In English law, fair comment on a matter of public interest is allowed. Generally, it guarantees the freedom of the press to make statements on matters of public interest, as long as the statements are not made with ill-will, spite, or with intent to harm the subject of the comment. For decades, English courts have placed a higher burden on public figures to prove defamation, which includes both libel and slander. This is based on the view that if a person chooses public activity, that person must expect a higher degree of public scrutiny. For example, it is hardly likely that an English court will countenance a defamatory intent against a public figure where an allegation of conflict of interest is made on facts which are essentially true but could be capable of a more generous interpretation.
Fair comment is an ancient common law (judge made law) defence. But it was replaced in the Unites States in 1964 by a defence created in the case of New York Times v Sullivan in which the US Supreme Court decided that actual malice has to be proved to establish defamation. Since it is very difficult to prove actual malice in a journalist or a politician in the cut and thrust of journalism or politics, public life in the US has been largely liberated from the fear of defamation. While the defence of fair comment remained in the U.K. it was increasingly found to be too restrictive for adequate scrutiny of public officials. The courts of the UK have never adopted New York Times v Sullivan but began to test a more liberal approach to criticisms of public officials.
At the invitation of the Chief Justice, the Hon. Madame Roxane George-Wiltshire, I made the welcoming presentation on the occasion of the admission of four lawyers to the Inner Bar as Senior Counsel on Friday last. This is what I said:
It is an honour and a privilege to welcome to the Inner Bar the four Senior Counsel whose appointments were announced on December 30, 2017. According to a statement from the Ministry of the Presidency, President David Granger “having considered their high quality of service in the legal profession and with confidence in their knowledge of the law” appointed Kalam Azad Juman Yassin, Josephine Whitehead, Fitz Le Roy Peters and Andrew Mark Fitzgerald Pollard as Senior Counsel with effect from January 1, 2018.
The first appointment of a Queen’s Counsel in England was that of Sir Francis Bacon, made by Queen Elizabeth 1 in 1594, for a political purpose. Following the tradition that developed since then, the institution is recognized in most of the Commonwealth countries. When lawyers speak of ‘taking silk,’ they are referring to the time of their preferment by elevation to Senior Counsel, formerly Queen’s Counsel. ‘Taking Silk’ refers to the fact that lawyers who are conferred with the honour wear a differently designed robe made of silk. They also speak of being admitted to the ‘inner bar.’ This refers to the second bar table in the well of the Court where, of lawyers, only Senior Counsel may sit.
There has been no shortage of controversy in the Commonwealth about the continuation of the institution or about its reform. Arguments and public discussions on these issues have been going for decades but, with reforms, the institution has been retained. In England appointments were suspended for several years because of concern about fairness. When they resumed in 1995, solicitors were appointed. In some countries academics are appointed. But one of the main areas of controversy is fairness and transparency, even though in developed countries partisan political considerations in appointments have been largely eliminated.