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14 December 2015

At last, the courts defend our right to expose hoodlums

Legal defeat: Colin Fulton lost his case against the Sunday World

I shook hands with a lawyer this morning, said a friend the other day, but, amazingly, I still have all my fingers.

There are lots of lawyer jokes like that, mostly relating to the public perception of them as greedy, cynical and heartless.

That's tough on the principled, decent people who join the legal profession, because they genuinely care about justice, the rule of law, punishing the guilty and defending the hard-won rights of the citizen.

So, today, I'm glad to be able to praise a lawyer, in this case the Honourable Mr Justice Deeny (aka Sir Donnell Justin Patrick Deeny) of the Northern Ireland High Court, who last week made a judgment of great clarity and common sense, which gave an important boost to the Press.

That will distress the likes of Sammy Wilson and Ian Paisley, doughty opponents of libel reform and their DUP and Sinn Fein colleagues who regularly trip over each other beating a path to the door of Paul Tweed, the media lawyer, who has been so eloquent in opposing reform.

The case over which the judge presided was that of Colin David Fulton, described as "an active member of the Progressive Unionist Party", but "otherwise unemployed", who was seeking damages and an injunction against the Sunday World for a breach of his rights under Article 2 of the European Convention on Human Rights and breach of "the protection from harassment" under the Protection from Harassment (Northern Ireland) Order 1997.

He was distressed by 28 articles "of a serious, inflammatory and highly controversial nature", in which he was described variously as a UVF "thug", "gangster", or "godfather", and alleged to have the nickname "Meerkat".

He attended marches organised by UVF members and was alleged to have made money from such dubious activities as gun sales and running a drinking den and had encouraged local boys to meet UVF men who assaulted them and, in one case, Tasered the private parts of a 14-year-old.

A pal with whom Mr Fulton went on holiday had served a long sentence for a vicious sectarian assault on a stranger.

The judge listened to Mr Fulton's evidence and that of Richard Sullivan and Jim McDowell of the Sunday World.

He was deeply unimpressed by Mr Fulton's "inconsistent and contradictory" evidence, but having heard "the two experienced and courageous journalists concerned, I am satisfied that they were acting in good faith in publishing the articles".

What the judge considered Mr Fulton's strongest point was that he had never been arrested, or questioned by the PSNI.

Among the reasons for that, said the judge, was the possibility that they had "good operational reasons" not to arrest him, but "another possibility is that they, or the state authorities, are at fault in addressing these alleged paramilitaries and ought to be investigating him and others about these matters".

The articles, he concluded, did not constitute "an abuse of the freedom of the Press, which the pressing social needs of a democracy require. Rather, they are to be seen as a robust expression of Press freedom, which the courts have a duty to protect".

He noted that Mr Fulton "has not opted for the obvious remedy of suing for defamation", which, according to his barrister, was "because there is no legal aid for defamation".

But there is for cases taken for breaches of articles of the European Convention on Human Rights.

Anyone reading the full judgment is going to find it strange that any lawyers should have thought Mr Fulton had a good case and wonder if it is a good use of public money.

Apart from anything else, even when - as on this occasion - costs are awarded against the plaintiff, if - like Mr Fulton - he apparently has no money, the newspaper will be massively out of pocket and the plaintiff loses nothing financially.

However, Mr Justice Deeny's judgment should make some people think.

Mr Fulton and his associates will learn that an unworthy plaintiff will be humiliated.

The PSNI will now be taking a closer and harder look at him.

And, with cases like this coming expensively to court, the Treasury will be checking how many more digits it can afford to lose.

Ruth Dudley Edwards

© Ruth Dudley Edwards