Lexploria

INTRODUCTION

1. This Report relates to Application No. 10038/82 introduced

against the United Kingdom by Ms Harriet Harman on 6 August 1982 under

Article 25 (art. 25) of the European Convention for the Protection of

Human Rights and Fundamental Freedoms. The application was registered

on 10 August 1982. The applicant was represented in proceedings

before the Commission by Messrs. Seifert, Sedley & Company,

solicitors, Mr. Anthony Lester, Q.C. and Mr. Andrew Nichol, of

counsel. The Government were represented by their Agent,

Mr. Martin Eaton, Foreign and Commonwealth Office.

2. The European Commission of Human Rights, following an oral

hearing on the admissibility and merits of the application, declared

the application admissible on 11 May 1984. It then proceeded to carry

out its tasks under Article 28 (art. 28) of the Convention, which

provides as follows:

"In the event of the Commission's accepting a petition referred to it:

(a) it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination of the

petition and, if need be, an investigation, for the effective conduct

of which the States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall place itself at the disposal of the parties concerned

with a view to securing a friendly settlement of the matter on the

basis of respect for Human Rights as defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case, and, at its session on 15 May 1986, adopted

this Report which, in accordance with Article 30 (art. 30) of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

4. The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

PART ONE

STATEMENT OF THE FACTS

5. The applicant, Ms. Harriet Harman, born in 1950, was at the

time of the introduction of the application a solicitor by profession.

She is, at present, a Member of Parliament and resides in London.

6. In 1980 the applicant, who was then a legal officer of the

National Council for Civil Liberties (NCCL), acted as a solicitor in a

civil action brought by a prisoner (Mr. Williams) against the Home

Office. While serving a term of imprisonment, Mr. Williams had spent

six months in a special "Control Unit" designed for prisoners who were

considered disruptive by the prison authorities. He brought legal

proceedings against the Home Office, claiming inter alia damages for

false imprisonment.

7. In the course of these proceedings Mr. Williams was granted,

by court orders, discovery of certain documents to be used at the

trial of the action. The applicant subsequently received a letter

from the Treasury Solicitor, seeking assurances that the documents

disclosed by way of discovery would only be used for the purposes of

the legal action and would not be used for the general purposes of

NCCL. The applicant replied that she was "well aware of the rule that

requires that documents obtained on discovery should not be used for

any other purpose except for the case in hand".

8. At the hearing of the action, which began on 25 February 1980,

and which continued for 22 days, the material parts of 800 pages of

documents which had been disclosed by the Home Office were read out in

court during the plaintiff's opening address. However, the

admissibility of the documents were not agreed by the Home Office and

the trial judge ruled that most of them were inadmissible as evidence.

The trial was attended by journalists and subsequent newspaper reports

contained references to the material that had been read out.

9. At the end of the hearing the applicant allowed

Mr. David Leigh, a journalist working with the Guardian Newspaper, to

inspect those documents which had been read out in open court. She

considered that since all material parts of the documents had been

read aloud, the documents were no longer confidential. Mr. Leigh

inspected the documents in her office and subsequently wrote an

article which was published in the Guardian Newspaper on 8 April 1980,

providing a critical account of the "Control Units" which were the

subject of the civil action.

10. On 12 June 1980 the Home Office applied to the Divisional

Court for the applicant to be punished, other than by committal, for

contempt of court. It was alleged that, in allowing Mr. Leigh to

inspect the documents which had been read aloud in open court, she had

broken her undertaking not to use the documents produced upon

discovery for a collateral or ulterior purpose. On 27 November 1980,

the Divisional Court ruled that the applicant had acted in contempt of

court although it was accepted that she had acted in good faith. An

appeal to the Court of Appeal was dismissed with costs on

6 February 1981 and a further appeal to the House of Lords was also

dismissed with costs on 11 February 1982. A majority of the House of

Lords (Lords Diplock, Keith and Roskill) held that the good

administration of justice required that the implied obligation of

confidentiality continued, notwithstanding the use of the documents in

the course of a trial open to the public.

11. In the proceedings before the Commission, the applicant

complained that the decisions of the English courts constituted an

interference with her freedom of expression and freedom to impart

information, contrary to Article 10 (art. 10) of the Convention. She

further complained that the restriction on her right to impart

information was discriminatory contrary to Article 14 (art. 14) of the

Convention and, with reference to the uncertainty of the law, and the

novel interpretation of it by the courts, that she had been found

guilty of an act which did not constitute a criminal offence under the

law of the United Kingdom at the time it was committed, contrary to

Article 7 para. 1 (art. 7-1) of the Convention.

12. On 17 December 1982 the Commission decided to bring the

application to the notice of the respondent Government for

observations on its admissibility and merits. The Commission declared

the application admissible as a whole, following an oral hearing on

10 and 11 May 1984.

13. Finally, a friendly settlement of the case was reached, as

described at Part Two.

PART TWO

SOLUTION REACHED

14. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement, in accordance

with Article 28 para. b (art. 28-b) of the Convention, and invited the

parties to submit any proposals they wished to make.

15. After an exchange of proposals by correspondence, the

Secretary met with each of the parties separately on 17 June 1985 in

London with a view to discussing with them the possibilities of

reaching a friendly settlement of the case.

16. In a letter dated 26 November 1985 the Agent of the United

Kingdom Government, Mr. Eaton, stated that his Government's proposals

for a friendly settlement were as follows:

"The Government are prepared to undertake to seek to change the law so

that it will no longer be a contempt of court to make public material

contained in documents compulsorily disclosed in civil proceedings,

once those documents have been read out in open court. The substance

of the change would be that where a document or part of a document so

disclosed to a party in civil proceedings has been read out in open

court, the implied undertaking given by the person to whom such

disclosure has been made not to use the document for any purpose other

than the proper conduct of his own case should not prevent his using

that document for the purpose of his making the contents of the

document, or that part of it, as the case may be, known to any person.

This change would not apply in the case of a document, or part of a

document, which was the subject of an order of the court preventing

its disclosure otherwise than to the parties to the action."

17. Following a meeting with the Secretary in London on

24 April 1986 the applicant's legal representative, Mr. Seifert,

indicated in a letter of the same date, which was communicated to the

respondent Government, that his client was prepared to accept the

above offer. This acceptance was subject to agreement on the question

of legal costs.

18. The Agent of the Government of the United Kingdom confirmed

the above offer in a letter dated 7 May 1986, adding that the

Government had agreed to pay the sum of £36,320 in respect of the

applicant's legal costs and expenses.

19. In a telex dated 12 May 1986 the applicant's legal

representative stated as follows:

"Further to our letter of 24 April I am very pleased to inform you

that we have agreed all legal costs with the Government of the United

Kingdom and, as far as the applicant is concerned, the terms of the

friendly settlement are satisfactory."

20. At its session on 15 May 1986, the Commission noted that the

parties had come to an agreement regarding the terms of a settlement.

The Commission found, having regard to Article 28 para. b (art. 28-b)

of the Convention, that a friendly settlement of the matter had been

secured on the basis of respect for human rights as defined in the

Convention.

For the above reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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HARMAN v. THE UNITED KINGDOM

HARMAN v. THE UNITED KINGDOM