Day Twenty of Closing Speech for the defence

Friday, 22nd Nov 96 - Day 304 of the Trial

Due to being present at the scene of an attempted suicide on the underground while on the way to court, the defendants arrived late and were suffering from shock.

Mr Morris began by clearing up a few final points on the employment issue. He told the court that until a change to an Act in 25th September 1986, McDonald's in the UK had been guilty of an unlawful offence in regards to it's overtime pay practices. There were apparently statutory entitlements up to 1986. Mr Morris gave an example using a pay slip from a McDonald's employee at the time and demonstrated how she had been illegaly underpaid.

Mr Morris also spoke about how until around the mid eighties, McDonald's had paid employees for their break times. He said that it was fairer system and would have also meant that people were likely to take their legal break entitlement as they were being paid for it.

Ms Steel also made a few final points on employment, including a comparison of McDonald's pay when controled by the Wages Council against the pay levels after the minimum wage was abolished. She reminded the court of how Mr. Nicholson had accepted that they paid only at the minimum rate or a few pence above it, whilst there was a minimum rate, and she added, "..if you look at the way McDonald's wages have risen over the years, in 1987 the provincial [everywhere outside London] rate for over 18s was 2. It went up to 2.20 in 1988, went up to 2.38 in 1989 and went up to 2.60 in 1990, 2.90 in 1991 and 3 in 1992 She continued by saying that by 1995 the level had only reached 3.05. She said it was worth noting "that between June 1989 and June 1992, when there was a minimum wage rate for over 21's, the rate of pay went up in that period from 2.38 to 3, i.e. a raise of 62 pence in three years. But if you take the period from June 1992 to June 1995, where there was not a minimum wage set by the wages council, the wages went up from 3 an hour to 3.05 an hour - only a five pence an hour increase in three years. So I think it is pretty clear from that that without the protection of a minimum wage, McDonald's basically just exploit their workforce for as little as they can get away with."

Ms Steel also made a point about the contradiction in McDonald's claim of defamation with regard to the factsheet's statements about McDonald's being anti-trade union. "I just wanted to say something about the Plaintiffs' reputation on this point. Now, we know that McDonald's recommends John Love's book, Behind the Arches, to the public as something to read if they want to learn about the company. They recommend it as good reading material to get a good picture of the company. This book clearly portrays McDonald's not just as anti-union, but as absolutly desperate to stamp out any attempt by workers to organise"

Ms Steel continued:

" refers to John Cooke standing toe to toe, as labour relations chief [for McDonald's], with local labour unions who tried organising McDonald's stores on some 400 separate occasions... Cooke's job was to keep the unions out... he says 'unions are inimicable to what we stand for and how we operate'. Lower down it says Cooke translated that passion into a powerful union resistance movement... Cooke gave no ground to unions... McDonald's stores today are strictly non-union shops."

Ms Steel said anybody reading that would get the impression that McDonald's are anti-union and that they are actively trying to prevent unionisation. She concluded, " is clearly the image that McDonald's want their workers to have, for one - so that they do not try and organise, but it is also clearly an image which they are actually quite happy that the public should have. Otherwise, why would they be recommending this book. Now, if that is the image that they want the public to have, how then can the London Greenpeace factsheet lower people's opinion of the company in relation to this issue?"

Ms Steel then began on the issue of publication.

"which is the opportunity to examine whether the Plaintiffs have proven their case on a very essential aspect i.e., whether or not they can show either that we distributed the factsheet complained of or that we were responsible for its distribution, and we would submit that all the evidence on this key issue can properly be defined as either irrelevant, inadmissible, inconclusive, insufficient or so conjectural as to be of no probative value whatsoever."

Ms Steel said that it is an awareness of these deficiences that resulted in the Plaintiffs transparent attempt to disguise the failings by inviting the court to find the issue of publication by the defendents proved on the basis of joint enterprise and that by doing so, they they would widen the ambit of libel beyond all precedent.

She quoted Lord Esher in relation to another British libel case;

"Any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust cannot be part of the common law of England."

Ms Steel said that even if the court were to permit such an extension of basic principle, the evidence which has been offered by the plaintiffs consisted purely of conjecture and inference - a general smoke screen to confuse the court. She concluded that for these reasons it was necessary to go back to and state the basic principles of law and rules of evidence and then to analyse the evidence in detail.

Ms Steel reminded that court that "a civil action cannot lie unless the words complained of have been published, and the burden of proving the publication lies with the plaintiff." She then quoted Lod Esher again, "the material part of the cause of action in libel is not the writing, but the publication of the libel" She added that the Plaintiffs must also show that the publication was by the defendant.

Quoting Holt (a legal authority);

"upon the trial, the libel must be produced and before it is read it must be proved that it was published by the defendant or by others with his privity"

This quite fundamental and logical order of events had not occured in the McLibel trial. Ms Steel said that they had been unaware that McDonald's should have proved that they had published the factsheet before proceeding further with the libel case. Mr Morris later reminded the Judge that he had commented about the absurdity of the case if publication was not proven, and said that it was vital that Justice Bell should not be under any pressure not to find for the defence on the issue of publication just because the whole trial (bearing in mind its length) might be considered absurd if the defendants were to win on publication.

Ms Steel read the Plaintiffs allegations in summary from their amended Statement of Claim;

"At some time between the 20th September 1987 and, until the date of the issue of the writ, that we produced the leaflet complained of, produced is then defined as prepared, compiled, wrote, edited, printed or arranged to be printed or caused or procured the preparation compilation or writing of the leaflet. For the purposes of distribution & publication."

She continued,

"they allege that by virtue of our involvement in London Greenpeace we caused, procured or had been party to, or authorise the the distribution and publication, whensoever and wheresoever the factsheet had been distributed and published."

Ms Steel then told the court the dates of the seven specific occasions that McDonald's claimed either of the two defendants published the factsheet, or caused the factsheet to be published, (which would be joint enterprise), or procured the publication of the factsheet.

Ms Steel reminded that court that Mr. Rampton on behalf of the Plaintiffs had accepted that there was no evidence whatsoever to place her in the group at the relevant time in relation to production of the factsheet and that they were therefore withdrawing the allegations of production against her. However, the Plaintiffs still intend to pursue its case on this against Mr. Morris, who will go into the evidence in relation to that matter on Monday.

She continued,

"In so far as the paragraphs plead that the Defendants caused the publication of the leaflet 'whensoever and wheresoever' up to the date of the writ, that is again a legal fiction because in order to disclose an actionable claim the Plaintiffs must seek to found a claim on the basis that there has been actual publication and it is wrong to infer publication in the circumstances of this case."

Ms Steel reminded the court that the evidence heard in this case was that the last time the factsheet had been printed was in 1987 and there is not any evidence really about when and where the factsheet was distributed after that date. She said that it should be borne in mind that the date of the last print run fell before the 20th September 1987, the date of limitation on the Plaintiffs' pleadings.

"There is no cause of action until the factsheet has been published - until a publication has been published, and on top of that, the factual connection between the publication and the Defendants must be proved to exist. 'Whensoever and wheresoever' does not allege particular instances of publication where there is also necessarily a causal link between myself and Mr. Morris and those instances of publication."

She addmited that there was some evidence that individuals within London Greenpeace had distributed the factsheets and said they would deal that issue on the basis on joint liability.

She said that having removed the smokescreen of irrelevent allegations which could not lead to an action for libel, the plaintiffs would have to show two actionable allegations. One, that the Defendants either personally distributed the factsheet complained of to third parties; or, two, that they caused, authorised, procured or were party to the distribution of the factsheet to third parties. There is no reference to third parties in McDonald's Statement of Claim.

[Adjournment for Lunch - 1pm - 2pm]

Ms Steel referred to a previous libel case (Lawson V Burns 1976) which Mr Rampton claimed was analagous with this case;

"If one repeats, and other writes a libel, and a third approved what is wrote they are all makers of it; for all persons who concur, and show their assents or approbation to do an unlawful act, are guilty."

Ms Steel said that the important point was that the plaintiffs must prove 'assent', not simply mere knowledge of the publication of the defamatory material. That, she added, was according to 'Eggar V Chelmsford, 1965', and 'Design Yearbook Ltd. V Craig and others, 1967' in which it was held that the mere presence and none dissent of the two defendant members who were present at the later meeting, where the decision of a previous meeting was reported, did not represent a sufficiently positive act on their part to include them as having participated in the publication and distribution. Ms Steel said the it was the defendents position that such an approach should be adopted in this case.

Ms Steel pointed out that it is also essential for the plaintiffs to prove publication to a third party. She added that it is not necessary for the plaintiff to prove directly that the words complained are were actually brought to the knowledge of some third person just that the plaintiff must prove facts from which it can be reasonably inferred that there was publication to a third party. She concluded, " would not have to prove that somebody actually read it, if they had been given it, but a plaintiff must serve in his Statement of Claim, particulars of the persons to whom the alleged libel was published."

She then pointed out that if the statement complained of is sent directly to the party of which it is written, there is no publication of it, (as per Lord Esher in Pullman V Hill, 1891).

"publication is not actionable unless it is a publication to a third party. A, cannot sue B for defameing him to A himself or to B himself. That is to say, where B reads to himself the libel on A and then locks it away, A must prove that B defamed him to C."

Ms Steel said that this meant that McDonald's could not rely on either Sid Nicolson, Terry Carroll, or any employee or agent of the company, having obtained copies of the factsheet as evidence of publications. She said the point was that they must prove that the factsheet was published by either herself or Mr. Morris, to third parties.

Ms Steel moved onto the evidence on publication, specificaly in regards to the section by virtue of their involvement, caused, procured or authorised distribution 'wheresoever or whensoever'. This involved looking at the nature of London Greenpeace group. McDonald's have place emphasis on the the defendents involvement in London Greenpeace and they contend that London Greenpeace was concerned with the dissemination of the fact sheet a part of a campaign against McDonald's.

"The most informal grouping recogniseed in law is the unincorporated association", said Ms Steel. These unincorporated associations could be defined as;

"where two or more persons are bound together for one or more common purposes by mutual undertaking each having mutual duties and obligations in an organisation which has laws identifying in whom control of the organisation and its funds is vested, and which can be joined or left at will."

The defence said that London Greenpeace does not satisfy even those criteria, and therefore can't be considered even an unincorporated association, and is therefore not an entity recognised by law. [N.B. Even unincorporated associations cannot be sued for libel, the action has to be against those individuals believed to be responsible] Ms Steel reminded the court that Mr. Nicholson said that McDonald's could not sue London Greenpeace as "it was an unincorporated association with no legal status and therefore could not be sued in its own right as a right" This he had said, was the reason " it became necessary to identify the members of the group responsible for its distribution." Ms Steel said that the effect of this was that whilst it is permissible to sue individual members, it cannot be on the basis of simple involvement in the group. Additionaly, there must be proof of actual authorisation or personal participation in publication.

Ms Steel concluded that because London Greenpeace does not have any positions of authority or any kind of structure, it would be as even less appropriate to pin joint responsibilty on individuals of the group than would be the case with an unincorporated association.

Ms Steel said,

"In the absence of formal or informal mutual undertakings, given the actual nature of the collective, the Plaintiffs contention that the Defendants caused, procured or authorised the the publication of the factsheet is hopeless because such notions were entirely contrary to the way that individuals within the group functioned. i.e., there was no hierarchy and there was no authorisation or telling people what to do."

Ms Steel said that the evidence had shown that London Greenpeace was an informal group, that no one was in charge, there was no obligation or expectation on anyone to participate, any individual could take part in any activity or campaign, and no requirement for any individual to obtain the permission of anyone else before pursuing any course of conduct which they felt was appropriate. Futhermore, she added that not everybody who was involved with the group or attended meetings was interested in all the campaigns that were run under the banner of London Greenpeace.

Ms Steel refered to the evidence heard about the London Greenpeace meetings. All the evidence, mainly from statements and notes from McDonald's own spies, clearly indicated that; "the group had not formal structure", "had no formal membership", "that people may have been against something and yet remained quiet", "there was no expectation on people to do things", "it was dependent on people's good will", "not everybody that attended meetings participated in the discussions or had an equal interest in any particular subject", "people have their own pet interests and would get on with organising that particular interest and that anybody who wanted to do something just got on and did it", "people were not allocated tasks", "people volunteered to do things", "no hierarchy in the group", "that everyone had an equal say", "no voting or show of hands", "no kind of formal democracy", "it was frequently difficult to tell whether anything had been decided at all", "did not have a formal agenda", "not a forum where agreement and decision making was usual", "no real acknowledgment of any common goal, never mind the means by which it could be achieved", "an informal open collective, "anybody can attend meetings".

She concluded by saying that people were never asked to state their position and that the only common ends that people in London Greenpeace shared, were that they were against the exploitation of human beings, animals and the environment - not everybody in the group participated in the anti-McDonald's campaign.

Summing up, she said:

"So really to sum up the evidence from all of the witnesses in the case, both the inquiry agents hired by the Plaintiffs and witnesses for the defence, including myself, the evidence shows that London Greenpeace was a disparate collection of individuals who shared common values in the broadest of terms, but really whose most distinctive feature was the notion of individual responsibility and autonomy through the free exchange of ideas and tolerance of individual opinions. ... the nature of the organisation was based on the princiables of anarchism, which effectively makes the notion of hierarchy an anathema."

Justice Bell said he had been given a definition of what 'anarchism' meant, Ms Steel replied that it would include "people not having positions of authority over other people. Working on, in fact I think to use Ms Laporte's [defence witness] words, working on egaliterian principles. So everyone would have an equal say and nobody had control over other people."

There was a short break and then Ms Steel moved onto the evidence that neither herself or Mr Morris were in such positions of power that they could be said to have caused, procured, or authorised publication. She said that there was no evidence from any agent that the use of the factsheet was ever discussed with or by either herself or Mr Morris.

One spy had noted that by his third meeting he was still trying to find out who was in charge of the organisation. He had also noted that neither defendent had attended meetings for a long time and described both as "the so far distant members". Ms Steel said that the Plaintiffs had failed to identify any conduct at all which amounts to causing or procuring or being a party to, or authorising the publication of the factsheet.

Ms Steel went through the core evidence for each specified date relating to the evidence about whether or not the factsheet was published and who might be responsible if it was. In the first, there is no evidence to link either defendant to the event, and no evidence offered that the factsheet was distributed. On the second she pointed out that althought the agent involved had asserted in his the statement that he had collected a factsheet that day, he had made no mention of it the contemporaneous notes that he made at the time. Also in relation to this occasion, there was no evidence about either defendant being involved in organising the fair or running it - no evidence beyond mere attendance. She made similar observations about the other occasions, claiming that on no occasion was there any reliable evidence that the factsheet was available and distributed.

[The Court Adjourned]

Note:Due to the unavailability of the official court transcripts at this time, this report has not been checked for accuracy against the transcripts but was complied from extensive notes taken during the day by volunteers.
See also: The report for the previous day
The report for the following day
and, for summaries of all the key evidence given during the trial;
Trial News 1, Trial News 2, and Trial News 3