An English barrister, Sir Louis Blom-Cooper QC, has appealed against an Irish High Court decision allowing two members of the wrongly jailed Birmingham Six to sue him and his publishers for defamation arising from a pamphlet written by him.
Two members of the Six, Hugh Callaghan and Gerry Hunter, have brought defamation proceedings against Mr Blom-Cooper and the pamphlet’s publishers, Gerald Duckworth and Company Limited, of London.
They claim the 1997 pamphlet The Birmingham Six and Other Cases, subtitled 'Victims of Circumstances', through inference and innuendo, meant the quashing of their convictions did not imply they were entitled to be presumed innocent.
The Birmingham Six were finally released in March 1991 after 16 years in prison when the English Court of Appeal quashed their convictions arising from the Birmingham pub bombings of 1974, in which 20 people died.
In the High Court in 2003, Mr Jusice Aindrias O Caoimh rejected arguments by Mr Blom-Cooper and his publishers that the contents of the booklet could not give rise to a defamation action. The judge stressed he was not expressing any view on the merits of the defamation claims brought.
Today, a five judge Supreme Court, presided over by the Chief Justice, Mr Justice John Murray, began hearing the appeal by Mr Blom-Cooper and Duckworth’s, presented by Michael Ashe SC and Geoffrey Roberston QC.
Counsel argued the appeal raised fundmaental issues concering the nature and extent of the right of freedom of expression and the restrictions which may be impsoed on that right for the protection of a perosn’s reputation/good name under the Irish Constitution, the European Convention on Human Rights and EU law.
Mr Ashe submitted the pamphlet could not be considered defamatory as Mr Blom-Cooper was merely exercising his constitutional right to freedom of expression and was entitled to analyse and comment on matters of public record.
His client had set out that the English Court of Appeal was “agnostic” as to the guilt or innocence of persons, counsel said. There was no “unjust attack” on the good name of the plaintiffs and therefore no cause of action for defamation, he added.
There was nothing in the pamphlet that was abusive or suggesting the plaintiffs were really guilty.
Mr Ashe said the pamphlet addressed the fact of several miscarriages of justice which were “deeply embarrassing” to the English legal system and had created a public perception innocence was being ignored. Mr Blom-Cooper was seeking to explore the relevant legal principles and to counter-balance that public perception and the misconception of the function of the appeal court which had itself said its function was not to declare innocence.
His motivation in writing the pamphlet was to “redress the balance” in the public perception of the English legal system.
The honesty of this author in setting out the facts was “palpable”.
Opposing the appeal, Seamus O Tuathail SC, for Mr Callaghan and Mr Hunter, said the pamphlet involved a serious defamation of his clients but the appellants case was essentially to the effect that freeedom of speech was protected to the extent his client’s action should not be heard.
The appellants' argument was that freedom of speech takes absolute precedence over the right to one’s good name and no balancing is allowed, counsel said. That was “fundamentally incorrect”.
It was his case that Mr Blom-Cooper had selected certain facts and discussed these and used innuendo and inference to defame his clients, counsel submitted. This pamphlet suggested to the average reader his clients were “guilty of mass murder”, he said.
The appeal is expected to conclude tomorrow, Thursday.
