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Cite as: [1998] EMLR 524, [1998] EWCA Civ 10

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BAILII Citation Number: [1998] EWCA Civ 10
QBENI 97/0024/E


Royal Courts of Justice
13th January 1998

B e f o r e :



- v -


(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)


MR. G. SHAW Q.C. (instructed by Messrs Russell Jones & Walker, London, WC1) appeared on behalf of the Appellant/Plaintiff.
MISS A. PAGE (instructed by D.J. Freeman, London, EC4) appeared on behalf of the Respondent/Defendants.



Crown Copyright ©

    LORD JUSTICE HIRST: This is an appeal against a decision of May J. (as he then was) on 11th January 1996, whereby he held that the words complained of in this defamation action were not capable of bearing one of the two meanings pleaded by the plaintiff in his statement of claim. The capability of the other meaning, which was also under attack by the defendants, was upheld by the judge.

    The plaintiff, Mr. Patrick Paul Geenty, is an inspector who was at all material times stationed at Gloucester police station.

    The action relates to the broadcast by the first defendants, Channel Four Television Corporation Limited, of the television programme entitled "Trial and Error" on 13th January 1994, in which the second defendant, Mr. David Jessel, who is a journalist employed by the first defendants, played a prominent part.

    The theme of the programme was to question the convictions of two men called Gary Mills and Tony Poole for the murder of a man called Willie Wiltshire. It was divided into three parts separated by the usual commercial breaks, and the complaint relates essentially to the third part, though the first two parts are relevant as background. We have not only read the transcript of the broadcast but we have seen a video recording of the last part of the programme itself.

    The first part of the programme consisted of a number of very grave accusations of misconduct during the investigation of the death of Mr. Wiltshire by the responsible police officers, not, I emphasize, including the plaintiff. It is right to record that in 1996 the Court of Appeal heard the appeal by the two men who had been convicted, Mills and Poole. Evidence was given, including evidence by the present plaintiff, and in April 1996 their appeal was dismissed. That decision was upheld by the House of Lords in 1997 on the footing that the conviction was safe and satisfactory, despite an error on the part of the police of non-disclosure of certain evidence.

    During the first part of the programme the following relevant passages were broadcast, all spoken by Mr. Jessel:

    "A man died of stabwounds. But he was also, we believe, a victim of medical and police neglect. No one emerges untainted from what went on within these four walls, not even the two men wrongly convicted of murder.

    . . . .

    . . . There was no love lost between Wiltshire and the police. He was actually suing the Metropolitan Police for a groin injury he said they'd inflicted on him.

    For 15 hours with multiple but apparently superficial wounds, he was in the hands either of the police or the doctors and in their care. But at half past three the following afternoon, he was declared dead.

    . . .

    . . . We found medical neglect. And there were troubling question marks over the role of the police. The victim of this murder is also the victim of the people who were meant to look after him. . . ."

    The second part of the programme focused on allegations of negligence at Gloucester Hospital where Mr. Wiltshire was first treated after he had been attacked. During the course of this part of the broadcast the following relevant passages appeared, first, in an interview between Mr. Jessel and the police surgeon, Dr. Chaudhuri, who examined Mr. Wiltshire on his arrival at Gloucester Police Station after his transfer from the hospital:

    "There was blood everywhere. The bleeding from the wounds might have smeared the wall with the blood but the blood was on the wall.

    (Mr. Jessel) Were you surprised to see a man in that condition in the cells?

    (Mr. Chaudhuri) In the police you are not surprised with anything. We just go there and see what we are shown."

    Towards the end of the second part, Mr. Jessel himself made the following statement:

    "If this evidence had been available at trial, Mills and Poole could well have been acquitted of murder. When a victim dies of something that happens between injury and death, his attackers are only guilty of the original assault. But it's a delicate area of the law."

    Then he went on:

    "But that's not the end of the matter. Willie Wiltshire's last hours weren't only spent in the care or absence of it at the doctors, his last hours were also spent in the care or lack of it of the Gloucester police."

    At the outset of the third part, Mr. Jessel proceeded:

    "We know the extent of those injuries from the records that were taken at the hospital when he was first brought in. These show the considerable superficial stab wounds especially, around the buttocks and thighs, that he's sustained in the fight with Mills. But just look at the extra injuries that matter showed up at Wiltshire's post mortem examination. These injuries, all unrecorded at the hospital, included a broken leg, deep stab wounds just below the knees, as well as apparently obvious injuries to the nose. Why hadn't these been recorded? At trial, Dr. Fletcher, in charge of Casualty, was pressed to explain the discrepancy."

    There then followed a re-enactment of the cross-examination at the trial of Dr. Fletcher, who was in charge of casualty at the hospital, in which Dr. Fletcher accepted that he had not noted several injuries, including the one prominent injury to the nose, in his hospital note, but said that if they had been there he might not have noted them. He then made a reference to being unable to examine with a toothcomb. Cross-examining counsel put to him, and he agreed, that there was no need for a toothcomb so far as the injuries to the nose were concerned. I will come back to the demeanour in which that part was conducted a little later on. Mr. Jessel then proceeded:

    "The riddle of where Wiltshire got those unrecorded wounds is this. Wiltshire spent the last hours of his life either in hospital or in police custody, and we know he was an awkward customer, unco-operative and high on drugs in casualty. And as for the police, there was no love lost with them. From his point of view, he was the victim of the attack, so what was he doing under arrest. We know from the police's own statements that he accidentally bumped his head in the cells, but that doesn't account for the number of wounds that were found at post mortem which weren't logged at the hospital.

    The truth about what happened that night at Gloucester Police Station, and, as we'll see, there is more than one version of it, may never be known. But we have no proof of any deliberate ill-treatment. What we do know is the care the victim received in the cells fell far short of what the law and conscience demand. And that the inconsistent accounts of the police themselves suggest serious muddle and neglect. The police don't seem to have accepted that the man in their care could be in any distress, but other prisoners did."

    The programme then proceeded with interviews with prisoners who were in adjoining cells at the same time, who said they heard a lot of moaning and groaning from Mr. Wiltshire's cell, at which, when they protested, the police told them to shut up.

    Mr. Jessel then referred to other statements which suggested that the police or other people thought that Wiltshire was shamming and comments which Mr. Jessel said betrayed the fact that his basic needs were ignored.

    At this juncture Mr. Jessel recorded that the police were about to release Mr. Wiltshire when a message came through that a broken kitchen knife had been found on him at the hospital some hours before, as a result of which he was arrested at the police station, and at that juncture there appeared on the screen a facsimile of an extract in manuscript of the custody record as follows:

    "Time 11.30. Arrested by A Geenty for possession of an offensive weapon."

    There then came an interview with a former police officer who criticised police procedures in relation to the arrest of Mr. Wiltshire, and described it as probably one of the worst neglects of duty he had seen, coupled with a serious failure to follow the Police and Criminal Evidence Act.

    There then followed the crucial passage on which the plaintiff mainly relies as identifying him as the culprit, comprising commentary by Mr. Jessel followed by an interview with Mr. Giffin, the duty solicitor. Mr. Jessel said:

    "This is a murder case. Two men are in prison for life. How their supposed victim died, when and where, are matters of some importance. . . . Wiltshire was left alone in the cell after the police had failed to get him dressed. When the police returned later with a senior officer they said that Wiltshire was moaning and breathing in a shallow way. The police maintain they were always fully aware of Wiltshire's condition, calling an ambulance the minute the crisis broke. But a duty solicitor arrived before the ambulance was called, and he wasn't aware of any police concern about Wiltshire's condition."

    And then Mr. Griffen, the duty solicitor:

    "No I certainly wasn't. I don't see how it can be right given that the version that I was receiving from the police was that, you know, he's in his cell waiting to see you. There with no suggestion that he was going to be rushed off to hospital. Quite the contrary. There was an officer that took me to the cell, DC Geenty was already there. One of them said to me, he's not co-operating now, he's messing around or shamming or whatever. Geenty was trying to sort of rouse Wiltshire to speak to me. He rolled him onto his back to try and get some kind of response, and, from memory, his eyes I think, I'm not sure whether they were open or whether they opened as he was being turned over, his eyes seemed to sort of roll all around in his head and he made a noise which... you hear about a death rattles - I've not heard it before, so I don't really know what it sounds like. But I heard a noise which was how I imagine a death rattle would be, it was a pretty unpleasant noise, and I think at that stage DC Geenty realised that there was a problem."

    Mr. Jessel wound up his part of the programme as follows:

    "We may never know the reason for the difference between the police version where there's a sense of care and concern and the solicitor's view that they weren't aware of the gravity of Wiltshire's condition until he was virtually dead. But even leaving aside the question marks over hospital treatment and police care, what is the evidence for a murder charge against Mills and Poole?"

    There is then a reference to the Police Complaints Authority inquiry which exonerated some of the police in relation to the original investigation of the death of Mr. Wiltshire. Finally, there was a short interview with the local Member of Parliament, who said that the case had some very embarrassing aspects, and that there was abundant evidence that certain police personnel behaved very badly indeed.

    Having quoted these relevant passages, the statement of claim alleged that the words bore the following natural and ordinary meanings:

    "1) that the Plaintiff had probably savagely beaten Mr. Wiltshire whilst Mr. Wiltshire, who had already sustained previous injuries, was in custody at Gloucester police station;

    2) that the plaintiff had gravely neglected the care of Mr. Wiltshire when Mr. Wiltshire was seriously injured in custody, and had thereby caused or at least contributed to Mr. Wiltshire's death whilst in custody."

    The defendants' application to strike out was under the new rule, O.82,r.3A, which came into force in 1994 and which provides, so far as relevant, as follows:

    "(1) At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings.

    (2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgment in the proceeding as may be just."

    The judge upheld the defendants' application in relation to the first pleaded meaning, and it is against that decision that the plaintiff presently appeals. He rejected the application in relation to the second meaning, and there is no cross appeal against that part of the decision.

    So far as the first meaning was concerned, the judge ruled, so far as relevant, as follows:

    "I accept that the passages in the programme to which I have referred and which Mr. Suttle (who then appeared for the plaintiff) relied on raise a question mark about whether Mr. Wiltshire may have been positively injured in police custody, although my own strong impression is that the burden of much of the material was that these were injuries which were more likely to have been missed at hospital rather than inflicted in police custody. I accept also that the court at this stage should be very slow to conclude that an antidote alone draws the sting of what is otherwise a defamatory meaning."

    Then he went on to say:

    "Here, however, the plaintiff has, I think, the added, and to my mind insuperable, problem of reference."

    He said that the faxed custody record on the screen did not assist the plaintiff. Finally he said:

    "Though I have held that in that context the references by Mr. Griffin to Mr. Geenty are capable of being taken as suggesting that Mr. Geenty was one of those against whom allegations of neglect were made, it is in my judgment stretching a viewer's awareness well beyond breaking point to see these references in the context in which they were made as referring back so as to link Mr. Geenty with what are, in any event, only allusions made considerably earlier in the programme at a point at which he had not been named at all."

    By respondent's notice the defendant challenges the ruling in the first of those sections I have quoted from the judgment above, and submits that the words were not capable of bearing the meaning that Mr. Wiltshire had been savagely beaten or probably savagely beaten whilst in police custody, whether with or without any involvement on the part of the plaintiff.

    The battle lines before us are therefore very clearly drawn. Mr. Geoffrey Shaw QC, on behalf of the plaintiff, submits that the judge was wrong in ruling that the words were incapable of referring to the plaintiff in relation to his first meaning; that is of police maltreatment. Miss Adrienne Page, on the other hand, on behalf of the defendants, submits that the judge went too far in the plaintiff's favour when he ruled that the words were capable of attributing to the police generally responsibility for positive injury to Mr. Wiltshire while in police custody.

    With regard to the principles involved, there is no dispute that the judge rightly directed himself by reference to the summary of the relevant principles given by Neill L.J. in Gillick v B.B.C. [1966] EMLR 267 at page 272, in which he drew extensively on the classic passage in Lord Reid's judgment in Lewis v The Daily Telegraph [1964] AC 234 at page 258. Neill LJ stated as follows:

    "(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.

    (2) The hypothetical reader (or viewer) is not I 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.

    (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 question.

    (4) A television audience would not give the programme 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.

    (5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

    (6) The court should not be too literal in its approach."

    In Mapp v News Group Newspapers Limited [1997] EMLR 397, in a judgment with which Millett and Hutchison LJJ agreed, I stated as follows at page 401 as to O.82.r.3A:

    "In my judgment, the proper role for the judge, when adjudicating a question under Ord.82,r.3A, is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his own judgment in the light of the principles laid down in the above authorities and without any Ord.18,r.19 overtones. If he decides that any pleaded meaning falls outside the permissible range, it is his duty to rule accordingly. It will, as is common ground, still be open to the plaintiff at the trial to rely on any lesser defamatory meanings within the permissible range but not on any meanings outside it. The whole purpose of the new rule is to enable the court in appropriate cases to fix in advance the ground rules on permissible meanings which are of such cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the plaintiff's reputation, but also for the purpose of evaluating any defences raised, in particular, justification or fair comment."

    The question as to what meaning words are capable of bearing has often been described as a question of law, but only in the sense that the decision thereon is reserved to the judge rather than to the jury, so that, as Lord Reid said in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at page 1242:

    "It is not a question of law in the true sense."

    See also per Lord Diplock in Slim v The Daily Telegraph [1968] 2 QB 157 at page 174.

    The proper approach to an appeal under the new rule was considered by this court in Hinduja v Asia TV Limited (unreported, 25th November 1997). In a judgment with which Henry LJ and Harman J agreed, I said:

    "... I would strongly wish to discourage appeals under O.82,r.3A on which the decision seems to me to lie essentially within the province of the judge in chambers. This rule is intended to lay down a swift and inexpensive procedure in chambers to eliminate meanings which the words are plainly incapable of bearing."

    I do not in any way resile from that general approach on which Miss Page properly relies, but, as Millett L.J. pointed out in argument, there is a significant difference between the Hinduja case and the present case, in that in the former the judge ruled that the words were capable of the disputed meaning, thus leaving it to the jury to make the final decision, whereas here, on the judge's ruling, one of the two meanings relied upon is ruled out once and for all, from which it follows that the Court of Appeal should be a little less reluctant to interfere in the latter situation than in the former.

    I now turn to the two rival arguments. It is convenient first to consider Miss Page's cross notice since, if she is right, that concludes the appeal in her favour. Mr. Shaw QC supported the judge's conclusion, subject to the reservation as to his precise formulation raising no more than a question mark which he submitted was too weak an interpretation. He focused particularly on the references, more than once in the programme, to the amount of blood found in the police cell; for example, in the quotation from the police doctor referred to above, on the stress on the number of injuries which were not recorded in the hospital, and on the re-enacted cross-examination of the casualty officer which he suggested, to my mind rightly, was a very hostile and effective form of cross-examination, with the doctor's demeanour and evidence appearing very weak, particularly with reference to the obvious nose injury. This, Mr. Shaw suggested, underlined the suggestion that the injuries, which were not recorded, were inflicted subsequently in police custody, otherwise, asked Mr. Shaw, why show the reconstruction at all? He then stressed the passage starting off with a reference by Mr. David Jessel to the riddle, the ruling out of the accidental bumping of the head in the police cell, pointing, Mr. Shaw says, towards police culpability. That is then, as he accepts, followed by the antidote in the passage starting "but the truth will never be known".

    However, he says that that still leaves a considerable sting in the programme, that there is a strong possibility that the police were responsible for the latter injuries which he reflected in the insertion of the adverb "probably" in his first meaning.

    Finally, Mr. Shaw relies on the strong words spoken by the Member of Parliament which he says could reasonably be interpreted as referring to maltreatment in the cell.

    Miss Page, on the other hand, first drew our attention to the structure of the programme and emphasized the opening words (quoted above) which she says highlight or flag up neglect as being the critical charge, she would say the only charge, against the police. She then draws our attention to the whole of the first part which dealt with accusations of misconduct by several police officers during the inquiry into Mr. Wiltshire's death which, of course, had nothing whatsoever to do with what happened later on in the police cells. She stresses that the second part contains very strong imputations of neglect against the hospital. When she comes to the third part, she submits that the main theme, which would stick in the mind of the reasonable viewer, is neglect, whereas, by contrast, she says that any suggestion of maltreatment only comes into the programme en passant, but still, as she portrays it, with the casualty officer accepting in the reconstruction that he may have omitted to note injuries which were already present when Mr. Wiltshire was at the hospital, including the injuries to the nose. This slant, she says, is finally laid to rest by the passage starting with the words "the truth will never be known", with the remainder of the programme, she suggests, focusing entirely on neglect.

    These are very powerful arguments and may well sway the jury ultimately in the defendants' favour, but, having carefully considered the transcript and having seen the relevant part of the programme, I have come to the conclusion that the judge was right, substantially for the reasons given by Mr. Shaw, to rule that the words were capable of imputing maltreatment to the police as a general allegation. In particular, I think that the casualty officer's evidence, as portrayed in the programme, tended to suggest, to put it no higher, that some of the injuries, especially that to the nose, had not been inflicted when Mr. Wiltshire was examined in the hospital. That is reinforced by the stress on the amount of blood found in the police cell. I do not think that the antidote ("the truth will never be known") is sufficient to remove that impression which I think is revived by the interview with the Member of Parliament at the end of the programme. Mr. Shaw's pleaded meaning "probably" might, I think, have been better formulated in terms of a strong possibility or words to that effect, but I would not think it right to rule against him on so narrow a distinction. I therefore reject the ground of appeal raised in the cross notice.

    I now turn to the appeal. Mr. Shaw submits that the judge's decision that, although the second meaning was capable of referring to the plaintiff, the first one was not so capable, is wrong. He submits that if it was capable of one, it must be capable of the other. He emphasizes that the plaintiff is the only police officer actually named in the programme, and he also submits that, by the facsimile of the custody record followed by the criticisms by the police officer of the police procedures, Mr. Geenty is accused of being responsible for an unlawful arrest. Mr. Shaw also stresses the approach of the judge on this aspect of the case which he submits was wrong.

    Miss Page for her part supports the judge's decision. She points out that the duty solicitor's remarks all come in the context of neglect. She submits that it is important to note that other police officers are photographed coming and going within the police station. She also draws our attention to the fact that the period of custody is portrayed as over 12 hours and suggests that the reasonable viewer would conclude that there was a considerable period of time between Mr. Wiltshire's arrival at the police station and the duty solicitor's attendance, with no likelihood of the plaintiff being on duty throughout. In those circumstances, she says that to implicate the plaintiff personally in any police maltreatment would be an unduly suspicious approach and an irrational one.

    Here again, these are powerful jury arguments. But I, for my part, have come to the conclusion, not without hesitation, that once it is accepted, as it is, that the words are capable of implicating the plaintiff in the neglect, they are also capable of implicating him in the accusation of maltreatment. I draw attention in that context to the comparatively short period, no more than a few minutes, which separated the general maltreatment allegation and the interview with the duty solicitor, and I also think that one cannot disregard, contrary to Miss Page's argument and the judge's view, the flash on the screen of the custody record which, to my mind, and contrary to Miss Page's argument, does implicate or is capable of implicating the plaintiff in wrongful arrest, and which comes only shortly after the general allegation of maltreatment. For all those reasons I would allow the appeal.


    LORD JUSTICE BROOKE: Miss Page presented an attractive argument to us, to the effect that the fact that the plaintiff was known as a police officer who was associated with Mr. Wiltshire's care whilst in police custody, and he was the only police officer known in this context, provided absolutely no basis for the viewer to have concluded that, if police violence had been suggested in the programme, this misconduct was being attributed to the plaintiff.

    I see the force of this argument in view of the way in which the judge dealt with this issue in his judgment but, in the end, I do not dissent from the order proposed by my Lord. Once the second possible meaning implicating the plaintiff is allowed to go to the jury (and there is no appeal from the judge's ruling in this regard) I appreciate that it is not easy, as a matter of logic, to see why the first possible meaning should not be allowed to go to them too. With a good deal of hesitation, I too would allow the appeal.

    Order: Appeal allowed with costs here and below; application for leave to appeal to the House of Lords refused.

    (Order not part of the judgment of the court)

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