the appellant regarded as abhorrent. Nevertheless, as Mr Morshead accepted, Article 10
applied. Anyone is entitled to say what he likes of another provided he does not act
unlawfully and so commits an offence under, for example, the Public Order Act.
Surprising as it may perhaps appear to some, the right of freedom of speech does extend
to abuse. Observations, however offensive, are covered. Indeed, as Hoffman, LJ
observed in R v Central Television Plc [1994] 3 All ER 641 at 652:“Freedom means … the right to say things which ‘right-thinking people’
regard as dangerous or irresponsible. This freedom is subject only to clearly
defined exceptions laid down by common law or statute … It cannot be too
strongly emphasised that outside the established exceptions … there is no
question of balancing freedom of speech against other interests. It is a trump
card which always wins.”
37.
The Tribunal decided in Paragraph 65 of its decision that ‘by restricting the application of
the Code to those other circumstances which are closely allied to a member’s official
duties, the interference with Convention rights can be restricted to that which is
proportionate to what is necessary in the interests of a democratic society’. It went on in
Paragraphs 68 and 69 to explain why it regarded the interference with the right as
proportionate and so permitted by Article 10(2). It said:“68. The exchange between the Mayor of London and a journalist which gave rise to this
reference took place immediately after the Mayor left a reception at City Hall and began
with the journalist asking how the evening had gone. The Mayor chose to make some
comment. Although finding that the Mayor was not at that time fulfilling his official
duties (they having ceased for the day), the Case Tribunal has no difficulty in saying that
the events were sufficiently proximate in time, in place and, so far as the journalist’s
question was concerned in content, to mean, that it is proper to regard Paragraph 4 of the
Code of Conduct as being applicable to the situation.
69. Bearing in mind that the exchange took place in a public place and that the
Respondent knew that his remarks were being recorded the Case Tribunal is doubtful
whether any interference with the Respondent’s private life can as a matter of fact be
made out. Insofar as the fact that Code of Conduct can result in a member of a local
authority having to account for what is said in such circumstances (when as the Case
Tribunal found he was not “on duty”) can be seen as an intrusion into his private as
opposed to his public life than in the Case Tribunal’s view such interference can be seen
as necessary and permitted by law (in the form of the promulgation of the Code), for the
protection of the public order and morals or for the protection of the rights and freedoms
of others.”
38.
I do not accept the reasoning set out in Paragraph 68. The appellant had ceased to act in
his official capacity as host of the reception and was leaving the building to go home. He
was accosted outside the building, but it does not seem to me to matter when he was
approached. It might have been when he reached his front door. Would that have been
regarded as sufficiently proximate in time or place? If not, where does he have to be and
how long after he has ceased his official duties for such proximity to exist so as to justify
the application of the code? The answer in my view is that since he was off duty, there
was no basis for finding that what he said was, to use the Tribunal’s words, so closely
allied to his official duties as to justify the restraint on his freedom to express himself
within the law as forcibly as he thought fit. And the fact that the journalist’s question
related to something he had done as mayor cannot produce the alliance that the Tribunal