LETTER OF THE LAW
How Free Is Our Speech?
By R. A. CLIME
IN a country like ours which has unflaggingly attached the highest constitutional importance to freedom of speech one would expect that by the twentieth century the whole territory within which this freedom can be exercised would by now be authoritatively and clearly staked out. A writer, a reporter or an orator should know exactly how far he can go if our legal system has been doing its job properly.
But the remarkable fact is that both the law of libel and the law as to contempt of court speak with an uncertain, almost inaudible, voice at the very point where there should be dogmatic clarity. Two examples spring to mind which at the present time are the cause of persistent anxiety to writers, especially those who specialise in crime reporting. If a man has been found guilty by a jury of a crime, say, treason, can someone later record that he was guilty of treason? At first sight there seems to be only one answer. Of course he can, for he is saying no more than the truth. But more careful examina- tion will show that there are two facts which can be recorded about the accused man, first, that he has been found guilty and this is to describe no more than what happened when the foreman stood up and gave his verdict; secondly, that he was guilty. But the latter may not be true. Innocent men can be found guilty but their innocence remains.
And so a journalist who goes beyond simply recording the verdict is asking for trouble. The recent case of Alfie Hinds, in which he suceess-
fully established that he had been libelled despite an earlier verdict against him in the criminal courts has reminded a number of aggrieved citizens that an incautious journalist or writer may give them a heaven-sent opportunity to attack their criminal convictions by suing for libel in the civil courts.
Unfortunately no lawyer can say with much certainty how far a writer can go. In the well- known case of Lewis and the Daily Telegraph a report which recorded that a company was being investigated by the fraud squad was held by the House of Lords to be capable of being defamatory. It was not enough for the writer to defend himself by saying that there was such an investigation, any more than it is an answer in the earlier example to show that the accused was found' guilty. The writer has to go further. How much further? Does he have to prove that there was something that deserved investigation? Despite many long and learned speeches in the House of Lords, the Lewis case has left most writers and journalists bewildered and hesitant.
How free 'is our speech? If Smith issues a writ against Jones for the repayment of a loarf, can the newspapers publish the fact that the writ has been issued and say what Smith is alleging? Possibly, but then again possibly not, for that might be to republish Smith's libellous and perhaps completely malicious claim against a wholly innocent Jones. - Add to this the fact that no one is sure how far a judge's decision, against which an appeal is pending, can be commented on without commit- ting contempt of court, and it becomes very plain that in 1966 and for many years to come (law reform being a slow and laborious business) those whose profession it is to exercise their right of free speech must expect to continue to live dangerously.
At the end of last term the House of Lords rose to consider their judgment in the mammoth case of Carl-Zeiss Stiftung, the heavy battle be- tween the West German company and its rival in East Germany as to who has the right accord- ing to the English law to sell Zeiss optical instruments. Simplifying the issues in the case is like giving potted versions of the psalms: the whole flavour is lost. Besides, the real battle has scarcely begun. The West German company has taken the preliminary point that as the. United Kingdom government does not recognise that the East German government exists and, as the East German firm ultimately derives its existence from the authority of the unrecognised govern- ment, the solicitors for the East German firm had no authority to litigate at all because there was no one to authorise them.
Victory went to the West on this point in the Court of Appeal, but rumour has it that the Lords may possibly take a different view. If it should turn out that the Lords hold there was some sort of authority in East Germany (and they may say it all derives from the Russian govern- ment), one's heart goes out to the Foreign Office official whose task it will be to explain to West Germany not only what the result means but also how the House of Lords appeal court is to be distinguished from the House of Lords (legislature). Indeed the British may not follow what happened all that easily.
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At the end of a complicated case in the Court of Appeal the three judges , prepared written judgments. A day was set aside, to hear their decisions. Two pf, them read aloud their judg- ments, as is the custom; the third, Lord Justice Diplock, stated that as he differed from one or other of his colleagues or the judge in the court below on every point, he would not read his but simply summarise its main points.
This is not the first time this has happened. Just after the war Lord Greene as Master of the Rolls handed his written judgment to the parties (in a case which by a coincidence was called Re Diplock). The judges in the House of Lords do it. And in America judgments are invariably `handed down.' Why not extend the practice and end a custom which began with the desire of the Judges in mediaeval times to instruct students who sat in court? Although most judgments are oral and off the cuff, much precious judicial time could be saved if Lord Justice Diplock's unusual example became the norm.
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The notion that judicial language ought to be dry as dust and precise to the point of dullness is hard to dispel. The excerpts imaginatively assembled in the anthology The Language of the Law* should help. It should also prove something which the English lawyer is fast losing sight of, perhaps unduly influenced by Continental attitudes, that justice is as much a matter of the heart as of the head. The judge who passionately dissents in this volume gets closer to the point of law than his brethren; and he is certainly far more readable. But it is the , Americans who carry the day. Their eye seems permanently on the horizon.
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