Steel and Morris against the United Kingdom - 68416/01 [2011] ECHR 2272 (2 December 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the principle of equality of arms in defamation proceedings against the applicants, in that they were denied legal aid (violation of Article 6§1) and a failure to strike the correct balance between the need to protect the applicants’ right to freedom of expression and the need to protect the rights and reputation of the plaintiff companies (violation of Article 10). (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

The case concerns a violation of the principle of equality of arms in defamation proceedings from 1990 to 2000 against the applicants, in that they were denied legal aid (violation of Article 6§1). The applicants had been sued by two McDonalds’ companies following the publication and distribution of a campaign leaflet against McDonalds by a London environmental group with which the applicants were associated.

The European Court noted that the applicants had received no legal aid since this was not provided for in such cases under the law then in force. As a result, considering the applicants’ modest means and the complexity of the case, the Court found that they were deprived of the opportunity to present their case effectively before the courts and that there was an “unacceptable inequality of arms” (§72 of judgment).

The European Court also found that in these circumstances, and given the disproportionate damages awarded by the domestic court against the applicants, there had been a failure to strike the correct balance between the need to protect the applicants’ right to freedom of expression and the need to protect the rights and reputation of the plaintiff companies (violation of Article 10).

The payment of the damages awarded against the applicants in the domestic proceedings was not enforced prior to the European Court’s judgment. The European Court noted that because of the period of time that had elapsed since the order for damages was made against the applicants, McDonald’s would need the leave of the domestic courts before it could attempt to enforce the award. Therefore it made no award for pecuniary damage. The United Kingdom authorities are not aware that McDonalds has ever applied for leave to enforce the judgment. If such an application were made, the domestic court would have regard to the decision of the European Court.

No other individual measure was considered necessary by the Committee of Ministers

a) England and Wales: Subsequent to the facts of this case, the Access to Justice Act 1999 (AJA 1999), concerning legal aid in England and Wales, came into force (01/04/2000). Legal aid is in principle still excluded for defamation cases, but Section 6(8) of this Act nonetheless allows the Lord Chancellor to authorise the Legal Services Commission to grant legal aid to an individual defamation litigant following a request from the Commission. Guidance on the making of such requests was issued by the Lord Chancellor to the Commission, and was updated following the judgment of the European Court. The updated version makes it clear that this judgment is to be considered the “benchmark” by which cases are to be considered. In addition, the government has undertaken to keep the guidance under review, and revise it as necessary to reflect any further developments in the jurisprudence of the court.

b) Northern Ireland: The legislative position in Northern Ireland in relation to legal aid in defamation cases is comparable to that in England and Wales. Under Article 10A of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 the Department of Justice may authorise the Northern Ireland Legal Services Commission to grant legal aid to an individual defamation litigant following a request from the Commission. Guidance was issued on the making of such requests, under Article 8 of the Access to Justice (Northern Ireland) Order 2003, and is in comparable terms to that issued in England and Wales.

c) Scotland: The Legal Profession and Legal Aid (Scotland) Act 2007 received Royal Assent on 19/01/2007. Section 71 of the Act contains provisions amending s. 14 of the Legal Aid (Scotland) Act 1986 relating to defamation or verbal injury. Section 71 of the 2007 Act ensures the implementation of the Steel and Morris judgment in Scotland, by ensuring that civil legal aid will be available to pursuers and defenders alike, subject to an “exceptional cases test” which is set out in a ministerial direction.

The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2010 came into force on 26/10/2010. This ensures that in making civil legal aid available for persons in proceedings that are wholly or partly concerned with defamation or verbal injury, the Scottish Legal Aid Board must be satisfied (in addition to the usual statutory tests) that: (i) there is significant wider public interest in the resolution of the case and funded representation will contribute to it; or (ii) that the case is overwhelming importance to the person, and (iii) that there is something exceptional about the person or the case such that without public funding for representation, it would lead to obvious unfairness in the proceedings. In determining whether there is something exceptional about the person or the case, the Board must be satisfied that the degree of exceptionality is the same or is approximately the same as in the case of Steel and Morris.

The judgment of the European Court has received wide coverage and comment in the national and local press and broadcast media. In addition, it was the subject of a Parliamentary question on 22/02/2005. The competent courts are therefore informed of the judgment and are able to put it into effect, with respect to both the question of legal aid in similar cases and the proportionality of damages.

The judgment of the European Court was published at: The Times Law Reports, 16/02/05; The European Human Rights Reports (2005) 41 EHRR 22; The Entertainment and Media Law Reports [2005] E.M.L.R. 15; The Law Quarterly Review (20054) Vol. 121 (July 2005), pp. 395-399; The European Human Rights Law Review (2005) 3 E.H.R.L.R., pp. 301-309.

The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
--	35 000 EUR	47 311,17 EUR	82 311,17 EUR
Paid within the time-limit set

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You are here: BAILII >> Databases >> European Court of Human Rights >> Steel and Morris against the United Kingdom - 68416/01 [2011] ECHR 2272 (2 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2272.html Cite as: [2011] ECHR 2272