Opinion: Some legal aspects of the McBride Affair

Nadine Dorries, the Tory MP for Mid Bedfordshire, is threatening to sue for libel over what was written about her in the McBride-Draper emails. I expect she may struggle because to succeed in court she will have to prove that damage has been actually caused (rather than a mere intent to cause damage) to her reputation. Politically, her threats to sue seem naive. Threatening to sue but then not doing so invites speculation as to why not.

The criminal law is, however, likely to be relevant. There is a statutory offence of defamatory libel (also called malicious libel) under the Libel Act 1843. Defamatory libel is the communication of a defamatory statement “by written or printed words or in some other permanent form”. Do emails qualify? Almost certainly, in the same way as a data on your hard disk can be “an image” for the purposes of possessing indecent images. A “defamatory statement” is one which if published about someone would cause them to suffer contempt, ridicule, hatred, or to damage them in their business or office. The law requires “malice” which in this sort of case would mean an intention to do harm of the sort described.

The maximum penalty for this offence is two years imprisonment.

Damian McBride might well say that he had not published these statements and they were confined to private emails that could not cause damage. The law of conspiracy applies. Conspiracy, under Criminal Law Act 1977, simply means that two or more people agreed that a course of conduct that entails an offence shall be pursued.

If the emails (or other evidence) show that McBride and Draper had agreed that defamatory statement should be published then it is likely they could be convicted of conspiracy to commit defamatory libel. Anyone else party to such an agreement would be guilty as well, even if they played no real active part.

Another offence that Damian McBride may have committed is misfeasance (or “misconduct” in modern parlance) in public office, which was raised apparently baselessly against Damian Green MP not long ago. Misfeasance is where a holder of public office (this does not simply mean elected office but encompasses, for example civil servants like Damian McBride and police officers) wilfully misconducts himself amounting to an abuse of public trust. It can be committed by act or omission.

Prosecution for defamatory libel requires the Attorney-General’s consent: a problem when the office and the offence are political in nature. There is also the problem of investigation by the police who have, by necessity, close ties to the government of the day.

The American solution to this problem seems the best: either the President or Congress can appoint a special independent prosecutor to investigate and bring any offences before a jury. That is what the Prime Minister or Parliament should do. Alternatively, a senior police officer from another European state – therefore without connection to the UK Home Office – could be asked to investigate. Failing that, anyone can bring a private prosecution whether or not they are directly connect to these crimes.

* Antony Hook is a practising barrister and Lib Dem Euro Candidate for South East England.

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  • Since when has it been necessary to prove actual loss in order to sustain an action in libel? Has the law been changed in the last two years?

    No, no. Let’s not go to the graveyard and resuscitate criminal libel. Sir Jams Goldsmith tried that and became one of the most hated men in Britain. Criminal libel is just another device for rich people and their friends in government to suppress unwelcome comment. Let’s not go there, please.

  • Gluteus Maxissimus 14th Apr '09 - 10:01pm

    ‘A “defamatory statement” is one which if published about someone would cause them to suffer contempt, ridicule, hatred, or to damage them in their business or office. The law requires “malice” which in this sort of case would mean an intention to do harm of the sort described.’

    Fair enough: that must imply that the likes of Staines (a.k.a. “Guido”) are complicit in just such, hour by hour. Surely it cannot be a defence to argue, as Staines does, that he is not answerable for the blood-lusting, foul-mouthed “window-lickers” (his term) to whom he gives space?

    Then what about the “quantum” of the offence (and the rewards therefrom)? Doing over the likes of McBride and Draper might raise a few bob. Dorries has form as a litigent, and is allegedly well-heeled. Even so, an action against McBride and Draper is unlikely to raise the amount of gelt to keep Keith Schilling and his merry band in tailor-mades. Her own web-site seems to imply that has crossed her flexible mind. However, the “libels” were given far wider currency by the Murdoch press …

    Then, is motive a consideration here? “Guido” has now, several times, indicated his motive (I hope someone, somewhere, is protecting those gems from later re-editing): personal spite against Draper. Everything else seems to be collateral damage.

    Oh, and this: anyone who has not heard the nonsenses in these allegations (and far, far worse) has never been in close proximity to a bar and a group of politicos (of any persuasion).

  • This article is completely missing the point. This is a political issue, not a legal one, and that is why its astonishing that no LibDem is ready to talk about it on the media.

  • Any competent barrister would make mincemeat out of a claim that correspondence passing between two people could constitute libel, especially if there was doubt about the legality of how it came to be in the public domain.

    As far as using conspiracy laws are concerned, remember that a jury would decide the outcome of any case and I can’t see the man and woman in the street reacting very favourably to weeks of arcane argument between lawyers about the finer points of conspiracy law, and if they were therefore deciding the case on whether they liked Draper and McBride more or less than Dorries the outcome would be anybody’s guess.

  • Ian Eiloart 15th Apr '09 - 9:52am

    @David the article isn’t missing “the” point, because there’s never merely a single point. It just chooses to focus on legal aspects of the case.

  • So if someone broke into my house and stole a copy of a letter that someone had written to me making libellous comments about a third party then the law would take the allegation of libel seriously? I don’t think so. In addition, there is, in my understanding, a defence against the size of damages relating to the degree to which the public was exposed to the allegations. If McBride made the allegations to a third party (Draper) and that is the substance of the offence then it’s pretty hard to argue that Dorries was being brought into public hatred, ridicule or contempt.

  • Bernard, as no one else seems interested in this discussion it’s probably not worth continuing. My basic point is that a case is not going to succeed, unless (as is always possible) there is a bizarre verdict by the jury as in your example above because there was no intention to publish the allegations to a wider public. Sure, by the letter of the law it was published, but that is to allow the possibility of prosecution in cases where actual damage to reputation has been caused, as would have been the case, if McBride had emailed the allegation to, say, Dorries’s husband. Where the ‘publication’ is between two like-minded individuals it would be a very perverse interpretation of the law to regard it as defamatory. Which comes back to the crucial question of how the allegations came to be in the public domain, because by some possible routes by which that happened it is possible that someone could be guilty.

  • I’ll go and re-read Peter Carter-Ruck on libel then.

  • Drapper and McBride obviously intended (and hence, just as obviously, reasonably forsaw) that their libels would become ‘public’. They will hence be liable for them: Slipper v BBC.

    The ‘public’ part doesn’t matter anyway, as Draper counts as the public. And as the libels were made maliciously, even if he is able to create a defence of qualified privilege or fair comment (very unlikely in itself) it will fail due to his bad faith.

    And, as stated above, you don’t need actual damage in libel.

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