Defending the court of public opinion

‘Galloway was in Saddam’s pay’, said the Daily Telegraph on 22 April 2003. The paper claimed that George Galloway, a Labour backbencher in the UK parliament, had received, according to Iraqi intelligence documents, £375,000 a year from Saddam Hussein’s regime (1).

The next day the Telegraph claimed that Saddam had rejected Galloway’s request for more money (2). Galloway has strenuously denied these claims, suggesting that the Iraqi intelligence documents may have been forged.

How should this conflict be resolved? By suing in the libel courts, according to an editorial in the UK Independent on 23 April. ‘The best place to test the truth about these allegations is a courtroom’, said the Independent (3). Apparently a libel action ‘is probably the only way in which the facts of this highly contentious matter have the slightest chance of emerging’.

A Guardian leader on the same day applied a little more lateral thought. It claimed that there are ‘four ways of (establishing the truth of the claims)’ (4). In addition to bringing a libel action, there could be an investigation by the parliamentary commissioner for standards, a formally constituted tribunal or by the police.

Neither editorial suggested resolving the conflict through public debate. Yet debate in the public arena has been vigorous since the story broke. The Telegraph has printed full transcripts and photographs of the relevant documents, and other media outlets (including the Telegraph itself) have allowed Galloway to respond to the allegations (5). Since the story broke Galloway has been busy giving press interviews and issuing statements.

Galloway has already instructed solicitors and says that he will sue for libel. Given the robust nature of public debate, it seems odd that he should consider a libel action as an effective way of establishing the truth. If a libel claim were issued, then the Galloway affair would become sub judice; many media outlets would avoid discussing it for fear of committing a contempt of court by prejudicing the jury’s deliberations.

Furthermore, anybody who repeated the alleged libel would risk being joined as a defendant. If the libel route is taken, effective discussion of the Galloway affair would be chilled for the two or three years it would take for the claim to be tried.

Perhaps a few years’ silence would be a price worth paying if libel courts were effective at ascertaining the truth. But libel law favours the claimant, who can benefit from the burden of proof imposed on the defendant. It is a peculiarity of English libel law that the claimant does not have to prove the falsity of what has been written about him. He must simply prove his defence – and in the absence of a general public interest defence, like that which exists in America, this usually requires the defendant to prove that his defamatory remarks were true.

This means that the unscrupulous claimant, albeit at the risk of committing perjury, could withhold relevant evidence that would undermine his case. Requiring the defendant to prove the truth of his allegations also means that if the jury is not sure which party’s account it prefers, then it must find for the claimant. A roll call of successful libel claimants in recent years, including the late Robert Maxwell and Jeffrey Archer, suggest that libel courts do not have a good track record for establishing the truth.

But even if they did, why should the courts have the right to determine the truth or falsity of the Telegraph’s claims? If the public debate continued then those who were interested could consider the evidence and make up their own minds. Just as we trust a jury of 12 men and women to do this in a libel court, why not trust men and women in the general public to decide for themselves away from the confines of a court room?

In practice, people do make up their own minds, even when a libel court issues its verdict, especially when the issues raised are of a political nature. Galloway is well known for having campaigned against two Gulf Wars and for the lifting of sanctions against Iraq. His efforts have earned him the title ‘the MP for Baghdad Central’ – and while many loathe him, others admire him, some taking comfort from the fact that in today’s supine Labour Party there is still the occasionally prickly character.

People’s views of Galloway are unlikely to be determined by what he was doing on Boxing Day 1999, whether he met members of Iraqi intelligence or whether he has ever bought or sold a barrel of oil. Yet these are the factual issues over which a libel jury could agonise for weeks, to the benefit of few except m’learned friends.

It would be different if Galloway had committed a crime. Then we would respect the criminal law process and await the jury’s verdict. But in the absence of a criminal conviction we must treat Galloway as a man of good character and judge him, a politician, by his politics. Whatever Galloway has or hasn’t done in recent years, he should stay clear of the libel courts. We do not need lawyers, a judge, a libel jury and libel laws to tell us what to make of George Galloway.

Jon Holbrook is a barrister based in London (email Jon.Holbrook@btinternet.com). He contributed the essay ‘Humanitarian intervention and the recasting of international law’ to the book Rethinking Human Rights: Critical Approaches to International Politics, Palgrave, 2003. Buy this book from Amazon UK.

(1) Galloway was in Saddam’s pay, say secret Iraqi documents, Daily Telegraph, 22 April 2003

(2) Memo from Saddam: We can’t afford to pay Galloway more, Daily Telegraph, 23 April 2003

(3) The best place to test the truth about these allegations is a courtroom, Independent, 23 April 2003

(4) Baghdad’s secret files, Guardian, 23 April 2003

(5) The documents: contacts, money, oil and the need for anonymity, Daily Telegraph, 22 April 2003