“We also heard about violence towards secular people from those of a similar faith background. Muslim bloggers described being physically attacked during a protest in East London [footnote 157]. The protest was to show support for the conviction of a senior Jamaat-e-Islami leader for war crimes committed during the 1971 War of Independence [footnote 158]. Some of those we spoke to are in hiding.”
“… the Commission paid particular attention to the numerous reports issued by reliable sources such as the United Nations (the High Commissioner for Human Rights, the Special Rapporteur for the Independence of Judges and Lawyers, the Special Rapporteur on extrajudicial, summary and arbitrary executions, the Special Rapporteur on Torture, the Working Group on Arbitrary Detention), diverse foreign governments and national entities (United States Special Ambassador for Global Criminal Justice, United States Congressional Tom Lantos Human Rights Commission, European Union Parliament, United Kingdom as well as various human rights organizations (Human Rights Watch, Amnesty International, International Commission of Jurists, International Centre for Transitional Justice), which all express serious concerns over the procedural safeguards before the ICT and document instances of witness abduction, intimidation of defence counsel, media censorship, pressure to convict from the government, lack of independence of judicial officers, amounting to gross violations of international fair trial standards.”
“The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court”
“Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial.”
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
“The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. The relevance of the foreign conviction to the issues in the English civil action could not be ascertained without expert evidence of the substantive criminal law of the foreign country. Its weight could not be judged without expert evidence of the procedural law of the foreign country and reliable information as to the standards of its courts. There are, of course, many countries whose standard of administration of criminal justice is as high as our own, but there are others in which one cannot be assured of this. It would be invidious to draw distinctions between one foreign country and another in the legislation needed to give effect to our recommendations. It would be impracticable to leave the admissibility and weight of a foreign conviction to the discretion of an English judge unfamiliar with the legal system and standards of criminal justice of the foreign country concerned. Furthermore, the burden of showing that a foreign conviction was erroneous would be difficult, perhaps impossible, to sustain, since there would be no way of compelling the witnesses in the foreign criminal proceedings to attend to give evidence in the English courts. The practical effect of making foreign convictions admissible might well be to make them conclusive, and the remoter the country in which the conviction took place the more difficult it would be to dispute its correctness.”
“… where the later civil action must, in order to succeed, establish that a subsisting conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute.”
“But I do not think that he meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored. As I shall explain, I think it is possible to make some generalisations about criminal proceedings. But each case depends upon an application of the fundamental principles. I think that Ralph Gibson LJ was right when, after quoting this passage, he said in Walpole v Partridge & Wilson[1994] QB 106 , 116A that Hunter’s case[1982] AC 529 decides ‘not that the initiation of such proceedings is necessarily an abuse of process but that it may be’.”
“challenging a previous decision does not necessarily connote an abuse of process” (ibid). In that regard, Lord Hobhouse observed at p 743 that “[t]here is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case”
“It is of fundamental importance that the process by which the defendant is proved guilty shall have been fair and it is the public duty of all those concerned in the criminal justice system to see that this is the case. This is the public interest in the system.”
“In Hunter[1982] AC 529 the plaintiff was engaged in trying to relitigate in a civil court a factual issue which had already been decided against him in a criminal case in which he had been a party. It involved a collateral attack upon a decision in previous proceedings to which he had been a party, fully represented and with complete control over the evidence he wished to put before the court. The plaintiff had ‘had a full opportunity of contesting the decision in the court by which it was made’: per Lord Diplock, at p 541. The present case does not have those features.”
“Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatam or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.”
“Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”
“If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant.”
“The principle identified in [Jameel] consists in the need to put a stop to defamation proceedings that do not serve the legitimate purpose of protecting the claimant’s reputation. Such proceedings are an abuse of the process. The focus in the cases has been on the value of the claim to the claimant; but the principle is not, in my judgment, to be categorised merely as a variety of the de minimis rule tailored for defamation actions. Its engine is not only the overriding objective of the Civil Procedure Rules but also, in Lord Phillips MR’s words, the need to keep ‘a proper balance between the article 10 right of freedom of expression and the protection of individual reputation’.”
“Serious harm (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
“One is that the threshold was low. The damage must be more than minimal. That is all. Secondly, the Court of Appeal must have thought that the operation of the threshold might depend, as it did in the case before them, on the evidence of actual damage and not just on the inherently injurious character of the statement in question.”
“It is necessary to assess what the litigation is worth to the claimant and the cost (in every sense of the word) of the litigation. Such cases are to be distinguished from valid claims of small value and cases where vindication is of importance to the claimant. In such cases the court should only conclude that continued litigation would be abusive where a way cannot be found to adjudicate the claim proportionately, and courts have power to control costs to attempt to ensure that they are proportionate.”
“I was very pleased and relieved that the fact of the conviction had caused me limited reputational damage, and had not significantly harmed my ability to continue playing a part in British public life. I continued to be made welcome at my local mosque and other community groups to which I belonged such as the East London Mosque and the organisations I name above, and to enjoy the company of my friends and acquaintances much as I had before the decision of the ICT was announced, in a way which would have been simply inconceivable had my reputation been that of a war criminal.”
“It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his … A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law.”
“Can it here be said that there was some evidence of the plaintiff’s bad or partially bad reputation? In my judgment there was none. Evidence of bad reputation must be properly proved. It is a grave matter. One is not entitled to assume without evidence that the plaintiff’s reputation must have changed in the four weeks following the publication of the report. As the months went by such report if uncontradicted would, no doubt, have its effect on his reputation, especially if it was succeeded by other similar matters; and the plaintiff’s reputation might in due course become bad and be proved against him … But when the defendants’ libel was published the plaintiff was a man of good reputation who had recently had something damaging attributed to him. A man’s reputation in the sense in which the word is used in civil or criminal courts does not alter daily as good or bad deeds are ascribed to him. It is the judgment of his fellows on his general life over a period.”
“The fact that other persons on previous occasions have published the same libel has been held irrelevant: Saunders vMills (1829) 6 Bing 213. Such evidence is inadmissible, even when coupled with evidence that the plaintiff took no steps to contradict the libel: Pankhurst vHamilton(1887) 3 TLR 500 .”
“In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him.” (Emphasis in original.)
“I think that previous convictions are admissible. They stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. … They are very different from previous instances of misconduct, for those have not been tried out or resulted in convictions or come before a court of law. To introduce those might lead to endless disputes. Whereas previous convictions are virtually indisputable. … what better guide can there be to his character and reputation than his previous convictions?”
“It must not be thought that because of our decision in this case it follows that evidence of a conviction can always be given in mitigation of damages in an action for libel. Everything turns upon the nature and the date of the conviction. In the present case the convictions are all recent and highly relevant to the imputation in the article complained of. There may be cases, however, eg, where the convictions occurred long ago and are irrelevant, in which it would be manifestly unjust and impermissible in law to make any reference to them in mitigation of damages.”
“A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication.”
“I was deeply concerned that a great many people would believe that the allegations made against me were true, because the Home Office had said it was so”