CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 7 mai 2002

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THE UNITED KINGDOM     The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case McVicar McVic ar [Note1]     v. the United Kingdom (application no. 46311/99).   The Court held, unanimously, that there had been: no violation of Article 6 § 1 of the European Convention on Human Rights (right to a fair hearing); no violation of Article 10 (freedom of expression).   (The judgment is available only in English.)     1.     Principal facts   John McVicar is a British national, a journalist and broadcaster. He was born in 1940 and lives in London.   In September 1995 an article was published in the magazine Spiked in which Mr McVicar suggested that the athlete Linford Christie used banned performance-enhancing drugs.   In December 1995 Mr Christie brought an action in the High Court for defamation against Mr McVicar. During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because legal aid was not available for defamation actions. His defence was that the allegations made in the article were true in substance and in fact. The applicant wished to rely on the evidence of an athlete, who had allegedly told the applicant that Mr Christie had introduced him to performance-enhancing drugs, and an osteopath who had been involved in sports medicine for over 20 years and had treated Mr Christie. The osteopath allegedly told the applicant that he could tell by the look and feel of an athlete’s body whether that athlete had taken performance-enhancing drugs, and that he was certain Mr Christie had been a regular user. The trial judge refused to admit the evidence of either witness, however. The judge found that it would be unfair to allow the osteopath to give evidence at trial without giving Mr Christie time to call counter-evidence, but that to order an adjournment for this purpose would itself be prejudicial to Mr Christie because Mr McVicar did not have sufficient means to provide an indemnity for the extra costs which would be incurred as a result.   The judge refused to   admit the athlete’s evidence on the grounds that it would be unfair to Mr Christie to be faced with wide allegations about his drug-taking, the details of which he would not know until the witness took the stand. Mr McVicar appealed unsuccessfully against the trial judge’s exclusion of the evidence of the osteopath and the athlete. The trial started on 8 June 1998. The applicant represented himself, as his funds were exhausted. On 3 July 1998 the jury found, by a majority of ten to two, that the article complained of bore the meaning that: Mr Christie was “a cheat who regularly used banned performance   enhancing drugs to improve his success in athletic competition”. It also found   that the applicant had not proved that the article as so interpreted was substantially true. Mr McVicar was ordered to pay costs and was made subject to an injunction preventing him from repeating the allegations.   2.     Procedure and composition of the Court   The application was lodged with the Court on 18 December 1998 and declared partly admissible on 10 May 2001.   Judgment was given by a Chamber of seven judges, composed as follows: [Note2] Christos Rozakis (Greek), President , Françoise Tulkens (Belgian), Nicolas Bratza (British), Peer Lorenzen (Danish), Nina Vajić (Croatian), Anatoly Kovler (Russian), Vladimiro Zagrebelsky (Italian), judges ,   and also Erik Fribergh , Section Registrar .     3.     Summary of the judgment [2]   Complaints The applicant alleged that the inability of a defendant to a libel action to claim legal aid constituted a violation of Articles 6 § 1 and 10 of the European Convention on Human Rights. He also submitted that the exclusion of witness evidence at his trial, the burden of proof which he faced in pleading a defence of justification, the order for costs made against him and the injunction restricting future publication further violated Article 10.           Decision of the Court   Article 6 § 1 Concerning Mr McVicar’s ineligibility for legal aid, the Court noted that he was a well-educated and experienced journalist who would have been capable of formulating cogent argument. The fact that he was represented between 30 April 1998 and the start of the trial by a specialist defamation lawyer, who had worked previously for his co-defendants in the action, illustrated further that he was not prevented from presenting an effective defence by his ineligibility for legal aid.   The Court also considered that the rules concerning the refusal to admit the evidence of the two witnesses were clear and unambiguous and that the applicant and his legal representative could have taken certain steps earlier in the proceedings which might have had a bearing on the decision to exclude that evidence, but that they had failed to do so.   The Court concluded that the applicant was not prevented from presenting his defence to the defamation action effectively in the High Court, nor were the proceedings made unfair, by reason of his ineligibility for legal aid. It therefore held, unanimously, that there had been no violation of Article 6 § 1.   Article 10 Given its conclusion, in relation to Article 6 § 1, that the applicant was not prevented from presenting his defence effectively to the High Court or denied a fair trial by reason of his ineligibility for legal aid, the Court considered that ineligibility for legal aid did not interfere with the applicant’s right to freedom of expression under Article 10.     As for the exclusion of the evidence of the two witnesses, the Court noted that the evidence concerned was excluded following detailed analysis by the trial judge and Court of Appeal of the competing public interests at stake and the balance which had to be struck between those interests. As a result of the balance which was struck by the Court of Appeal, the applicant was allowed to rely on certain evidence at trial notwithstanding the fact that it had not been submitted in accordance with the rules. The Court considered that there were no grounds for criticising the way in which the trial judge and Court of Appeal balanced the competing interests involved.   Therefore, to the extent that the exclusion of the two witness’ evidence interfered with the applicant’s right to freedom of expression under Article 10, the Court considered that such interference was justified as being necessary for the protection of the rights of Mr Christie.   The Court also considered that it was not disproportionate to require the applicant to pay Mr Christie’s costs in relation to the defamation proceedings. Nor was it disproportionate to prohibit repetition of the allegations. To the extent that the order and injunction were capable of discouraging the participation of the applicant and other journalists in debates over matters of legitimate public concern in the future, it followed that this was justified under Article 10 § 2 as being necessary for the protection of the reputation and rights of Mr Christie.   The Court considered that the potential consequences of the allegations made in the article for an individual who had achieved fame and fortune purely as a result of his athletic achievements were very grave.   The Court was not in a position to comment as regards the extent to which the applicant could reasonably rely on his sources when writing the article, since the identity of those sources was unclear. However, the Court noted that a number of factors indicated that the applicant was concerned with verifying the truth or reliability of the allegations to a high standard only after the event, once the defamation proceedings had started. First, the applicant stated in his application to the Court that the assessment of whether Christie used or was justifiably to be suspected of using performance-enhancing drugs was inevitably going to involve considerable expert evidence, access to which was constrained by the applicant’s limited financial means. Secondly, the offending article itself made no mention of any authoritative basis for the drug-taking allegation. Indeed, the applicant conceded in the article that “there is no bloody hypodermic needle, and no direct evidence that points the finger at Christie”, and that the allegation was supported only by “circumstantial evidence”. Thirdly the evidence which the applicant described as crucial to his case, was initially presented in very vague terms more than a year after the article was published, and was elaborated upon only immediately before commencement of the trial.   In all the circumstances, the Court considered that the requirement that the applicant prove that the allegations made in the article were substantially true on the balance of probabilities constituted a justified restriction on his freedom of expression under Article 10 § 2, in the interests of the protection of the reputation and rights of Mr Christie.   The Court therefore held, unanimously, that the unavailability of legal aid, exclusion of witness evidence, the order to pay Mr Christie’s costs and the injunction as well as the rule on the burden of proof did not violate Article 10.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court. [Note1]   To be checked. [Note2]   Titles to be added in appropriate place. Line returns – and not paragraph returns – should be used (Shift+Enter).