The Gazette 1976

SEPTEMBER 1976

GAZETTE

and unreasoning prejudice as to constitute malice in law sufficient to destroy the privilege. On appeal by the Alderman, to the Court of Appeal it was held, allowing the appeal that as the Alderman had been found to have honestly believed what he said was true and believed that it needed to be said in the public interest, the qualified privilege attaching to the occasion could only be destroyed if he were proved to have been actuated by express malice in a sense of spite or ill will. Lord Denning said:— Defamatory Statements "It is of the first importance that the members of a local authority should be able to speak their minds freely on a .matter of interest in the locality. So long as they honestly believe what they say to be true, they are not to be made liable for defamation. They may be prejudiced and unreasonable. They may not get their facts right. They may give much offence to others. But so long as they are honest they go clear. No councillor should be hampered in his criticisms by fear of an action for slander. He is not to be forever looking over his shoulder to see if what he says is defamatory. He must be allowed to give his point of view, even if it is hotly dis- puted by others. This is essential to free dis- cussion". The attitude of the Aldermann had been described as one of brinkmanship, megalomania or childish petulance). This recent and authoritatively reported case on the topic casts the net very wide. "Minutes of the Proceedings of all such Meetings shall be drawn up, and fairly entered into a Book to be kept for that purpose and shall be signed by the Mayor, Alderman or Councillor or Com- missioner presiding at such meeting; and the said Minutes shall be open to the inspection of any Burgess or Voter at all reasonable times, on pay- ment of a fee of One Shilling, and any Burgess shall be at liberty at all reasonable times to make any copy or take any extract from such Book". The obligation is reiterated in S.55 of the Commis- sioners Clauses Act, 1847, and again in the Public Bodies Orders of later years. The minutes of Statutory Committees where the relevant Act so provides may be open to inspection, with a right to take copies. The right of inspection and to take copies or extracts is not confined to the individual person entitled by statute; the right may be exercised through an agent (R. v. Gloucestershire County Council (1936) 2 All E.R. 168). Further it is a right available to electors, as such, not to persons who desire to inspect for other motives (R. v. Wimpledin Urban District Council (1897) 62 J.P. 84). The minutes of a committee exercising referred powers, if submitted to the council for approval, are AFTER THE MEETING Minutes The obligation to keep minutes of meetings is re- ferred to in several enactments, S.92 of the Municipal Corporations Act, 1840, expresses it thus:—

of Councils Order, 1899, and S.187 of the Grand Jury Act. The Justice applied Tenby's case and stated:— "In view of the complexity of the law on the sub- ject the Defendants may have genuinely but mis- takenly believed that they had a right as citizens to enter the meeting and although the actual method of entry revealed a certain amount of clever planning I am disposed to give them the benefit of the doubt on the "forcible entry" charge and hold that they entered in pursuance of a bona fide belief." On another aspect of the case the Justice bound the Defendants to the peace on very stringent and special terms. Regarding the jurisdiction of the Gardai, I do not think that people interrupting a Council meeting, whether members of the Council or of the public, could ipso facto be prosecuted, nor could they be bound over without some strong justification, stem- ming probably from anticipated offences or anticipated breach of the peace. Whether or not a Garda who, at a Council meeting, reasonably apprehended the occurrence of a breach of the peace if a certain person or persons did not leave the meeting, could require them to do so (or at least to be silent) without recourse to the authority of the Council or of the Chairman may be debatable. It may well be that the principle of Duncan v. Jones (1936) 1 K.B. 218 would apply and a person failing to comply would be guilty of wilfully obstructing a Garda in the execution of his duty. At any rate it was held in Thomas v. Sawkins (1935) 2 K.B. 249 that the Gardai had a right at common law to be present at a public meeting held on private premises, if they reasonably apprehended that, if they were not present, seditious speeches would be made, or a breach of the peace would take place. Assuming that the Irish Courts are prepared to take a similar view I see no reason why they should be reluctant to enter the Council Chamber, and every reason why they should do so (and deal with the breach of order). What has been stated in relation to defamatory motions on the Agenda may be reiterated in relation to defamatory statements generally made at a meet- ing. So long as a person believes in the truth of what he says and is not reckless, malice cannot be inferred from the fact that his belief is unreasonable, pre- judiced or unfair. Of the two particular facets of defamatory state- ments I referred to I understand that that dealing with the "governing" reputation with a local authority is entitled to protect in the case of Bogrtor Regis Urban District Council v. Campion (1972) 2 Q.B. 169 has been fully discussed at an earlier Seminar. Hence I will con- fine my remarks to the case of Horrocks v. Low (1972) 1 W.L.R. 1625; (1972) 3 All E.R. 1098 C.A. There: — Councillor Horrocks issued a writ against Alder- man Lowe, each of them being members of Bolton Council, claiming damages for slander. At a meet- ing of the authority the Alderman claimed justifi- cation and fair comment on a privileged occasion. By his reply the Councillor pleaded that the Alderman was actuated by express malice. Stirling J. held that the occasion was privileged, that the Alderman had honestly believed that what he had said was true but that he had shown such gross

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