THE PRESS

The Perils of Comment

By CHARLES CURRAN

riLIFFORD SHARP was the first editor of the k_,1Vetv Statesman. He got the paper into trouble, and lost his job. In doing that, he made a big subtraction from freedom of comment throughout the British Press. For he raised a legal ghost that has haunted every newspaper office ever since. Its name is Contempt of Court. It rates only a brief reference from Mr. Kingsley Martin, Sharp's successor, in his autobiography Father Figures (reviewed on page 48). I want to take a closer look at it.

The ghost was born in 1928. It had three mid- wives, One was Dr. Marie Stopes, the birth- control propagandist. The others were Mr. Howell Cwynne and the Duke of Northumberland, then editor and owner respectively of the Morning Post, a Tory paper since absorbed by the Daily Telegraph. Gwynne sued Dr. Stopes for libel. He got £200 damages from Mr. Justice Avory and a special jury. Sharp thereupon wrote a 300- word comment in which he said: We cannot help regarding the verdict given this week in the libel action brought by the editor of the Morning Post against Dr. Marie Stopes as a substantial miscarriage of justice. We are not at all in sympathy with Dr. Stopes's work or aims, but prejudice against those aims ought not to be allowed to influence a court of justice in the manner in which they appeared to influence Mr. Justice Avory in his summing- up. Dr. Stopes found one of her advertisements in the Morning Post suddenly stopped. Accord- ingly, she wrote to the Duke of Northumber- land suggesting that Roman Catholic influence was at work. The Duke passed the letter to the editor, who chose to regard it as a reflection on his own honesty—which was patent nonsense . . . We do not think the action should have been brought. Dr. Stopes's letter was foolish . . . But Dr. Stopes obviously intended no re- flection on the editor personally—she did not even know who he was . . . The serious point in the case, however, is that an individual hold- ing such views as those of Dr. Stopes cannot apparently hope for a fair hearing in a court presided over by Mr. Justice Avory—and there are so many Avorys.

Immediately the Attorney-General, Sir Douglas Hogg, applied to the King's Bench Division for a rule calling on Sharp to show cause why he should not be committed to prison tor contempt of court in thus criticising a judge. This was the first time in this century that this had been done to any editor in this country.

Sharp came before a Divisional Court over which Lord Hewart, the Lord Chief Justice, presided. His counsel was Sir William Jowitt, a

future Attorney-General and Lord Chancellor. Jowitt told Hewart that the case 'would be a landmark for future generations in this branch of the law.' The last such case, he said, was the Queen v. Gray in 1900; but it was different from Sharp's, since it concerned scurrilous abuse of a judge, not criticism. The previous case was McLeod St. Aubyn in 1899; in this, it had been said that the power to commit for contempt 'is not to be used for the vindication of a judge as a person,' and that 'committals for contempt of court by scandalising the court itself have become obsolete in this country.' Sharp himself put in an affidavit which was an unqualified apology for his comment. 'I meant,' he said, 'to express the opinion that the feelings of those who believe in birth control. and of those who oppose it. are so strong that it is humanly impossible for anyone adhering to one side or the other to take an entirely unbiased attitude. I never meant to sug- gest any intentional unfairness or bias on the part of Mr. Justice Avory.' This was sufficient to get him off with an order from Hewart to pay the costs.

But the ghost had risen. Sharp had released it from its nineteenth-century legal graveyard. It has never gone back. Contempt of court may have been obsolete in 1899. But it has taken on a new lease of life since 1928. Almost the first victim of this reincarnation was Sharp himself. Two years after the Awry case, he wrote an article about it in another paper, and lie was again brought up for contempt of court. (Again he escaped with an apology.) Mr. Kingsley Martin says that Sharp was an alcoholic who 'could have made the New Statesman a paying concern had he not begun to write editorials when he was tipsy.' Very likely. But it seems to me—if I may

express an opinion without contempt—that Mr. Martin passes over the implications of the Avory case. His account fills no more than twenty lines; it misspells the names both of Hewart and of Jowitt.

Yet its implications have been, and are, wide- spread. For it has muted newspaper comment on the administration of justice in this country ever since 1928. Mr. Cecil King has drawn attention to the result. The 1962 report of the Press Council contained a candid statement by him about the multiplicity of legal threats that now surround British newspapers. Here is an extract :

The fact that newspapers have, on occasion, shown courage in challenging legal decisions in spite of the threat of contempt proceedings only emphasises the stifling effect of the law. The boundaries of %%hat criticism is permitted are so vague that an experienced sub-editor or leader writer, in doubt of what may properly be said, will tend to delete or omit much which should, in the public interest, have been printed. The hazards of printed comments on the admini- stration of justice in the courts still remain, and much reasonable criticism is discouraged.

Every editor will endorse Mr. King's assess- ment; so will every newspaper lawyer.

But before Sharp raised the ghost, the courts were not insulated from critics. In the early part of this century, three judges in particular often came under fire. All three had been appointed by Lord Chancellor Halsbury; and their political services, rather than their legal merits, were said to be the reason why he chose them. One was Sir Arthur Kekewich. who was labelled Mr.

Justice Necessity because (it was said) he knew no law. Another was Sir Charles Darling. Two days before his appointment. The Times said in a leading article that he was unfit to be a judge because 'he has given no sign of legal eminence.' Press criticisms of Darling continued until he retired in 1923: and they burst into a blaze over his conduct of the Pemberton Billing trial in 1918. The third Halsbury appointee was Sir William Grantham. He was accused in print—frequently and vociferously—of displaying bias on the Bench. Labouchere said of him in Truth that his judicial faculties were warped by his political prepossessions. and that be should seek the repose which he had earned. Grantham presided over a Court set up to investigate allegations of corrupt practices by the successful Tory candidate for Yarmouth at the 1906 general election. The allegations were gaudy.

Witnesses said that the candidate held his election meetings in public houses, with free

drinks and cigars for all present. They said that he and his wife gave an eve of poll At Home at the Town Hall, at which twenty-four bottles of whisky were consumed, and one of the guests died from drowning. Grantham heard the evidence, and exonerated the candidate. This decision evoked a newspaper uproar of gale force. The contemporary comments on the judge make Sharp's remarks about Avory sound like twittering; at a tea-party.

Between 1900 and 1928, Law Officers came and went- - Tories. Liberals. Socialists. Yet none of them applied for a contempt rule against an editor until Sharp criticised Avory. Sharp might have pleaded that he was expressing an honest opinion -perhaps ill-founded, perhaps far- fetched, but an honest opinion, nevertheless— about a case that was over and done w ith. a matter of legitimate public interest about which some people might form one view, some another. He did not do so. When the editor of the Nest, Statesman apologised, he began a new and unfor- tunate era for the press.