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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Charman v Orion Group Publishing Group Ltd & Ors [2007] EWCA Civ 972 (10 October 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/972.html Cite as: [2008] 1 All ER 750, [2007] EWCA Civ 972 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE GRAY
Hq04X01682
Strand, London, WC2A 2LL |
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B e f o r e :
THE RT HON. LORD JUSTICE SEDLEY
and
THE RT HON. LORD JUSTICE HOOPER
____________________
| Michael Charman |
Respondent |
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| - and - |
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| (1) Orion Group Publishing Group Ltd (2) Orion Books Ltd (3) Graeme McLagan |
Appellants |
____________________
Hugh Tomlinson QC and Lucy Moorman (instructed by Simons Muirhead & Burton) for the respondent
Hearing date: 19th, 20th, 28th and 29th March 2007
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Crown Copyright ©
Lord Justice Ward:
Introduction
"that there are cogent grounds to suspect that Mr Charman abused his position as a police officer by colluding with Brennan in the commission of substantial fraud by Geoffrey Brennan from whom he and Mr Redgrave received corrupt payments totalling £50,000" (emphasis added).
"The case, and the grounds of appeal, raise important issues about the steps required of an author and publisher in order to qualify for a defence of the "Reynolds" type of qualified privilege, when the publication in question is a book and not a newspaper article, where the topic is one of public interest but is also complex, and where the author has made attempts to obtain the claimant's side of the story."
(1) what is the extent of the privilege claimed for "reportage" and how does this fit into the Reynolds type of qualified privilege developed by and since Reynolds v Times Newspapers Ltd [2001] A.C. 127 ?
(2) What is the proper approach for the Court to take in judging whether the author and the publishers have acted responsibly in communicating the information to the public?
Once the relevant principles of law are identified, then a great deal of factual material will need to be investigated in order to establish, putting it very broadly for the moment, whether the books were published in a fair, balanced and neutral way, without adoption by the appellants and whether the defamatory information was responsibly reported.
Setting the scene: a prιcis
"This is the inside story of the 'Ghost Squad' and how it broke into the secret world of police corruption. Graeme McLagan's gripping account reveals the ugly underside of London's police force and why teams from America and Australia have now come to Britain to find out how the Met is winning the battle against bent coppers."
The defamatory material
"Although Gaspar believed him, what Brennan had said amounted to no more than simple allegations of police wrongdoing. Such allegations had no chance of standing up in court without corroboration, even if Brennan agreed to appear as a witness and he was refusing to do that. It would simply be Brennan's word, that of the criminal, against the word of two honest detectives with distinguished records."
A little later there is a brief reference to the fact that Redgrave and Charman "strenuously denied all allegations of wrong-doing".
" Redgrave and Charman were suspended, their homes having been raided three days before. From the outset the pair have denied receiving money from Brennan, or indeed any corruption at all."
Coles was given advice from Treasury Counsel who
"eventually concluded that without Brennan's co-operation the chances were that a prosecution of Redgrave and Charman would fail."
"Deeply aggrieved at what had happened to them, the three (i.e. Charman, Redgrave and Ms Cahill) then counter-attacked, making official complaints against CIB officers. Redgrave's MP, Andrew McKinlay, raised the case in a 15 minute speech in the House of Commons."
Charman claimed that his arrest, detention and prosecution were unlawful, malicious, unwarranted and amounted to a conspiracy to pervert the course of justice. Charman claimed that his arresting officer had adopted unwarranted and unnecessary tactics causing him humiliation and distress.
"CIB officers hoped that Redgrave and Charman would give evidence for Geoffrey Brennan at his trial in 2001. The pair could have used the proceedings as an opportunity to set the record straight, to deny Brennan's original allegations that he had bunged them £50,000 to cover up his theft of £400,000 from the Chinese-American businessman, Sam Wang. They could also have backed Brennan's later claims that the police operation mounted by the pair into gun-running and money-laundering had been entirely legitimate and not a smokescreen, as was being suggested by the CIB. If the pair had appeared in the witness box, they would have been open to cross-examination by the CIB prosecution team, determined to get at the truth of Brennan's allegations. But it was not to be. Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey."
Gaspar is said to have "revealed" at the pre-trial hearing that Redgrave had received unexplained income over and above his Metropolitan Police salary and that in Charman's case an unusual spending pattern has started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe.
"Latham chose his words with care. They were damning: 'I am not going to bring in criminals to give evidence'."
Then comes this paragraph:
"Although Redgrave and Charman were not on trial, for much of the time it was as if they were in the dock with Brennan. In Latham's closing speech to the jury much play was made of their alleged corruption. He repeated that the prosecution case was that a total of £50,000 had been paid to the two detectives to provide a smokescreen for the theft of Wang's money "
"It was unquestionably the case that Redgrave and Charman were in contact with him at the time of the offence and were aware of what was taking place."
The headline findings of the judgment
The law as determined by the judge
"Nor need the report be accurate in every detail. If the report be as a whole a substantially fair and accurate account of the proceedings, a few slight inaccuracies will not deprive it of protection, but where the inaccuracies are of a substantial kind, there is no immunity."
The challenge in the appeal is to the manner in which the judge applied that law to the facts.
"107. It is common ground that the matters set out by Lord Nicholls in Reynolds at 205 represent important criteria for deciding the availability of privilege. But, as Lord Nicholls made clear, they are non-exhaustive and so not of themselves necessarily determinative in every case. Moreover, as counsel agreed, those tests require modification in the present case because the publication sued on is a book rather than a newspaper containing the perishable commodity which is news. Also allowance needs to be made for the fact that the author of a book has more time for checking than a journalist who has to meet a deadline. Furthermore there have been a number of authorities since Reynolds which need to be taken into account.
108. I will attempt to summarise what seem to me to be the principles which can be derived from the cases which were cited in argument:
i) qualified privilege is designed to strike an appropriate balance between the ECHR Article 10 right to freedom of expression and the right of an individual to protect his reputation which is an aspect of private life which is protected by Article 8: Bonnick v. Morris [2003] 1 AC 300 per Lord Nicholls at [23] and Compana and Mazare v Romania [2005] 41 EHRR 200, [BAILII: [2004] ECHR 692 ] at [91];
ii) neither of those rights is pre-eminent or has "presumptive priority": there is a clear public interest in the promotion of free and vigorous press to keep the public informed and journalists should be permitted a good deal of latitude in how they present the material; but reputation is an integral and important part of the dignity of the individual, the protection of which is conducive to the public good. In some cases the reputations of other individuals than the claimant may be engaged: Reynolds at 210, 230 and 238; Loutchansky v Times Newspapers (No's 2-5) at [36]; In re S (a child) [2005] 1 AC 593 per Lord Steyn at [17]; Bonnick v Morris at [23]; Galloway v. Telegraph Group [2006] EWCA Civ 17 at [80, 83] and Bladet Tromso and Stensaas v Norway [1997] 23 EHRR CD40; [BAILII [1999] ECHR 29 ]
iii) in order to determine whether publication was in the public interest, it is first necessary carefully to analyse the information which has been provided to the public and to pose and answer the question whether the public had a right to know or a legitimate interest in knowing the facts alleged, even if they cannot be shown to be true: Loutchansky v Times Newspapers (No's 2- 5) at [39]; Jameel v Wall Street Journal [2005] EMLR 17 at [86-7] and Galloway v Telegraph Group at [37];
iv) the question identified at (iii) above should be answered by reference to the information which was known to the publisher at the time of publication: Loutchansky v Times Newspapers (No's 2-5).
v) the touchstone being that of the public interest and responsible journalism, it is then necessary to ask whether in the particular circumstances of the case the publisher has demonstrated that he was acting responsibly in communicating the information to the public. For that exercise the starting point is to consider such of the factors set out by Lord Nicholls in Reynolds at [208] as are applicable: see also Galloway v Telegraph Group at [37];
vi) the requirements of responsible journalism will vary according to the particular circumstances. Depending on the circumstances, factors other than those identified by Lord Nicholls may come into play. It is necessary to always to bear in mind that the publication is defamatory and cannot be shown to be true. The standard of conduct by which the responsibility of the journalism is judged must be applied in a practical, fact-sensitive and elastic manner: Loutchansky v Times Newspapers (No's 2-5) at [38]; Jameel v Wall Street Journal at [87] and Bonnick v Morris at [24];
vii) one such circumstance is where the publication consists of what has been described as "reportage", that is, where the publisher has neutrally and disinterestedly reported in an even-handed way unattributed [sic this is accepted to be a typographical error as the judge clearly meant 'attributed'] allegations which are of legitimate and topical interest to the readers of the publication but has not adopted those allegations as being true or otherwise embellished them: Al-Fagih v HH Saudi Research & Publishing [2002] EMLR 215 at [6], [29]; Galloway v Telegraph Group [2005] EMLR 7 at [130] and in the CA at [28] and Roberts v Gable [2006] EWHC 1025 (QB); and
viii) in the case of reportage there may well be no duty on the publisher to verify the information, provided that the publication did not include background information which was defamatory of the claimant and provided further that any comment by the publisher about the information was confined to honest comment about the information made without malice: Al-Fagih v HH Saudi Research and Marketing at [50] and [39-43] and Galloway v Telegraph Group at [50-51].
Common law privilege
109. Before I endeavour to apply the principles set out above to the facts of the present case, there are a number of general observations which need to be made. The first is that I readily accept that the problem of corruption within a police force is a matter of grave public concern. Particular case histories, of which Brennan is one, are equally of legitimate public interest. This was common ground between the parties.
110. Part of the underlying purpose of the House of Lords in Reynolds in effecting a change to the common law defence of qualified privilege was to reflect the concern felt in some quarters that a greater degree of freedom of publication was required in regard to the reporting of matters of public interest in circumstances where the defendant publisher was unable to prove the truth of what he intended to publish. The House of Lords adopted as a new criterion of privilege the test of responsible journalism. It is well known that hitherto the defence of privilege based on responsible journalism has failed more often than it has succeeded. I accept that the Court must be on its guard not to set an unrealistically high standard of journalism or authorship. I bear in mind what Lord Nicholls said in Reynolds at p202:
"The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse".
111. An unusual feature of the present case is that McLagan laid great stress both in his witness statement and in his oral evidence upon the fact that Bent Coppers is, as he put it, a balanced and non-partisan account of the public dispute between CIB on the one hand and Charman and Redgrave on the other, based on material in the public domain. I will shortly have to decide if those claims are made out. It seems to me, however, that before I address those issues I should first consider whether, as McLagan claims, the passages of which Charman complains constitute "reportage" in the sense in which that term is used in Al-Fagih and later cases. If those passages do constitute reportage, the requirements of responsible journalism are or may be significantly relaxed.
112. In Al-Fagih Simon Brown LJ described reportage as "a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper". The Court held that in such a situation the public was entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other."
"In the light of Bonnick, I accept that the issue of responsible journalism falls to be determined by reference to the meaning subjectively intended by the defendant. However, in the present case I had to decide whether the book was "reportage". That question turned largely on whether the defendant adopted the allegations against the claimant: see paras 112-118 of the judgment. I do not think that there is a real prospect of success for an argument that I misdirected myself."
Reportage
The judge's findings in paragraphs 112 to 118
"115. an imputation that there were cogent grounds to suspect a police officer of corruption comes somewhere between a Chase level one and two meaning. Such an imputation may not amount to an unequivocal adoption of the charge of corruption but it does not to my mind constitute neutral reportage. It is partial adoption of a serious charge."
"117. I think that the reader would take away from the passages of the book which deal with the Brennan affair that it was more probable than not that Charman was guilty of corruption."
For those reasons the judge was unable to accept that the passages in the books constituted reportage. He added in 118, "for what it is worth, the prospective reader is not led to believe that the account in Bent Coppers is going to be neutral reportage" because "in the sub-title of the book and its flyleaf the reader is told he is going to get "the inside story"." Later in the judgment he summarised his conclusions as follows:
"131. The reasons why I have rejected the suggestion that the passages in question were reportage are firstly, that to an extent it appears to me that McLagan adopted the allegation of corruption against Charman and, secondly, that the relevant facts are not presented in the full, fair and disinterested fashion which is required of reportage. Very similar reasons led me to reject McLagan's claim to have written a "balanced" account of the Brennan allegations directed at Charman and Redgrave."
My commentary on reportage
"Repeating someone else's libellous statement is just as bad as making the statement directly."
Adopting the analogy of rules for admitting hearsay evidence, the effect of repeating the allegation is to make the article a report of the truth of the defamatory material as opposed to its being a report only of the fact that it was said. It will depend on the context whether the material is published to report the fact that it was said or to report what was said as a fact. That point of characterisation of the material is enough to doom this part of the appeal. Whether or not it could ever give rise to Reynolds privilege is, of course, a different question altogether and I deal with that later.
"58. It seems to us that the judge was right to hold that the headlines and articles complained of went further than simply stating that Mr Galloway was taking money from the oil-for- food programme for his political and charitable purposes but meant that he was taking money for personal gain and that that allegation was seriously defamatory of Mr Galloway.
59. It appears to us that the newspaper was not merely reporting what the Baghdad documents said but that, as the judge held, it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi oil-for-food programme for personal gain. That was not a mere repeat of the documents, which in our view did not, or did not clearly, make such an allegation. We agree with the judge that, although there were some references to allegations, the thrust of the coverage was that The Daily Telegraph was saying that Mr Galloway took money to line his own pockets. In all the circumstances we answer the question whether the newspaper adopted and embellished the statements in the Baghdad documents in the affirmative."
This translates into a finding that the Daily Telegraph was not simply repeating and reporting the information recovered from Baghdad but adding further information which did not appear in those documents. The essential comparison was between the information contained in the source documents and the information contained in the newspaper report. Of course it is correct that one can only decide a question of adoption by comparing the source material with the way in which it was imparted but meaning the technical sense of the single objective meaning of the publication is hardly at the heart of that comparison.
"20. Language is inherently imprecise. Words and phrases and sentences take their colour from their context. The context often permits a range of meanings, varying from the obvious to the implausible. Different readers may well form different views on the meaning to be given to the language under consideration. Should the law take this into account when applying the objective standard of responsible journalism? Or should the law simply apply the objective standard of responsible journalism to the single meaning the law attributes to the offending words, regardless of how reasonable it would be for a journalist or editor to read the words in a different, non-defamatory sense?
21. At first sight there might seem to be some legal logic in applying the latter approach. The "single meaning" rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptional.
22. At first sight it might seem appropriate to apply the same principle when considering whether Reynolds privilege affords a defence. This might appear to have the merit of consistency. But that would be to apply the "single meaning" principle for a purpose for which it was not designed and for which it is not suitable. It is one matter to apply this principle when deciding whether an article should be regarded as defamatory. Then the question being considered is one of meaning. It would be an altogether different matter to apply the principle when deciding whether a journalist or newspaper acted responsibly. Then the question being considered is one of conduct."
Responsible journalism
The judge's findings in outline
"119. A publication does not have to be balanced in order to qualify as responsible journalism."
He directed himself that:
"120. "Balanced" in this context must mean balanced in relation to Charman and the allegations levelled against him."
He felt that McLagan's own view that Charman was "probably guilty of the alleged corruption "subliminally" affected the way in which he presented his account to the reader. McLagan was endeavouring to "steer a middle course". He failed because he did not mention "certain noteworthy aspects of the Brennan story". So the judge concluded:
"125. Finally, in connection with the question of balance, I am bound to say that McLagan is in my view open to criticism for the manner in which he reported in Bent Coppers the pre-trial hearings in Brennan's criminal case and the trial which followed. it is my conclusion that McLagan did not achieve the balanced approach which he set himself."
"130. a responsible journalist should evaluate with some care the material on which that imputation [that there were cogent grounds for suspecting a police officer to be guilty of corruption] is based. Such a journalist should in my view subject the material to a degree of critical analysis.
Although there were passages where the reader was told that Redgrave and Charman strenuously denied all allegations of wrongdoing, there were no references in the book to the discrediting of officer Smith.
"137. In my opinion McLagan is open to criticism for failing to inform his readers that, far from being "reliable", Smith was profoundly tainted by his answers during cross-examination in the Phillips trial [when he refused to answer questions about his relationship with and his 'moonlighting' for Brennan]."
"142. I bear in mind that, whilst he is a highly experienced journalist with considerable experience of court reporting, McLagan is not a lawyer and is therefore not to be taken to be familiar with the practices and procedures of criminal trials."
Nevertheless the judge found that he was in error in saying that it was an unusual move for the enquiry into Wang's allegations of theft to have been taken over by SERCS.
"145. The criticism which I make of this passage is that it treats matters which McLagan ought to have realised were of marginal relevance and which he knew had taken up no more than a few minutes of court time as if they formed a major part of the hearing. The references to "unexplained income" and "an unusual spending pattern" are damning. No balancing reference is made to other evidence given at the pre-trial hearing which tended to exonerate Charman."
"Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey",
the judge said:
"147. As McLagan ought to have appreciated, there was in fact no possibility of Charman or Redgrave giving evidence at Brennan's trial. The issue for the jury was whether Brennan had stolen money from the Wangs. It was no part of the prosecution case to say that Brennan's allegations of corruption against Charman and Redgrave were true. Besides, those allegations had been withdrawn. I do not think it is accurate to say that the names of Redgrave and Charman were "continually mentioned throughout the trial". They were referred to on two days after the trial had been running (with interruptions) for a month."
"150. McLagan's quotations are accurate. There nevertheless appears to me to be considerable force in the criticism made by Mr Tomlinson that McLagan should have made clear that the alleged criminality of Charman and Redgrave had no bearing on the issues which the jury had to decide. I accept that at the end of the passage which I have quoted McLagan informs readers that in his closing speech Trollope told the jury that there was no evidence the officers had been paid money. McLagan does not mention the fact that Latham accepted that there was no direct evidence that corrupt payments were made to the officers. A more serious omission is the failure to refer to the judge's advice to the jury in his summing up to ignore suggestions made that any money was taken by Charman or Redgrave to assist Brennan. He told the jury that they ought to put that out of their minds. In the context of the trial as a whole it is difficult to understand how, as McLagan claims, for much of the time it was as if Charman and Redgrave were in the dock with Brennan."
"151. I have taken some time with the account in Bent Coppers of the Brennan trial because it marks the culmination of McLagan's account of one of the major characters in the book. One of the questions which I have to decide is whether this is a fair account of what took place at Brennan's trial. For the reasons which I have given, I have concluded that it is not."
My commentary on responsible journalism
An analysis of recent developments in the law
(1) Whether or not the matter was properly in the public interest and whether or not the standard of responsible journalism has been met has to be considered in the context of the article as whole. I see this from these passages. Lord Hoffmann said:
"48. I think that one should consider the article as a whole and not isolate the defamatory statement.
51. If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article."
Lord Hope said:
"107. Context is important too when the standard [of responsible journalism] is applied to each piece of information that the journalist wishes to publish. The question whether it has been satisfied will be assessed by looking to the story as a whole, not to each piece of information separated from its context.
108. I do not believe that [Lord Nicholls] was intending to indicate that the public's right to know each piece of information in any given article should be assessed, piece by piece, without regard to the whole context. On the contrary, each piece of information will take its colour and its informative value from the context in which it is placed. A piece of information that, taken on its own, would be gratuitous can change its character entirely when its place in the article read as a whole is evaluated. The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public."
(2) Taking steps to verify the information is given added emphasis. Lord Bingham said:
"32. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency (238), "[n]o public interest is served by publishing or communicating misinformation". But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication."
Baroness Hale said:
"149. the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think reliable, that the publisher himself believed the information to be true, and that he had done what he could to check it. We are frequently told that "fact checking" has gone out of fashion with the media. But a publisher who is to avoid the risk of liability if the information cannot later be proved to be true would be well-advised to do it. Part of this is, of course, taking reasonable steps to contact the people named for their comments."
(3) If the public interest is engaged, the report is privileged if it satisfies the test of responsible journalism. The House had, in Reynolds, refused to follow the Australian and South African approach in considering the reasonableness of the conduct in publishing the information: see page 199. The House preferred the "elasticity" of a test of responsible journalism. Lord Hoffmann expressed himself in these terms:
"53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair" [emphasis added by me]. "As Lord Nicholls said in Bonnick v Morris [2003] 1 A.C. 300 at 309:
"Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance" [again the emphasis is added] "is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege."
54. Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as "responsible journalism"."
This may seem to add the element of fairness to the test. It can, however, be said that fairness is clearly implicit in what Lord Nicholls has always been saying. Lord Steyn in Reynolds at p. 213 was content to accept as the governing principle that "the occasion must be one in respect of which it can fairly" [my emphasis] "be said that it is in the public interest that information should be published."
(4) As for Lord Nicholl's ten factors to be taken into account, Lord Bingham said:
"33. Lord Nicholls (at 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege."
Lord Hoffmann viewed them in this way:
"56. In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten matters which should in suitable cases be taken into account. They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. That is how [the judge] treated them. The defence, he said, can be sustained only after "the closest and most rigorous scrutiny" by the application of what he called "Lord Nicholls' ten tests". But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner. It must have regard to practical realities."
(5) In assessing the responsibility of the article, weight must be given to the professional judgment of the journalist. This is a very important point to emphasise in our appeal. Lord Bingham said:
"33. Lord Nicholls recognised (at 202-203), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner."
Lord Hoffmann expressed it thus:
"51. But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting."
In the opinion of Lord Hope:
"108. The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public. Weight will be given to the judgment of the editor in making the assessment, as it is the article as a whole that provides the context within which he performs his function as editor.
109. The cardinal principle that must be observed is that any incursion into press freedom that the law lays down should go no further than is necessary to hold the balance between the right to freedom of expression and the need to protect the reputation of the individual. It must not be excessive or disproportionate. Mr Robertson's test which introduces the criterion of "high quality journalism", especially if it is applied to each particular piece of information that is published, would contravene that principle."
In Lord Scott's opinion:
"140. In deciding whether or not the criterion of responsible journalism had been met, the court should apply the standard of conduct expected of the journalist "in a practical and flexible manner" (emphasis added)."
(6) The test is not intended to present an onerous obstacle to the media in the discharge of their function. This is another important point to note. As Lord Hope said:
"105. common law does not seek to set a higher standard than that of responsible journalism.
107. Any test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty, as Lord Nicholls recognised in Reynolds at 202D-E. But, like him, I think that the extent of this uncertainty ought not to be exaggerated. "Responsible journalism" is a standard which everyone in the media and elsewhere can recognise. The duty-interest test based on the public's right to know, which lies at the heart of the matter, maintains the essential element of objectivity. Was there an interest or duty to publish the information and a corresponding interest or duty to receive it, having regard to its particular subject matter? This provides the context within which, in any given case, the issue will be assessed."
(7) Reynolds must been seen as the House's attempt "to redress the balance [between Article 8 and Article 10 of the ECHR] in favour of greater freedom for the Press to publish stories of genuine public interest", per Lord Hoffmann, (38). Lord Bingham's criticism of the Court of Appeal was that its "ruling subverts the liberalising intention of the Reynolds decision", (35), concluding that, "It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect." Baroness Hale of Richmond was of the view that, "We need more such serious journalism in this country and our defamation law should encourage rather than discourage it", (150). Lord Hoffmann, (38), was concerned "that Reynolds has had little impact upon the way the law is applied at first instance." These are sombre words of warning. I sense at once which way the wind from the House of Lords is blowing and I must trim my sails accordingly.
"24. To be meaningful this standard of conduct must be applied in a practical and flexible manner. The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard, of responsible journalism, had to be applied in all cases exclusively by reference to the "single meaning" of the words. Rather, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views. Their Lordships note that in the present case the selfsame question has resulted in a division of view between members of the Court of Appeal. If the words are ambiguous to such an extent that they may readily convey a different meaning to an ordinary reasonable reader, a court may properly take this other meaning into account when considering whether Reynolds privilege is available as a defence. In doing so the court will attribute to this feature of the case whatever weight it considers appropriate in all the circumstances.
25. This should not be pressed too far. Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is "willing to wound, and yet afraid to strike". In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question. Questions of degree arise here. The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances.
27. The defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers. The failure to make further enquiry, and the omission of Mr Bonnick's explanation of his dismissal, although unfortunate, have to be evaluated, and their compatibility with responsible journalism considered, against this background."
"33. a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v Luxembourg ). The court finds that in the present case the article remained within the limits of acceptable comment on court proceedings."
I remind myself of the oft-cited passage in Thoma v Luxembourg (2003) 36 EHRR 21 at [45]:
"The press plays an essential part in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog". Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed [emphasis added]."
To give added emphasis to that point, which is point (6) in my analysis of Jameel, I can also refer to Selisto v Finland (2006) 42 EHRR 8 where the court said:
"59. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the court, any more than it is for the national courts, to substitute its views for those of the press as to what techniques of reporting should be reported by a journalist Reading the articles as a whole, the court cannot find that this statement was excessive or misleading."
Commentary on responsible journalism
"130. It seems to me that where, as I have found, the imputation conveyed to readers in relation to Charman was that cogent grounds exist for suspecting that in his capacity as a police officer he had been guilty of corruption, a responsible journalist should evaluate with some care the material on which that imputation is based. Such a journalist should in my view subject the material to a degree of critical analysis."
I agree he should take proper care: that is the essence of responsible journalism. The Bonnick point is, however, that:
"the journalist should not be penalised for making a wrong decision on meaning on which reasonable people might take different views." [24].
It was conceded in paragraph 12.2 of Charman's skeleton argument that:
"Readers would have understood the words to bear a range of meanings from "grounds to investigate" to "guilt" all of which are defamatory."
This was, therefore, not a case where:
"The defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers," [27].
Consequently McLagan's assertion that he did not intend to convey the imputation the words were held to bear was a relevant fact to take into account. Since it is a question of degree [25], it seems to me that his belief must be of some weight in assessing the responsibility of his conduct overall even if it cannot exculpate him given the seriousness of the imputation and the fact that:
"a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question," [25].
"Readers would in my view hesitate before accepting the truth of an allegation of corruption on the part of a police officer emanating from such a man."
"Weight will be given to the judgment of the editor in making the assessment, as it is the article as a whole that provides the context within which he performs his function as editor," per Lord Hope (108),
and Gray J. erred in not taking that into account or sufficiently into account.
Conclusions
(1) "The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true."
Even though the passages bear the meaning of cogent grounds for suspicion rather than guilt of corruption, the charges are nonetheless, as the judge held, very serious for senior serving officers of the Met.
(2) "The nature of the information, and the extent to which the subject-matter is a matter of public concern."
The public interest in this story has always been common ground, and rightly so. The police are here to protect us and we demand and expect that they will carry out their duties without corruption and so, where there is corruption, it must be exposed and where there is a justified suspicion of corruption it deserves to be discussed.
(3) "The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories."
Much of the story comes, of course, from Brennan as revealed in the Gaspar tapes. Brennan was a flawed character as was made obvious. McLagan did not, however, rest on his account alone, he made great efforts to tap his police sources for all the light they could shed on the problem. This was, after all, the story of the Ghost Squad.
(4) "The steps taken to verify the information."
In his judgment the judge said that McLagan did not claim to have verified the information about Charman and that there were no means whereby he could have done so. He held,
"In my view McLagan ought to have carried out an evaluation and analysis of the material available to him."
Indeed he ought to have done. But in my judgment it is plain that he did so. True it is he could not verify the truth of Brennan's allegations because only three people were involved in the corruption and the payment of £50,000 by Brennan to the officers. It was one man's word against another's. What McLagan did do, and what the judge gives him no or too little credit for doing was the further research he carried out, the interviews he held with the investigating officers and the judgment he made as to their credibility and the inferences which could properly be drawn from the material as a whole. It is not easy to see what more he could have done.
(5) "The status of the information. The allegation may have already been the subject of an investigation which commands respect."
"The status of the information" was no doubt introduced in Reynolds because of the importance that it had in the Court of Appeal in that case. At p. 167, the Court of Appeal said:
"We make reference to "status" bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect."
To the extent that matters were investigated at the Central Criminal Court, as they were, they must command respect. The judge held it was "unwise on McLagan's part to have placed reliance on the opinions expressed privately to him by individual officers such as Coles", but these were the investigating officers and their opinions cannot be discounted even making allowance for the counter-attack launched against them by Charman. The status of their information is certainly high enough to warrant writing a story which gives rise to no more serious an allegation than that there were cogent grounds to suspect Charman.
(6) "The urgency of the matter. News is often a perishable commodity."
This factor does not arise in this case as the judge correctly held. I see no reason at all for confining responsible journalism to newspapers and magazines. It must be extended to the authors and publishers of books. Mr Tomlinson did not attempt to suggest otherwise. As Lord Hoffmann said in Jameel, [54], the Reynolds defence is available "to anyone who publishes material of public interest in any medium", the emphasis being added by me. I agree, however, with Mr Tomlinson's submission that because the authors and publishers are not under the same pressure of time before the presses begin to roll, greater care will be expected of them to ensure they act properly.
(7) "Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary."
The judge accepted that approaches to obtain Charman's side of the story were rebuffed. The judge concluded that McLagan was entitled to assume that Charman would have remained uncooperative if allegations to be published in the book had been put directly to him, rather than through his brother-in-law, Millar who was co-ordinating the Charman campaign to publicise their side of the story.
(8) "Whether the article contained the gist of the claimant's side of the story."
The judge accepted that the book did contain Charman and Redgrave's side of the story. Curiously the judge appears to criticise McLagan for not having sought comment as to the "positive case" which was going to be made against him in the book. This seems inconsistent with his earlier correct finding that Charman would have remained uncooperative if he had been approached.
(9) "The tone of the [book] and [author] can raise queries or call for an investigation. It need not adopt allegations as statements of fact."
The judge relied on his earlier finding of partial adoption of the Brennan allegations as true but that does not really deal with the tone of the book. In my judgment the tone of this book is exactly what one would expect of an objective investigative journalist. The "inside story" of Charman and Redgrave was essentially factual in context and unsensational in tone. Even the "damning" words of prosecuting counsel Richard Latham Q.C. chosen "with care" do not more than add permissible colour to the book. Reading it as a whole the author expresses no personal judgment but leaves it to the reader to form his or her own impression of the two officers concerned. That seems to me to be a hallmark of responsible journalism.
(10) "The circumstances of the publication, including its timing."
There is nothing in this point.
"The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know Any lingering doubts should be resolved in favour of publication."
This theme was emphasised in Jameel as I pointed out in paragraphs 66(6) and (7). Gray J. would not have been aware of their Lordships' rebuke of the lower courts for their failure to appreciate how "liberalising" an opinion Reynolds was intended to be. Given that Charman and Redgrave had themselves put the attack on their character in the public domain by their press announcements and by the statement made on their behalf in Parliament, the balance of fairness falls in my judgment heavily in favour of the case against them being put to the public.
"It might be thought that this was the sort of neutral investigative journalism which Reynolds privilege exists to protect."
Statutory privilege
The result
Lord Justice Sedley:
Lord Justice Hooper:
Charman made no complaint about the hardback and continued to abstain from complaint about it after he knew that a paperback was in production until the very eve of its publication when he instructed his solicitors to write a letter before action dated 22 March 2004, over 9 months after publication of the hardback and after the paperback had been printed and distributed.
"there are cogent grounds to suspect that Mr Charman abused his position as a police officer by colluding with Brennan in the commission of substantial fraud by Geoffrey Brennan from whom he and Mr Redgrave received corrupt payments totalling £50,000".
3. The issue which I now have to decide is whether the Defendants, who are respectively the publishers and author of a book entitled Bent Coppers, are correct in their contention that the publication of the passages from that book of which the Claimant makes complaint is protected by qualified privilege. The Defendants rely on an amalgam of various species of privilege: the privilege accorded to responsible journalism (the so-called Reynolds privilege); the statutory privilege which protects fair and accurate reports of parliamentary and judicial proceedings, and the ancillary common law privilege which can attach to matters closely connected with reports of proceedings which enjoy statutory privilege. Unquestionably the most important of these various species of privilege for the purposes of the present case is that which is accorded to the products of responsible journalism.
He was a big, excitable man given to lies, boast and bluster ... as well as being a fairly small-time criminal he has been an informant for years, especially since the early 1990s, when he had got to know high-calibre criminals and various police officers.
The Reply, both in its original and amended versions, failed to plead or forewarn of many of the detailed points of criticism that were canvassed in a very prolonged cross-examination of McLagan that went on for three days.
6. The Claimant ("Charman"), is a former Detective Constable in the Metropolitan Police Force ("the Met"). He was a serving officer from 1971 until 6 May 2004. In June 1993 he was in the Flying Squad, based at Tower Bridge. He became the joint handler of an informant called Geoffrey Brennan ("Brennan"). Another officer in the Met was John Redgrave ("Redgrave") who attained the rank of Detective Inspector. Unlike Charman, Redgrave was a member of the South Eastern Regional Crime Squad ("SERCS") but he and Charman had worked together on the Brink's Mat enquiry and investigation from about 1983. Later, however, they were on different teams.
7. Charman and Redgrave were required to resign from the Met on 6 May 2004, following the finding of an internal disciplinary panel that they had acted in a manner likely to bring discredit on the reputation of the force.
8. ...
9. McLagan is a journalist of many years standing. After starting as a reporter on the Newcastle Journal, he moved to London and worked for the Daily Mail in the 1960s. In 1971 he joined BBC Radio News as a reporter, becoming Deputy Home Affairs correspondent a few years later and thereafter Home Affairs correspondent for both radio and television. Over the years he covered many major home affairs stories. In 1993 he was appointed head of a new investigations team which covered both television and radio news. He was heavily involved in reporting the Matrix Churchill trial and the subsequent Scott Inquiry.
10. From the late 1970s onwards McLagan took a special interest in the issue of police corruption. In the early 1980s he reported on the first major inquiry by an outside force into police corruption within the Metropolitan Police. He covered the progress of that inquiry and several trials which arose out of it. A particular problem within the Metropolitan Police at that time was the abuse of the system of informants. McLagan reported on this area of police corruption in a Panorama programme transmitted in 1982. He came to be recognised as the BBC's expert on police corruption. He reported on the criminal trials of several allegedly corrupt police officers. In January 1998 McLagan was the presenter for another Panorama programme about police corruption.
24. In or about June [1993] an operation called "Nightshade" was set up. Ostensibly it had three strands: (i) drug trafficking in Venezuela; (ii) production of amphetamines in Portugal and (iii) money-laundering and/or gun-running. Brennan provided information to the police in connection with Operation Nightshade. The Defendants' case, hotly contested by Charman, is that the third element of Operation Nightshade was a fabrication by Brennan, Charman and Redgrave devised in order to conceal their own involvement in criminal activity.
The Commissioner of Police of the Metropolis tells me that no such details were revealed as a result of Operation Nightshade. - [Official Report, 16 March 2000; Vol. 346, c. 268W.]
On 14 June 1994, DCS Roger Gaspar received a dramatic phone call requiring immediate action. It led to armed police protecting a man [Brennan], moving him and his family from their home for their own safety. The caller was the head of the Flying Squad, Bill Griffiths. He said that a reliable Flying Squad officer, Detective Sergeant Chris Smith, had told him that an important police informant had been compromised. Confidential police documents detailing his activities had leaked to the major criminals on whom he was informing. His life was in danger.
Brennan recounted how he had been a police informant while running a mobile-phone shop. During the previous su