B e f o r e :
THE HONOURABLE MR JUSTICE EADY
| || ELAINE CHASE||Claimant|
| ||- and -|
| ||NEWS GROUP NEWSPAPERS LTD||Defendant|
MR STEPHEN SUTTLE (instructed by Russell Jones & Walker) for the Claimant
MR RICHARD SPEARMAN Q.C. (instructed by Daniel Taylor) for the Defendant
MR HENRY PITCHERS (instructed by Eversheds) for the South Essex Mental Health And Community Care NHS Trust
MRS W in person
Hearing dates : 1st / 2nd May 2002
HTML VERSION OF HANDED DOWN JUDGMENT
Crown Copyright ©
Mr Justice Eady
- There are before the court a number of applications made on behalf of the Claimant Miss Elaine Chase in libel proceedings brought against News Group Newspapers Ltd, which publishes the Sun. The Claimant is a state enrolled nurse, a SRN and a State Registered Sick Children’s Nurse. She was formerly employed as a paediatric community sister by the South Essex Mental Health and Community Care NHS Trust (‘the Trust’).
- The claim relates to articles published in issues of the Sun newspaper dated 22 and 23 June 2000. The claim form was issued on 15 June 2001 and the particulars of claim served on 18 September of that year. The allegations made were towards the highest level of gravity for defamation litigation and undoubtedly received enormous prominence. The articles were extensive and may be summarised for the purposes of this judgment.
- On the front page of the newspaper for 22 June there was a large headline “Nurse is probed over 18 deaths: World Exclusive”. The article said that she was suspected of overdosing terminally ill “youngsters” with painkillers. It identified the children concerned as nine boys and nine girls aged between eight weeks and 17 years.
- The article went on to describe the nurse concerned as being unmarried and in her forties. It did not name her, but it is the Claimant’s case that the circumstances were such that even at that early stage a significant number of readers would identify her. The nurse was said to have been suspended the year before. It was said too that Essex police were seeking assistance from Lincolnshire detectives who had been involved in the notorious case of Beverley Allitt (described by the Sun as “the Angel of Death”), who had been in 1993 convicted of murdering a number of children in her care.
- Attention was drawn to a two page spread inside, which was itself under the heading “Exclusive: Nurse probed over 18 child deaths: A graveyard holds the secret”. The theme is continued with the introductory words: “Six tiny graves in a children’s cemetery hold the key to the mystery deaths of 18 youngsters”. Although the deaths were not seen as suspicious at first, the Sun went on to allege: “But now it is suspected that they might have been given huge overdoses of morphine or other painkillers”. It added, “The case already has echoes of the crimes of killer GP Harold Shipman”.
- The nurse was alleged to have been suspended following a letter of complaint over serious misgivings about her professional conduct which, according to a mother, “jeopardised and compromised” her son’s treatment. There followed an inquiry in which her colleagues were interviewed as well as the parents of some child patients. Reference was made to internal reports seen by the Sun, one of which referred to the nurse’s mood swings and to episodes of aggression and “self-isolating behaviour”.
- It was then alleged that senior health service officials went to the police, following the inquiry, and told them that the nurse was suspected of accelerating the deaths of 18 children. There was further reference to the cases of Harold Shipman and Beverley Allitt in the context of help sought by Essex police from the Greater Manchester and Lincolnshire police.
- The Beverley Allitt analogy was pressed further because she had “injected her victims with chemical drugs and tried to suffocate them”. The Essex nurse too, said the Sun, would have been able to administer morphine (subject to various safeguards).
- The article went on to quote “a health source close to the inquiry” as saying that “she was suspended so that her capacity for doing harm would be eliminated”. There is a good deal more about the suffering of parents, and comments from a doctor to the effect that the medical profession does not have the “legal right to play God with the lives of terminally ill children and take a decision on when their lives should end”. He referred to Shipman giving a single dose of morphine or diamorphine and described it as “almost the perfect murder method”.
- There are then two separate sections under the sub-headings respectively of “Allitt” and “Shipman” reminding readers of how those trusted professionals had murdered patients.
- The Sun’s allegations, it seems, were republished in this jurisdiction and in many other places around the world. This was made clear the following day. On page 2 of the issue for 23 June there was a piece headed “Blockbuster Sun” in which many such republications were proudly listed.
- In the meantime there had been coverage to broadly similar effect on the BBC’s evening programme Newsnight. The Claimant was not identified by name on that programme either, because I had granted an interim injunction on an urgent application during the early evening of 22 June. This was sought by the NHS Trust for the protection of the confidentiality of the families concerned and also to protect the Claimant herself. I was given on that occasion in a draft affidavit of a solicitor, Mr Richard Collier, a considerable amount of information about the background of the investigation, the involvement of the police and why it was thought appropriate to apply for an injunction.
- It is right that I should cite passages from that draft (subsequently sworn and served in accordance with my order). I do so partly to show the context of publication and partly because its contents are relevant to one of the applications now before me (the Claimant was at that stage being referred to as “X”):
“X has remained suspended from duty from 28 September 1999 to date. From the information I have I can say that X has not during the intervening period undertaken nursing duties of any kind, nor been in contact with any of her patients or their families. The Trust will maintain X’s suspension until the conclusion of these investigations and does not believe that there is any substantial risk that X will in the intervening period seek to work as a nurse.
Since the Police were instructed in this matter they have worked with the Trust in close co-operation. These investigations are of their nature complicated and require a review of a substantial body of evidence. This evidence includes hospital and nursing notes, community nursing notes, Consultants’ reports and notes and the notes and reports of General Practitioners concerned. While the Trust has been able to make available to the Police all the documents within their ownership and under their control, these do not include the notes of every hospital involved outside the Trust’s area of operation, nor the notes of Consultants or General Practitioners. Gaining access to these notes takes time and bearing in mind the strict confidentiality owed by the medical practitioners and health bodies concerned towards their patients and staff.
At a meeting held at the Essex County Police headquarters in Chelmsford on the evening of 21 June 2000, Assistant Chief Constable John Broughton who has overall command of the investigation by the Police, made absolutely clear that on the basis of the information currently available to them the Police had no grounds whatever upon which they could arrest X, nor was he able to say over what time-scale he believed that a final decision with regard to this investigation could be made. He confirmed that the Police could not “abandon” the investigation until they had had an opportunity of reviewing all the evidence that might be available.
In the opinion of the Trust it is unlikely that, after full investigation, any Police action will be taken against X in the future. Whilst the investigation is continuing the Trust has taken its own expert advice on the drug administration in relation to two cases being investigated by the Police and been told that the administration of the drugs by X in those particular cases fell well within the bounds of good professional management of pain. The same expert reports raise some questions about X’s suitability to continue in the highly charged and emotional atmosphere of the Paediatric Community Nursing of terminally ill children. They have raised no further issues to lead the Trust towards the view that an early conclusion of these matters is likely, or that the result will be that X will be charged with the commission of criminal offences.
The Defendants in the publication of the Sun newspaper on 22 June 2000 have paralleled X’s case with that of the nurse Beverley Allitt and the of Doctor Harold Shipman. The implication of such juxtaposition is unmistakable. Its implications for X are self-evidently serious, both with regard to the pressure to which she will be subjected whilst the investigation continues and to her future professional career in the event of her re-instatement as a nurse.”
- Mr Collier then went on to identify the Trust’s reasons for making the application. In particular, it seemed clear from the articles in the Sun published that day that they had obtained at least one internal report, the content of which was described as “confidential to the Trust”. It also contained the names of patients and other members of staff.
- The following day, because of publicity outside the jurisdiction, it was recognised that it had become impractical to prevent further publication of the Claimant’s identity and the injunction was accordingly varied in that respect.
- The meaning attributed in the particulars of claim to the material published on 22 June was that there were very strong grounds to suspect the Claimant of having serially murdered at least 18 terminally ill children entrusted to her care and of having behaved in a evil manner comparable to the behaviour of Beverley Allitt and Harold Shipman. Not surprisingly, there is no challenge to the effect that the words are incapable of bearing such a meaning.
- The Sun returned to what it described as its “sensational scoop” on 23 June. A photograph of the Claimant appeared on the front page with her face obscured because of the previous evening’s injunction. There was a caption describing her as the “Woman at centre of 18 death probe”. It was also described as the “First photo of the Nurse” and, moreover, as “the first picture of the nurse being investigated over the deaths of 18 children”. The story is then developed: “Cops are probing claims – exclusively revealed by the Sun – that terminally ill youngsters aged eight weeks to 17 years were given overdoses of painkillers”. It was revealed that 20 detectives were working on the case but that, although this nurse was said to have been “suspected by NHS bosses last year”, police had not yet interviewed her. The point was also made that they had “NO power to prevent her leaving the country”.
- Police were said to have visited the homes of every family involved in the probe; that is to say, the parents who had suffered the loss of a child. It was added, “But the parents were only told of the inquiry by cops on Wednesday after the Sun had learned about it”. As it happens, the reason for that was, I am told, simply that the police wanted to tell the parents rather than leave them to pick up the story from the media. The police did not think it right at that time to alarm the parents or add to their anguish since they had no sufficient basis to do so. Their hand was, in effect, forced by the Sun.
- So far I have summarised the extensive article on pages 1 and 4 of that issue. There was, however, other coverage on pages 2, 4, 5, 6 and 7. On page 2 there was the piece referring to the “Blockbuster Sun”, and to the previous day’s scoop. It claimed that it was “followed up across the world – proving yet again that Britain’s favourite newspaper is simply Sun-beatable”. Its desperate rivals were scrambling to catch up. The heading asserted “Another fantastic scoop as our desperate rivals droop”.
- On pages 4 and 5 there was a two page spread under the heading “Probe into 18 child deaths: She was brutal”. There was a sub-heading “Mum raps nurse over treatment of Peter, 2”. The mother in question I shall identify for present purposes only as Mrs W. She made submissions to me in person, to which I shall return in due course. On that day, however, she was quoted as saying of the nurse in question (i.e. the Claimant) “She was very brutal”. She was said to have been cold-hearted in the way she handled her small son “…who had severe stomach problems but survived”.
- There then appeared the following words:
“But when she complained, the nurse accused her of suffering from the same condition as child-killer Beverley Allitt. It led to [Mrs W] being made to endure four months confined to a psychiatric unit while her toddler son was locked in a room and force-fed.
Ordered to abort her third child or risk her other two sons being taken into care.
And forced to watch her seriously ill son suffer two years of unnecessary agony before doctors finally agreed surgery.
And last night [Mrs W] said: ‘I have been through hell because of that woman.’”
- The article then continues with an account of how the Claimant is supposed to have treated Mrs W’s son. She was said, again, to have been “very cold-hearted in her approach and very brutal”. The mother said that, “She used to come and wrap Peter in a blanket, pin him down and force the tube down his nose. She offered him no words of compassion”.
- This part of the article is introduced by a sub-heading “Teddy” because it contains an account of how the Claimant callously rejected what had become a family routine, whereby the child’s teddy bear had been fitted with a nasal gastric tube so that he could be “fed” at the same time, with the purpose of what the Sun called “lessening the tot’s fear”. The boy was said always to scream when he saw her coming up the path.
- The mother claimed in the article to have made a formal complaint. The article then alleged that “in turn, the nurse accused [Mrs W] of suffering from the same warped mental condition as evil Beverley Allitt”.
- It was also claimed that there were case notes relating to the child recording that the mother had Munchausen’s Syndrome by Proxy and that she was “fabricating her child’s medical condition for self-gratification”. It is clear that this allegation was attributed by the Sun to the Claimant because it claimed that “Health chiefs believed the nurse and [Mrs W] was confined to a psychiatric unit”.
- Mrs W was also reported as saying that the authorities had set up a procedure to take her son into care and to place all her children on an “at risk” register. But when she filed a complaint against five doctors to the GMC the allegations against her were dropped and her children taken off the register.
- The meanings attributed to the 23 June articles were threefold. First, there is pleaded the same meaning as that relied upon for the previous day’s coverage. There then follow two additional meanings:
(2) that the Claimant had treated Mrs W’s infant son in a manner which was very brutal, cold-hearted and without compassion, had callously brushed aside a routine with his toy bear aimed at lessening his fear, and had caused him to suffer two years of unnecessary agony which his mother was forced to watch;
(3) that the Claimant had falsely accused Mrs W of suffering from Munchausen’s Syndrome by Proxy, had caused her unnecessarily to be confined to a psychiatric unit for four months whilst her toddler son was locked in a room and force-fed, and to be ordered to abort her third child, or risk her other two children being taken into care, and had put Mrs W through hell.
- In the defence (served on 26 November 2001) there is a plea of justification sub-divided in paragraphs 12 and 13 as between the two Lucas-Box meanings relied upon. In paragraph 12 the Defendant seeks to prove that there were reasonable grounds to suspect the Claimant of involvement in hastening the deaths of child patients. Because they are the subject of a comprehensive challenge by Mr Suttle on the Claimant’s behalf, I should set out the particulars of justification said to support that defamatory meaning:
“(1) The Claimant, a paediatric community nurse, was suspended by the South Essex Mental Health and Community Care NHS Trust on 28th September 1999, following a letter of complaint to the Trust dated 24th September 1999 from the mother of a patient known to Ian Hepburn only as ‘JA’.
(2) The mother’s complaint was that she had serious misgivings about the professional conduct of the Claimant, which she claimed had jeopardised and compromised her son’s treatment. She also alleged that her son’s confidentiality had been breached by the Claimant.
(3) Following the complaint, the Trust began its own internal investigation, which is still continuing at the date hereof. That investigation was into alleged abuse of power by the Claimant which intimidated fellow staff and the mother of JA.
(4) In the course of the Trust’s initial investigation, the Claimant was accused by witnesses of abuse of power which led to fear and intimidation among staff and patients. In particular, there was a complaint of bullying and of upset caused to parents upset by her behaviour. The Claimant suffered severe mood swings and episodes of aggression and “self-isolatory behaviour”, in the course of which she would lock herself away and have nothing to do with people. Moreover, she became intensely involved with families of sick children and felt a sense of martyrdom after a child’s death.
(5) As the investigation proceeded, the investigators looked at the Claimant’s treatment of her child patients, and in particular of 187 children who had died between 1996 and 1999 and whose names and dates of birth and death are pleaded at paragraph 11(10)(ii) above. Some nurses in the community paediatric team made allegations to the investigators that her administration of drugs was irregular, particularly to James Banks, and they expressed concerns about the extent to which she was present at the deaths of children and would volunteer to be with terminally ill children.
(6) In October or November 1999, the Trust called in Essex police, who appointed Det Insp Clifford Haynes to look into the Claimant and her treatment of James Banks. When the investigation was extended to about 18 children, Det Supt McNeill from the Major Investigations Team at Harlow took over day to day command. The investigation then reviewed all cases of child deaths that had occurred during the Claimant’s career. Of those, about 40 cases required more detailed analysis and investigation. In the course of the investigation, which involved 53 police officers including 12 detectives, 155 police interviews were carried out and 98 statements were taken.
(7) Acting on suspicion that the Claimant might have been stockpiling controlled drugs, the police applied for a warrant to search her house, where on 20th October 2000 ten officers found a small quantity of controlled drugs. The Claimant was arrested on suspicion of possession and theft of Class C drugs and the supply of Class A drugs. On 17th February 2001 Essex police announced their conclusion that the Claimant played no part in hastening the deaths of any children, and on 1st March 2001 it was decided that it was not in the public interest to proceed against her on the drugs charges, and she was released from police bail.
(8) Without limiting the generality of the above pleas, the Defendant will contend (a) that those pleas are and should be held to be both available to the Defendant and made out on the facts of the present case, in accordance with the balance to be struck between the right to freedom of expression of the Defendant and its readers on the one hand and what is necessary and proportionate to protect the reputation of the Claimant on the other hand, having regard, in particular, to the vital considerations that interference with the right to freedom of expression created by the law of defamation must be confined to what is necessary in a democratic society to protect a good reputation and that there must be a pressing social need for any restriction on free speech; (b) that, in accordance with the duty of the Court under section 6 of the Human Rights Act 1998 to act in way that is compatible with the Defendant’s right to freedom of expression contained in Article 10 of the European Convention on Human Rights, the Court should declare and apply the law of defamation so as to hold that the above pleas are available to the Defendant and should uphold the above pleas on the facts of the present case; and (c) that if and to the extent that the above pleas do not accord with prior case law then (i) the case law is itself incompatible with the Defendant’s Convention right and (ii) the Court has a duty to depart from that case law and to declare the law so as to make it compatible with that right.”
- In paragraph 13 there is a plea of justification to the specific allegations about the Claimant in respect of Mrs W’s son. There are extensive particulars (many of them challenged) set out with a view to proving the Lucas-Box meanings that the Claimant was capable of treating her child patients in a brutal, cold-hearted and uncompassionate manner, and of behaving aggressively, unhelpfully and unsympathetically to their parents; and secondly that she was wholly unsuited to perform the duties of a paediatric community nurse. I need not set them out in this judgment, since it is not sought to strike them out but only the words “was capable of” and “brutal” from the first Lucas-Box meaning itself.
- There is also raised a plea of qualified privilege, which will no doubt be the subject of considerable debate in due course, but its terms are not material to any of the present applications. The Claimant served an extensive Reply, as to which I need say nothing except that it puts in issue much of the factual narrative in the defence.
- I now turn to the applications made on the Claimant’s behalf on 1 and 2 May. It was convenient to hear the applications in the following order because Mrs W and Mr Pitchers, representing the interests of the Trust, were not concerned with the challenges to the Defendant’s pleading and could therefore be released before those arguments were deployed:
(i) The Claimant sought permission (if required) to use in these proceedings the contents of Mr Collier’s affidavit that was placed before me, in draft, for the injunction application on 22 June 2000. A copy came into the Claimant’s hands through the Royal College of Nursing, to which it had been provided on terms that it could not be used for any purpose without the permission of Eversheds (the solicitors who had acted for the Trust on that application). The Claimant’s advisers wish to amend the Reply in these proceedings by reference to some of the information in that affidavit. It is thought to be relevant both to the question of whether any grounds existed for suspecting the Claimant of serial murder at the time of the Sun’s publication and also to the knowledge of the journalists. As Mr Pitchers made clear, the Trust’s position was neutral and it did not oppose the application.
(ii) Mr Suttle also sought permission to use two documents disclosed by the Defendant in these proceedings for purposes extraneous to them; in other words, the Claimant wishes to be released, to a limited extent, from the implied undertaking to the court which always arises in respect of the receipt of documents disclosed by a litigant. Those documents are (i) the case notes of a meeting at Southend Hospital on 18 February 1998 to which reference was made on the Newsnight programme of 22 June 2000, as well as indirectly in the Sun, and (ii) a letter of 30 April 1999 from a Dr David Jones to Mr Mackenzie of the John Radcliffe Hospital, Oxford (apparently making clear that Mrs W had never been diagnosed as suffering from Munchausen’s). Quite apart from the traditional undertaking, these documents contain confidential material about Mrs W and her son, and she wished to oppose their use for any of the purposes contemplated. The Claimant does not yet appear to have made up her mind what (if anything) she wants to do with these documents, but she would like to have the option of righting the injustice done her by the BBC presenter on Newsnight (as she perceived it). At present, she is contemplating reactivating libel proceedings against the BBC, which were commenced within the limitation period but left in abeyance for lack of information; or pursuing a complaint to the Broadcasting Standards Commission; or trying to raise the matter in the House of Commons through her member of Parliament. The perceived injustice is that, from a transcript of the programme, it seems that Kirsty Wark accused the Claimant of having diagnosed Mrs W as suffering from Munchausen’s Syndrome by Proxy. Furthermore, the allegation was repeated by BBC lawyers in correspondence of June and July 2001. Mr Suttle suggests that these were deliberate misrepresentations of the content of the case notes of 18 February 1998, not at that time available to his client. Without them, therefore, she would be hindered in effectively refuting the allegation.
(iii) There is also the application to which I have referred to strike out paragraph 12 of the defence in its entirety. Mr Suttle argues that no reasonable juror could possibly conclude (assuming all the pleaded factual allegations to be true) that reasonable grounds had been established for suspecting the Claimant of being a serial murderer. That is coupled with the application to strike out certain words from the Lucas-Box meaning pleaded in paragraph 13.
(iv) and (v) Applications for directions and for the Defendant to provide further information were left to abide the outcome of my rulings on the other issues.
- I turn, therefore, to address the draft affidavit of Mr Collier, from which I have set out extracts above. The matter was explored in correspondence and the Claimant’s solicitors explained why it was thought necessary to refer to its contents in a letter of 14 March 2002. The extracts I have quoted set out the case that there were no reasonable grounds upon which to suspect the Claimant of murdering any child. Mr Spearman points out that his clients are not bound by that assertion. That is no doubt right, but Mr Suttle also invites me to bear in mind, when assessing whether the plea of justification in paragraph 12 has any realistic prospect of success, that following a thorough and extensive inquiry the police confirmed in writing on 16 February 2001 that there had been found no grounds to suspect that the Claimant had hastened the death of any single child. These assertions, relating to different points in time, are clearly relevant.
- Mr Spearman raised the argument that Mr Collier’s evidence was hearsay but that would hardly be significant in the light of the Civil Evidence Act 1995. What matters is the weight to be attached to it. That has to be assessed partly in the light of whether the Defendant has come up with anything to refute the assertions of either the Essex police in February 2001 or those of Mr Collier in June 2000.
- The content of the affidavit is also obviously, and perhaps more significantly, relevant to the plea of qualified privilege – not least because the Defendant wishes to argue that it was in the public interest that these grave allegations should be made so widely and not merely as a means of obtaining a “sensational scoop”. It may ultimately prove significant in assessing whether qualified privilege has any validity, in light particularly of their Lordships’ decision in Reynolds v. Times Newspapers Ltd  2 AC 127, that Mr Collier gave evidence confirming that the Claimant’s suspension was being maintained from the Autumn of 1999 until the conclusion of the police investigations (as it turned out, in February 2001). There was thus according to him no substantial risk of her seeking to work as a nurse or to pose a risk to the public. That is obviously material in assessing whether “responsible journalism” required the publication in June 2000 of the damaging allegations.
- Mr Spearman, for the Defendant, resisted the application on the basis that there was no reason why Eversheds on behalf of the Trust should not have imposed the restriction upon the use to which the RCN could put the material supplied. Mr Spearman suggested that it was purely a matter of contract and it was not for the Court to overturn the obligation of the RCN willingly undertaken. He argues that permission is required to use the document and that permission should be refused (on the footing, I take it, that the permission required was that of the Trust and not of the court). Before me, however, the Trust offered no opposition to Mr Suttle’s application. Accordingly, I see no reason why the content of the affidavit should not be available for the Claimant to make such use of it as she wishes, in these proceedings, for the purpose of vindicating her reputation.
- The next issue is whether I should vary the terms of the implied undertaking so as to permit the case notes of 18 February 1998 and Dr Jones’ letter of 30 April 1999 to be used for any purpose extraneous to the present litigation. In the course of the hearing, Mrs W made a number of submissions during which she referred to documentation that was not in court and which, so far as I know, had not been seen by either of the parties. I heard the conclusion of counsel’s submissions but gave Mrs W 14 days in which to produce those documents to the court and to the parties’ advisers if she wished to place reliance upon them. Counsel were given a further 14 days thereafter to make any submissions in writing upon such documents as she might decide to produce. I would then deliver judgment accordingly.
- I should say, straightaway, that if I come to the conclusion that any such use should be permitted, it would require to be carefully defined and expressed in order to afford such residual protection to the confidential contents as remains possible. I should require the use to be clearly identified and be disinclined to give a blanket release. At least in part, the material to which confidentiality attaches relates to the small boy and, whatever may be the rights and wrongs of his exposure to glaring publicity in the Sun with regard to his unfortunate medical condition, it was certainly no fault of his. It seems to me elementary that his position should be safeguarded so far as possible.
- There was no dispute at the Bar as to the right principles to apply on such an application. Lord Oliver observed in Crest Homes plc v. Marks  AC 829, 860 that the court will not generally release or modify the implied undertaking given by litigants on discovery/disclosure save in “special circumstances” and where such a course will not occasion injustice (his Lordship referred specifically to injustice to the party disclosing the relevant document, but it may be that I should not take the words as necessarily so confined). What seems clear is that the House was not wishing to make a list of circumstances in which a variation might be made. It was left, I apprehend, deliberately general so that judges should make their decisions upon the exercise of a discretion applied to the particular facts before them.
- Some examples of cases where the point has arisen are to be found in Malek & Matthews, Disclosure (2nd Edn), at paragraphs 13.40 – 13.43. They offer no further guidance for the present case. Mr Spearman points out that in Crest Homes itself it was purely adventitious that there happened to be two sets of proceedings rather than one. Had there been only one action, the problem would not have arisen. The document could have been used. Obviously, that has no application here. What is proposed, among other possibilities, is the use of the relevant documents in the pursuit of a remedy against a third party, namely the BBC. At this stage, the pursuit of any such claim would depend upon the court disapplying the provisions of the Limitation Act. (I should make it clear that Mr Suttle has eschewed on behalf of his Client any claim against Mrs W herself.)
- Mr Spearman argued that the Claimant’s evidence comes nowhere near to establishing “special circumstances”. I would have thought that the circumstances are, at least in some respects, striking. The Sun, which disclosed the documents, had apparently used them as part of the fabric of its articles accusing the Claimant of being suspected of serial murders. The story was taken up by others thanks to the Sun, on its own account, including the BBC. Kirsty Wark referred to the document. A variation of the kind Mr Suttle seeks can cause no injustice to the party giving disclosure (as contemplated by Lord Oliver’s words, if narrowly construed). But I have to consider the submissions directed to me by Mrs W who argues that she and her family have suffered enough at the Claimant’s behest and should be allowed to get on with their lives without their private affairs being given further publicity.
- I might have had more sympathy for that contention if Mrs W had not sold her story to the Sun, and appeared on Newsnight, accusing the Claimant of brutality before millions of people. She cannot in my judgment reasonably expect to hinder the Claimant from pursuing a remedy through the proper channels when her personal and professional reputation has been brought as low as possibly could be. Moreover, as Mr Suttle points out, the die is already cast in the sense that the documents can obviously be used, in any event, in the current litigation against the Sun.
- As I have said, Mrs W during her submissions at first indicated that she wished to refer to certain other documents. That is why I gave her 14 days to consider her position. In the event, she decided that she did not wish to do so. She did, however, make further submissions in writing. She particularly stressed that any permission I might give for the use of the documents should be strictly defined. I have already indicated that I take the same view, at least as to the general principle.
- She also referred to the confidential nature of some of the contents of the documents, and to the right to privacy under Article 8 of the European Convention. There is no doubt that these are relevant factors. Equally, however, there is no doubt that the court may in certain circumstances permit encroachment on to the areas that are prima facie private, provided it is necessary and proportionate to do so. I need to bear in mind the publicity already sanctioned by Mrs W, not only as to the content of the February 1998 minute, but also by apparently providing a photograph of her son for publication in the press. This means that matters that would normally attract the protection of confidentiality or privacy have already entered the public domain through no fault of the Claimant.
- The way it was put by Mr Suttle was that Mrs W chose to waive her own and her son’s privacy and confidentiality in his medical treatment, and particularly in the case conference notes of February 1998 and Dr Jones’ letter of 30 April 1999. I am not sure that it is right to conclude that there has been a once and for all waiver, such as to remove any right of confidentiality or privacy permanently: see e.g. Att.-Gen. v. Guardian Newspapers Ltd. (No.2)  1 AC 109, 260E; R. v. Broadcasting Complaints Commission, ex parte Granada T.V.  E.M.L.R. 16. For present purposes, however, it is not necessary to pursue the matter, since what is clear is that I should certainly weigh that unfortunate and extensive publicity when addressing the competing rights and interests of the Claimant, on the one hand, and of Mrs W and her son on the other. Against that background, I have no doubt that it would be right to permit some limited encroachment upon their privacy (with all due safeguards) in order to enable Miss Chase effectively to rebut these very grave charges against her.
- It is also submitted that I should draw a distinction between civil proceedings, in the conventional sense, against the BBC and the mere pursuit of a complaint through the BSC or through a member of Parliament. The pursuit of a remedy through self-regulatory or statutory bodies, without the full panoply of court litigation, is very much encouraged nowadays as a matter of public policy. I am not sure it would be right, therefore, to draw such a rigid distinction. I received supplemental submissions from Mr Suttle to similar effect and I agree with them.
- So far as the Parliamentary route is concerned, I rather gather from Mr Suttle’s written submission that this is to be kept in reserve against the possibility that Miss Chase finds herself unable to complain against the BBC, either by litigation or through the BSC, for reasons of delay.
- I can turn now to the issues raised on justification. I will dispose shortly of the application relating to the paragraph 13 Lucas-Box meaning. Mr Suttle submits that “brutal” in context can only be taken to mean “physically brutal” and that the pleaded particulars do not support that – but, at most, lack of compassion or cold-heartedness. I think he may well be right, but like so many adjectives of disapprobation it can be used in some contexts which make it clear that it is hyperbolic. Whether this is such a context I consider should be left for a jury to determine. On the other hand, I accept Mr Suttle’s submission that the Defendant has to bite the bullet. The Claimant was plainly accused of actual brutality without equivocation. It is that allegation it must defend, if it can. The words taken as a whole could not be construed as conveying only that the Claimant was “capable” of such behaviour. I would strike that phrase out.
- More complex was the argument developed on paragraph 12. I am grateful to both counsel for the clarity and cogency of their arguments. As is to be expected, reference was made to the Human Rights Act 1998 and to the well known recent Strasbourg jurisprudence on freedom of expression. I am mindful, of course, of the courts’ appreciation here and in Europe of the rights, duties and responsibilities of the media. It is customary nowadays to mention and take full account of the so called “watchdog” role of journalists and the public’s right to be informed of matters of genuine public interest: See e.g. Bladet Tromso & Stensaas v. Norway  29 E.H.R.R. 125, 167 (paragraphs 58-59). There are a growing number of cases making the same point in similar language and there is a danger of over-citation.
- As Article 10(2) of the Convention makes clear, however, and indeed the very same passage in Bladet Tromso, the press is not permitted to overstep the bounds (that is to say, those prescribed by law) in respect of the reputation and rights of others. It is in that light that one has to construe the proposition of the European Court that “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation”.
- Proportionality has to be borne in mind at all times. Here I am concerned with the widest possible dissemination of articles implicating a nurse in the serial murder of children. The more serious the allegation, the greater the potential public interest. On the other hand, there is correspondingly a greater responsibility on the press not to misinform the public on such grave issues. As Lord Hobhouse pointed out in Reynolds v. Times Newspapers Ltd  2 AC 127, 238 there is no public interest in misinformation.
- Mr Spearman submits that in certain respects the English law relating to defamation is unduly inhibiting of journalistic freedom. I need to remember that his client pleads as defences both qualified privilege and justification. If the Defendant succeeds in establishing that these grave allegations were published pursuant to a duty, then it will be home and dry (subject to malice). It will not be necessary to prove the truth of what was alleged. If qualified privilege fails, because there was in fact no duty or corresponding public interest, I need to ask myself whether in these circumstances there is an imperative to make a substantial shift in the law relating to justification, such that I should depart (as Mr Spearman invites me to do) from established principles laid down by appellate courts and, therefore, apparently binding on a judge of first instance. The adequacy of the English law of defamation, so far as compatibility with the Convention is concerned, must surely be judged by reference to the full range of defences available to those sued for defamation. It would be artificial to focus on justification in isolation as though it were the only mechanism afforded by English law for achieving a fair balance between protection of reputation and freedom of expression. I am reminded in this context of the words of May L.J. in Shah v. Standard Chartered Bank  QB 241, 270:
“Those who publish without malice defamatory statements to the effect that there are reasonable grounds to suspect a plaintiff of discreditable conduct are protected if the occasion is privileged. If the occasion is not privileged, they may justify the publication by proving objectively that there are such reasonable grounds. Allegedly credible hearsay may not contribute to such proof. Defendants will have to call their informants or provide other direct evidence. If this is in individual cases difficult, that only emphasises that reputation should not be put at risk by publication on occasions which are not privileged of unsubstantiated hearsay”.
- To put it more contentiously, if a newspaper (tabloid or broadsheet) chooses to take a gamble with rumours which are still “half-baked” (as it was put in Blackshaw v. Lord  1 QB 1, 27) for the purpose of achieving a “fantastic scoop”, and there is no public interest imperative to justify such a step, why should the law of justification be contorted in the name of press freedom in order to help the editor out of his chosen quicksand? Only recently the European Court recalled that in Bladet Tromso it had emphasised the need for “special grounds” before a newspaper could be “dispensed from its ordinary obligation to verify factual statements that were defamatory of private individuals”: See McVicar v. United Kingdom, 7 May 2002.
- In that case the allegation was of taking performance-enhancing drugs. Here, it seems to me a fortiori that the requirement for the Sun to prove the allegations made in the article, on the balance of probabilities, can be regarded as a justified restriction on its freedom of expression under Article 10(2) - always assuming that the privilege argument does not succeed.
- I now turn to consider the particular aspects of English law that Mr Spearman considers outmoded and inconsistent with Convention values. It is of some interest that each of them has only been articulated in the last decade (although carrying the genetic traces of much older case law). Their recent origin is perhaps two-edged. On the one hand, it may be thought that they can be more readily uprooted; on the other, they might be taken as representing the Court of Appeal’s up-to-date assessment of what is required in a modern society (as is contemplated by the margin of appreciation allowed under the Convention), and thus all the more authoritative.
- The relevant principles are as follows:
(i) A defence of justification based upon “reasonable grounds for suspicion” must focus upon some conduct of the individual claimant that in itself gives rise to the suspicion: Shah v. Standard Chartered Bank  QB 241, 261 (Hirst L.J.), 266 (May L.J.) and 270 (Sir Brian Neill).
(ii) In such a case it is not permitted to rely upon hearsay: Shah at pp. 241 (Hirst L.J.), 269-70 (May L.J.) and 270 (Sir Brian Neill); see also Bennett v. News Group Newspapers Ltd., 8 July 1998, C.A. unreported (transcript pp. 15-16).
(iii) Nor may a defendant plead as supposed “grounds” matters post-dating publication: Bennett (transcript p.22); see also Evans v. Granada Television Ltd  E.M.L.R. 429, 435-6.
- The first of these principles Mr Suttle terms the “conduct requirement” and points out that, with one exception, none of the pleaded particulars (cited above) identify any conduct of the Claimant and they are thus inadmissible for that reason. The one exception is to be found in sub-paragraph (7) which recites that police found a small quantity of controlled drugs at her house. Since, however, these consisted of Calpol, antibiotics and diazepam, the Claimant’s conduct in apparently stockpiling these can have nothing to do with hastening the deaths of young patients. Moreover, since the only date pleaded in this context was 20 October 2000, which was four months after the publications complained of, the allegation would also fall foul of the third principle listed above.
- The particulars of justification are full of “complaints” or “allegations” (not in themselves adopted by the pleader as true). These are impermissible not only because they do not provide instances of the Claimant’s conduct but also on the separate ground that they offend against the second of the three principles (“hearsay”).
- Apart from the events of 20 October 2000, the particulars appear to contain other matters occurring after publication of the articles. These too would offend against the third principle.
- As to the first principle, Mr Spearman submits that the Court of Appeal were wrong to conclude that “reasonable grounds” are confined to a Claimant’s conduct. Hirst L.J. based the proposition upon two paragraphs in the House of Lords’ decision in Lewis v. Daily Telegraph  AC 234 at pp. 260 (Lord Reid) and 284 (Lord Devlin). He argues that it is only in two of the speeches that such a proposition is to be found and that, in any event, neither of their Lordships was purporting to lay down a general principle but only addressing a particular hypothesis (i.e. contrasting an allegation of fraud with one of behaving suspiciously). The remarks were not necessary to the overall conclusion and have, moreover, been over-interpreted by the Court of Appeal. I should be prepared to depart from the Court of Appeal’s stated principle, he submits, despite its being binding upon me, for the reason that such a rule imposes an unnecessary restriction upon freedom of expression and is thus incompatible with Article 10.
- I do not agree. There is, if I may say so, a readily comprehensible logic in the Court of Appeal’s approach. I should not lose sight of the fact that the essential purpose of any plea of justification is to establish facts supporting an allegation which is defamatory (that is to say, to the claimant’s discredit). It is defensible, therefore, to require such particulars to relate to the claimant’s conduct rather than ranging over matters outside his or her control. That seems to me entirely consistent with Strasbourg jurisprudence; in particular with the burden upon the media to prove factual statements that are defamatory of private individuals (absent “special grounds”).
- Mr Spearman also attacks the “hearsay” rule. He invites me to depart in this respect from the clear statements in Stern v. Piper  QB 123 and Shah v. Standard Chartered Bank  QB 241 and indeed to prefer the rather tentative statement of Schiemann L.J. in Aspro Travel Ltd v. Owners Abroad Group plc  1 W.L.R. 132, 140 to the following effect:
“Mr Eady accepts that hearsay and rumour cannot constitute justification for an assertion of fact that the rumour was well founded and he does not seek to do so. However, he submits that there can be circumstances in which the existence of a rumour entitles a person to repeat that rumour even before he satisfies himself that the rumour is true and that in such circumstances it is possible to plead in justification that there were in truth such rumours. I agree in the abstract and do not regard it as appropriate to strike out the plea of justification on this basis”
- In the later case of Shah, however, a differently constituted Court of Appeal clearly took a different view, in the light of fuller argument, and stated that the dicta of Schiemann L.J. should be regarded as confined to the facts of that case “and not treated as laying down a general principle”:  Q.B. at p. 263f. If the matter were free of authority, there would be something to be said for Mr Spearman’s argument on this vexed question. I am somewhat susceptible to its attractions as a matter of logic not least because, when at the Bar, I argued along the same lines not only in Aspro Travel but also in Stern v. Piper and, at first instance, in Shah v. Standard Chartered Bank on behalf of the respective defendants. It would be unrealistic, however, for me to regard the point as still open.
- Once again, however, Mr Spearman invites me to depart from these authoritative decisions because, he says, I have a duty to do so in the light of the Human Rights Act 1998. I disagree. The carefully reasoned judgments in Stern and Shah set out clear principles which are, in the language of Article 10, “prescribed by law”, and seem to me to be well within the margin of appreciation permitted to domestic courts (even allowing for the fact that such margin is regarded somewhat more circumscribed in the context of freedom of expression than is the case with some other Convention rights).
- The third attack is upon the rule that “grounds” must exist at the time the libel is published. It is true that in certain circumstances a defendant may plead subsequent facts for the purposes of justification (the classic example would be the demonstration of a particular character trait of the claimant). I cannot see that this has any application to the present allegations. There is a close analogy with the rule applying to the defence of fair comment: see Cohen v. Daily Telegraph  1 W.L.R. 916. Just as a person can hardly express an opinion on facts which do not (yet) exist, so too one can hardly express a conclusion that there are reasonable grounds to believe a man is guilty of theft by reference to non-existent facts. Mr Spearman submits that it would be unjust for a claimant to recover damages over such an allegation made in June if, during (say) the following October, he could be shown to have actually committed a theft. That may be so, but it does not defeat the logic of Mr Suttle’s argument. (In practical terms, there are other ways of meeting the perceived injustice. For example, one might be able to justify the libel by proving dishonesty of character in the light of the subsequent theft – but this would depend on the exact meaning of the libel. Another route perhaps would be to pray in aid the conviction by way of mitigating damages: Goody v. Odhams Press  1 Q.B. 333.)
- I am quite satisfied that the law is as stated by Robert Walker L.J. in Bennett (transcript p.22): “The sufficiency of the grounds must be assessed on material available at [the date of publication]”. This rule, since it is a matter of logic, can hardly be said to constitute an unnecessary fetter on freedom of expression.
- Since it is unreported, unfortunately, it is not surprising that Mr Spearman had never heard of the Court of Appeal’s decision in Bennett. Having discovered it, and no doubt anticipating that I might regard it as binding and authoritative, he adopted an alternative strategy. He decided to turn other passages in Bennett to his client’s advantage and to put forward a proposed amendment.
- An interesting distinction was drawn by the Court of Appeal between an allegation that there are reasonable grounds to suspect the claimant of misconduct and an allegation, merely, that there are grounds to justify an investigation. In the latter case, it appears, the “conduct requirement” would not apply; nor indeed the rule against “hearsay”: Bennett, transcript p.19. Once again, Mr Spearman attacks the reasoning of the Court of Appeal, which may perhaps be encapsulated in three sentences:
“It is a familiar though regrettable fact that an occupational hazard for police officers is to be faced with accusations of corruption or other misconduct, especially if they are working in a drugs squad or vice squad. Complaints against police officers have to be taken seriously and investigated, even if they are made by convicted criminals and are likely to prove unfounded. A statement that a police officer is under investigation is no doubt defamatory, but the sting of the libel is not as sharp as a statement that he has by his conduct brought suspicion on himself.”
- As so often in libel actions, much turns on the meaning of the words complained of. That will be critical to what may be advanced by way of justification – and what may not. What Mr Spearman would like the opportunity to do is to plead a meaning to the effect that there were serious grounds to investigate the Claimant. Since such a sting is less “sharp”, it may reasonably be categorised as a lower meaning than that originally pleaded. (Mr Spearman, however, does not even agree with the Court of Appeal’s judgment in Bennett on that point.)
- Why, asks Mr Suttle, has no such meaning been put forward previously if it has validity (in the sense of being a meaning the published words are capable of bearing). The short answer is that it only occurred to Mr Spearman as a fall-back position after Bennett was drawn to his attention. But what matters is that the words are simply incapable of bearing such a meaning. The Sun clearly went further and conveyed the imputation that there were reasonable grounds to suspect. I accept Mr Suttle’s submission, therefore, that the proposed amendment is hopeless. Accordingly, I refuse permission.
- On the existing plea in paragraph 12, I also accept the submissions of Mr Suttle and strike out paragraph 12 because the particulars are incapable of supporting the Lucas-Box meaning pleaded.
- I may, therefore, summarise my conclusions as follows:
(i) The Claimant may in these proceedings refer to the affidavit of Mr Collier and does not need my permission to do so.
(ii) Subject to suitable safeguards, the Claimant may have the court’s permission in principle to refer to the case notes of 18 February 1998 and the letter of 30 April 1999 for the purpose of vindicating her reputation, and putting the record straight, with regard to what was said about her on Newsnight on 22 June 2000 (subject again to defining carefully in the order the means to be adopted to achieve that objective).
(iii) Paragraph 12 of the defence is to be struck out and also the reference in paragraph 13 to the word “capable”.