How out of touch are English judges?

A guest post by Paul Marshall, who practises from Cornerstone Barristers

Marshall: Semantic nit-picking

The Supreme Court, in its recent ruling in Stocker v Stocker [2019] UKSC 17, found that the High Court and Court of Appeal failed to understand how ordinary people communicate on social media.

Those judges had found that Mrs Stocker’s Facebook post that Mr Stocker “tried to strangle” her was defamatory. A statement that Mr Stocker had strangled her would not have been. Odd, you might think.

Lawyers are often clever, occasionally strikingly so. It is nevertheless a melancholy fact that this is not invariably wedded to good sense, common sense being less than is sometimes supposed.

The frequently observed mismatch no doubt goes some way to explaining a widespread public perception that lawyers, and judges in particular, are out of touch with the lot of ordinary people and fail to understand how they think. Stocker reveals uncomfortable justification for such a perception.

Section 11 of the Defamation Act 2013 effectively abolished the trial by jury of defamation claims. The stated purpose, as advertised by the then Master of the Rolls, was to save money and achieve a speedier resolution. But the wisdom of centuries had ensured that juries operated as a reality check. Stocker suggests that section 11 has achieved its object, but at the expense of reality. And sometimes speed kills.

Stocker is important for users of social media. It reveals the unhappy consequence of permitting semantic nit-picking, in the guise of lawyerly analysis, to part company with good sense so as to produce an error of law.

That it required five justices of the Supreme Court to put matters right, reversing four judges below in proceedings that have lasted almost five years at unimaginable cost, is concerning but a testament to the fact that, against the odds, the English appellate system still enables the odd fish, in the form of a private litigant, to get through the net.

To those lacking the stamina and, frankly, the good luck of Mrs Stocker, that may be cold comfort.

In 2012, Mr Stocker formed a new relationship with a Ms Bligh. The unfortunate Mrs Stocker, in an exchange on Facebook, told Ms Bligh that her former husband had “tried to strangle” her (in 2003). This was in the context of other statements that related to threats, “gun issues” and breach of a non-molestation order – presenting to any reader of the Facebook post a scene of acute marital conflict.

Mr Stocker brought proceedings for defamation. He claimed that the meaning to be given to the words was that he had tried to kill her. Mrs Stocker disputed this and claimed that, in their context, the words did not impute an intention to kill.

What the reader would understand, she contended, was that her husband had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.

Mr Stocker further claimed that her statement, that he had uttered threats and breached a non-molestation order, was defamatory, implying he was a dangerous and thoroughly disreputable man.

Mrs Stocker sought to rely on the defence of justification.

Strange semantics at first instance

Mr Justice Mitting, at the start of trial, said to counsel that he had a “preliminary opinion” and referred the parties to the Oxford English Dictionary definition of the verb ‘strangle’. It provided two alternative meanings: (1) to kill by compression of the throat and (2) to constrict the neck or throat painfully.

The judge accepted police evidence that there were red marks on Mrs Stocker’s neck. Mr Stocker accepted during a police interview that it was possible that he had put his hand around his wife’s neck and by implication that this had caused the red marks.

At trial, Mitting J rejected Mr Stocker’s evidence. As to how the event happened, he concluded: “I do not… believe that he threatened to kill her or did anything with his hands with that intention…

“The most likely explanation about what happened is that he did in temper attempt to silence her forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still. His intention was to silence not to kill.”

But at no point had that been Mr Stocker’s evidence. The finding implicitly also rejected Mrs Stocker’s evidence. Lord Kerr in the Supreme Court remarked that the judge’s conclusion was “more benevolent to Mr Stocker than any version of the facts that he could reasonably have contended for”.

As to the meaning to be given to Mrs Stocker’s statement that Mr Stocker “tried to strangle” her, Mitting J said: “If the defendant had said ‘he strangled me’, the ordinary reader would have understood her to have used the word in the second sense for the obvious reason that she was still alive.

“But the two Facebook comments cannot have been understood to refer to ‘trying’ to strangle her in that sense because, as she said, the police had found handprints on her neck. These could only have been caused by the painful constriction of her neck or throat.

“If understood in that sense, she could not have been taken to have said that the defendant had tried to strangle her because he had succeeded. The ordinary reader would have understood that the defendant had attempted to kill her by external compression of her throat or neck with his hands and/or fingers.”

Most ordinary people would consider Mitting J’s analysis bizarre.

Lord Kerr drily observed: “If Mrs Stocker had said ‘he strangled me’, she should be understood to have meant that her husband had constricted her neck or throat painfully, on account of her having survived to tell the tale.

“But, because she said that he had ‘tried’ to strangle her (in the normal order of things and in common experience a less serious accusation), she was fixed (by Mitting J and the Court of Appeal) with the momentous allegation that her husband had tried to kill her.”

The possible meaning of constricting the neck painfully was shut out by “the adventitious circumstance” that Mrs Stocker had said that her husband had “tried” to strangle her rather than that he had strangled her. That analysis informed the remainder of Mitting J’s reasoning in upholding the claim of defamation.

As to her other statements, Mitting J said that “these statements, taken together… justify the claimant’s pleaded case that the reasonable inference to draw from the statement was that the defendant was dangerous, at least to any woman with whom he lived or had lived, that he was a man who tried to kill on one occasion, had been arrested for an offence involving firearms on another, and had given the police reason to believe that he had broken a non-molestation order made against him. To describe him thus was defamatory.” (My emphasis)

Mrs Stocker claimed that her statements were substantially true and that she was therefore entitled to rely on the defence of justification. Mitting J rejected that, holding that she “has not met the sting of the postings that the claimant was a dangerous man. The impression given by the postings to the ordinary reader was a significant and distorting overstatement of what had in fact occurred”.

Getting it wrong again in the Court of Appeal

Giving the unanimous decision of the Court of Appeal, Lady Justice Sharp said the use of dictionaries did not form part of the process of determining the natural and ordinary meaning of words, “because what matters is the impression conveyed by the words to the ordinary reader when they are read, and it is this that the judge must identify”.

She continued: “As it happened however no harm was done in this case. The judge told counsel during the course of submissions that he had looked at the OED definitions and what they said, so the parties had the opportunity to address him about it; the judge, as he then said, merely used the dictionary definitions as a check, and no more; those definitions were in substance the rival ones contended for by the parties, and in the event, the judge’s ultimate reasoning, not dependent on dictionaries, was sound.” (My emphasis)

That characterisation, the Supreme Court held, was apt to mislead. It was also was wrong.

It was not simply the issue of meaning (an issue of fact which would never have got to the Supreme Court); the Court of Appeal failed to identify that Mitting J’s entire approach, and therefore its own, was artificial, acontextual and wrong as a matter of law.

Lord Kerr pointed out that Mitting J did not raise the issue of the dictionary definition during submissions, but at the outset. Further, the judge did not use the dictionary as a cross-check; he regarded the definitions as comprehensive of the possible meanings of the statement “he tried to strangle me” and the starting point for his analysis.

That, the Supreme Court held, was a fundamentally flawed approach, and, critically for the purposes of appeal, an approach wrong in law.

Lord Kerr said: “The meaning of a statement is to be determined by how it would be understood by the ordinary reasonable reader, not be technical, linguistically precise dictionary definitions.”

To fulfil its function the court must be “particularly conscious of the context in which the statement was made”. As to the defence of justification, the Supreme Court found the rejection of this to have been fundamentally affected by the Court of Appeal’s wrong acceptance of Mitting J’s semantic analysis.

Lord Kerr noted that the fact that this was a Facebook post was critical. “The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.”

The Supreme Court concluded: “Mitting J fell into legal error by relying upon the dictionary definition of the verb ‘to strangle’ as dictating the meaning of Mrs Stocker’s Facebook post, rather than as (as Sharp LJ [incorrectly] suggested) a check.

“In consequence, he failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it. Readers of Facebook posts do not subject them to close analysis… Anyone reading this post would not break it down in the way that Mitting J did.”

The ordinary reader, Lord Kerr said, “does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance”.

Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her, he said.

“Keeping in mind that only one meaning could be chosen, the choice to be made between the meaning of the words being that Mr Stocker grasped his wife by the neck or that he tried to kill her is, in my opinion, a clear one.

“If Mrs Stocker had meant to convey that her husband had attempted to kill her, why would she not say so explicitly? And, given that she made no such allegation, what would the ordinary reasonable reader, the casual viewer of this Facebook post, think that it meant?

“In my view, giving due consideration to the context in which the message was posted, the interpretation that Mr Stocker had grasped his wife by the neck is the obvious, indeed the inescapable, choice of meaning.”

Lord Kerr added that many would consider the undisputed facts to be sufficient to establish that Mr Stocker was a dangerous and disreputable man (and therefore justified – were that defence necessary, which it was not) and he found no warrant for Mitting J’s superadded ‘dimension’ that he represented a danger to any woman with whom he might live.

Common sense eventually prevailing against overly semantic and wholly decontextualised analysis. It is nevertheless troubling that the “obvious”, “inescapable” and real meaning  of the words eluded all four judges below, including all three judges of the Court of Appeal.  A jury, better attuned to reality, would almost certainly have obviated a requirement for two appeals and thereby saved cost.

Mrs Stocker was extraordinarily lucky. Others will not be so fortunate, particularly since removal of the right to an oral hearing for permission to appeal to the Court of Appeal, recently abolished by the rules committee.

The importance of this decision is far-reaching, though some might say that we have been here before. While the result is to be welcomed, the obstacles required to be surmounted in getting to it should be a matter of real public concern.

The words in issue in Stocker were hardly esoteric, and the capacity to reliably interpret the meaning of words uttered is an irreducible qualification for judicial office.

The doubtful reasoning and approach – especially to Mr Stocker’s evidence – may perhaps raise an eyebrow with Mr Andrew Mitchell MP, Mitting J being the same judge who decided Mitchell v News Group Newspapers Ltd [2014] EWHC 4015 – the famous ‘Plebgate’ incident.

Mr Mitchell also haplessly lent his name to the vogueish Wackford Squeers school of disciplinary English ‘Dotheboys’ jurisprudence. But that milk is long spilt.

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