|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Skuse v Granada Television Ltd  EWCA Civ 34 (30 March 1993)
Cite as:  EWCA Civ 34,  EMLR 278
[New search] [Printable version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE BROOKE)
B e f o r e :
(Sir Thomas Bingham)
LORD JUSTICE BELDAM
LORD JUSTICE KENNEDY
| DR FRANK SKUSE
|GRANADA TELEVISION LIMITED
MR SYDNEY KENTRIDGE Q.C. and MR PATRICK MOLONEY (instructed by Messrs Goodman Derrick & Co.) appeared for the Respondent (Defendant).
Crown Copyright ©
"whether the words complained of are defamatory of the Plaintiff and if so, whether they bear the defamatory meaning complained of by the Plaintiff or some lesser defamatory meaning, and if so what".
"In their natural and ordinary meaning the said words and visual images meant and were understood to mean that the Plaintiff, when appearing in the capacity of an expert witness at the trial in 1975 of the Birmingham bomb suspects, had misrepresented to the Court negligently the effect of the scientific tests which had been carried out."
"that the words complained of bear the meaning that there were reasonable grounds to suspect that Dr Skuse was negligent as a forensic scientist and expert witness in the Birmingham Six case because he was using what was a screen test as a test on which he could base his conclusion of 99 per cent certainty that the two men whose hands were tested had handled explosives, when his conclusions were based almost entirely on that test and that test alone, and that this caused and contributed to the wrongful imprisonment of the Birmingham Six."
The publication complained of
"There is a bomb planted in New Street at the Tax Office: the codeword is 'bastards'."
On November 9th in 1974 an anonymous phone call to a newspaper Office signals the Provisional IRA bringing the worst ever terrorist outrage to mainland Britain. Minutes later bombs destroyed two crowded pubs in the heart of Birmingham. Twenty one people died. One hundred and sixty two were hurt. The callous murder and maiming of innocent civilians prompted unprecedented public anger. By the following day when the Home Secretary visited the scene of the carnage he had already promised tough action against terrorists. Public protest and anti-Irish feeling were answered by quickly outlawing the IRA, giving the police wide-ranging new powers under The Prevention of Terrorism Act and by the swift arrest of six suspects. The men were convicted of the biggest mass murder in British history, a crime so appalling that public anger still swamps their claims of innocence. But ten years after their trial an examination of crucial evidence against them has yielded disturbing results.
SIR JOHN FARR
I think it was very important to have a conviction in 1974.
I think that it was important then and still is, because they are an example to others who would place bombs in Birmingham or any British city. My own view is very doubtful as to whether they actually got the guilty men inside.
He took a piece of cotton wool and poured some of this ether on it and took swabs of my hands.
Patrick Hill described the first stage of the forensic test he underwent after [arrest]. Whatever the truth about the confessions, there is no doubt it was the forensic results that triggered the police interrogation. If a sample turns pink within ten seconds under the simple Griess test, it indicates the suspect could have been handling explosives. Samples from Hill and Power did turn pink. Results were presented to the jury at Lancaster Castle in such a way that it was the strongest strand of independent evidence. Dr Frank Skuse, the Home Office forensic scientist who conducted the tests, told the jury that he was 99% certain that the two had handled explosives. His contentions were based almost entirely on the Griess test.
The Griess test is only a screen test, and a positive result means that there is a possibility that the substance you suspect to be present is present. It doesn't prove that that substance is present.
It wasn't known whether anything the men did on the train that night could have led to incriminating forensic tests. The scientist tested more than twenty substances, including lighter fuel, cigarette smoke, even meat pies but with no result. Then they turned their attention to nitro-cellulose, commonly found in the paints, vanishes and lacquers regularly used on railway and bar furniture. Dr Hugh Black, a former Chief Inspector of Explosives at the Home Office, appeared for the defence at the trial. He argued that the innocent compound nitro-cellulose could give the same result as the explosive nitroglycerine. Dr Skuse for the prosecution said it couldn't if the tests were done at room temperature as his had been. Mr Justice Bridge came down on the side of Dr Skuse. In summing up, he told the Jury the defence should have done their own tests and he concluded with Dr Skuse's words:
'I am 99% certain that that shows the presence of nitroglycerine. The only other substance I know of which could give such a result is also a much rarer constituent of commercial explosives.'
We decided to find out who was right. The result would prove crucial for the men with forensic evidence against them, who both were painters by trade and one claims he had been painting on the morning of their arrest. Working [in] their own laboratories without knowledge of each other, both scientists Griess tested nitrocellulose, the chemical which puts the gloss on many paints. They took three samples [from] a spray lacquer, from varnish and from raw nitro-cellulose chips. In each case, experiments to room temperature gave identical results to explosives; something which Dr Skuse had told the Court couldn't happen under the Griess test.
As a result of the tests I have carried out, clearly there are other substances which give positive reactions to this test, and so it's totally unrealistic to use it as a test for identification.
The tests that I have carried out would indicate that there are other compounds, other materials which occur in society, which do respond to the Griess test and they could in that case perhaps cause some confusion.
Results like these were the cornerstone of the police inquiry which led to the men's conviction. Yet in independent experiments, two scientists have proved irrefutably that Dr Skuse's evidence was simply wrong.
If the evidence of the Griess test is worthless, the Home Office can point to only one other forensic test which suggests the men's guilt.
If you have a positive Griess test, you have to go away and carry out more sophisticated types of analyses to confirm the presence of the substance you suspect is present.
But in the Birmingham case the sophisticated tests on a machine like this produced only one [questionable] result. The machine identifies nitro-glycerine by breaking it into three fragments represented by electronic flashes on a screen.
[Only] one of those fragments was in fact shown to be present, therefore we haven't got the complete picture.
So it could have been something else?
It could have been something else."
The court's approach
(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once in 1985.
(2) "The hypothetical reasonable reader [or viewer] is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available."
(per Neill L.J., Hartt v. Newspaper Publishing PLC. unreported, 26th October 1989 (Court of Appeal (Civil Division) Transcript No. 1015): our addition in square brackets).
(3) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue. We were reminded of Diplock L.J.'s cautionary words in Slim v. Daily Telegraph Ltd.  2 Q.B. 157 at 171:
"In the spring of 1964 two short letters appeared in the correspondence columns of the 'Daily Telegraph'. Written by Mr Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs' characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs' character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964."
In the present case we must remind ourselves that this was a factual programme, likely to appeal primarily to a seriously minded section of television viewers, but it was a programme which, even if watched continuously, would have been seen only once by viewers many of whom may have switched on for entertainment. Its audience would not have given it the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article. In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer we are entitled (if not bound) to have regard to the impression it made on us.
(4) The court should not be too literal in its approach. We were reminded of Lord Devlin's speech in Lewis v. Daily Telegraph Ltd.  A.C. 234 at 277:
"My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory."
(5) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally (Sim v. Stretch  2 All E.R. 1237 at 1240) or would be likely to affect a person adversely in the estimation of reasonable people generally (Duncan & Neill on Defamation, 2nd edition, paragraph 7.07 at p. 32).
(6) In determining the meaning of the material complained of the court is "not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words" (Lucas-Box v. News Group Newspapers Ltd  1 W.L.R. 147 at 152H).
(7) The defamatory meaning pleaded by a plaintiff is to be treated as the most injurious meaning the words are capable of bearing and the questions a judge sitting alone has to ask himself are, first, is the natural and ordinary meaning of the words that which is alleged in the statement of claim and, secondly, if not, what (if any) less injurious defamatory meaning do they bear? (Slim v. Daily Telegraph Ltd. above, at p. 176.)
(8) The Court of Appeal should be slow to differ from any conclusion of fact reached by a trial judge. Plainly this principle is less compelling where his conclusion is not based on his assessment of the reliability of witnesses or on the substance of their oral evidence and where the material before the appellate court is exactly the same as was before him. But even so we should not disturb his finding unless we are quite satisfied he was wrong.
(9) The court is not at this stage concerned with the merits or demerits of any possible defence to Dr Skuse's claim.
The argument for Dr Skuse
(1) Dr Skuse had testified that he was 99% certain two of the defendants had handled nitro-glycerine relying "almost entirely on the Griess test" when that is "only a screen test and a positive result means that there is a possibility that the substance you suspect to be present is present" but "doesn't prove that the substance is present". To use the Griess test as a test of identification was "totally unrealistic" and the results were "worthless". Yet the judge relied strongly on this evidence in his direction to the jury before conviction.
(2) Dr Skuse expressed the opinion he did although more sophisticated analysis was necessary to confirm the presence of the substance suspected to be present, and in the Birmingham case that more sophisticated analysis "produced only one questionable result" so that the suspected nitroglycerine "could have been something else".
(3) Dr Skuse testified that nitrocellulose could not give the same positive Griess test result as nitroglycerine if the tests were done at room temperature as his had been, when simple tests commissioned by Granada showed that this evidence was "simply wrong". In the result, the evidence of Dr Skuse, crucial to the prosecution, was flawed.
The argument for Granada
(1) At page 6E of his judgment the judge described the main thrust of the programme as being "that there was new evidence available which would now warrant very careful reconsideration". That was in our view only part of the thrust. The programme raised very serious doubts about the soundness of the convictions and threw doubt on the three main strands of evidence, in particular the scientific evidence of Dr Skuse.
(2) The judge attached considerable importance to the contributions of the "obviously competent solicitor" of the about his use of the test result ("totally unrealistic", "simply wrong", "worthless", "questionable"). Nothing whatever was said to suggest that is opinions reflected received opinion or standard practice in 1974-1975.
(5) The judge's distinction between negligence and reasonable grounds to suspect negligence may of course be properly made if the words complained of warrant it (as in Lewis' case where it was said that a company was the subject of a police inquiry), but it is a distinction more familiar to lawyers than laymen and it is not one which would, in our judgment, occur to the ordinary reasonable viewer of this hard-hitting, arresting, quickly-moving television programme. Such a viewer would be left with the clear impression that Dr Skuse had quite simply but very seriously fallen down on his job.
Order: Appeal allowed and cross-appeal dismissed with costs to be taxed and paid forthwith.