Concurring opinion of judge zekia

First part

In the instant case, in interpreting and applying Article 10 paras. 1 and 2 (art. 10-1, art. 10-2) of the Convention to the intended publication of the proposed article of The Sunday Times, relating to the plight of the thalidomide drug victims, we have to lay emphasis on the object and scope of the relevant provisions contained in the Convention.

Full account of the facts was given before us. Relevant documents were produced. Reference was made to the relevant legal points and judicial decisions. The views of the parties participating in the proceedings were exhaustively put forward by their memorials and counter memorials as well as by their submissions in the oral hearings. The Court had this advantage before embarking on the discharge of its judicial task.

The basic issues under Article 10 (art. 10) which have to be determined are two. I propose to formulate them in two questions.

Question no. 1

Was the restriction, imposed by an injunction, on the right to freedom to publish the draft article in The Sunday Times "prescribed by law" within the ambit and object of the Convention in general and of Article 10 (art. 10) in particular?

Question no. 2

Was such restriction "necessary", as required by Article 10 (2) (art. 10-2), in a democratic society for maintaining the authority and impartiality of the judiciary and/or for protecting the reputation or rights of others?

An answer in the affirmative to question 1 is a sine qua non for a possible similar answer to question 2.

My answer to question 1 is in the negative. I proceed to give as briefly as possible my reasons:

(1) Article 1 (art. 1) of the Convention reads: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention." In Section I, Article 10 (1) (art. 10-1) reads: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...".

In ascertaining the meaning, scope and object of restrictions to be prescribed by law occurring in paragraphgraph 2 of the same Article 10 (art. 10-2), one must not lose sight of the fact that the right to freedom of expression accorded to everyone by the previous paragraphgraph has to be reasonably secured, enjoyed or exercised. Both paragraphgraphs are interdependent. Any restriction affecting the exercise of the right to freedom of expression must be reasonably foreseeable or predictable. You cannot enjoy or exercise the right to freedom of expression if the enjoyment of such right is made conditional and subject to a law or a rule or principle abounding in uncertainties. This would be tantamount to an undue restriction, even to a denial, of such freedom of expression. I am of the opinion therefore that the phrase prescribed by law or "{prevues} par la loi" in French means a law imposing restrictions which is reasonably ascertainable. The enactment might be made by statute or by common law consistently established.

I am in agreement with the applicants that the branch of the common law of contempt of court dealing with publications relating to pending civil proceedings is not prescribed by law within the framework and object of paragraphs 1 and 2 of Article 10 (art. 10-1, art. 10-2) of the Convention. I note that the Commission in its report merely proceeded on the assumption that the restriction imposed on the applicants was prescribed by law and that doubt was cast on this assumption by the Commission's Principal Delegate during the oral hearings.

(2) Whether or not a particular publication in the press and other mass media amounts to a contempt of court in relation to pending civil proceedings depends on the criteria or test to be applied. There are a number of criteria and kinds of tests available. There is no settled or uniform practice as to which criterion is to be adopted in a given case and the result may differ according to the test applied.

(3) The tests and criteria applied in the enforcement of the law of contempt against publications in the press are so varied and subjective in nature that it is very difficult to foresee in a particular case what test is going to be applied and with what result.

A glaring example of the uncertainty and the unsatisfactory state of the law of contempt touching pending civil proceedings vis-a-vis press publications is to be found in the conflicting opinions expressed by the Law Lords on the Sunday Times article of 24 September 1972 about the thalidomide tragedy.

According to Lord Diplock and Lord Simon, the offence of contempt of court was committed, whereas Lord Reid and Lord Cross held, on the contrary, that there was no contempt of court.

Disputable legal points might arise even in the interpretation of a statute law as well as in the case of a rule of common law. But the position is not the same when we are dealing with a branch of the common law - comtempt of court - which is not established to the extent of being reasonably regarded as a settled part of the common law. We have a number of principles referring to such a branch of the law. These principles might be useful to interpret an existing law but not to substitute a law which is not enacted or established at common law. But I doubt very much whether the principles alone put together would amount to a law.

(4) Eminent judges of high standing in England describe the branch of the common law that concerns contempt of court as being uncertain, inconsistent and lacking the clarity badly needed. Lord Reid in his judgment in the present case in the House of Lords stated (see page 294): "I cannot disagree with a statement in a recent report of Justice on "The Law and the Press" (1965) that the main objection to the existing law of contempt is its uncertainty."

Lord Denning M.R., in giving evidence before the Phillimore Committee in connection with the starting point of pending civil proceedings affecting publications in the press, stated: "I am all in favour of it being clarified. At present the press hesitate when they ought to make comment in the public interest. The reason is that they are apprehensive because the law is so uncertain. I think they ought to know where they stand."

Lord Salmon, when asked about the point at which contempt should start to apply in civil proceedings, stated (ibid.): "Nowhere, because I would not have any contempt. I say never. Certainly never in a judge-alone case. I think the law of libel takes care of anything you may say about a civil case, and if a judge is going to be affected by what is written or said, he is not fit to be a judge."

In Part V of the Phillimore Committee report, dealing with the summary of conclusions and recommendations, it is stated on page 92: "(4) The law as it stands contains uncertainties which impede and restrict reasonable freedom of speech... (5) One area of uncertainty concerns the period of operation of the law of contempt, as to whether publications are at risk when proceedings are imminent and, if so, what period that expression covers."

At what stage of civil proceedings the subject-matter in dispute is to be considered as sub judice or the trial of the matters in dispute is to be considered as imminent are questions which cannot be answered with accuracy owing to lack of clarity in the law of contempt.

(5) It has to be borne in mind that the contempt of court under consideration is a criminal offence, a misdemeanour which entails imprisonment and fine and/or an order to give security for good behaviour. This being so, the fundamental principle requiring clear and unambiguous definition of an offence or crime applies also to the offence of contempt of court under review. The summary procedure adopted in contempt of court cases creates another difficulty, namely to what extent this procedure is compatible with Article 6 (art. 6) of the Convention.

(6) The right of the press to freedom of expression is undoubtedly one of the fundamental characteristics of a democratic society and indispensable for maintaining freedom and democracy in a country. Under Article 1 (art. 1) of the Convention, the High Contracting Parties undertook to secure to everyone within their jurisdiction the rights enumerated in Section I of the Convention, and the liberty of the press is covered in the said Section. The exercise and enjoyment of this right cannot reasonably be attained or achieved if they are handicapped and restricted by legal rules or principles which are not predictable or ascertainable even by a qualified lawyer.

The prejudgment principle evolved by the House of Lords in this case does not solve the problem we face under Article 10 (art. 10) of the Convention. There are two reasons:

(a) Even if we assume that the House of Lords settled the law, the material date for ascertaining whether the branch of the common law that concerns contempt of court was prescribed by law or not is the date the Sunday Times draft article was put before the Divisional Court and not before the Law Lords. In the oral submissions made by the parties during the hearings, reference was made to the authority of the House of Lords in dealing with the case as a final court of appeal. According to the applicants' submission, the Law Lords, by their judgment in the present case, gave to the branch of the law of contempt of court concerning pending civil proceedings a definition which was quite novel. The respondent Government did not agree.

It is not the business of this Court to enquire whether the House of Lords, sitting as a final court of the land, has the power to amend, supplement, consolidate, shape or improve the common law according to the demands of the time and circumstances.

It is not admitted that the Law Lords make laws but claimed that they simply declare the law. However, the applicants' counsel in his submission said that this was a fiction and that the House was making new law.

It may, however, become our business to find out whether the House of Lords, by their judgment in the present case, have amended or supplemented the branch of the common law of contempt of court we are dealing with. This is because, if the judgment in effect amounted to an amendment or supplementing of such law, then Article 7 (art. 7) of the Convention becomes relevant for consideration. Personally, I incline to the view expressed by the applicants, but I am content to refer to this aspect of the case as another source of uncertainty in the branch of contempt of court under review and nothing more.

(b) The prejudgment principle does not provide the press with a reasonably safe guide for their publications. The absolute rule indicated by Lord Cross in applying the prejudgment test - not taking into account whether a real risk of interference with or prejudice to the course of justice exists - inhibits innocuous publications dealing incidentally with issues and evidence in pending cases in order to avoid a gradual slide towards trial by newspapers or other mass media. This appears to me to be a very restrictive absolute rule which is difficult to reconcile with the liberty of the press. In a matter of public concern such as the national tragedy of thalidomide it would be very difficult to avoid, in one way or another, reference to the issues and evidence involved in a pending case.

The diversity of the criteria adopted in this case by Chief Justice Widgery in the Divisional Court and Lord Denning and his colleagues in the Court of Appeal and the criterion evolved by the majority of the House of Lords illustrate the unsatisfactory and unsettled state of the rules or principles of contempt of court dealing with press publications in pending civil matters. This is especially so when such publications are made in good faith without misrepresentation and are not calculated to interfere with or prejudice the course of justice and, furthermore, when factual accuracy is claimed and the subject matter is of public concern.

Conclusion as to question no. 1

In my view, the branch of the common law that concerns contempt of court dealing with publications in the press and other media in connection with pending civil proceedings was - at any rate on the material date - uncertain and unsettled - and unascertainable even by a qualified lawyer - to such an extent that it could not be considered as a prescribed law within the purview and object of Articles 1 and 10 (1) and (2) (art. 1, art. 10-1, art. 10-2) of the Convention. The phrase "prescribed by law" in its context does not simply mean a restriction "authorised by law" but necessarily means a law that is reasonably comprehensive in describing the conditions for the imposition of restrictions on the rights and freedoms contained in Article 10 (1) (art. 10-1). As we said earlier, the right to freedom of the press would be drastically affected unless pressmen, with a reasonable degree of care and legal advice, can inform and warn themselves of the risks and pitfalls lying ahead due to the uncertainties of contempt of court.

Second part

Question no. 2

Was the injunction restraining The Sunday Times from publishing the draft article "necessary" in a democratic society for maintaining the authority and impartiality of the judiciary and/or for protecting the rights of others?

Independently of any answer to question no. 1, my answer to this question is also a negative one. I have, however, less to say on the second issue because I respectfully associate myself with the main reasons enunciated in the majority judgment of the Court.

As I have already stated, the right of the press to freedom of expression is indispensable in a democratic society; equally, it is of paramount importance to maintain the authority and the impartiality of the law courts and to safeguard the rights of the parties who have recourse to such courts. On this aspect I can usefully quote from the judgment of Lord Morris in the House of Lords (at page 302):

"In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary" (my italics).

While I am in agreement with the above statements of Lord Morris, in applying the directions contained therein to the facts of the instant case I, as a Member of this Court, arrive, however, at a different conclusion.

The criteria of the European Court of Human Rights in weighing the necessity required for imposing restrictions on the rights to freedoms enumerated in Article 10 (art. 10) of the Convention might differ at times from those adopted by national courts.

Undoubtedly, the principle of margin of appreciation already embodied in the jurisprudence of this Court has to be borne in mind and applied in favour of the national judicial system. But the gap between the two systems and the standards adopted for the exercise of the rights to freedoms covered by the Convention might be too wide to be bridged by the aforesaid principle.

Whenever it considers it reasonable and feasible, this Court should work out a uniform international European standard for the enjoyment of the rights and freedoms included in the Convention. This could be done gradually when the occasion arises and after giving the appropriate full consideration to national legal systems.

The Preamble to the European Convention on Human Rights and Fundamental Freedoms contains references to this end. It states that the Governments signatory thereto:

"...

Considering that [the Universal Declaration of Human Rights] aims at securing the universal and effective recognition and observance of the Rights therein declared;

...

Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;

Being resolved as the Government of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration;

Have agreed as follows:"

- then follow the Articles of the Convention.

In the legal systems of those continental States which are the original signatories of the Convention, there is, as far as my information and knowledge go, nothing similar to the branch of the common law of contempt of court - with its summary procedure - touching publications which refer to pending civil proceedings. Notwithstanding this fact these countries manage to maintain the authority and impartiality of their judiciary. Am I to accept any submission to the effect that conditions in England are different and that they have to keep alive unaltered the common law of contempt of court under discussion, which is over two centuries old, in order to safeguard the authority and impartiality of the judiciary? My knowledge and experience gained from long years of association with English judges and courts prompt me to say unreservedly that the standard of the judiciary in England is too high to be influenced by any publication in the press. I confess I may be considered as biased in making this statement. In the present case, we are in all probability only concerned with a professional judge. In this connection, I associate myself with the remarks made by Lord Salmon quoted above.

Undoubtedly, the supreme judicial authority in England is fully entitled to judge about the legal measures to be taken in order to secure the independence and the authority of the courts and rights of the parties and to keep the streams of justice clear and pure, but, in the light of the criteria and tests applied, I feel unable, as a judge of the European Court, to agree that the grant of an injunction to restrain publication of the draft Sunday Times article was necessary under Article 10 (2) (art. 10-2) of the Convention.

Publication of the proposed article was not intended or calculated to interfere with or prejudice the course of justice or the rights of the parties involved. The article was admittedly written for publication in good faith and with a proper motive. Factual accuracy of the facts stated therein was claimed by the publisher and this was not in effect disputed. The subject-matter of the article was the thalidomide drug victims. The magnitude of their plight was amply described as a national tragedy. The imputation of negligence to Distillers for not properly testing the drug before marketing it was made in the article and, in fact, the most objectionable part of the article seems to be this aspect. However, discussions and comments relating to the issue of negligence were directly or indirectly ventilated in the press for ten years and had recently been commented on in Parliament which did not treat the issues involved as sub judice. I do not therefore accept that Distillers would have been improperly brought under pressure to desist from their defence if the proceedings had come on for trial. If there had been a proper testing of the drug before marketing, they could easily have proved it and rebutted the allegation of negligence.

Whether the trial in the pending proceedings was imminent or not having regard to the long inactivity in the proceedings is a matter open to serious doubts.

Measures for the prevention of a slide towards trial by newspaper should no doubt be taken when necessity arises. But, in the absence of evidence of an existing trend towards such a slide, I would not agree to be guided by abstract possibilities or to act for the sake of a principle when no sufficient grounds exist to make its application expedient. Furthermore, as is stated in the summary of Lord Denning's judgment in the Court of Appeal (paragraph 25 of the European Court's judgement): "Trial by newspaper" must not be allowed. However, the public interest in a matter of national concern had to be balanced against the interest of the parties in a fair trial or settlement; in the present case the public interest in discussion outweighed the potential prejudice to a party... Even in September 1972, the proposed article would not have amounted to contempt: it was fair comment on a matter of public interest...". If the intended publication of the article in question was likely to create a real and substantial risk of interference with or prejudice to the administration of justice my answer to question no. 2 would have been in the affirmative.

No doubt one has, when circumstances so require, to strike a balance between the freedom of the press and other mass media and maintaining the authority and impartiality of the judiciary. Both are fundamental organs in a democratic society and vital for the public interest. Any clash between them should be avoided. The primary duty to avoid such a clash and keep the balance lies with the judiciary and on the criteria to be indicated by law and enforced by the courts. This is why I lay emphasis on the tests applied for the enforcement of the branch of common law of contempt of court that concerns the press.

I may be repeating myself in saying that this Court should not hesitate to lay down when the occasion requires a set of principles to serve as guidelines and a common denominator in the observance of the freedoms and the permissible limitations on such freedoms within the terms and ambit of the Convention.

I cannot restrain myself from stating that the traditional standard of the newspaper publishers in England, in discharging their duties and responsibilities towards the public and the national authorities and in imparting accurate information to their readers, can safely by compared with that of their continental colleagues. Therefore, it is difficult to understand the expediency of imposing a greater degree of limitation on the liberty of the press in England by keeping an anachronic branch of the law of contempt alive.

Again going out of my way, I venture to take the liberty and conclude my separate opinion with the following remarks:

The birthplace of the Magna Carta, the Bill of Rights and the basic principles of justice - embodied in the Anglo-Saxon judicial system and the substantial part of them already incorporated into the articles of the European Convention on Human Rights and Fundamental Freedoms - in my humble opinion can easily afford either to do away altogether with the branch of the common law of contempt of court under review or to amend this part of the law of contempt of court on the lines indicated in the Phillimore Committee report.