Full case report
McVicar v United Kingdom
Reference Application no. 46311/99; (2002) 35 EHRR 21
Court European Court of Human Rights
Judge Rozakis (President), Tulkens, Bratza, Lorenzen, Vajic, Kovler and Zagrebelski (Judges), and Fribergh (Section Registrar)
Date of Judgment 7 May 2002
Human rights – Defamation – Libel – Unavailability of legal aid – Exclusion of evidence – Burden of proof – Costs – Injunction – Effective access to a court – Article 6, ECHR – Freedom of expression – Article 10, ECHR
An article written by the Applicant was published which suggested that the athlete Linford Christie used prohibited performance-enhancing drugs. Christie brought a libel action. The trial judge refused to allow the Applicant to call certain witnesses, because their evidence exceeded what had been put in gist notices and the other evidence had been put in too late. The Applicant, representing himself and relying on a defence of justification, lost the trial of the action. Christie had not sought damages but the Applicant was ordered to pay the costs of the action and was made subject to an injunction not to repeat the allegation. The Applicant applied to the Strasbourg court, contending that the unavailability of legal aid violated his Article 6 right to effective access to a court, and that the unavailability of legal aid, exclusion of witness evidence and burden of proof, together with the costs order and the injunction violated his rights under Article 10.
(1) Whether the unavailability of legal aid in defamation proceedings violated the Applicant’s right to effective access to a court under Article 6;
(2) Whether the unavailability of legal aid, the exclusion of witness evidence and the burden of proof which the Applicant faced, together with the order that he pay Mr Christie’s costs and the injunction prohibiting repetition of the allegations, violated the Applicant’s right to freedom of expression under Article 10.
Finding violations of neither Article:
(1) Neither the fact that the proceedings took place in the High Court nor the burden of proof required that the well-educated Applicant be legally represented. The rules on witness evidence were clear; the Applicant should have understood what was required of him. The applicable law was not sufficiently complex to require legal assistance, turning on the simple question of substantial truth. Further, he had obtained represention in earlier stages.
(2) The unavailability of legal aid did not interfere with the Applicant’s Article 10 rights. The exclusion of evidence was a justified interference. The injunction was not unduly wide. The award of costs was necessary and proportionate. The requirement that the Applicant prove the substantial truth was justified in the circumstances, including the very grave nature of the allegations and the fact that the Applicant was only concerned to prove the truth of the allegations after the event.
Although the Court found the allocation of the burden of proof not to have infringed Article 10 “in all the circumstances”, it is not clear from the judgment whether it considered that this would always be so. For a more recent examination of the issue of Articles 6 and 10 and legal aid in defamation proceedings, see Steel & Morris v UK
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