1. The McVicar case

1.1 Article 6

In McVicar, the Court rejected a complaint that there had been a breach of Article 6 because legal aid was not available to the applicant in his libel proceedings. At para.48, the Court set out the general proposition that:

" … Article 6(1) leaves to the State a free choice of the means to be used in guaranteeing litigants a right of effective access to court. The question whether or not that Article requires the provision of legal representation to an individual litigant will depend upon the specific circumstances of the case and, in particular, upon whether the individual would be able to present his case properly and satisfactorily without the assistance of a lawyer." Having set out the factors that led to the decision in Airey v Ireland (Series A, no.32), the Court then dealt with the factors advanced by McVicar as demonstrating his need for a lawyer.

1.2 Article 10

The Court in McVicar also rejected a complaint that there had been a breach of Article 10 because, among other things, the unavailability of legal aid, the exclusion of witness evidence and the burden of proof all operated to deny the applicant his right to freedom of expression. The Court rejected the complaint on a number of grounds, stating that a fair balance had been struck between restrictions on the freedom of expression of the applicant and the protection of the reputation and rights of Linford Christie (the subject of the article complained of).

We will deal with each of these findings by the Court in turn and, in each case, explain how the applicants' case in Steel and Morris v UK is different. However, before doing so we make a number of general observations.

2. General Observations

2.1 The cases of Steel and Morris v UK and McVicar v UK are wholly different. In McVicar the applicant was a journalist who wrote the article complained of. In Steel and Morris, the applicants are campaigners who were found merely to be responsible for distribution of a leaflet, written by others, as part of a protest against McDonalds. There is a world of difference between the burden on a journalist, without a lawyer, to prove what he wrote was true: he is, almost by very definition, his own best witness and readily knows which witnesses to approach, proof and prepare. For campaigners to prove the truth of the contents of a campaigning leaflet, particularly one raising several profound global issues, without any legal assistance whatsoever is nigh on impossible.

2.2 In McVicar there was one issue, and it was a very narrow issue: had the athlete Linford Christie used banned drugs. By way of contrast, it is hard to imagine a case with more wide-ranging issues than those raised in Steel and Morris v UK. Unsurprisingly the hearing in the McVicar case lasted only 11 court days. The hearing in Steel and Morris lasted 313 court days - the longest trial (civil or criminal) in English legal history and resulted in a 762 page judgment (see appendices 11 and 13 of the full application which analyse the trial proceedings, which included 40 days of legal argument).

Before trial there were 28 further preliminary hearings (some lasting up to five days) and following the trial there was a hearing at the Court of Appeal that lasted 23 court days. Moreover, whereas McVicar had legal representation for many of the important pre-trial hearings, the applicants in Steel and Morris had to conduct virtually the entire proceedings on their own. To a very limited extent - literally several court days out of several hundred court days in total - a sympathetic lawyer would assist, usually by acting as a legal 'friend' in court.

2.3 The argument of the applicants in Steel and Morris is not just that without legal assistance they did not fully understand what was required of them in relation to witnesses etc. (which was the thrust of the McVicar complaint), but much more fundamentally that, without legal assistance, they were simply unable to properly trace, proof and prepare written witness statements from the witnesses they called, and those they would have liked to have called. They faced a particularly heavy burden considering the international nature of the case, and the evidence required. For most of the witnesses whom they did call, including the many defence experts required, the applicants had the nigh on impossible burden of analysing, sifting, and managing the huge volume of relevant documentation in order to provide the witnesses with the reference material they needed. Indeed the whole process of 'disclosure' - which continued right up to the end of the trial - was a farce because the applicants were unable, without legal guidance and assistance, to properly assess what documents they were entitled to and how to argue for them. Additionally, although the Applicants served Interrogatories on McDonald's long before the trial started, the courts ordered that they did not have to answer them as they were not formulated properly. If these had been answered the length of the trial might have been substantially shortened.

2.4 At the time of the proceedings Ms Steel was employed as part-time bar worker or unemployed and Mr Morris, a former postal worker, was an unwaged, single parent. Neither of the Applicants had any formal legal training and did not have experience of a profession comparable to journalism, which may have assisted them in a fashion similar to that suggested by the Court in McVicar. Several complex legal issues arose during the course of the trial, and additionally, the trial itself held an inquiry into the scientific evidence on a large number of issues, including the relationship between diet and degenerative diseases - issues which the appeal court had deemed too complicated for a jury of ordinary people to manage and deliberate on (see appendix 10 of the full application).

2.5 In reality, it was physically impossible for two unwaged individuals to prepare a case of such enormity. For the two and half years of the trial, all the applicants could hope to do was to keep going: on several occasions the applicants had to seek adjournments because of their physical exhaustion and when in March 1996 Ms. Steel was certified as suffering from stress and exhaustion by her doctor, the trial continued in her absence (see para.357 of the full application). They were in court all day, trying to prepare at night and maintain a semblance of family life. As the full application makes clear, Mr. Morris is a single parent with a young child. The result was that, without legal assistance, the case was under-prepared, unready for trial and was advanced by two inexperienced, untrained and exhausted individuals who were pushed to their physical and mental limits. In short it was patently unfair.

We now turn to the main findings of the Court in McVicar and contrast them to the position in Steel and Morris v UK.

3. Lack of legal assistance

3.1 In McVicar the Court rejected the suggestion that the fact that the proceedings were before a judge and jury in the High Court rendered the case so complicated that the applicant needed a lawyer (see para. 52 of the full application). It also rejected the argument that the law of defamation is so complicated that a lawyer was needed (para.55). In doing so it noted that Mr McVicar had the benefit of a lawyer (David Price, a specialist practitioner and author of a leading textbook in the field of libel law) for the preliminary hearings on the law and for the two months leading up to trial. It also noted that even when Mr. Price was not formally acting for Mr McVicar, he was acting for his (then) co-defendants, who were raising similar legal issues.

3.2 By contrast, in Steel and Morris v UK, the High Court refused to have a trial by judge and jury because it ruled that some of the issues were too complicated for a jury to properly understand and assess (see again appendix 10). The length of the hearing and of the judgments is testimony to the complexity of the case. Moreover, the applicants had no real legal assistance. Of the hundreds of court days in total (28 pre-trial hearings - some lasting up to five days, 313 days of trial , and 23 days in the Court of Appeal), the applicants were assisted by lawyers on less than 15 days (see the attached schedule). It should be noted that the 40 days of legal argument during the trial covered a huge range of complex legal issues, and resulted in more than 20 written judgments. Further, it should not be overlooked that the applicants burden in relation to the Appeal was substantially increased by the requirement that they reduce their legal arguments to writing and submit them before the hearing, a task familiar to lawyers but wholly unfamiliar to a ex-postman and an ex-gardener. The assistance the applicants did receive was not by specialist lawyers, such as Mr. Price in the McVicar case, but by sympathetic, but largely inexperienced and junior lawyers who were not specialists in libel law, largely unfamiliar with the details of the case and acting voluntarily, unsupported by solicitors and administrative staff. All they could realistically do, when available, was to act as a 'friend' to the applicants in court on very few occasions.

3.3 The reality was that the enormity of the case (and tens of thousands of pages of documents), and the length for which it lasted, prevented any ad hoc voluntary lawyer, with a few hours to spare - however sympathetic - from providing effective assistance. The applicants could not hope to adequately brief such lawyers or show them any more than a fraction of the relevant documentation they needed to see. And the routine of the days when the court was hearing the trial left little or no room for legal assistance. Ms. Steel and Mr. Morris went straight to court from home at about 9.00am in the morning and straight home afterwards at about 5.00pm. Mr. Morris had to look after his son and both had to prepare themselves for the next day. That was essentially the routine for 313 days. Their burden was greatly increased by substantial changes to a number of key issues in McDonald's Statement of Claim on publication and nutrition when much of the evidence on these issues had already been heard, and at a time when the applicants could not make serious efforts to obtain the necessary extra evidence because they were already overloaded with preparing for each day's proceedings. The final 23 days Court of Appeal hearing were conducted by the applicants alone.

3.4 The contrast and inequality between the parties' legal assistance could not have been greater. McDonald's were represented at all hearings - and in particular by a Queens Counsel specialising in libel law for the final 8 months of the pre-trial hearings, throughout the whole trial, and until the end of the final appeal. He was supported in court by a junior barrister (also a defamation specialist), at least 2 or 3 solicitors, and many administrative staff - as well as the full resources of a large firm of solicitors (again also defamation specialists).

4. The burden of proof

4.1 In McVicar, the Court dealt with the burden of proof under Article 6 and Article 10. It held that the fact that the applicant was faced with the burden of proving the truth of the allegations did not automatically require the provision of legal aid. It further held that since the applicant was a well-educated and an experienced journalist, capable of formulating cogent argument, the fact that the burden of proof was on him was not sufficient to require legal representation in his case (para.53).

4.2 The applicants in Steel and Morris v UK put the burden of proof argument on a different footing. (see paras 189-223 of the full application). As the Court recognised in McVicar, although the burden of proving the truth of the allegations does not automatically require the provision of legal aid to defendants, each case has to be assessed on its facts. The applicants in Steel and Morris were defendants in a wide ranging libel action, international in scope, brought by a multinational, multi-billion dollar corporation, which naturally had the benefits of a well resourced legal team, able to thoroughly gather all relevant evidence both in the UK and internationally, to contact all the witnesses they needed, to instruct relevant expert witnesses without limitation and to muster huge support resources. At trial, with the burden of proof on the applicants as defendants, they lost on a number of key points simply because they were unable to produce sufficient evidence to satisfy the trial Judge to the required standard: clear examples include the allegations on nutrition, diet and degenerative diseases, food safety, McDonalds attitude to trade unionism and McDonalds' international beef supplies.

4.3 On several occasions the applicants were alerted to potential witnesses, but, unwaged and without legal assistance were simply unable to make proper contact with the witnesses. Equally often, even where a witness was contacted and agreed to give evidence, the applicants simply did not have the time or the expertise to take a proper witness statement. Therefore they had to ask the witness to write his/her own statement. But, of course, the witness - unguided by a lawyer and usually without copies of all the relevant documentation - rarely knew exactly what to include in his/her statement. What resulted was often a handwritten statement from a witness who did not fully understand the case and which did not cover all the relevant issues. To compound matters, mid-way through the trial Bell J. prevented witnesses from giving evidence on any issue not properly raised in his/her witness statement. As stated above, appendices 11 and 13 of the full application show the volume of witness evidence given at the trial, but there were also dozens of witnesses on both sides who gave evidence solely in writing - the applicants faced the same problems of tracing and obtaining adequate statements from these witnesses.

4.4 In McVicar (para 83) the Court refers to the distinction in its case-law between factual statements and value judgements. In McVicar there was no issue of opinion or value judgments, however in Steel & Morris the publication concerned was a mixture of factual statements and value judgements. The applicants contend that part of the reason the verdict was against them on various issues was due to the 'meanings' determined by the trial Judge and whether each part of the leaflet was fact or comment/value judgement. Several days legal argument took place over this, and the applicants contend that they were severely disadvantaged by lack of legal representation. In turn, the decisions made by the Judge on meaning affected the level of proof the applicants were required to bring.

5. Article 10

5.1 The Court in McVicar commented that the "duties and responsibilities" of Article 10(2) are liable to assume significance when there is an attack upon the reputation of a private individual. In Steel & Morris, the publication related to a multi-billion dollar, multinational corporation, and to the fast food industry as a whole. This is particularly significant in the light of the fact that the McDonald's Corporation has only a trading reputation yet did not prove, and were not required to prove any actual loss of business. Indeed their profits and turnover increased substantially throughout all the relevant periods.

5.2 McVicar (para 73) refers to Article 10 being subject to the proviso that persons should be acting in good faith. It should be noted that in the Applicants case, the UK Court accepted that the Applicants were not the authors of the publication concerned and also that they genuinely believed that the contents of the leaflet were true (see para 200 of application).

Furthermore, in Steel & Morris, all the allegations made in the leaflet had been printed or reported elsewhere in books and/or the media prior to the alleged publication by these Applicants. Additionally McDonald's had consented to the publication of substantially the same document by another organisation. Therefore the Applicants would not have been unreasonable in assuming that they were true. These differences also distinguish Steel & Morris from the circumstances outlined in para 86 of McVicar.

6. Other distinguishing features

6.1 In McVicar the Article 6 complaint largely concerned the procedure relating to service of witness statements. In Steel & Morris v UK the Article 6 complaint is broader and relates to a range of hurdles they faced during the course of the proceedings (and the compound effect of these). Details are set out from paragraphs 331 to 385 of the full application, and include the following heads: · Administration and preparation of case (337 - 340) · Ms Steel's evidence in Court (344)- 4 days giving evidence on a wide range of issues with no advocate to guide her, pick up on unclear points or to challenge and protect her from inadmissible or prejudicial questions. · The admission of the "Haringey Affidavit" (347 -355) was a crucial issue, as without this contested document having been admitted during the final stages of the trial, it is doubtful that McDonald's case against Mr Morris would have succeeded. · Oppression, stress & exhaustion (356 - 360) · Amendments to McDonald's claim in the late stages of the trial, in relation to the applicants extent of liability for publication (360 - 367) · Delay in bringing proceedings (and further delay due to amendment) (368 - 373) · Reversal of the burden of proof/acceptable assessment of facts (374) · Private investigators continuing to infiltrate London Greenpeace after service of writs (376 - 378) · Denial of equal access to notes of private investigators (379 - 385).

7. Requests for Further Information

We now turn to the two requests for further information raised in your letter of 26th June 2002.

7.1 The applicants' legal advice

Hopefully this is now clear. In summary, the position was as follows:

7.1.1 Although the applicants had limited initial advice drafting their defence and early pleadings, they had to prepare and present their case on their own, with no lawyer in court, still less assisting except for a handful of discrete occasions. A schedule is attached of dates (prepared to the best of the applicants' recollection) showing when lawyers argued on behalf of the applicants. It can be seen from the schedule that of the 37 days when the Applicants attended pre-trial hearings, lawyers spoke on their behalf on only 8 days. Of the 313 days of the trial itself, and additional days in the Court of Appeal during the main trial, lawyers spoke on their behalf on 3 occasions. During the final Appeal lasting 23 days (and during pre-Appeal hearings), the applicants represented themselves at all times.

7.1.2 In respect of representation at interim hearings in the Court of Appeal, this was not able to compensate for lack of representation in the court below, since in a number instances the Court of Appeal stated that the decision made had been within the Judge's discretion and therefore they would not overturn it, whereas if the Applicants had been represented in the Court below, the Judge might have exercised his discretion in the applicants favour.

7.1.3 Although sympathetic lawyers did occasionally 'assist', there was little they could do for several reasons: (i) the case was simply too complicated to be suitable for assistance for a few hours or days (which was all that was ever offered) (ii) the offers of assistance were generally from inexperienced and junior lawyers with no expertise in libel law (iii) sympathetic assistance not backed up by resources was of very limited use - what was needed was an expert and well resourced lawyer to guide the applicants through the case and to trace, proof, prepare and manage all the relevant evidence.

7.1.4 Even where assistance was given by sympathetic lawyers, this was largely limited to general advice about how courts work and other general matters, or on some specific points of law which arose. Since the applicants had to approach whoever was available, there was not even consistency of assistance, with the result that this necessitated a further burden on the Applicants who had to try to brief different lawyers on each occasion. There was simply no effective advice or assistance - in court or out - on the detail of the case and how to present the evidence or the arguments. Attached to this letter is a statement by Mark Stephens, the applicants current solicitor and a defamation specialist, the statement details the kind of proportion he would have undertaken if he had been instructed by the applicants during the original action. This statement shows clearly the extreme burden which was upon the applicants in preparing and running the case.

7.2 Witnesses and other evidence

7.2.1 It is very much the applicants' case that they would have been able to prove the truth of one or more of the charges found to be unjustified had they been provided with legal aid. At trial, with the burden of proof on the applicants as defendants, they lost on a number of key points simply because they were unable to produce sufficient evidence to satisfy the trial Judge to the required standard: clear examples include the allegations on diet and degenerative diseases, food safety, McDonalds attitude to trade unionism around the world and McDonalds' international beef supplies. We refer again to the problems with witnesses set out the paragraphs above.

7.2.2 The applicants are not in a position to list all the witnesses and other evidence that they were unable to call. However, attached is a schedule of examples of witness evidence the applicants would have called if they had adequate resources, and which may well have resulted in success in a number of key areas of the action.

We trust that this deals with all outstanding matters, but if you need further information, please do not hesitate to contact us.

Yours faithfully

Finers Stephens Innocent

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