Three silly misconceptions about the Phil Woolas case


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9:45 am - November 10th 2010

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contribution by Cory Hazlehurst

On the whole, I’m heartened by Labour reactions to Phil Woolas’s expulsion from both Parliament and his Party. The reaction of the Parliamentary Labour Party has been an entirely different matter.

This anger from Labour MPs depresses me more than I can say, but it doesn’t surprise me in the slightest.

There are three other general types of reaction to the Woolas case that I think are worth addressing:

1) Politicians won’t be able to debate with each other properly

For instance, Edward Leigh, a Conservative MP, said:

What worries me about this is that, if this is allowed to stand, it will be virtually impossible for there to be really robust debate during elections. People will be terrified of attacking their opponents.

This sort of comment displays a startling amount of ignorance about what Woolas said, and the ruling of the judges.

The judges ruled that Woolas told false statements about Elwyn Watkins’ character, and that he knew were untrue. They found that this was true beyond all reasonable doubt.

Compare this to the negative campaigning Woolas engaged in against Chris Davies in the by-election in 1995. They called him “high on tax and soft on drugs” because he supported higher taxes on the rich and the establishment of a Royal Commission to consider legalising drugs.

You might not like this sort of negative campaigning, but it’s not illegal. It’s a caricature of Davies’s position, for sure, but it’s not as if Davies didn’t hold those views.

In the judgement itself, the judges give three areas where Woolas knowingly lied about Watkins:

(i) The statement in the Examiner that the Respondent had attempted to woo the vote, that is, that he had attempted to seek the electoral support, of Muslims who advocated violence, in particular to the Respondent.

(ii) The statement in the Labour Rose that the Petitioner had refused to condemn extremists who advocated violence against the Respondent.

(iii) The statement in the election address that the Petitioner had reneged on his promise to live in the constituency.

Aside from the inflammatory nature of the leaflets, these were deliberately-told lies about Watkins.

This ruling won’t stop negative campaigning, or even politicians exaggerating or bending the truth about each other, but might (hopefully) stop deliberate smears.

2) Political Parties lie on manifestos

Steve McCabe is quoted in the Birmingham Mail as saying:

I wonder if this means votes on tuition fees will result in the courts ordering a string of by elections in Lib Dem marginals?

For a start, it’s incredibly hypocritical of Labour to get all high and mighty about opponents doing the opposite thing to what they said in their election manifestos. It was Labour who originally said that they would not introduce tuition fees, and then did so. By announcing that they would not campaign for AV on Friday, Andy Burnham has basically said that Labour won’t bother trying to campaign for one of their manifesto pledges.

Also, governments have to do lots of things that weren’t mentioned in their manifestos, because circumstances change. You won’t find anything about going to war with Iraq in the 2001 Labour manifesto, for instance.

There’s also nothing in the 1983 Act (that I can find, anyway) relating to false promises on manifestos. s106 of the Representation of the People’s Act only refers to False statement against candidates, which is what Woolas has been found guilty under. So no, there won’t be a series of by-elections Mr McCabe.

3) Unelected judges should not overturn a democratic election

Comments on this have come from both left and right. Sally Bercow on twitter said:

Yep – not *at all* liking unelected judges overturning democratic result. Slippery slope.

Edward Leigh and Steve McCabe also made similar comments in the posts I linked to.

Again, this level of ignorance about the legal system is shocking. The case is on whether election law was broken. And it’s judges who interpret the laws that elected MPs pass. That’s their job. It’s called the separation of powers, it’s quite famous and useful.

As I mentioned above, it’s politicians who make these laws. And Woolas was found guilty of illegal practices under Section 106 of the Representation of the People Act 1983 (False statements as to candidates).

This section was most recently amended by the Political Parties, Elections and Referendums Act 2000. According to www.publicwhip.org.uk, guess who voted in favour of this legislation?

Yep, that’s right. A certain Mr Phil Woolas MP.

Hoisted by one’s own petard.

—-
Cory Hazlehurst blogs here and is on Twitter as @goldenstrawb

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Reader comments


I agree. It was in a sense a finding that he wasn’t properly democratically elected, because he ran illegally, and took away the voters’ informed choice by misleading them. Parliament delegated the power to make this finding to the judges.

For a start, it’s incredibly hypocritical of Labour to get all high and mighty about opponents doing the opposite thing to what they said in their election manifestos.

Further to that, Labour should know better than anyone that you can’t sue parties for breaking manifesto commitments. They went to court over precisely this issue in 2008 (Stewart Wheeler and the Lisbon Treaty). Manifestos are not justiciable.

Excellent article.

The Woolas decision was the right one, and offers the prospect of MPs and candidates being detterred from making false allegations about their opponents.

If you are unlucky enough to live in a constituency where a Woolas supporter lives there is a nice creative way of getting the point accross. Write a letter to them announcing that you will stand against them as an independant and issue leaflets calling them a paedophille. Say in the letter that you know full well they are not one, but just intend proving a point – even the allegation will cost them votes. If they object to you doing this then they are hypocrites

I’m relatively new to Twitter, but have been consistently impressed by the outstanding quality of blogs here. As a lawyer, I’ve been pulling my hair out at the stupid things being said about the Woolas case – in particular point 3 above – and am delighted to see someone put the record straight in such clear, accurate terms. Keep it up: Liberal Conspiracy is rapidly becoming the place I look to first for excellent commentary and analysis.

I’ve emailed John Mann and other apologists for Woolas.

Just had a one-line response from John Mann’s email address. He says, “I suggest you read the MPACUK website”.

Thanks everyone for their kind and useful comments so far. Didn’t know about the Stuart Wheeler case, that’s much appreciated Tim J.

Richard – that’s disgusting stuff from John Mann! Do MPACUK advocate deliberately spreading smears and stirring up racial tensions to win an election?

3) Unelected judges should not overturn a democratic election

This is indeed a fallacy. The law states that there hasn’t been a democratic election if certain rules have been broken. In this case it was found that a rule was clearly broken so there wasn’t a democratic election.

Elections everywhere are run under a system of rules. In the UK the judiciary administer those rules. The UK sends election observers to other countries for the same reason: to assess whether the rules were followed.

There is no slippery slope, unless Ms Bercow is worried about the rules being more seriously applied in future.

On Cory’s third point, Gaijin-san has an excellent analysis of the democratic issues raised by Woolas’s case…

http://lawseenfromthecheapseats.wordpress.com/2010/11/09/an-assault-on-democracy-but-by-whom/

The short version of his argument, which I heartily agree with, is that voting is an expression of consent – when we elect an MP we consent to their representing our interests – but that its long established principle in law that consent obtained by deliberate deception is no consent at all.

9. Anthony Barnett

I saw Paul Flynn MP at the Bevins Prize for Investigative Journalism last night and he told us that he gave Harriet a hug after the parliamentary meeting and she was quite right.
http://www.opendemocracy.net/ourkingdom/anthony-barnett/clare-wins-again-investigative-comment-and-future-of-journalism-on-web

I’m surprised and disappointed that so many people (more than zero) seem to think that candidates should be free to make or publish false statements of fact in relation to their opponent’s personal character or conduct that they have no reasonable grounds for believing to be true and do not believe to be true (iow lies).

If they do not in fact think that candidates should be free to make such statements, I wonder what mechanism they would suggest whereby someone could request a neutral party to examine the circumstances to determine whether or not the election was fair and therefore whether it should be declared void.

Of course I am assuming they are interested in fair elections.

“This ruling won’t stop negative campaigning, or even politicians exaggerating or bending the truth about each other, but might (hopefully) stop deliberate smears.”

It probably won’t do that, because Section 106 only applies to things that are presented as fact (not opinion) and related to the candidate’s personal (not political) character or conduct.

For example, the last time a case was brought under Section 106 was between former Tory MP Nicholas Fairburn and the SNP. The SNP had put out leaflets saying that he didn’t collect constituency mail at the House of Commons so constituents couldn’t contact him. He could prove that he did and had. But the judges ruled that he did not have a case because communicating with constituents was something he did in a political, not personal capacity, so even though the SNP may well have been telling outright lies, they were perfectly legally entitled to do so.

The legal innovation in the Woolas case is that the judges ruled that the allegations made against Watkins about wooing extremists and the like reflected so badly on his personal character that they could be considered as statements on such for the purposes of Section 106.

At any rate, it’s still quite acceptable to lie and smear opponents. For example, you can lie about an MP voted because it relates to their political, not personal, conduct. The difference under the Woolas ruling is that if you instead accused your opponent of, say, breaking a promise, or lying about their vote, or suchlike, then there would now be a case to say that is something that reflects on their personal character and so s106 applies.

This will probably have some knock on consequences. I’d be slightly more careful about calling BNP candidates racist for example, because simply saying that this was a political statement looks like a slightly weaker defence than it would have been before this case.

But overall, it is not too hard to evade the restrictions of s106 if you are a clever smearer and liar rather than a legally ignorant one.

The impact is also slightly less clear than has been made out in the hyperbole because of a few exceptional features to the case such as the leaked emails, in particular those discussing the success of the strategy, which seemed to be an admission that the breach had indeed materially affected the outcome.

“There’s also nothing in the 1983 Act (that I can find, anyway) relating to false promises on manifestos”

Indeed not, and this aspect of the reporting has been a bit silly.

However, I think you are also somewhat missing the point in your commentary – the broken promise in this case is not so much the Lib Dems’ party policy or manifesto, it is the pledge that 54 out of the 57 Lib Dems MPs signed that they would PERSONALLY vote against ANY rise in fees.

That said, I think the idea that any right of recall (let alone any existing law) would apply is somewhat fanciful – the coalition have never said that recall would be for anything other than cases of serious personal or financial misconduct.

On point 3, I tend to agree. MPs complaining that they don’t like the law is a bit like a traffic warden complaining that they’ve been given a ticket for parking on a double yellow.

12. Douglas Hayward

Nice comment – well done!

I’d be slightly more careful about calling BNP candidates racist for example, because simply saying that this was a political statement looks like a slightly weaker defence than it would have been before this case.

A person who [...] makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.

There’s an argument available that calling a BNP candidate racist is a statement of opinion rather than fact, and a second argument available that you had reasonable grounds for believing it to be true.

Probably should have made it clearer that there’s a break between the two quoted paragraphs in #13. The second is from the Act in question.

@11. Jack – “However, I think you are also somewhat missing the point in your commentary – the broken promise in this case is not so much the Lib Dems’ party policy or manifesto, it is the pledge that 54 out of the 57 Lib Dems MPs signed that they would PERSONALLY vote against ANY rise in fees. ”

Section 106 wouldn’t apply. Even though it something they would do as a person its related to political activity. Just like the letter collecting issue in the previous case of 106.

16. Stuart White

Great article, thanks,

“There’s an argument available that calling a BNP candidate racist is a statement of opinion rather than fact, and a second argument available that you had reasonable grounds for believing it to be true.”

I doubt that a BNP candidate could *successfully* press a claim under s106 but I think it’s more likely that they would have a prima facie case and thus could waste loads of your time and money and get themselves loads of free publicity by taking you to court. Before the Woolas judgement, I think there would’ve been a much stronger prospect of having the case dismissed outright well before trial.

It’s going to be the prospect of getting in to a legal process at all, rather than actually losing the case, that would have the “chilling effect” in a lot of cases – it’s the same issue as with libel, that you could end up with an opponent who has no money and nothing to lose, esp when it’s the BNP, so there’s no prospect of recouping costs, and that the time spent on it could mean at the very least using up annual leave and at worst losing your job or income.

It’s also worth noting that s106 applies to anyone, not just an opposing candidate, though there are specific provisions where it is a candidate or agent. I suspect, for example, the London Bangla is risking criminal prosecution as well as a civil libel case over its Abbas wife-beating allegations – though not an election petition given the margin of victory. But my point here was more that the anti-fascist campaigns would be covered re the BNP thing, not just other candidates.

But that’s just something that has to balanced up – simply saying that there’s a chilling effect, as Woolas has done, isn’t in itself a very convincing argument to my mind, the point is whether or not its proportional to deal with the problem.

@15 – sorry if it wasn’t clear but I am actually agreeing with you.

My point was entirely political and probably somewhat off topic (though it did relate to a tangential passage in the original post) and it was simply that a personal pledge by a candidate to vote a particular way on a specific issue is different to a party policy.

Though, just to relate it back to the thread, if you accused someone of breaking their promise in a vote, and they hadn’t, then I think you could now be accused under s106 because “breaking a promise” would be a matter of “honour” (the critical word in the North Louth judgement that the judgement revolved around) that reflected on their personal character. Before this, many lawyers would probably have said that as it related to their political actions, you were ok.

There’s an argument available that calling a BNP candidate racist is a statement of opinion rather than fact, and a second argument available that you had reasonable grounds for believing it to be true.

Except that, according to the ruling:

1. a matter of policy as to whether the UK should supply arms to the Palestinian Authority (UK allies like Jordan and the US do, the UK itself doesn’t, as far as I know) is not simply political opinion, but _also_ a statement of ‘personal honour’.

2. ‘reasonable grounds’ do not include anecdotes, media reports, or testimony that fails a process of cross-examination. As in UK libel trials, legally-valid and successful proof of guilt is required to mount that defence.

Also, ‘extremist’ apparently only includes people who openly advocate criminal violence, so it is not a stretch to see ‘racist’ defined in a similar way under a sympathetic judge (which the BNP probably wouldn’t get, but note that you’ve just bet the future of the country on the political opinions of judges…).

It’s true a lot of commentators have been getting this wrong. If the ruling stands, then candidates who use terms like ‘pledge’ are not the ones who risk falling foul of the law.

It will be their opponents. If they say ‘that won’t happen, if anything they will increase tuition fees’, they will risk breaking the law by making a unjustifiable defamatory statement.

Hopefully it will remain legal to say that _after_ they have been elected…

20. James from Durham

Could a BNP candidate press a claim if you said that he was not racist?!

Well, given the state of their finances, I doubt we’ll have to worry too much anyway…

soru,

Except that, according to the ruling:

1. a matter of policy as to whether the UK should supply arms to the Palestinian Authority (UK allies like Jordan and the US do, the UK itself doesn’t, as far as I know) is not simply political opinion, but _also_ a statement of ‘personal honour’.

No, the bit relating to arms supply is the allegation of “wooing the extremist vote”:

“….In his attempts to woo the vote he has called for Israel to be isolated from arms sales – but not Palestine.”

In our judgment, to say that a person has sought the electoral support of persons who advocate extreme violence, in particular to his political opponent, clearly attacks his personal character or conduct. To adopt the language of Gibson J. in the North Louth Case, as did Lord Ross in Fairburn, such a statement attacks his “honour” and “purity” in that it suggests that he is willing to condone threats of violence in pursuit of personal advantage. That is also an attack on his political conduct (because the advantage sought was an electoral victory) but that does not put the attack outside the protection afforded by section 106 if his personal character is also attacked.

It’s true a lot of commentators have been getting this wrong.

Indeed…

If they say ‘that won’t happen, if anything they will increase tuition fees’, they will risk breaking the law by making a unjustifiable defamatory statement.

It’s a bit of a stretch to see “that won’t happen, if anything they will increase tuition fees” as defamatory, a “false statement of fact in relation to the candidate’s personal character or conduct”; even more of a stretch to see it “necessary and proportionate” in such a case to declare the election void and disqualify the person from standing.

22 – This is actually a pretty narrow ruling, and those opposing it are arguing by implication for the freedom to defame opponents in election campaigns – which isn’t a standard I’d care to rally around.

24. Roger Mexico

I think a lot of the distaste for the intervention of the judiciary into political matters stems from the recent decisions of the American Supreme Court on the Bush win in 2000, and just as importantly, on campaign financing. But the fact that the decisions were seen as nakedly political shows the fault lies with individual judges, not the system.

Those uncomfortable with the current system should say what they would like to replace it with. One alternative is letting Parliament police itself – and as Anthony Wells points out the only time they have expelled an MP in recent times was for telling the truth:

ht tp://ukpollingreport.co.uk/blog/archives/2870?cp=all#comment-687036

Some argue that the electorate should have their say, but in this case they will. If the decision were left to Parliament, it would probably become a party political matter or the boys’ club would close ranks and nothing would happen. Leaving the electorate’s say for five years doesn’t sound good to me.

Similarly a jury trial would in danger of becoming party political, or more likely and as damagingly being alleged to be so (remember English jury deliberations are secret by law). The judges were at least obliged to make their reasoning and decisions on law public.

As far as the worries that the ruling could be the precedent for elections being overturned on various trivial grounds, looking at the decision make clear this isn’t the case. Even the point (iii) referred to in 1 in the OP,though proved, was deemed not to be serious enough to call a fresh election on its own.

Impossibly high standards of conduct in elections will continue to apply only to union strike ballots rather than the much less important election of MPs. Though once again it is the laws passed by Parliament, not the decision of the judges, that is the reason.

25. Roger Mexico

Sorry. Space got into URL above. Close up gap between t’s in http

Impossibly high standards of conduct in elections will continue to apply only to union strike ballots rather than the much less important election of MPs.

Ha! Good call.

@22: I really don’t see how those two cases can be distinguished legally. It seems to me like the judge was being a bit too clever: it’s certainly true, as a fine point, that a matter of policy can _also_ be a personal matter of honour. But surely by bothering to write that clause into the law, it’s authors intended there to be cases to which it applied as a defence?

No intelligent person would advocate a foolish policy, no honourable person would advocate an immoral one. So by the standards of the ruling, how can you criticise any political opinion of a candidate without that risking being ruled ‘a personal attack on his character or conduct’?

So if the law is to mean anything, there must be a category of political statements which are _not_ also personal, you can’t use ‘honour’ as a universal solvent on that distinction.

Case in point, there pretty much isn’t a clearer imaginable case of a political issue than whether to continue the current pattern of arms distribution to middle eastern countries. Will rearranging it disrupt things or improve them? Stop a future war or start a present one? You may not get much agreement about which is the case, but pretty much everyone involved would consider that disagreement political.

Certainly the judge’s logic, stated above, by which it counts as a matter of personal honour doesn’t pass the most basic scrutiny. You simply can’t jump from ‘extremists’, which he said, to ‘persons who advocate extreme violence, in particular to his political opponent’, which is the judge’s paraphrase.

It’s clearly not the case that the only people who might be in favour of an arms boycott on Israel are those who are responsible for, or in favour of, the claimed death threats against candidates.

For example, to name just a few groups, there are absolute pacifists who oppose all arms sales, those who consider Israel primarily or solely responsible for aggression, those who might support a military war they considered just, but not a criminal attack on a civilian, and even explicit Hamas supporters who would have tactical objections to an attack in the UK.

soru,

. So by the standards of the ruling, how can you criticise any political opinion of a candidate without that risking being ruled ‘a personal attack on his character or conduct’?

you seem to be ignoring / missing the bit about the statement being false.

to be clear, the risk is not in making any old “personal attack on his character or conduct”, which is what some people are claiming; the risk is in making a “false statement of fact in relation to the candidate’s personal character or conduct”, the standard of proof is beyond reasonable doubt, and the court can’t “declare the election void and barring the candidate from standing” unless it is “a necessary and proportionate” response.

@29: the point about proportionality is correct, in the sense that presumably trivial issues will no be enough to anull an election. So you are certainly allowed to say anything you like, so long as it is trivial and unimportant.

The more substantive point is the word ‘false’. In terms of the ruling it applies in the legal sense, which means approximately ‘cannot be successfully proven beyond reasonable doubt in a court of law subject to rule of applicability of evidence and presumption of innocence’

That’s not the inverse of ‘true’, as any libel defendant in a UK court will tell you.

Now that standard of proof is one which large organisation like the police routinely fail to meet, so it will in practise in almost all cases be beyond the means of all but a few individuals. So pretty much no infringing statement by private individuals can be considered safe: no matter how good you think your evidence is, if they sue and it turns out not to stand up in court, you will be found against.

So Woolas had documents and testimony which he thought justified his case: the judge disagreed that they were satisfactory proof that Watkins had broken electoral law, and so the ruling went against him.

That’s current practise, and would be no better or worse than current libel law, which, as implied in the article, Woolas and New Labour in general are certainly guilty of failing to reform properly.

It wouldn’t be too big an issue were it not for the novel aspects of the ruling, relating to the other points. Which is the de facto abolition of the statutory category of ‘statements that do _not_ relate to the candidate’s personal character’.

31. margin4error

I think the only aspect to any of the criticism that holds any water is the “slippery slope” concern.

This century has seen the law bought into politics in a way that can be deemed alarming – and that certainly seems more common than in the past.

There was the clearly political attack on Ken Livingstone over his Nazi analogy about the Evening Mail hack that resulted in a case of “bringing his office into disrepute”.

There was the searching of Kawczynski’s office and correspondence with constituents over the Damian Green leek inquiry (which was itself saw Damian Green questioned by the police over a common political activity that put no degree of national interest in jeopardy)

There was also the cash for peerages debacle in which people pretended that donors hadn’t been put on the back benches by every party for a century – because an SNP egotist got the police involved.

Democracy was entirely able to deal with these matters without judicial process. But politicians welcomed the undemocratic nature of those actions from a position of narrow party interest.

The exception should be with common criminal matters like fraud and theft.

But I think that assuming the law can recognise the difference between the sharp end of cut-n-thrust politics – and the utterly dispicable election behaviour of some one like Woolas – then this really isn’t the moment to rail against a slippery slope.

32. Chaise Guevara

30

“The more substantive point is the word ‘false’. In terms of the ruling it applies in the legal sense, which means approximately ‘cannot be successfully proven beyond reasonable doubt in a court of law subject to rule of applicability of evidence and presumption of innocence’”

That’s the test for guilt, not veracity. Truth (appalling and soon to perish libel laws aside) is decided on balance of evidence. The reasonable doubt clause is there to protect people from conviction, not propel them into it.

soru,

@29: the point about proportionality is correct, in the sense that presumably trivial issues will no be enough to anull an election. So you are certainly allowed to say anything you like, so long as it is trivial and unimportant.

You can say anything you like, but if you make a false statement you ought to consider its importance, because if it is important it could cost you your seat.

So Woolas had documents and testimony which he thought justified his case: …..

What documents and testimony did Woolas think justified the statement that Watkins was wooing Muslim extremists?

There was no evidence adduced on behalf of the Respondent that the Petitioner had sought the support of such Muslim extremists.

Oh!

soru,

The more substantive point is the word ‘false’. In terms of the ruling it applies in the legal sense, which means approximately ‘cannot be successfully proven beyond reasonable doubt in a court of law subject to rule of applicability of evidence and presumption of innocence’

That’s not the inverse of ‘true’, as any libel defendant in a UK court will tell you.

Now that standard of proof is one which large organisation like the police routinely fail to meet, so it will in practise in almost all cases be beyond the means of all but a few individuals. So pretty much no infringing statement by private individuals can be considered safe: no matter how good you think your evidence is, if they sue and it turns out not to stand up in court, you will be found against.

The burden of proof falls on the Petitioner, in this case Watkins, as the judgement makes clear in this paragraph:

…as we have already observed, it is not clear how Mr. Battye reached the figure of “£200,000 +” he was not cross-examined as to that estimate and in those circumstances we do not consider that the Petitioner has discharged the legal burden of proving that the Respondent lacked reasonable grounds for making this allegation.

35. Roger Mexico

@30 soru – if you look in detail at the ruling:

http://www.bailii.org/ew/cases/EWHC/QB/2010/2702.html

you see that the burden of proof is the reverse of that in libel. Rather than the defendant having to prove what was said was true, the plaintiff has to prove not only it was false but that the defendant was willing to make statements the truth of which he had no reasonable grounds to believe – effectively he knew what was said was false. Obviously this is much more difficult. For example the fact that Labour overstated the Lib Dem election expenses by a factor of 6 in a leaflet was not considered actionable because it could not be proved that Woolas knew this was false.

The judges make very clear the way in which the accusations did reflect on Watkins, the Lib Dem candidate’s character. For example the accusation about arms sales was not about Labour’s lying about the Lib Dem policy but their knowingly saying that Watkins was saying one thing to Muslims and and another thing to everyone else. They were accusing him of being two-faced and “wooing the extremist vote” – clearly a character allegation.

The judges were pretty scathing about the documents and witnesses that Woolas and co put up in his defence because they failed to provide even the low level of proof required to prove that Woolas had “reasonable grounds” for believing the allegations made were true. I’ll leave you discover the details in the ruling above (I’m particularly fond of the “death threat” and the report to the RSPCA about the cat).

The other reason for reading the ruling is that you come out of it with the opinion that Woolas is even more of a nasty, lying scumbag than you had previously believed. I had not thought this possible.

Truth (appalling and soon to perish libel laws aside) is decided on balance of evidence.

That’s the point of law that the judge went into in great detail , and you would have to assume he is correct. The libel law principle commonly stated as ‘truth is no defence in libel’ applies in this case. If you make a statement that can be construed as an allegation of a crime, you have to have court-worthy proof if you want to defend yourself on the basis that that you said is non-false.

The Guardian famously won their case against Jonathen Aitken when they had a private investigator dig up some hotel receipts that contradicted his testimony. I’m not sure if anyone has successfully mounted such a defence in the 13 years since. Certainly I would be surprised to hear of a private individual of normal means being successful in a high-profile defence on that basis.

To clarify, as a couple of people have posted while I was writing the last bit, just as in the case of Aitken, the issue of the burden of proof relates to the allegations about money from the Saudi royalty.

Specifically paragraph 185:

‘no evidence was adduced which suggested that the Sheikh had made any donations. We are therefore satisfied that the statements made in the Examiner and in the Labour Rose that the Petitioner had breached the law by not declaring all his expenses and that the Petitioner had accepted undeclared donations from the Sheikh were untrue. ‘

That is clearly assuming that something is untrue because there is no evidence for it. Despite the fact that if, hypothetically, it were true, there would very likely be no such evidence, and if it did exist it would certainly be very unlikely to be in the hands of the defendant.

I think that clearly shows that it is not merely false, in the conventional sense, statements that you have to avoid, but also ones that you can’t legally prove. English courts have no ‘maybe’ verdict, everything is either sufficient to send someone to jail or ‘false’

The issue of the scope of what is fair political comment refers to the other claims. You’d be pretty unlucky to be caught out on a claim that needed both clauses for the judges to find against you (i.e. an unprovable therefore false political comment), but that would appear to be current case law in the absence of a successful appeal or new statute.

soru,

Specifically paragraph 185:

‘no evidence was adduced which suggested that the Sheikh had made any donations. We are therefore satisfied that the statements made in the Examiner and in the Labour Rose that the Petitioner had breached the law by not declaring all his expenses and that the Petitioner had accepted undeclared donations from the Sheikh were untrue. ‘

That is clearly assuming that something is untrue because there is no evidence for it.

Round things. The meaning is lost because you haven’t fully quoted the paragraph (the missing bit is in bold below):

However, it was a striking feature of the cross-examination of the Petitioner that there was no challenge to the Petitioner’s election expenses having been as stated in the returns to the Electoral Commission. Mr. Millar accepted during submissions that there had been no such challenge. The Respondent therefore accepted that the Petitioner’s expenses were as declared to the Commission, namely, approximately £36,000 (see paragraph 24 above). Further, the Petitioner gave evidence that no donations to his campaign were made by the Sheikh. He was not challenged on that evidence and no evidence was adduced which suggested that the Sheikh had made any donations. We are therefore satisfied that the statements made in the Examiner and in the Labour Rose that the Petitioner had breached the law by not declaring all his expenses and that the Petitioner had accepted undeclared donations from the Sheikh were untrue.

If there was no evidence from either party we could not say whether the claim was true or false. But the petitioner gave evidence contrary to the claim. This was not challenged by the respondent. Indeed “it was a striking feature of the cross-examination of the Petitioner that there was no challenge to the Petitioner’s election expenses having been as stated in the returns to the Electoral Commission.” Therefore the court said the claim was untrue, not because of a lack of evidence on either side but because of unchallenged evidence contrary to the claim.

Nevertheless, the case hardly hinges on it; it isn’t one of the three statements the court said it was sure the respondent “had no reasonable grounds for believing were true and did not believe were true”. For one thing, the petitioner hadn’t “discharged the legal burden of proving that the Respondent lacked reasonable grounds for making this allegation.”

I think that clearly shows that it is not merely false, in the conventional sense, statements that you have to avoid, but also ones that you can’t legally prove

Yes, you ought to be cautious in claiming that an opponent is a lawbreaker if you can’t substantiate your claim, especially if you think he might be able to persuade a judge that he isn’t a lawbreaker and that you had no reasonable grounds for believing he is. What is the problem?

My guide to potential candidates on how to avoid being challenged under s106 RPA: don’t invent defamatory claims about your opponent.

oh no, the sky is falling in…etc

If there was no evidence from either party we could not say whether the claim was true or false. But the petitioner gave evidence contrary to the claim.

But the (implicit) claim was not that the Watkins had openly accepted an illegal donation, but had illegally channelled money received ‘off the books’. You can’t, and don’t have to, ever prove yourself innocent of a criminal accusation.

As a consequence of that legal doctrine, the judge, as careful with his words as any judge, described something as ‘false’ without qualification. Not ‘probably false’, or ‘unknown, but in any case irrelevant to the overall judgement’.

I am curious – is this site going to be revisiting it’s editorial line on things like the Singh libel appeal?

http://liberalconspiracy.org/2010/04/01/breaking-simon-singh-wins-libel-appeal/

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.

Just to clarify that the call for a re-election didn’t come under the auspices of section 106 it came as a result of the election petition submitted by his opponent. Because he was found guilty it was automatically deemed that under these specific circumstances the petition should be upheld. Two laws, two judgements.

Soru,

You can’t, and don’t have to, ever prove yourself innocent of a criminal accusation.

I don’t understand the relevance of this.

The statement must be a statement of fact (test 1) and it must relate to the petitioner’s personal character or conduct (test 2) and that it is false (test 3) and BRD that the respondent did not believe it and did not have reasonable grounds for belief (test 4).

The petitioner was accused of accepting undeclared donations – this passed tests 1 and 2 (presumably you don’t disagree that it is an attack on the personal character or conduct). The respondent could not support the claim and did not challenge the petitioner’s evidence contrary to the claim therefore it passed test 3 – it was a false statement.

It did not pass test 4, therefore the respondent is not in trouble for making it.

I am curious – is this site going to be revisiting it’s editorial line on things like the Singh libel appeal?

http://liberalconspiracy.org/2010/04/01/breaking-simon-singh-wins-libel-appeal/

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. [BCA v Singh]

In Watkins v Woolas the court distinguished between statements of fact and of opinion. In relation to the donations claims,

We must now consider whether those statements were of fact or of opinion. The statement that the likely cost of the election campaign was “£200,000 +” was only a statement of fact in the sense that it was a statement that such an estimate had been made. The implied statement that the Petitioner had breached the law by spending a sum of money in excess of that which had been declared was a statement of fact.

The offending text can be found at para 22 and further discussion at 83.

Are you saying it is a statement of opinion, not fact?

[subscribe]

The petitioner was accused of accepting undeclared donations – this passed tests 1 and 2 (presumably you don’t disagree that it is an attack on the personal character or conduct).

Agreed with all that: this point passes that test.


The respondent could not support the claim and did not challenge the petitioner’s evidence contrary to the claim therefore it passed test 3 – it was a false statement.

Paragraph 126-131 gives the evidence for the additional money being spent, concluding ‘she was an unreliable witness, for several reasons. ..”

So then by paragraph 185, the judge is able to say ‘there was no evidence for the statement’, and in a sense he is neither lying nor mistaken. Evidence he disbelieves becomes non-evidence.

And this is where the advice you give (don’t invent defamatory claims about your opponent) breaks down. A statement that only supported by evidence fails to pass the judge’s test for admissibility and credibility is, in terms of logic and everyday language, not necessarily false. If I look the date of birth of a random actor on Wikipedia and quote it, that’s obviously not admissable or credible evidence. So if the actor comes to court and testifies otherwise, then legally, at the end of that stage of the court process, it will be treated as false.

Nevertheless, it has a reasonably high chance of being true.

Secondly, you say to avoid defamatory statements, which would normally be taken to be statements about an individuals character or actions, not policies or opinions. But in this case (p165-183), the judge rules that it was ok to infer implied conclusions about the character of someone who is stated to support particular policies, and then treat those implied statements of character as if they had been made.

So ‘Bush planned an invasion of Iraq in order to gain control of the oil’ would be potentially defamatory under that test. If he showed up in court, testified otherwise and showed his diary (which presumably wouldn’t have an entry marked ‘meeting to divvy up the stolen oil’), would you be confident of winning your case?

Or do you think it would largely depend on which way the judge voted?

soru, now I understand what you mean by false in the sense of the court. Thanks for your patience. I’ll consider the rest of your post…


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  2. Duncan Stott

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  3. Richard Davis

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  4. Chris Keating

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  5. Chris Keating

    @libcon quite. glad you're on the side of honesty – and sanity – in politics with artilces like this.. http://bit.ly/dr8i2E

  6. Andy S

    Brilliant piece by @libcon on #Woolas – demolished "judicial overthrow of democracy" bollox some are perpetrating…http://bit.ly/dr8i2E

  7. Neil Darby

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  8. Cory Hazlehurst

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E <— My article is up now

  9. Peter Ede

    RT @goldenstrawb: RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E <— My article is up now

  10. Lonely Wonderer

    Not wrong but not misconceptions RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  11. Angela Pateman

    RT @goldenstrawb: RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E <— My article is up now

  12. Martin Warne

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E (fao @mylastsong – this sums it up pretty well)

  13. Phil Andrews

    RT @libcon: Three silly misconceptions about the Phil Woolas case http://bit.ly/dr8i2E

  14. Douglas Hayward

    Three silly misconceptions about the Phil Woolas case | Liberal Conspiracy http://t.co/6dmXRyZ via @libcon

  15. Get Labour Out

    Phil Woolas v The Judges http://liberalconspiracy.org/2010/11/10/three-silly-misconceptions-about-the-phil-woolas-case/ The ruling was right

  16. Greg Stone

    RT @GetLabourOut: Phil Woolas v The Judges http://liberalconspiracy.org/2010/11/10/three-silly-misconceptions-about-the-phil-woolas-case

  17. sunny hundal

    This should be req'd reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  18. Charlie Beckett

    RT @sunny_hundal: This should be req'd reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  19. Celyn

    RT @sunny_hundal: This should be req'd reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  20. Derek Bryant

    RT @sunny_hundal: This should be req'd reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  21. Karen Hanna Kruzycka

    RT @sunny_hundal: This should be required reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  22. George Allwell

    RT @sunny_hundal: This should be req'd reading: 'Three silly misconceptions about the Woolas case' http://bit.ly/dr8i2E by @goldenstrawb

  23. Simon Barrow

    Three silly misconceptions about the Phil Woolas case – http://tinyurl.com/34djwzk – #IagreewithHarriet

  24. katie

    Free Reading !!! Three silly misconceptions about the Phil Woolas case | Liberal …: The l… http://bit.ly/cIS4Hx mypsychicsonline.inf

  25. Dyfed Roberts

    RT @simonbarrow: Three silly misconceptions about the Phil Woolas case – http://tinyurl.com/34djwzk >Great post.

  26. Virginia Moffatt

    RT @simonbarrow: Three silly misconceptions about the Phil Woolas case – http://tinyurl.com/34djwzk – #IagreewithHarriet

  27. andrew

    Three silly misconceptions about the Phil Woolas case | Liberal …: Keep it up: Liberal Conspiracy is rapidly b… http://bit.ly/9n7Geg

  28. thabet

    Three silly misconceptions about the Phil Woolas case http://ow.ly/37XTL

  29. sunny hundal

    @ollygrender if by "dilemmas" you mean John Rentoul doesn't understand the law, yes http://bit.ly/dr8i2E

  30. sunny hundal

    Rentoul's entirely predictable column defending Phil Woolas http://ind.pn/aMAN38 makes points we demolished yesterday http://bit.ly/dr8i2E

  31. Steven Patterson

    Anyone who thinks #Woolas had an undemocratic outcome needs to read this simple explanation http://bit.ly/dr8i2E (via @sunny_hundal)

  32. Cory Hazlehurst

    @PeterMEde Is he STILL peddling that bullshit line? He should read my @libcon post http://t.co/GPPbDTJ

  33. Duncan Stott

    @SamMannion No. See point 2 of this: http://bit.ly/d6JfLR





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