Full case report

Heesom v Public Services Ombudsman for Wales

Reference [2014] EWHC 1504 (Admin)
Court High Court (Admin)

Judge Hickinbottom J

Date of Judgment 15 May 2014


Summary

Freedom of expression- article 10- legitimate restrictions- politicians- civil servants


Facts

The appellant (H) was a long-standing local councillor of Flintshire County Council in Wales. On 12 March 2009, the Public Services Ombudsman for Wales (the Ombudsman) received a complaint about H’s conduct submitted by Council Senior Officers. The matter was referred by the Ombudsman to the Adjudication Panel for Wales for adjudication by a case tribunal.

The tribunal found that H had committed 14 breaches of the Council’s Codes of Conduct by failing to show respect and consideration for Council officers, using bullying behaviour, attempting to compromise the impartiality of officers and conducting himself in a manner likely to bring his office or the Council in disrepute. In terms of sanction, the tribunal disqualified H from being a member of the Council or of any other local authority for two and a half years.

H challenged the tribunal’s decision (see [6] of the judgment).


Issue

1. The appropriate standard of proof in an adjudication by a case tribunal of the Adjudication Panel for Wales.

2. The scope of and legitimate restrictions to a politician’s right of freedom of expression under article 10 of the European Convention of Human Rights and at common law, particularly in relation to civil servants’ rights and interests which might be adversely affected by the purported exercise of those rights.


Held

1. The appropriate standard of proof was the civil standard of the balance of probabilities (see [66] for the Judge’s reasoning).

2. Whilst freedom of expression was important to everyone, Strasbourg had recognised the particular importance of expression in the political sphere. It had long recognised that what was said by elected politicians was subject to enhanced protection, Castells v Spain (1992) 14 EHRR 445 considered.

A number of principles could be derived from the relevant Strasbourg case law namely (see [38] of the judgment for the cited authorities):

i) The enhanced protection applied to all levels of politics, including local.

ii) Article 10 protected not only the substance of what was said, but also the form in which it was conveyed. In a political context, the immoderate, offensive, exaggerated and aggressive may be tolerated where it would not otherwise be. Article 10 protected the right to make incorrect but honestly made statements; it did not protect statements which the publisher knew to be false.

iii) Politicians were subject to wider limits of acceptable criticism. They were expected to be more thick-skinned and tolerant to comment than ordinary citizens.

iv) Enhanced protection applies also to those who commented upon politics and politicians, notably the press.

v) Political expression was a broad concept in this context, extending to all matters of public administration and public concern, including the manner of performance of public duties by others.

vi) Comments in the political context were tolerated even if untrue, so long as they had some factual basis. What amounted to a value judgment as opposed to fact would be generously construed in favour of the former.

vii) The State’s margin of appreciation had to be construed narrowly in the context of restrictions on political speech.

Non-elected civil servants acting in an official capacity were, like politicians, subject to the wider limits of acceptable criticism, Janowski v Poland (1999) 29 EHRR 705 and Mamère v France (2009) 49 EHRR 39 considered. The limits, however, were not as wide as for elected politicians, who came to the arena voluntarily and had the right and ability to respond to commentators. It was in the public interest that civil servants were not subjected to unwarranted comments that would disenable them from performing their public duties and undermine public confidence in the administration. It was a legitimate aim of the State to protect public servants from unwarranted comments that had, or could have, adverse effects on good administration.

The tribunal had clearly considered with great care whether what had been said by H to the Council officers had been political expression. Some cases they found to be borderline; but there was no evidence to suggest that, having found those more difficult cases to be ones of political expression, they then gave less than fully enhanced protection to them. The case tribunal had been correct to proceed on the basis that there was a mutual bond of trust and confidence between councillors and their officers and that the comments made by H had the potential of impairing this trust, Ahmed v United Kingdom (2000) 29 EHRR 1 considered. For a consideration of the other issues on appeal see [86]-[227].

On the facts, interference with H’s article 10 rights was justified. However, a proportionate sanction would be 18 months, and the period of disqualification was so reduced.


Comment

The decision offers useful guidance on the application of article 10 where critical comments are made of a civil servant or officer, as opposed to a politician. In the former case, the limits of acceptable criticism are seemingly narrower (see for example with McEvoy v Michael [2014] EWHC 701 (QB)).

Where critical comment is made of a civil servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that civil servant must be weighed against the interest of open discussion of matters of public concern, and if the relevant comment is made by a politician in political expression, the enhanced protection given to his right of freedom of expression, see Mamère.

It is worth noting that the existence of a relationship of trust between H as Councilor and the subject of his criticism as Council officers weighed heavily in the Judge’s conclusion that a restriction on article 10 was justified. In contrast, in Janowski, the interference with article 10 was justified where the applicant, acting as a private individual and not as a journalist, had insulted municipal guards. A relationship of trust, therefore, is not determinative.


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Instructing Solicitors

Howe & Co for the Appellant, Katrin Shaw, Legal Adviser, The Public Service Ombudsman for Wales for the Respondent, the Treasury Solicitor for the Interveners