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)