Barron MP & Ors v Collins MEP [2015] EWHC 1125 (QB)

[2015] EWHC 1125 (QB)Case No IHJ/15/0034
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2015
Before
THE HONOURABLE MR JUSTICE WARBY
Between
(1) SIR KEVIN BARRON MPClaimants(2) RT HON JOHN HEALEY MPClaimant(3) SARAH CHAMPION MPClaimantJANE COLLINS MEPDefendant
Gavin Millar QC (instructed by Steel & Shamash Solicitors) for ClaimantsKate Wilson (instructed by RMPI LLP) for DefendantHearing Hearing date: 20 April 2015
Judgment
[1]This is the trial of preliminary issues in this action for defamation. The Claimants are all Labour Party MPs for constituencies in the Rotherham area. The first Claimant has been the MP for Rother Valley since 1983. The second Claimant has represented Wentworth and Dearne since 1997. The third Claimant is the MP for the constituency of Rotherham, having won a by-election in November 2012, as successor to Denis MacShane. All three are standing again at the forthcoming election. The Defendant is the MEP for Rotherham, a member of the UK Independence Party, and is the UKIP candidate for the Rotherham constituency.[2]The Claimants’ claims for slander and libel arise from a speech given by the Defendant at the UKIP Conference on 26 September 2014, which was broadcast live on the BBC Parliament channel, and republished in whole or in part on the UKIP website, Twitter, and the Press Association Mediapoint wire service. The speech took as its main theme the sexual exploitation of children in the Rotherham area, which had become a national scandal following a report by Professor Alexis Jay, published in August 2014. The Defendant focused on the role of the Labour Party, including that of Rotherham Council and made reference to “the three Labour MPs for the Rotherham area”.[3]The Claimants allege that the words I have just quoted will have been understood as a reference to each of them. Their case is that the speech meant, of each of them, that they “knew of the horrific sexual abuse of around 1,400 children in Rotherham over sixteen years but failed to act, keeping quiet and allowing the abuse to continue because it suited their political purposes.” It is the Claimants’ case that this is an allegation of fact.[4]The Defendant does not dispute that her speech referred to the first and second Claimants but, for reasons that I will come to, she denies that a reasonable person would have understood it to refer to the third Claimant. The Defendant disputes the Claimants’ pleaded meaning which fails, she submits, to capture what her speech said about Rotherham MPs. Her case is that this was a political speech and that the words complained of, properly assessed, do not contain any allegation of fact about the Claimants. Rather, they expressed an opinion to the effect that the Labour MPs in Rotherham at the time the sexual exploitation was rife “are likely to have known that sexual exploitation was a serious problem in the area.”[5]The Defendant says that if, contrary to her primary case, the words are factual they mean that “in light of the widespread knowledge amongst members of the Labour Party in Rotherham, which had been running the council for years, that child sexual exploitation was rife in the town, there are reasons to believe that the Claimants, as members of the same political party and MPs at the time, knew that sexual exploitation was a serious problem.”[6]The preliminary issues for trial are, therefore:(1) the meaning of the words;(2) whether the words are fact or comment;(3) whether the words referred to the third Claimant. Those issues are tried as preliminary issues by the agreement of the parties, pursuant to a consent order covering issues (1) and (2), and a subsequent agreement to encompass the issue of reference.[7]Each of the three preliminary issues requires me to consider the words complained of, in their context.

The Defendant’s speech

[8]I shall set out the whole of the speech. The Claimants complain of certain specific words, which I shall underline, but they rely on the whole speech as relevant context for determining the meaning and effect of those words. It is, as ever, necessary in any event to consider the whole of a statement of which only parts are complained of.[9]The Defendant was introduced as “Our MEP for Yorkshire, and the next MP for Rotherham, Jane Collins”. She then walked to the lectern and said this: 1. “Well, good morning Doncaster, and wow, I’m speechless. It’s, it’s amazing to see so many people here today and it’s wonderful, it’s absolutely wonderful. 2. The conference today is very much about a celebration of our party’s bright future, about setting out our agenda for government with a raft of policies that will put the Great – they will put the Great - back into Great Britain. 3. But there’s a great deal to do in order to repair our broken and unfortunately divided society, and my speech today will deal with an issue that highlights just how social engineering and political correctness has failed the most vulnerable people in our society today. 4. This issue highlights all the classic signs of failure that is in British politics at the moment. And the lack of backbone and the lack of moral courage of those individuals involved. 5. Earlier this year I was selected as the prospective Parliamentary candidate for the Rotherham Central constituency. 6. I knew it was going to be a hard fight. It has been in the grip of the Labour mafia for 80 years so I knew I had some work to do. But I didn’t expect to be suddenly embroiled in a scandal that absolutely outraged the whole of the country. 7. At 12 o’clock on August 26th, Tuesday, I received a call giving me the first scant details of Professor Alexis Jay’s report on child sexual exploitation in Rotherham. I sat at my desk listening as the call went on to outline the report. An estimated 1,400 children had been groomed, raped, trafficked for sex, over a period of 16 years. Mainly by Pakistani and Kashmiri men. I sat there totally dumbfounded and I thought to myself, well, surely there has been some mistake in the reporting of this issue. But there wasn’t a mistake. 8. White girls had been targeted and abused by men of Asian origin, with little or no intervention from any of the town authorities. 9. Ladies and gentlemen, the details of the report are horrific, but the abuse had included children as young as 11 being trafficked, gang-raped, beaten, plied with alcohol or drugs, threatened with knives and guns, and one small child had petrol poured over them and said if they did not conform to what the gang wanted them to do they were going to be burned alive. Can you imagine the fear in a small child being told that? 10. Nearly every agency in Rotherham had grossly failed its duty to protect these children and this is despite the pleas from the victims and, please note, the frontline workers, who met a brick wall. 11. The report listed a catalogue of political, policing, and procedural failures in Rotherham that led to the police almost spending their time trying to disprove the victims’ claims instead of actually trying to find the perpetrators and prosecute them for their crimes. It detailed how fathers tried to protect their children had actually been arrested in doing so. 12. Yet the abusers time and time again walked away, and why? It was because of their Asian origin. 13. It also explained that the Labour-run council and its officials had actually been given three separate reports on this over a period of time, but in 2005 had been sat down and given graphic details of what this abuse had actually been about - I wouldn’t like to go into them because they are horrific - and still, and still there was no real positive action. 14. The report reiterated throughout warning after warning went unheeded in the town. And much of this was due, ladies and gentlemen, to political cowardness [sic] and worrying about keeping their vote. 15. My outrage as a mother, I can’t explain today. It’s beyond words stood here on this stage. The protection of children should never be about race, of the victim or of the offender. But it should instead be focused on stamping out these horrific crimes wherever and whatever community they are found in. 16. I am angry, very angry, with the perpetrators for treating the children in this way, but I am equally angry with those people in the position of power who could have intervened but chose not to through political correctness or, as shamed ex-Labour MP Denis MacShane - or MacShame as we call him - put it: ‘because they are a bunch of liberal, lefties’, too afraid to act through their own political selfishness. 17. But there is a great deal of work to be done in helping and supporting the victims of Rotherham. Something I am personally committed to getting involved with. 18. These young children and young adults deserve better, and I will do my best to provide what I can personally, but I am asking everybody here today: if you feel you can help me in any way, please, please, contact me after this conference because your help will be more than welcome. 19. From the outset of this scandal I called, and the party called, for resignations of all those directly involved. And we managed to bag a few, including that of Shaun Wright who was – pause for the boos - the Police Crime Commissioner who had served as a Council cabinet member for children’s services. And Joyce Thacker the children’s service director who led the persecution – and it was persecution – of the UKIP foster parents in 2012, while at the same time she allowed these horrific sex attacks to go on underneath her nose. 20. However there are many others that still have questions to answer, and possibly charges to face. 21. This includes the three Labour MPs for the Rotherham area. I am convinced that they knew many of the details of what was happening. 22. I am now calling for criminal charges to be brought against those who it can be proved knew about the abuse, who failed to act - because in failing to act they aided and they abetted the perpetrators and they are just as guilty. 23. I would also like to see far more perpetrators arrested than there has been to date because the conviction rate regarding victims is woefully low so we need some more convictions and more people identified. 24. However it’s not all doom and gloom in Rotherham, and there is light at the end of the tunnel. There is hope in Rotherham. 25. On Friday after the Professor Jay’s report was released I was privileged enough to accompany two South Yorkshire police officers in their duties on their evening patrol. 26. During the course of this visit I was introduced to a number of youth groups and their leaders. The patience, dedication and sheer hard work of those front line staff was inspirational and incredible to see. The positivity and zest for life in the children and the young people and their leaders was infectious and I left those meetings absolutely convinced that the children of Rotherham hold the key to the town’s future. 27. From my experiences I can’t stress enough that I do not hold the front line workers responsible for any of the problems that the town now faces, as I know that many of them did anything they could to expose what was happening in Rotherham and they actually hit that wall. In many ways they were let down by their leaders and they are now suffering the undeserved consequences and they really do need some more support. 28. We also need more support in tackling the continuous abuse that is going on in South Yorkshire, on an industrial scale. Today, tomorrow, it has to be stopped. 29. It’s now up to us to make sure that Rotherham has a leadership with a clean pair of hands who can help and encourage the frontline staff in their work. The town needs leadership that will put its own political agenda aside and put the people first. 30. A town that will not distinguish between colour, creed, race or religion and will form a future for Rotherham. 31. This scandal is all about the children so let’s enable the children to be part of the recovery. Give them the support and they will bring the pride back to Rotherham. 32. Take heed Mr Miliband, take heed. Together the Labour Party betrayed the children of Rotherham. 33. And as Mr Miliband put it, together they conspired to allow the abuse of children on an industrial scale; together, they failed to apologise, and they kept quiet to suit their political purposes. 34. Ladies and gentlemen I’m asking you here today: together, UKIP and everybody in this room will stop Labour ever, ever, getting the chance of doing that again. 35. Thank you.”[10]This is a modified version of a transcript provided by the Claimants’ advisers, broken down into paragraphs, with numbering attached. This is for ease of reference and explanation, but I bear in mind that this was a speech and not an article in a newspaper, or online, and that what each of the preliminary issues calls for is a decision on how the speech would strike the hypothetical ordinary reasonable viewer and listener hearing and seeing it once only. For the purposes of determining the preliminary issues therefore I have not focused my attention on the words on the page, or the paragraph breakdown. I have focused instead on the speech as delivered, its rhythm and emphasis, and its overall impact on the ear and eye. For that purpose I have relied on a high quality recording of the BBC Parliament channel broadcast. Issues (1) and (2): meaning, and fact/opinion Principles

Issues (1) and (2): meaning, and fact/opinion

[11]The principles to be applied in determining these issues are not in dispute. The right approach to the determination of meaning was described by Sir Anthony Clarke MR in Jeynes v News Magazines Limited[2008] EWCA Civ 130 [14]:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) …. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.”[12]Freedom of political expression is one of the most important freedoms. A consequence is, as Laws LJ observed in Waterson v Lloyd [2013] EMLR 17 at [66], that the third principle - that the court should avoid over-elaborate analysis when determining meaning - has particular resonance in the context of political speech. The seventh principle is also of particular importance in such a context.[13]In Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB). [2015] 1 WLR 971 [88]-[98] I considered the principles applicable to the determination of whether a statement is an opinion as opposed to a factual statement. Miss Wilson relies in particular on what I said at [88]:
“The statement must be recognisable as comment, as distinct from an imputation of fact: Gatley on Libel and Slander, para 12.7. Comment is ‘something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc’: Branson v Bower [2001] EMLR 800, 12. The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams Press Ltd [1958] 2 WB 275, 313. The subject matter and context of the words may be an important indicator of whether they are fact or comment: Singh's case, paras 26 and 31.”
[14]This was a summary of the position at common law. The Defamation Act 2013 has abolished the common law defence of fair comment and replaced it with the statutory defence of honest opinion. However, neither Counsel suggests that this has altered the principles relevant to this case. Indeed, both Counsel have referred me to s 3(2) of the Act and its Explanatory Note 21 as endorsing the common law approach I set out in Yeo. Section 3(2) sets out the first condition for the statutory defence of honest opinion:
“The first condition is that the statement complained of was a statement of opinion.”
The Explanatory Notes state at [21] that:- “... condition 1 is intended to reflect the current law and embraces the requirement … that the statement must be recognisable as comment as distinct from an imputation of fact. It is implicit in condition 1 that the assessment is on the basis of how the ordinary person would understand it ...”[15]Ms Wilson also draws attention to the next sentence of the same paragraph of the Explanatory Notes:
“As an inference of fact is a form of opinion, this would be encompassed by the defence.”
I agree that a statement expressed as an inference will often be an expression of opinion. This is reflected in the passage from Branson v Bower that I cited in Yeo at [88]. It is not submitted, however, and I do not understand it to be the law, that any statement about a matter, the facts of which cannot be within the personal knowledge of the speaker, is to be treated as an inference and hence a statement of opinion.[16]Ms Wilson has addressed me about the criterion of “verifiability” which has featured in some of the common law cases as a means of resolving the fact/opinion issue. She points out that this is not expressly reflected in the Act, or the Explanatory Notes. She warns against using this as a yardstick, drawing attention to Gatley on Libel and Slander, 12th ed at §12.10 in which the editors, having noted that the common law lacked clarity as to whether the verifiability of a statement is an applicable criterion, observe that, “If the ability of an audience to recognise words as comment is key, then it is not obvious why the verifiability or otherwise of the inference should be important”.[17]Ms Wilson doubtless makes this point lest I conclude that the offending statement is verifiable, and for that reason a statement of fact. This is a potentially important issue. The European Court of Human Rights has repeatedly emphasised the importance of drawing a careful distinction between matters of fact and value judgments, holding that it is wrong to require a Defendant to prove the truth of a “value judgment” as these are not susceptible of proof: see, for instance, Lingens v Austria (1986) 8 EHRR 407 at para 46. However, it is not necessary for me to decide in this case whether verifiability has any part to play in the court’s approach under domestic law, as Mr Millar QC has not invited me to adopt that criterion. The way the statement would strike the ordinary reasonable listener and viewer is a sufficient criterion, for present purposes at least.[18]It is common ground that the fact that the statement complained of is political speech has some bearing on the approach I should take to the fact/opinion issue. Ms Wilson relies on what I said in Yeo at [97] about statements made in a political context:
“the court should be alert to the importance of giving free rein to comment and wary of interpreting a statement as factual in nature, especially where as here it is made in the context of political issues. In drawing the distinction the court should consider what the words in their context indicate to the reader about the kind of statement the author intends to make.”
[19]Mr Millar does not dispute this, and acknowledges that the boundaries of political criticism are very wide. He points out, however, that the law does nevertheless protect politicians against defamatory imputations of fact. He reminds me of what the European Court of Human Rights said in Lingens at para 42: that the protection of reputation “extends to politicians too, even when they are not acting in their private capacity”.[20]In identifying the issues for decision, and in setting out the applicable principles, I have dealt with the meaning issue, and the fact/opinion issue, in that order. This is convenient. However, in the Singh case that I mentioned in Yeo at [88] (British Chiropractic Association v Singh [2010] EWCA Civ 350, [2011] 1 WLR 133) the Court of Appeal pointed out at [32] that it may not always be appropriate to decide the issues in that order. To do so “may stifle the answer” to the second question.[21]Ms Wilson invites me to avoid that risk by approaching the question of whether the words complained of in this case are opinion before determining their meaning. I have been alive to the risk, to which I referred in Yeo at [96]. What I have done to cater for it in this case is to consider the two questions together. That seems to me to be the approach that will best reflect the experience of the ordinary viewer and listener of the Defendant’s speech in September 2014.

Submissions

[22]Counsel, whilst acknowledging the risks of over-elaboration, have presented me with competing analyses of the Defendant’s speech. Mr Millar submits that it started by presenting in paras 2 and 3 the issue which the speech is going to be about, and making clear in para 4 that the issue offers – according to the Defendant – a specific example that is symptomatic of a more general “failure” of British politics. At paragraph 6 the Defendant referred to a “scandal”, before going on to set out details of the abuse, drawn from the Jay Report. Mr Millar draws attention to the allegation of “political” failure in paragraph 11, which he says would lead the listener to expect detail of that failure to be given later. Paragraph 13 was aimed at the Labour run Council, and its failings, as explained in the report, but this does not serve to exclude other political failures, he submits.[23]Paragraph 16 expressed the Defendant’s anger with “those people in the position of power who could have intervened but chose not to”. This, submits Mr Millar, cannot be understood as limited to the local Councillors and officers in the light of what follows. At paragraphs 19 to 22 the Defendant told her listeners that there was a category of people “directly involved”, some of whom have resigned, “others” of whom have not; and she presented the three Labour MPs as among the “others”, and as people who knew about the abuse and failed to act. The words “I am convinced”, which could in principle represent comment, are in their context presented as an inference of fact about the extent of the Claimants’ knowledge. Paragraphs 33 and 34 ram home the message of the speech, says Mr Millar. The targets of the attack on “the Labour Party” in these paragraphs have been identified to the audience earlier, and include the three MPs. This is underlined by the three uses of the word “together” and the allegation that “they conspired”.[24]In summary, submits Mr Millar, it is clear law that there is greater latitude for attacks on politicians than on others, but there are still some limits. The ordinary listener is not unfamiliar with hearing allegations of fact in political speeches. Here, the Defendant could have chosen her words so as to make clear that what she was saying was an inference or opinion, but she did not. He suggests that the political context has a double edge to it. The speech would have had less impact if it had been presented as opinion, “hedged around” with qualifications. The Defendant, he submits, cannot have it both ways. She was an MEP putting herself forward to the conference as a person who had studied and knew about the facts of the abuse scandal, who was making factual allegations directed clearly at the Rotherham MPs.[25]For the Defendant, Ms Wilson invites me to start by focusing on the nature of the occasion and the hypothetical reasonable audience member. She submits that the speech was a rallying call issued from the platform at a party conference, eight months before a general election, at a time when it was known there would be such an election. The immediate audience of UKIP activists, members, or sympathisers will have been aware of these circumstances, as will viewers of the BBC Parliament channel and others, who would all have been close observers of politics.[26]Ms Wilson submits that the speech divided clearly into parts. It set out some of Professor Jay’s findings, making numerous references to “the report”. Only then did the Defendant go on to set out her own views: first her personal reaction to those findings (at 15-18), and then her views as to what needed to be done going forward (19-31, which is where the reference to “three Labour MPs” appears). The speech did not conflate those who definitely knew about the scale of abuse with the MPs, submits Ms Wilson. It drew a distinction between the Councillors and the MPs. The Councillors “knew” (para 13) and were condemned at paras 7 – 14; but the MPs were amongst the “others” (para 21) who still had “questions to answer”.[27]When the Defendant said she was “convinced” that the MPs knew details she was clearly indicating, Ms Wilson submits, that she could not believe, based on the background she had set out, that the local MPs at the time were completely ignorant of the scale of the problem. It would be clear to listeners that this was an inference from the fact that the MPs were in the same political party, representing the same constituents, and spending time in that constituency. No-one hearing the speech would have thought that the Defendant had information going beyond the report, or had conducted her own parallel investigation and unearthed evidence about the “three Labour MPs”. Her words would have been seen as holding political opponents to account, questioning their record. The concluding passage in paras 33 and 34 were and would be understood as “political hyperbole”, submits Ms Wilson, aimed broadly at the Labour Party without implicating the MPs individually.

Discussion

[28]As Ms Wilson submits, it is important to have in mind from the outset the nature of the occasion, and the audience. The statements complained of were part of a rallying call to the ‘party faithful’ and the speech was made to audiences, reasonable members of which can be taken to have understood, and made allowance for the fact, that political expression will often include opinion, passion, exaggeration, and even inaccuracy of expression.[29]At the same time, party conferences are not occasions on which the audience expects, or is often given, impromptu speeches in which the words used are chosen in the heat of the moment. As a rule, the audience’s expectation of a speech made in that context is that it will be prepared and considered carefully. The way this speech was delivered would not have suggested to its audience that it was any exception to this rule. The recording shows that the speech was delivered in a measured way, from a prepared script or notes, to which the Defendant referred frequently. In my judgment the reasonable audience member will have understood the Defendant’s words to be ones that had been chosen, weighed, and considered before they were delivered.[30]Audiences at or of political party conferences are also used to hearing speakers make allegations against rival parties, their leaders and members. Where the speaker is due to contest an election it is usual, for obvious reasons, to hear criticism and allegations directed at those who are the speaker’s opponents for a particular seat. Here, the audience knew from the introduction and the speech itself, if they did not know it anyway, that the Defendant was a prospective Parliamentary candidate, selected to fight for the Rotherham seat against an incumbent Labour MP at the coming election.[31]With these points in mind I viewed the BBC recording once, knowing from the application notice and the introductory parts of the skeleton arguments what the issues were, but before reading the meaning complained of, or the detail of Counsel’s skeleton arguments. The clear impression I took from the speech was that the Defendant was deliberately making direct allegations against the three Labour MPs for Rotherham of knowing about the sexual abuse and choosing not to take any action. I made a note of the meanings that I took from the speech. There were three.[32]The first was that each of the three Rotherham MPs “knew many of the details of the scandalous child sexual exploitation that took place in Rotherham over a period of sixteen years, in the course of which an estimated 1,400 children were raped, beaten, plied with alcohol and drugs, and threatened with violence by men of Asian origin, yet deliberately chose not to intervene but to allow the abuse to continue.”[33]The other meanings that I drew from the speech were that the MPs “acted in this way for motives of political correctness, political cowardice, or political selfishness”, and that each “was thereby guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators and made the Claimants just as culpable as the perpetrators.”[34]I arrived at these three separate meanings because, in the process of forming a view, I was conscious of the need to determine at the same time whether the words would be taken as expressing factual imputations or opinions. The first meaning represents the factual imputations I considered that the Defendant made in her speech. The other two meanings encapsulate what I considered to be expressions of opinion.[35]Having reached these initial views I have reconsidered them in the light of Counsel’s skeleton arguments, and again in the light of the oral arguments presented at the hearing. I have not been persuaded to depart from my initial conclusions.[36]I do not accept Ms Wilson’s central argument, that the speech drew a clear distinction between the allegations it levelled at local Councillors and officers, and those it aimed at the three MPs. The overall theme and message of the speech was that there were Labour Party politicians in positions of power in Rotherham who knew about the sexual abuse and chose to do nothing about it for political motives. The way the Defendant presented the matter was that the guilt of the local politicians had been exposed by the Jay Report, but the three MPs were also guilty in the same way.[37]Nor do I accept Ms Wilson’s submission that the concluding passages of the speech were rhetorical hyperbole aimed not at the MPs but more generally at the Labour Party as a whole. In my judgment those concluding passages were, as is so often the case in any speech, the parts that were most significant in framing the overall message conveyed.[38]I do not agree with all of Mr Millar’s submissions. It is in my judgment artificial to suggest that the “others” in paragraph 20 were presented as others “directly involved”. However, my conclusions on the meaning of the Defendant’s speech are similar to those he urged on me.[39]I would identify the essential features of my own response to the speech, drawing on the notes I made when first viewing it, as follows. Paragraphs 3 to 6 set the scene. They explained the Defendant’s role as a prospective Parliamentary candidate for Rotherham Central, identifying her opponents as the “Labour mafia” which had held the constituency in its grip for 18 years, and identifying her theme as an issue involving “political correctness” and “lack of moral courage” which was a “scandal”. This part of the speech set up the listener to expect criticism of national, not just local politicians.[40]The key section of the speech for present purposes then picked up at paragraph 16 where the Defendant identified the group with which she was angry:
“people in the position of power who could have intervened but chose not to”
. That group clearly included the local Councillors and officers that she had referred to earlier, in particular at paragraph 13. But the Defendant made clear in paragraphs 19 to 22 that her anger did not stop with them.[41]It is true that some of the wording used in those paragraphs is indicative of expressions of opinion. The Defendant spoke of “questions to answer”, and “possible” charges. But she also provided the answer to the “questions”, when she said she was “convinced” that the MPs knew many of the details of what was happening. As she said this, the Defendant accompanied her words with emphatic pointing. Even then, if the Defendant had said no more about the abuse and the role of the Labour Party she might have left the audience with the impression that she was saying no more about the MPs than that(a) they had questions to answer about their role in respect of the abuse, and(b) in her opinion the answer was that they knew about it and that it should be a crime to take no action in such circumstances. The Defendant returned to her theme, however, in the concluding passages of the speech. These provided a rousing climax directed clearly, in my opinion, at the MPs as well as others.[42]I was struck by the Defendant’s reference in paragraph 29 to the need for “us”, that is UKIP, “to make sure that Rotherham has a leadership with a clean pair of hands” and “leadership that will put its own political agenda aside”. I heard those as statements in which the Defendant contrasted herself as the prospective Parliamentary candidate, with clean hands, with the incumbent MPs. The speech then reached its finale with the references to the Labour Party in paragraphs 32 and 33. Those references, at this point, indicated to me and would in my judgment indicate to the ordinary reasonable listener the Labour Party politicians who have been referred to earlier in the speech. The use of the word “together”, repeated three times in those paragraphs, naturally and clearly suggests that the Defendant is aiming her words at the Labour politicians collectively. The word “conspired” lends still greater weight to the collective nature of the allegation. Again, this part of the speech was accompanied by emphatic hand gestures.[43]As indicated in paragraph 33 above, I accept that the motives referred to in paragraphs 3, 4, 14 and16 of the speech were presented as matters of opinion. I accept that the same is true of the “political purposes” attributed in paragraph 33. But the allegations of a conspiracy to allow abuse and keeping quiet “together” were not presented as matters of opinion at all. They were presented as factual conclusions. Nor were those allegations qualified in any other way. I reject Ms Wilson’s argument that the meaning was at Chase Level 2, which is not in my judgment a tenable view.[44]For these reasons I find that the words complained of bore the meanings I have set out in paragraphs 32 and 33 above, and that the first of those meanings is an allegation of fact, whilst the others are expressions of opinion.

Issue (3): reference to the third Claimant

[45]Words can be the subject of a claim for defamation if, but only if, they would be understood by reasonable people who knew the Claimant to refer to him. It is usually enough if the Claimant is named. If not named, there may be a reference to some office or position held by the Claimant which would be enough to enable an ordinary reasonable person who knows the Claimant to identify them as the person referred to. The test is an objective one, involving once again an assessment of the response of the hypothetical ordinary reasonable reader, viewer or listener to the words complained of. The Defendant’s intentions are not the criterion, although the issue could in principle be affected by what the words used would indicate to the ordinary reasonable reader about the Defendant’s intentions.[46]Here, the third Claimant was at the time of the Defendant’s speech one of the “three Labour MPs for the Rotherham area” (paragraph 21 of the speech). Mr Millar’s first proposition is that in those circumstances the conclusion that the Defendant’s words referred to her is so obvious as to be a “no-brainer”. He elaborates this by pointing out that it is settled law that where defamatory words refer to a limited class of persons any person who shows that they fall within that class can normally sue for defamation. Ms Wilson accepts that in many contexts, the reference in para 21 to would suffice to refer to the third Claimant but submits that this is not so in the context of this speech.[47]Ms Wilson submits that those in the audience who knew the third Claimant, and knew she was Rotherham’s MP at the time of the speech, would also have known that “she had only just arrived on the political scene” and that a major feature of the child abuse scandal in Rotherham was that it had gone on for many years until it attracted national publicity. This was general knowledge, in particular after the publication of the Jay Report, but it is, in any event, clear from para 7 of the speech submits Ms Wilson. The reasonable hearer/ viewer would therefore not have understood “Labour MPs” to refer to the third Defendant who “was running a hospice at the relevant time.”[48]Although it has not been put this way it is implicit in these submissions that the ordinary reasonable reader would have taken the Defendant to be levelling her accusations at Denis MacShane, and not the third Claimant. In my judgment these submissions are ill-founded. That is because they depend, on a proper analysis, on adding to the store of knowledge of the audience facts which are not matters of general knowledge and which are not, at this stage, established to be matters of special knowledge possessed by members of the audience.[49]The principles as to reference are, as Counsel agreed, similar to those which apply to meaning. Both can be affected by the knowledge of the readership or audience. Words may be defamatory either in their natural and ordinary meaning, considered in the light of matters of general knowledge, or by way of true innuendo, that is, because of some particular special knowledge possessed by some or all of those to whom they are addressed. Equally, words may refer to a person on their face in the light of general knowledge, or by virtue of a “reference innuendo”: because of some special knowledge possessed by some audience members. The same is true in reverse: special knowledge may cause words that are on their face defamatory to bear an innocent meaning (a “reverse innuendo”), or mean that words that appear to refer to A are taken instead to refer to B (a “reverse reference innuendo”).[50]Here, the Defendant’s words referred on their face to “the three Labour MPs for the Rotherham area”. The third Claimant was one of those. It may be that there were audience members, it may even be that there were many, with knowledge of(a) the duration of the child sex abuse scandal(b) when the third Claimant was elected(c) what she had been doing before that(d) that her predecessor was Denis MacShane, also a Labour MP. It may be that a reasonable audience member who knew these things would have concluded that the Defendant was aiming her words at Mr MacShane and not the third Claimant. But I do not accept that any of these were matters of general knowledge, and none of them were spelled out in the speech.[51]The speech did tell the audience that the abuse had gone on over sixteen years, but not when it ceased. Although Denis MacShane was mentioned in the speech, and referred to as “MacShame”, the audience was not told the cause of his shame, how and when the third Claimant came to be MP or any similar matters. Nothing was said to indicate to the listener that the Defendant was targeting her main allegations at the former Labour MP, as opposed to her current opponent for the Rotherham seat.[52]I therefore conclude that although it is open to the Defendant to seek to prove that by way of innuendo her words will have been understood by some – perhaps many - to refer to Mr MacShane and not to the third Claimant, those words in their natural and ordinary meaning referred to the third Claimant.

Concluding observations

[53]This trial has required me to consider only how the Defendant’s words would have struck the ordinary reasonable member of her audience. It has been no part of my task to determine whether the meanings that I have found the words to bear are, or may be, defensible. In deciding the preliminary issues I have applied well-established principles of law. As I have noted, the law relating to meaning, and to the distinction between fact and comment, makes some allowance for the need to give free rein to political speech. But the nature of the principles means that there are limits on the protection that can be given to political speech by those means.[54]The law must accommodate trenchant expression on political issues, but it would be wrong to achieve this by distorting the ordinary meaning of words, or treating as opinion what the ordinary person would understand as an allegation of fact. To do so would unduly restrict the rights of those targeted by defamatory political speech. The solution must in my judgment lie in resort, where applicable, to the defences of truth and honest opinion or in a suitably tailored application of the law protecting statements, whether of fact or opinion, on matters of public interest, for which Parliament has provided a statutory defence under s 4 of the Defamation Act 2013.

Cited in 22 later judgments

and 13 more of the most senior