178
101.
The Attorney General then spoke with Quine. Quine's note on file recorded his conversation w Attorney General as follows:-
102.
55
the
"A.G. said that the statement is 'potentially' contempt of court and to publish would be an irresponsible act on Fulton's part. A.G. added that certain matters attributed to him were inaccurate. I asked A.G. if he had any power to prohibit publication of the statement; he said an injunction could be sought but he was not prepared to do so. A.G. concluded that it is a matter for the Police but CP should clear with H.E."
56
The Attorney General then discussed the matter with his Assistant, Mr. Astin, and went to the Legal Department library and "flicked through a textbook." He said, it became "quite clear to my mind that we were in the area of contempt. I was also quite clear to my mind about the nature of the statement against myself.' The Attorney General came to this view within an hour of receiving the photocopy of the draft statement, and then he telephoned Burns.
103. After that telephone call, Burns had a short discussion over the telephone with Mr. Quine and agreed on certain relatively minor amendments to the draft (Ex. B107). It was also agreed that the statement would not be released by the Police Public Relations Wing but by Fulton or his solicitors Johnson, Stokes and Master on behalf of Fulton.
104.
Burns said in evidence:-57
"Although, as I have said, I felt confident that the draft statement was neither a contempt of court nor a libel, the suggestions, coming as they did from the Attorney General, obviously merited serious consideration by my firm and accordingly, I consulted one of the partners, Mr. Robin Peard. After looking at the authorities, both Mr. Peard and I came to the view that the statement was neither a contempt of court nor a libel. However, it was decided that the opinion of leading counsel should be sought and a consultation was arranged with Mr. Charles Ching, Q.C. Mr. Ching confirmed the views of myself and Mr. Peard that the draft statement was not libelous and it did not constitute a contempt of court but he suggested that the statement should be redrafted in order to avoid any suggestion of contempt or libel. The statement which subsequently appeared in the press was that drafted by Mr. Ching."
105. Was the draft public statement capable of being a contempt of court and a libel against the Attorney General personally? Clearly not.
106. The test as to whether a contempt is committed is whether the person making the public statement knew that proceedings were pending or imminent, which requires, in the present context, at least the knowledge that a person has been or is about to be arrested.58 Neither the Attorney General nor Burns possessed that knowledge. Indeed the Attorney General most probably would be informed if an arrest were imminent as it was very likely that his views would be sought before an arrest since it was he who originated the CAPO investigation. The investigation at that stage was very far from complete. Indeed the Attorney General had no idea of the stage which the CAPO investigation had reached. He therefore had no factual basis to suggest that the draft statement was capable of being a contempt of court.
107.
Clearly, there could not be libel. The passage in the draft statement which the Attorney General complained of as being capable of being a personal libel was the sixth paragraph, namely:—59
"The statements of the Attorney General and Mrs. Elliott, taken together suggest that our client had made serious allegations of impropriety concerning the conduct of individual members of the SIU and had subsequently withdrawn those allegations. This is not the case and our client is concerned that his involvement in the matter has therefore been misrepresented."
108. A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally, or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business.60 If the words are defamatory, the law presumes that they are false.61 I find it difficult to infer from the passage in question any suggestion that would, in the light of the foregoing statement of law, be defamatory of the Attorney General, particularly as there was no suggestion that he had deliberately misrepresented anything. In any event, I find it difficult to reconcile the Attorney General's attitude towards this passage with his knowledge that Fulton was alleging a set-up and not a frame-up.
55 See Commission File A, page 138CK.
56 See Transcript page 11606H.
57 See Transcript pages 3508-3509.
58
59
See R. v. Savundra (1968) 3 All E.R. 439; also S. 4(1) of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap. 287 which provides: "A person shall not be guilty of contempt of court on the ground that he has published any matter calculated to interfere with the course of justice in connection with any proceedings pending or imminent at the time of publication if at that time, having taken all reasonable care, he
did not know and had no reason to suspect that the proceedings were pending, or that such proceedings were imminent, as the case may be.". See paragraph 6, Commission Exhibit No. B107 and Transcript page 12008.
60 See Halsbury Laws of England, 4th Ed. Vol. 28, paragraph 10.
61 See Halsbury Laws of England, 4th Ed. Vol. 28, paragraph 16.
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