Tomalin for review. Mr Brinkworth would view the rough-cut and consider Ms Tomalin’s advice. After any changes requested by Mr Brinkworth had been made, a second rough-cut would be sent to Mr Raikes and Channel 5’s Director of Content Legal Advice, Stephen Collins, for their comments. After any changes requested by them had been made, a fine-cut would be prepared and then reviewed by Mr Brinkworth, Ms Tomalin and Mr Raikes. 65. Mr Brinkworth’s and Mr Raikes’ aim was to produce programmes that were balanced and fair, and complied with legal and regulatory requirements, and both believed that they had done so in the case of the Programme.”
“74. … Mr Ali came to the door of the room dressed in his bedclothes (the upper half of which consisted of a T-shirt or vest). It can be seen that he appears to be drowsy and confused. Mr Bohill told Mr Ali "We're High Court Enforcement Officers. We have an order to repossess this property". Mr Bohill said nothing about the presence of the film crew just behind him. Mr Ali asked Mr Bohill a couple of times to give him a second and then said "Let me put my shirt on". Mr Bohill agreed and told him to take his time. Mr Ali then shut the door.”
“Liars! This is Shakir Qureshi, main spokesman in the UK for Muslim League (N) getting evicted today by the High Court. All the lies on the Quran. He lies on the holy Quran that he paid a deposit and the next day he falls down and breaks his leg. No shame on this man, no shame. I had to pay so much money to get him out via High Court and now he can't even face the camera, he's that much ashamed.”
“Just say whatever you like. You're okay. You're okay. I won't be stopping you. … No, no, say whatever you like, just give it some wellie, you know it makes good television.”
“He's already got another house to go to, so he doesn't need it, he's already renting another house … they keep shutting the door because they're up to something in there, that they want to put their possessions away or their thousands of money that they've probably collected from all the sub-tenants … And he's supposed to be a main UK spokesman on Muslim League N. Isn't that right Mr Shakir Qureshi?”
“106. … Mr Ali: denied subletting the Property; accused Omar Ahmed of lying; said that he got into rent arrears of£4 -5000 because he was on a low income and his circumstances had got worse due to him being a heart patient; that, after the court order, he had been told he would be given two to four weeks for the bailiffs and it was shocking to be given only one hour to leave; that he had no other properties; and that he had sworn on the Quran that he had paid a deposit, but the landlord and the agents had not sworn on the Quran. Towards the end of this, Omar Ahmed can be heard interjecting.”
“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the Claimant and faced with the same publicity.”
“Channel 5’s main answer to this point is to rely upon the open justice principle.”
“Mr Ali’s political activity was essentially, as he put it, “a hobby”
“169. In my judgment the principal factors relied upon by the Claimants do lead to the conclusion that they had a reasonable expectation of privacy in respect of the information in question. The Programme was largely filmed in their home; it showed them being evicted without prior warning; it showed them in a state of shock and distress; it showed them being taunted by Omar Ahmed; and it was foreseeable that the broadcasting of the Programme would have an adverse effect on their children. I do not accept that the open justice principle means that the Claimants' Article 8 rights were not engaged. Open justice means that Channel 5 was entitled to report the facts that the courts had made the Order for Possession and issued the Writ of Possession and in consequence the Claimants had been lawfully evicted; but what happened in their home on2 April 2015 was not part of the proceedings. Nor do I consider that the broadcasting of the information was an inevitable consequence of the Claimants' failure to comply with the Order for Possession. Nor do I accept that Mr Ali's Article 8 rights were significantly weakened by his political activity. Mrs Aslam had not engaged in political activity at all. I accept that the Claimants, and their children, had already suffered damage to their privacy as a result of the Ahmeds' postings on social media, but I do not accept that this meant that the broadcasting of Programme either could not or did not inflict further damage given the substantial scale and duration of the broadcasting.”
“173. … When he came to the door of his bedroom, he was clearly drowsy and confused. In my view he was not in a fit state to give informed consent then. He was in a fit state to do so by 9:31, but I do not consider that, by giving an interview then, he can be taken retrospectively to have given his consent to the broadcasting of material filmed when he was not in a position to consent.”
“174. … Reliance was placed by counsel for Channel 5 upon the fact that at 9:36 Mr Ali objected to Omar Ahmed filming and said "you are filming this is enough" ([107]). Given that Mr Ali had already objected to being filmed twice without avail, however, I consider that the sense he was conveying was that the filming by the crew was bad enough without Omar Ahmed filming as well.”
“177. … Moreover, he was faced with that choice knowing Omar Ahmed had made serious allegations against him. Rationally, he chose the second option. In my judgment that did not amount to true consent. In effect, it amounted to an agreement to participate under protest. Moreover it was not fully informed agreement, given that he was not told anything about the programme that was being filmed or who would broadcast it or about the body cameras”
“180. … stated by Lord Steyn in Re S (A Child) [2004] UKHL47;[2005] 1 AC 539 at [17]: "First, neither article (8 or 10)has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."”
"judges are not newspaper editors”. He quoted Lord Hope’s remark in paragraph 25 of In Re British Broadcasting Corporation[2009] UKHL 34 ,[2010] 1 AC 145 to the effect that judges: “are not broadcasting editors either"
"A right to convey information to the public carries with it a right to choose the language in which it is expressed in order to convey the information most effectively … "
“I do not accept that Channel 5's editorial discretion extends to its decision to include the private information of which the Claimants complain unless the inclusion of that information was justified as contributing to a debate of general interest.”
“210. The ultimate balancing test. For the reasons given in paragraphs 169-170 above, I consider that the Claimants did have a reasonable expectation of privacy in respect of the information included in the Programme about which they complain. The justification relied upon by Channel 5 for interfering with the Claimants' Article 8rights is that the Programme contributed to a debate of general interest. As I have explained, I accept that the Programme did contribute to a debate of general interest, but I consider the inclusion of the Claimants' private information went beyond what was justified for that purpose. The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed and the Claimants, a conflict which had been encouraged by Mr Bohill to make "good television". Although I have not concluded that the Programme was materially unfair or inaccurate in its presentation of what happened, that does not assist Channel 5. The justification relied upon by the Claimants for restricting Channel 5's Article10rights is their right to respect for their private and family life and their home. Notwithstanding the importance of freedom of expression, I consider that the restriction is justified and proportionate in the circumstances of this case. Accordingly, in my judgment the balance comes down in favour of protecting the Claimants' Article 8rights.”
“45. The approach which should be adopted on an appeal of this kind is not, we think, in dispute. Although the exercise upon which the judge was engaged was not the exercise of a discretion it was similar in that it involved carrying out a balancing exercise upon which different judges could properly reach different conclusions. In these circumstances it is now well settled that an appellate court should not interfere unless the judge has erred in principle or reached a conclusion which was plainly wrong or, put another way, was outside the ambit of conclusions which a judge could reasonably reach.”
“61. That brings me to what seems to be the only point of principle which arises in this case. Where the main substance of the story is conceded to have been justified, should the newspaper be held liable whenever the judge considers that it was not necessary to have published some of the personal information? Or should the newspaper be allowed some margin of choice in the way it chooses to present the story? 62. In my opinion, it would be inconsistent with the approach which has been taken by the courts in a number of recent landmark cases for a newspaper to be held strictly liable for exceeding what a judge considers to have been necessary. The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure.”
“28. …On the one hand, publication of this information in the unusual circumstances of this case represents, at most, an intrusion into Miss Campbell's private life to a comparatively minor degree. On the other hand, non-publication of this information would have robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction. This information was published in order to demonstrate Miss Campbell's commitment to tackling her drug problem. The balance ought not to be held at a point which would preclude, in this case, a degree of journalistic latitude in respect of information published for this purpose.”
“58. The reason why Mr Caldecott concedes that the Mirror was entitled to publish the fact of her drug dependency and the fact that she was seeking treatment is that she had specifically given publicity to the very question of whether she took drugs and had falsely said that she did not. I accept that this creates a sufficient public interest in the correction of the impression she had previously given. 59. The question is then whether the Mirror should have confined itself to these bare facts or whether it was entitled to reveal more of the circumstantial detail and print the photographs. If one applies the test of necessity or proportionality which I have suggested, this is a matter on which different people may have different views. That appears clearly enough from the judgments which have been delivered in this case. But judges are not newspaper editors. It may have been possible for the Mirror to satisfy the public interest in publication with a story which contained less detail and omitted the photographs. But the Mirror said that they wanted to show themselves sympathetic to Ms Campbell's efforts to overcome her dependency. For this purpose, some details about her frequency of attendance at NA meetings were needed. I agree with the observation of the Court of Appeal, at p 660, para 52, that it is harsh to criticise the editor for "painting a somewhat fuller picture in order to show her in a sympathetic light."”
“77. No doubt it would have been possible for the Mirror to have published the article without pictures. But that would in my opinion again be to ignore the realities of this kind of journalism as much as to expect precision of judgment about the amount of circumstantial detail to be included in the text. We value the freedom of the press but the press is a commercial enterprise and can flourish only by selling newspapers. From a journalistic point of view, photographs are an essential part of the story. The picture carried the message, more strongly than anything in the text alone, that the Mirror's story was true. So the decision to publish the pictures was in my opinion within the margin of editorial judgment and something for which appropriate latitude should be allowed.”
“108. The freedom of the press to exercise its own judgment in the presentation of journalistic material was emphasised in a further passage in Jersild's case where the court said, at p 26, para 31: "At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the court recalls that article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed." In Fressoz v France(2001) 31 EHRR 28 , 60, para 54 the court said that in essence article 10 leaves it for journalists to decide whether or not it is necessary to reproduce material to ensure credibility, adding: "It protects journalists' rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide 'reliable and precise' information in accordance with the ethics of journalism."” "At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the court recalls that article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed." "It protects journalists' rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide 'reliable and precise' information in accordance with the ethics of journalism."”
“…Choosing which stories are considered is a careful process. In some instances there may be, for example, an issue of mental health which may make a story unsuitable. There may be others where there is no process to observe as the writ may have already been settled or set aside. Each story that is considered always tries to bring to light an aspect of debt, with context, and with the different circumstances of the debtor and creditor being taken into account. As stated above, we always try to put relevant statistics before each story to enable the viewer to see how the story that follows fits into a wider national perspective. The episode in question here, for example, with the various and sometimes heated interactions between Mr Ali, his wife and the landlord illustrated to me that this was a good example of how relations between a landlord and a tenant had broken down; how the landlord had lost faith and trust in the tenant because of his failure to pay the rent; how it had gone through extensive back and forth in the county courts’ and that both Mr Ali as the tenant as well as the landlord had the opportunity to state their case about the facts of the matter.”
“clearly wrong because they are not capable of bearing a reasonable relationship with: (a) the scale and nature of publication; and (b) the distress caused to each of the Claimants by those publications.”
“5. On top of that they made video clips and at the time of sudden high court order eviction, it was shocking for our family they recorded videos with abusive, DIRTY, disrespectful shouting commentary to defame my husband, my family his social and political status calling him different horrible names And displayed it on social media, circulated massively on Face book, whatsup and newspapers. THIS CAUSED HUGE DEPRESSION FOR MY HUSBAND AND ALL OF US we found it very difficult to come out of this situation AND WE WILL NOT BE ABLE TO GET OUT OF THIS. My husband is a hard working honest man and we believe that with his hard work very soon we will be able to return to normal Graceful life. Due to their unethical act my Husband’s Social and political status disturbed internationally, His future Business plans stuck and stopped at the moment. We are very upset with this act of their WHEREAS you are thinking that we have been playing deliberately. NO we are not, we/my Husband has no money But earned Respect in society which due to this Situation created by some his old friends and same background people have destroyed only for a small amount of money and due to the Part of different political parties. KINDLY DON’T CONSIDER IT DELIBERATE HOMELESSNESS. They become our enemy.”
“At the time the Facebook posting was printed out to be included in our disclosure it had been liked by 17 people and shared by 3 people. I think that this showed that the Facebook posting was not in fact looked at by many people. I admit that I was very upset by it but the upset caused to me by the broadcast of the programme was very much worse.”
“Due to this eviction and these videos we did suffer, and this was our feeling, that we had been very much humiliated and we have let – let down. People started not believe me anymore, and that was – that was stressful, and this is what we wanted to elaborate here.”
“220. Looking at the matter in the round, I consider that an appropriate sum of damages is£10,000 for each Claimant. I would have awarded a higher figure if it had not been for the postings by the Ahmeds.”
“60. I turn to my conclusions. There is a threshold question, which I can take shortly, as to the conditions for interference by this Court in any award for general damages. If the judge makes a material error of law, this Court must intervene. If, however, the challenge is to the size of the award, and the judge has as here heard the evidence of witnesses in assessing the effect on the respondents of the misuse of their private information, this Court should not intervene unless the award is so high as to be perverse. The judge will have performed, and been better placed to perform, an assessment of all the relevant factors and it is not enough for this Court to conclude that it would have made some different award.”