A welcome failure of a libel suit

by D.J Webb

The libel case pursued by the former government minister, Andrew Mitchell, against The Sun newspaper over allegations that he called the policemen manning the gates of Downing Street “plebs” is worthy of comment. It should be noted first of all how childish our politics has become, with playground-style allegations replacing substantive political debate. Does any adult in the country really care if Mitchell called the police “plebs”? Would not such a comment be more than justified in the case where a lowly policeman was refusing to open the gate to allow a government minister to cycle home?

In the context, however, where our distant and “out-of-touch” Establishment is trying to convince us they do not regard us as “plebs” (=the plebeians, in contrast to them, the patricians), the charge, such as it is, is held to be politically toxic. The police do not come out of this incident at all well, with one police officer sent to prison for a year for misconduct in a public office (a charge that if preferred in all the applicable cases would see the prisons full of politicians, senior policemen and civil servants). Apparently, in order to make the pleb charge stick, the policemen involved fabricated evidence from “members of the public” who a CCTV camera showed were not there that Mitchell actually used the offending word. Hours and hours of police time have been spent on this case. Apparently, senior policemen are so free of any real duties in pursuing violent criminals that they can devote enormous resources to determining whether a government minister said the word “plebs”.

I have long argued that the real problem with the policeman refusing to open the gate to a cycling minister is that the policeman was obstructing the Queen’s Highway. In a free society, public highways are open to the public. In terms of English Common Law, anyone can drive or walk down Downing Street. It has not been gazetted under the relevant law as a restricted area. Until relatively recently, any member of the public could walk down the street and stand outside 10, Downing Street, the official residence of the prime minister. While the Irish terrorist campaign put paid to that—and there are legitimate security concerns that have led to the placement of gates in Downing Street—the correct and lawful approach is to officially gazette the street as a restricted area. As things currently stand, however, there was no reason why Mitchell should not be allowed to cycle out of the gates, and the policeman involved was indeed behaving like a “pleb”, or at the very least a “jobsworth”, by refusing to open the gate. A certain degree of annoyance on Mitchell’s part was justifiable.

However, whatever the rights and wrongs of this absurdly minor incident, the use of libel laws to prevent free comment has to be considered a bad thing. The ultimate aim of such libel suits is that the newspapers would be unable to publish any statement that a minister was said to have made without an audio recording of that statement. Until recently, libel laws were even more restrictive in England. The onus is placed on the defendant to prove the truth of an allegation, and the huge cost of defending such suits frequently leads to a settlement, even where a settlement is manifestly unjust. But our libel laws were tinkered with at the beginning of this year, when the Defamation Act 2013 came into force, adding a new “serious harm threshold” to weed out vexatious litigation. Claims that statements made on Internet forums and social-media sites such as Twitter could lead to libel suits now need to factor in the possibility that a judge will rule that no “serious harm” had been occasioned. The new law extends the public interest defence and provides some protection for website operators charged with allowing defamatory comments to be hosted on their sites.

These new defences were not used by The Sun on this occasion. The Sun rather cited other occasions when Mitchell had been rude to members of the police force, leading the judge to conclude that Mitchell probably had uttered the offending word to the policeman on duty in Downing Street. Mitchell had claimed £150,000 for libel, but the costs of the libel action are now likely to run to around £3m. He has been ordered to pay an interim £300,000 and will probably have to find the balance eventually.

We should welcome the failure of the libel suit on this occasion. Successful libel suits should be a rarity in a free society, where people are able to use publicity to put matters straight and have no need for a judicial ruling on a private conversation. In cases of serious harm, and where the public interest and fair comment defences are not applicable, libel law does have a (minor) part to play in our legal system.

Another factor in these lawsuits is the cost. Someone who is not independently wealthy can neither mount a libel suit against someone else nor defend himself against such a suit. The other side may be able to afford very expensive legal representation. This sort of thing needs to be clamped down upon, as it means that justice is largely off-limits to the “plebs”. Given the utterly minor nature of many of the matters under discussion in libel suits, and the way in which such suits are spun out for no apparent reason, I see no reason why suits such as Plebgate should not have had a one-day maximum imposed by the judge at the start of the legal hearing. There were no great matters of importance to be determined, and after allowing everyone to speak once, a full-day hearing would in fact have been excessive for the available matters for discussion.

For this reason, I think libertarians need to think along the lines of controlling the length of court cases, placing legal maximums on the amount of money that can be spent by an opponent—£3m is an excessive cost—and even on insisting on dealing with matters as minor as Plebgate in the small claims court, with no legal representation permitted by either side. Lawyers have become a parasitic interest, and one that largely depends on legislation and state intervention. It is time to cheapen and accelerate justice, with the very first step in a court case being to decide whether a matter is so minor as not to require a judicial hearing at all. Mitchell’s case could (and should) have been dismissed by the judge before a £3m bill was run up.