Privacy Commission Day 3, Witness 1: Sir Charles Gray

The PM Privacy Commission spoke to Sir Charles Gray on Wednesday June 15, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.

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ML : Welcome back to the PM Privacy commission. We have with us today Sir Charles Gray, formerly Mr Justice Gray. Sir Charles, perhaps we can ask you to briefly introduce yourself and perhaps you could give the listener some quick synopsis in the interest you have in these issues

CG I was at the bar for a long time and did a good deal of media work, as it's now called. Libel, slander, breach of confidence, perhaps more relevant. I then went onto the high court bench as you say, and judges now tend to specialise rather more than they used to and so I did a lot of media cases when I was on the bench. I retired a little while ago but I'm still in the same field, arbitrating really in cases of media interest.

ML Perhaps I can start by asking you if you believe parliament was clear in passing the Human Rights act but it was seeking to strengthen the rights of the individual in terms of personal privacy but to leave individual judgements to judges.

CG I fear I don't think that parliament was very clear and the reason I say that is this, the articles 8 and 10 of the European Convention on Human Rights provide respectably for a right of privacy and the right of freedom of expression. Parliament decided in its' wisdom that the convention should be adopted and made to form part of English domestic law, fair enough. But when the matter was being debated, as I'm sure you know Sir Michael, the concern was expressed that freedom of expression was extremely important, and rightly expressed, so what parliament did was to enact in section 12.4 of the legislation that courts should say, and I'm talking particular regard to the European convention right of freedom of expression, the difficulty that I think judges have experienced over the years in deciding how you pay particular regard to one right which according to convention laws to be given equal importance with another convention right, namely the right of privacy. And that's, I think, part of the difficulty that courts have been experiencing in recent months and years.

ML: What was the situation before the Human Rights act. How did the courts deal with issues of personal privacy before.

CG There was what was called the law of confidence, that's now a thing of the past, but effectively it was a law of privacy, whereby anyone who felt that they had some private, confidential information, which they seemed to seek, which they decided to keep confidential, could go to court and get an injunction and in due course in some cases seek damages, for their right of confidence to be either protected or vindicated by an award. And that worked, I think reasonably well over the years.

ML Returning to the current legislation do you think the job confronting courts, confronting judges if parliament addressed this issue at greater length and gave clear guidance on the balance on the rights of the individual and the rights of freedom of speech for the press

CG I must say I'd hate to be the parliamentary draughtsman who sought to give that kind of guidance, particularly bearing in mind that we have, for good or evil, the European Convention and our courts are bound to give effect to the various articles in that convention and of course the relevant ones are, as I've already said, article 8 right of privacy and article 10 right of freedom of expression. I don't really see scope for parliament to intervene and to give more detailed guidance. The judges have been struggling to strike the right balance and most of the time I believe they've got it right.

ML So this is a question in layman's terms, of building up experience, building up case law

CG I think that's the right way forward. It's the way the common law has successfully developed the various rights to which we attach importance. I personally would prefer to leave it to the judges to develop the law convention bound though it now is, but in the same way as the common law was allowed to develop over previous years, indeed centuries.

ML The last few weeks thought have seemed to have demonstrated quite a ferocious attack on the judges for doing just that. Is that justified and how do they feel about it?

CG No judge can get the right answer to every situation that comes before him. I think for the most part judges have been getting it right. I think the whole situation has been bedevilled if I may say so, by the fact that so many of these injunctions are sought by what one might call atypical litigants, particularly premier league footballers. Of course they have rights like anyone else, but their cases attracts, understandably, enormous publicity and one forgets that the right of privacy is a particularly one for all of us. We don't only protect the rights of footballers or anyone else to keep the sexual affairs that they may be having private but the law of privacy is also there, and perhaps more importantly, to protect the ill, the bereaved, the children in our society who deserve to have certain matters preserved as being confidential or private to them. And that's what the law of privacy is principally there for in my view. And I think it's regrettable that this furore has been created by a few cases involving celebrities but perhaps not really the main purpose for having the right of privacy in this countrys' laws.

HL We've heard from a number of witnesses about how extremely expensive it is to have to resort to legal redress and of course you've drawn attention to the premier footballers and the rich and famous who have appeared before you. Can you see some other means of arbitration? Is it conceivable that the press complaints commission could be given more powers, in other words how can the common man and woman have access to the same protections as the rich?

CG - It's a difficult question. I personally don't see the scope for arbitration, although the position in arbitration as you I'm sure know is that they are completely private from start to finish. The problem as I would see it is that arbitrators can't grant injunctions which would in any real sense be binding on anyone at all, any third party to the arbitration. So I don't think that's a solution. You talk of the expense, and it's hideous, of bringing claims in the courts, that to some extent is mitigated for claimants by the existence of CFAs as we call them, Conditional Fee Arrangements, whereby the claimant basically will have his costs borne by his own lawyers if they loose the claim or by the defendants if they win it. CFAs are now doomed, as I'm sure you'll already know, and so one is going to be confronted if one's claimant wanting to protect a right of privacy in relation to information having to bear very substantial costs and risk even greater costs if the applications aren't successful

HL I know you've heard a number of these injunctions, how many do you think in total you've actually had before you

CG Gosh, one forgets, they take place rather quickly and in those days everything was anonymised which I always found distasteful. Although one sees that to an extent is necessary. I should think a dozen, maybe

HL One of the issues that we have grappled with and for you to having to adjudicate in these cases, it must be even more difficult, is how you differentiate the public interest from the interest from the public, because in many of these cases, particularly the ones that involve stars, they tend to be more about the interest of the public than the public interest. How much does that play out in your mind as a judge?

CG Well I think we're all very conscious of it because we all understand what is meant by a legitimate public interest. A legitimate wish to keep what is truly private information private on the one hand, and on the other hand what may really amount to little more than salacious gossip on the other and I think judges always have that distinguish in mind

HL Do you take into account issues such as hypocrisy, for example, someone who has portrayed themselves as a great upholder of moral value and then suddenly finds themselves in some sexual peccadillo. Would you take that into account in determining public interest.

CG Personally I would like to. The practical problem is this, supposing you have somebody who has perhaps held him or herself up as being a moral person and a newspaper discovers that there has been a sexual affair at the same time, the person concerned is likely to apply for an injunction, usually the application is made, not against perhaps the particular newspaper but at large. How then is one going to get the evidence because there will be no defendant present very often, of the hypocrisy to which you're referring. So there is a real practical difficulty but if judges were enabled to be put fully into the picture they would certainly take the fact as you in mind into account

HL Why do you think that newspapers have not appealed these super injunctions?

CG They have to an extent of course, and they've applied to discharge them. The problem is that have is that firstly that news is such a perishable commodity, yesterdays story is forgotten the next day. There are also problems about the machinery by which you get to know of the injunction in time to make the application to discharge or to appeal the granting of the injunction and where there have been appeals it has to be said that the court of appeals being inclined to say that the judge who granted the injunction below was seeking to hold the ring until the trial and that therefore it was right for the judge to grant the injunction. The problem, of course being that there is very, very rarely any trial going to take place. So everyone is doing it right by the rules but the fact is the injunction doesn't get discharged

HL One of the practical difficulties that Max Mosley drew to our attention is the fact that if you are the subject of one of these stories often the first you know about it when you actually see it in newspaper and he is arguing that the newspapers carrying these stories should be obliged to tell the victim, so to speak, in advance. Would you support that?

CG No I really wouldn't. One sympathises with his particular predicament. But the fact is that to compel newspapers as a matter of legal obligation to inform anyone they're going to write about would in my view be a serious infraction of the right to freedom of expression. If as happened in the Mosley case the newspaper shows not to deliberately inform him because they were scared of the possibility of an injunction being sought, then if the matter goes to trial, and of course the Mosley case was one where there was a trial unusually, the award of damages will reflect the fact that the newspaper increased the hurt, to, in this case Mosley, because of the fact that he had not been informed beforehand and warned not completely given an opportunity to seek an interlocutory injunction preventing publication, that's a legitimate factor to take into account in assessing the damages payable.

ML Can I just stay on the Max Mosley case for a moment Charles. Max said to us yesterday, having had some success in his case in the end he's ended up with receiving a sum that represents a sum that represents about 75% of his expenditures, so he hasn't exactly been compensated for the damages done to his family life and reputation. Do you have anything to say about awards in these cases?

CG Well I can well understand Sir Max feels that he hasn't been fairly dealt with from a financial point of view, but I think it is very important to distinguish the two functions that a judge hearing the trial of a privacy action has to perform. First of all he has to decide what compensation has to be paid to the particular claimant. In the Mosley case anyone who reads the judgement is bound to be impressed by the care which was taken by the judge to analyse the various appropriate heads of recoverable damage which there were in that case. He arrived at the figure that he arrived at, some may say it was too low, others I suppose might say it was to high, but he explained his thinking and personally it seems to me he got the computation of the damage right. Now that's damages for compensation, having won the case Mr Mosley was of course entitled to his costs of the action and I think that's his real complaint as I understand it, the amount he's recovered by way of costs, nothing to do with damages, legal costs, was not sufficient to give him an indemnity in respect of what he was going in the end to have to pay his own legal team. That's a problem that bedevils all litigation, the costs are so high and such a significant part of them is so often recoverable from the unsuccessful party that people like Mr Mosley are entitled to be vociferous about the injustice of the cost.

ML And as you say in your earlier comments, this is very much the issue of the man or woman in the street, whether or not they're discouraged from seeking to protect themselves because of the costs. Could I just ask Hugh Tomlinson, in his evidence to us, spoke about possible system of tribunal hearings? Might that be worth exploring?

CG I'm not quite sure what sort of tribunal you would have in mind. Are you thinking of the press complaints commission as the sort of tribunal that would deal with this sort of problem

ML No, I understood him to be speaking of tribunals more like those that support the various employment rights of individuals.

CG I've not heard that suggestion before. I think it's an interesting one I would have thought well worth exploring because tribunal cases can be very expensive as well but they tend to be more informal and I think they're rather quicker which is important in this particular field and so I think it might be a very sensible solution to part of the problem

ML And you, yourself said that conditional fee arrangements are on their way out. I detect some regret on your part because you saw that as actually part of how the system works at the moment.

CG Well, I'm not sure that I would regret the passing of CFAs, but they were after all designed in first place to enable impecunious litigants to bring proceedings which they might not have been otherwise able to bring. The problem is that CFAs have usually been taken advantage of by wealthy individuals who could perfectly well afford to pay, but they prefer to operate free of costs themselves and to inconsequence oblige the unfortunate defendant if he looses to pay two or three times as much by way of legal costs to the claimant as would otherwise been payable as if there had been no CFA

ML Can I change the subject slightly and move us to some of your recent comments about the responsibility of members for parliament and particularly your concern about MPs breaking injunctions and using parliamentary privilege to do that. You've been outspoken, do you think this is a, recent events are not without president, but clearly you don't think that should be welcomed?

CG: No I don't. And I have as you rightly say said so. It seems to me that unless there's some good reason to do so, and in neither of the two cases you may be referring to, did I think there was any good reason to do so, I think that it is essential that individual parliamentarians, whichever house they come from, should not seek to second guess the decision of the judge that a particular matter should be kept private. The judge will have heard detailed evidence, all be it sometimes from just one side, and he will have weighed in the balance the article 10 rights of the media, that's the right of the media to express themselves freely and publish such information as they see fit on the one hand, and the right of the individual concerned to maintain his or her privacy. I found it very concerning when a decision was taken by I think two individuals, to over ride the judges considered view, and name an individual claimant whose identity had been deliberately kept confidential by virtue of the judges order, for what appeared to me to be no very good reason.

ML Some of the newspaper coverage of that case because of these two individuals as heroic in seeking to defend the rights of parliament free speech against what was characterised as inappropriate protection of privilege by judges. Could you help the listener to cut through that debate?

CG I think that it is of greatest importance that members of parliament and members of the House of Lords should be free to express themselves in the strongest possible way in defence of the right of freedom of expression generally. Where I part company with anyone who seeks to, as I say, name somebody who the judge has said should not be named is that I don't see that one needs to progress the debate of the right of freedom of expression on the one hand and the right of privacy on the other by reference to individual cases. The hurt and the damage to the individual who are being named in flagrant breach of the terms of the injunction which had been granted, seems to be an unnecessary way of tackling the issue. If any member of parliament felt very strongly that an injunction had been wrongly granted, the right course is to apply to the judge in the first instance for a discharge of the injunction to extent that is deemed to be appropriate, that might or might not succeed. I think to go the different way of using parliamentary privilege to name the anonymised individual is the wrong way of setting about the problem.

ML Would you argue that there should be sanctions against members of parliament or members of the House of Lords who infringe those arrangement put in place by the courts

CG Well I don't think that's anything to do with me. I think if there is to be a sanction to imposed it must be a sanction imposed by parliament itself. And I think I'm right that there have been individual MPs that have said that is the right way of dealing with anyone who does use parliamentary privilege for no good reason to name individuals who the judiciary has decided, or particular judges has decided should remain anonymous

ML Can I take you onto the subject of where the world has changed by the emergence of what's often called new media, social networking, twitter. Does the arrival of the citizen journalist, does all this make it much harder to strike the balance between the rights of the individual and the rights of freedom of speech?

CG I'm in two minds as to how one should answer that question. In a sense I suppose it makes it harder to draw the right line. But it seems to me that as the number of people twittering and tweeting has increased, the fundamental problem of how you balance the two rights has not really been changed very much. I can't think of any case of an injunction might have been granted were it not for the fact that the information has been widely available on face book. I may be wrong, maybe that has happened, but I haven't heard of it happening and I'd be surprised if it had. So I don't think that the recent developments, if I can describe them comprehensibly that way, have really made any real difference to the task which the courts are still having to perform day after day in the courts of having to strike the balance

HL In recent months we have seen considerable speculation about the alleged illegal activities of certain newspapers in acquiring information and indeed in some cases there has been a criminal action taken against individuals. Do you think this muddies the water and it reduces the respect that people have for the nature of stories that appear in these newspapers and indeed feeds into this climate of injunctions?

CG I think that is a separate problem. I'm not sure that it impinges much on the debate we're really having

HL A judge would not be coloured by the nature, the surrounding wall of information that there is perhaps entrapment, indeed Max Mosley pointed out to us that the case he was involved in involved a degree of entrapment.

CG I think any judge hearing a case where there had been any degree of entrapment would take that into account. Certainly

ML Going back to the issue of new media and tweeting in particular, I think in a recent, I'm not sure if was an article you wrote or a press interview, you said you didn't think anyone would be or should be prosecuted for tweeting. If that's true it seems to reflect a distinction between how one treats the formal press and the informal sort of social networking world. Would that reflect your views?

CG I think really what I had in mind was that it would be like using a sledgehammer to crack a nut if one were to have full scale privacy cases being brought by individuals to suppress one tweeter. Obviously if the thing grew on a wholesale basis then one might take on a different view. But really I find it difficult to see any justification, real justification, for any claimant to start to invoke the majesty of the law, as it's sometimes called, to stop a particular tweeter publishing something which probably would be fairly trivial in most cases

ML And going back also to your answers on the distinction between those who've courted publicity you've talked about the frequency of a typical litigants in the cases that have come before you. Is there a straight forward test that the public could see of how you distinguish between someone who could be reasonably regarded to have courted the interest of the press and an ordinary member of the public who has done nothing to attract pre-citation to their affairs?

CG I think, if I might say so, put your finger on an important problem because historically I think it's right to say, and I'm going back to the days when one had rights of confidence rather than rights of privacy, there were cases, not infrequently there were cases where an individual who might otherwise have been granted an injunction because there was an invasion of his or her privacy or there was a breech of the right of confidentiality would never the less be refused an injunction because they had themselves courted publicity in the past or behaved in such a way as to make it inappropriate for an injunction to be granted. I think that is a principle that is rather valuable in our law and you shouldn't be able to have your cake and eat it. In other words to maybe use the media to attack others but then to go to your lawyers straight away when you find yourself being investigated and find yourself the subject of unwelcome publicity by the same media organisations. It is really a case of not being allowed to have your cake and eat it.

ML I think that brings our questioning to an end. Can I ask you Sir Charles, are there any areas that we should have covered in our questioning

CG Well I think there was a question from Edward Faulkes, I don't know whether you were going to ask that of me

HL Of yes this was about the law of privacy being developed by judges with a parliamentary steer and would it make the life of the judges easier

CG Maybe I've already dealt with that in your first question. So there is nothing else

ML Finally can I invite you, as if speaking directly to the audience of the PM programme to give your final view on whether the current arrangement both protect freedom of speech and the rights of the individual recognising that they are in conflict, are adequate or whether changes are needed.

CG: I only paused in answering that question because I think it's rather a difficult one. Which, of course, is exactly why you asked it? I think that the right of freedom of expression is well recognised, it's understood really broad way by really everyone. Everyone knows how important it is that we have a free press and that it should be free to publish what it will, what it wants and pays damages if it gets it wrong. I think we're in the difficult area of when it's right to prevent the press exercising its right of free publication by imposing an injunction or otherwise preventing the publication from taking place. This is the problem that the judges are trying their best to work their way through. The cases we've been discussing this morning give a very good illustration of how difficult that task can be. I think it would be helpful, and I believe this to be happening, if judges were able to direct perhaps a larger proportion of their judgments in particular cases be reportable by the media because I think if the world at large and your listeners knew of the task which faces judges when they have to decide where to draw the line where to give a right of privacy, priority of a right of freedom of expression and they knew how judge in question had approached that in task in rather greater detail than they're permitted to know so often, I think the public would understand the problem better and if the problem were better understood I think that would perhaps reduce the attacks on the judiciary, which have been taking place with some regularity which would lead to more enlightenment about the problem all round.

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