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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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Neutral Citation Number: [2007] EWCA Civ 972
Case No: A2/2006/2198

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE GRAY
Hq04X01682

Royal Courts of Justice
Strand, London, WC2A 2LL
10 10 2007

B e f o r e :

THE RT HON. LORD JUSTICE WARD
THE RT HON. LORD JUSTICE SEDLEY
and
THE RT HON. LORD JUSTICE HOOPER

____________________

Between:
Michael Charman
Respondent
- and -

(1) Orion Group Publishing Group Ltd
(2) Orion Books Ltd
(3) Graeme McLagan


Appellants

____________________

Adrienne Page QC, Adam Speker and Matthew Nicklin (instructed by Wiggin LLP) for the appellants
Hugh Tomlinson QC and Lucy Moorman (instructed by Simons Muirhead & Burton) for the respondent
Hearing date: 19th, 20th, 28th and 29th March 2007

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Ward:

    Introduction

  1. The subject matter of this appeal is a libel action being tried in stages by Gray J. without a jury. The claimant is Mr Michael Charman, a former detective constable in the Metropolitan Police force. He claims that he has been defamed in a book called "Bent Coppers" written by Mr Graeme McLagan and published in hardback by the Orion Publishing Group Ltd and in paperback by Orion Books Ltd.
  2. On 17th June 2005 Gray J ordered that the action be tried by judge alone. On 14th October 2005 he ruled at the first stage of the trial on the defamatory meaning conveyed by the book. He held that the book did not mean to the ordinary reasonable reader that Mr Charman had been guilty of corruption as Mr Charman contended it meant nor that there were only reasonable grounds to investigate whether he had abused his position as police officer by receiving corrupt payments or even that there were reasonable grounds to suspect him of so doing as contended for by the defendants. Instead the judge held that the defamatory meaning was slightly above Chase level 2 (Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ. 1772; [2003] EMLR 218), because he considered that the phrase "reasonable grounds" was "inadequate to convey the degree of suspicion to the readers." He held that the ordinary reasonable reader of the books taking them as a whole, whether in the hardback edition or in the paperback edition, would understand them to mean:
  3. "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).
  4. The next stage of the trial was to resolve the preliminary issue of qualified privilege, both common law and statutory. On 13th July 2006 Gray J. ordered that the qualified privilege defences be dismissed and his judgment is now reported at [2006] EWHC 1756 (QB), [2007] 1 All E.R. 622. Giving the defendants permission to appeal, Keene L.J. observed that:
  5. "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."
  6. To be a little more specific in this introduction, the issues of law, leaving statutory privilege aside, are essentially these:
  7. (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

  8. Mr Graeme McLagan (I shall henceforth, like the judge, refer to him and others simply by their surnames) is a journalist of many years' standing. He started his career as a reporter on the Newcastle Journal and then worked for the Daily Mail in the 1960s. In 1971 he joined the BBC and later became the Deputy Home Affairs Correspondent for both radio and television. From the late 1970s onwards, he took a special interest in the issue of police corruption. In the early 1980s he reported on the first major enquiry by an outside police force into police corruption within the Metropolitan Police force ("the Met"). He covered the several trials which arose out of it. He reported on abuses in the system of using informants in a Panorama television programme in 1982. He reported on the criminal trials of several allegedly corrupt police officers and in 1988 presented another Panorama programme about police corruption.
  9. The hardback version of Bent Coppers was published by the first defendant on 9th June 2003. It is subtitled "The Inside Story of Scotland Yard's Battle Against Police Corruption". On the cover are words attributed to the then Metropolitan Police Commissioner, Sir John Stevens: "This is a story that deserves to be told – warts and all". On the inside of the cover:
  10. "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."
  11. The book has sixteen chapters giving a chronological account of the periodic and eventually partly successful purges against police corruption carried out within the Met and the South Eastern Regional Crime Squad ("SERCS") from the 1960s onwards. It is 260 pages long.
  12. The paperback edition published by the third defendant on 1st April 2004 has 19 chapters, spread over 439 pages but as the judge held at the trial of the preliminary issue on meaning, the paperback version bore the same meaning as the hardback even though there were a substantial number of changes.
  13. Charman sought damages for libel in respect of both the hardback and the paperback edition of the book by a claim issued on 4th June 2004, over a year after the publication of the hardback edition.
  14. He served in the Met from 1971 until 6th May 2004 when he was required to resign following the finding of an internal disciplinary panel that he had acted in a manner likely to bring discredit to the reputation of the force. He was part of the team investigating the Brink's Mat robbery in about 1983, as was Mr John Redgrave ("Redgrave") who attained the rank of detective inspector and Chris Smith ("Smith") who became a detective sergeant. Whereas Charman and Redgrave established a good friendship, bad blood appears to have fractured the relationship between Charman and Smith.
  15. In June 1993 Charman was in the Flying Squad based at Tower Bridge. He became the handler of an informant called Geoffrey Brennan ("Brennan"). Brennan was also passing information to Smith. He was himself a small-time criminal who had got to know "high-calibre criminals." He ran a retail mobile telephone business in Bexleyheath.
  16. In the summer of 2003 the police set up an operation called "Nightshade" which was investigating allegations of drug trafficking in Venezuela, the production of amphetamines in Portugal and, ostensibly, money-laundering and/or gun running from the United States to Northern Ireland. This third strand lies at the heart of the present controversy, much of which is, of course, hotly disputed.
  17. It is the defendants' case that this third element of Operation Nightshade was a fabrication by Brennan, Charman and Redgrave devised in order to conceal their own involvement in criminal activity. Brennan and a man known as "Tall Ted" Williams conspired to steal £400,000 from two Chinese American businessmen ("the Wangs") by pretending to sell them mobile phones for resale in China. The defendants contend that there were cogent grounds to suspect that, having become aware of this conspiracy, Charman and Redgrave struck a dishonest deal with Brennan that he would pay them £50,000 in return for their protection, were he to be arrested, by pretending that he was giving the police information about a money-laundering operation being run from the United States by the Wangs.
  18. The Wangs duly paid Brennan for the mobiles and Brennan claimed that he then paid £10,000 to each of Charman and Redgrave and later handed over the remaining £30,000 in a plastic bag. The Wangs waited in vain in Hong Kong for their mobile phones and in October reported the theft to the Kent police.
  19. Brennan was arrested on 12 November 1993. He claimed that everything he had done vis ΰ vis the Wangs had been in the full knowledge of Charman and Redgrave and that he had paid them £50,000. It is alleged that the next day Redgrave and Charman met the Bexleyheath officers and told them that if the theft enquiry were pursued, it would put both the informant Brennan and the under cover officers in Operation Nightshade at risk. They asked that the theft enquiries be put on hold. The investigation was then transferred from Bexleyheath to SERCS where Redgrave was serving. DC Maul was put in charge of the theft enquiry but Redgrave continued to intervene during these early months of 1994.
  20. In about May 1994 Detective Chief Superintendent Gaspar ("Gaspar") set up a secret anti-corruption "Ghost Squad" for the Met. Brennan was introduced to him by Smith because Brennan was saying that documents revealing him as an informant had fallen into the hands of "Tall Ted" Williams as a result of which his life was in danger. Gaspar had to make immediate arrangements for Brennan and his family to be put on the police witness protection programme, given new identities and rehoused.
  21. Gaspar interviewed Brennan on a number of occasions in the days that followed. Brennan was only prepared to talk off the record. Gaspar wanted the information and so a number of interviews were tape recorded by Gaspar but not under caution. In these tapes ("the Gaspar tapes") Brennan admitted that he had defrauded the Wangs of £400,000, and claimed that Charman knew all about the intended theft but corruptly took his share of the £50,000. Charman's case is that this was a tissue of lies intended to provide Brennan with a defence to the charge of theft for which he had been arrested.
  22. Brennan remained under police protection until November 1996 when he was arrested for a second time by DC Maul and on arrest adopted what he had said when interviewed by Gaspar.
  23. Then in January 1997 Brennan withdrew his allegation against Charman and Redgrave. Instead he accused Smith, who by this time had retired from the Met, of having incited Brennan to make up the allegations of corruption on the part of Charman and Redgrave because of the bad blood which existed between the three officers.
  24. Detective Superintendent John Coles ("Coles") succeeded Gaspar and in an operation known as "Cornwall" executed search warrants at the homes of Charman and Redgrave who were suspended from duty on 4th and 7th February 1997 respectively. They were never to return to duty.
  25. This suspension received publicity in the national press and although Charman and Redgrave were not named, they appear to have spoken to the media, denied any wrongdoing and claimed to have been the victims of the Met's zealous anti-corruption campaign.
  26. There was then another development. Smith was due to give evidence for the prosecution in the case of a man named Phillips who was being defended by David Bate QC. When Smith was cross-examined by Mr Bate about his relationship with Brennan, he refused to answer questions on the basis that to do so might incriminate him. This led to Smith being investigated as part of Operation Cornwall.
  27. A member of the Crown Prosecution Service, Debbie Cahill, was given confidential information about Smith and was suspected of sharing that with Charman and Redgrave. Covert surveillance was being carried out at her home which had been bugged as part of Operation Ambleside. The police broke down the door of her home when they heard discussion about destroying some of the documents and Charman, Redgrave and Cahill were arrested and charged with conspiracy to pervert the course of justice. Those charges were summarily dismissed by the magistrate and an application to prefer a voluntary bill of indictment against them was also dismissed. Eventually Charman and Redgrave were informed that there would be no criminal charges against them over the Brennan allegations.
  28. From May 1999 onwards Charman and Redgrave made formal complaints against the Met and in particular against Coles about their arrest, detention and treatment. They met with a reporter from the Guardian, Mr Gillard, and articles supporting their position and protesting their innocence were published in that paper from March 2000 onwards. They enlisted the help of Redgrave's MP, Mr Andrew McKinlay, and he sprang to their defence. He tabled parliamentary questions, spoke at an adjournment debate in the House of Commons about the alleged mistreatment of the two officers and called upon the Home Secretary to set up an independent judicial enquiry. They were charged on 8th September 2000 with discreditable conduct relating not to the Brennan allegations but to sharing confidential information with Cahill. They were eventually required to resign in May 2004.
  29. Brennan finally stood trial before His Honour Judge Barker QC at the Central Criminal Court in January 2001 charged with the theft committed so many years previously. Richard Latham QC was prosecuting and Andrew Trollope QC led for the defence.
  30. Before the jury was empanelled Mr Trollope submitted that the prosecution should be stayed as an abuse of process on the ground of delay and unfairness in that at the time of the alleged theft Brennan had been a participating police informant who had performed all acts relevant to the case at the direction of Charman and Redgrave. The principal witness called on behalf of the prosecution in relation to the abuse of process application was Gaspar. He gave a detailed account of the interviews he had conducted with Brennan whilst he was under police protection. Reference was made to possible irregularities in the financial affairs of the two officers: Redgrave was said to have received unexplained income and in the case of Charman an unusual spending pattern was said to have emerged at the time when Brennan claimed to have paid over the £50,000 bribe. There was also an issue as to the admissibility in Brennan's trial of the Gaspar tapes, the defence contending that they should not be introduced in evidence because Brennan had not been cautioned and because he was at the time in such a state of fear that he would have been motivated to say anything in order to obtain protection for himself.
  31. The judge ruled that the trial should proceed but that the tapes should not be admitted in evidence, reserving the right to review that in the course of the trial.
  32. Brennan duly gave evidence in his own defence. He was vigorously cross-examined by Mr Latham and I shall have to refer to this in due course. He was eventually convicted and sentenced to 3 ½ years' imprisonment. McLagan reported on the trial for BBC radio. Mr Gillard published an article in The Big Issue highly critical of the role of the Ghost Squad in relation to Brennan, Charman and Redgrave. As already stated, Bent Coppers was published in June 2003 notwithstanding Charman's attempts to prevent publication.
  33. The defamatory material

  34. There are references to Charman in seven chapters of the book as well as in the caption to one of the photographs in it. These passages are much too lengthy to be set out in this judgment and I can give but a summary of them.
  35. Chapter 3 is entitled "Corruption in Elite Detective Squads". The reader had been told in the previous chapter that Gaspar had received a "startling" phone call which was to give him "an amazing insight into major corruption". That call came, as already set out, from Smith who told Gaspar that an important police informant (Brennan) had been compromised. Brennan is described as "a big, excitable man given to lies, boast and bluster". Brennan's handlers are identified as Redgrave, described as a SERCS officer, and "a flying squad detective constable called Michael Charman".
  36. The book then describes the various meetings between Gaspar and Brennan, how Brennan complained that confidential police records had fallen into the hands of major violent criminals and how he was provided with police protection. The subsequent meetings are described in which Brennan told Gaspar about the corrupt dealings he claimed to have had with Redgrave and Charman including the alleged payments of £10,000 to each of them and a further £30,000 paid over in return for their help if ever he was to be questioned or arrested.
  37. As to the involvement of Charman in the plan by Brennan to swindle the Wang brothers under cover of a money-laundering operation, the author comments:
  38. "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".

  39. In Chapter 12, entitled "Problems and Difficulties", the reader is reminded of the theft and of the payments Brennan claimed to have made to Redgrave and Charman for protection. It is said that relations between Brennan and the Ghost Squad had soured, culminating in his arrest in November 1996 for that theft. Brennan is recorded as having replied when charged that he acted with the knowledge of the Metropolitan Police as part of police operations. However Coles, who was then in charge of the Brennan case, is said to have wondered whether Brennan manipulated the Complaints Investigation Bureau (CIB) from the start. Coles is said to have known that fraudsters such as Brennan "were capable of constructing elaborate stories to extract money from their victims and they knew roughly how far they could push the law". Having been arrested, Brennan is said to have mounted his counter-attack, contacting the Police Complaints Authority to withdraw his allegations against Redgrave and Charman claiming that he had been put up to blackening the pair by his former handler who had "had it in" for Redgrave and Charman since the 1980s.
  40. There follows this paragraph:
  41. "… 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."
  42. The author then describes the Debbie Cahill incident, Charman's arrest but the collapse of the prosecution when the magistrate "threw the case out".
  43. The next mention of Charman and Redgrave is in Chapter 15 entitled "Loose Ends". The reader is reminded of the history and that:
  44. "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.

  45. There are six pages dealing with Brennan's trial at the Old Bailey. The opening paragraph of this section reads:
  46. "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.

  47. Next there is an account of the cross-examination of Brennan by Richard Latham QC who is said to have put to Brennan that Redgrave and Charman were "dishonest and corrupt". Counsel is recorded as having put to Brennan that the two officers had "come into [his] pay" and that he had given them money. Brennan is said to have demanded to know why the prosecution was not calling the officers to give evidence, whereupon it is said that:
  48. "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 …"
  49. The reader next learns of the unanimous finding of the jury that Brennan was guilty. His defence counsel is said to have told the judge in mitigation that:
  50. "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."
  51. The last paragraph of Chapter 15 contains a number of general comments about abuse of the informant system and general acknowledgement throughout the police service that "grasses" are dangerous, being clever, with the ability to hide their treachery, highly manipulative, turning the relationship with their police handlers to their own benefit. Reference is also made to perceived CIB unfairness and the suspension of officers on flimsy grounds. Towards the end of the hardback edition there is a reference to officers who felt "wronged" and to claims that CIB's operations and tactics had resulted in injustices.
  52. The headline findings of the judgment

  53. The way the judge dealt with the "amalgam of various species of privilege" was in summary this. (1) He readily accepted that the problem of corruption within a police force was a matter of grave public concern and therefore of legitimate public interest. (2) He rejected the reportage defence because McLagan had partially adopted a serious charge against Charman and failed to report the facts fully, fairly and disinterestedly: his was not a neutral report. He did not achieve the balanced approach he set himself. (3) The defendants failed to show that they were acting responsibly in communicating the information contained in Bent Coppers about Charman to the public. McLagan had a duty to subject the material to a degree of critical analysis but failed to do so. He was selective in reporting the Brennan trial giving prominence to matters he ought to have realised were of marginal relevance and generally putting such a spin on the report as to distort it. An analysis of the ten Reynolds factors supported the conclusion that this was not responsible journalism. (4) Reporting the adjournment debate in the House of Commons was protected by statutory privilege but as for the court proceedings, the report as a whole was skewed so as to give the readers the false and unfair impression that the issue of Charman's alleged corruption assumed a far greater importance than in fact it had either at the pre-trial hearings or at the trial itself. The defence of qualified privilege failed accordingly.
  54. The law as determined by the judge

  55. There is no challenge as to the way the judge directed himself on statutory privilege under s. 15 of the Defamation Act 1996 adopting as he did the accuracy of the summary in paragraph 15.4 of Gatley, 10th edition:
  56. "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.

  57. He dealt with the law on reportage and the Reynolds defence as follows:
  58. "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."
  59. It is interesting to note the brief reasons the judge gave for refusing permission to appeal. He said:
  60. "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."
  61. We have to consider first, whether the judge fully and correctly directed himself as to (1) the nature of, and the ambit of the reportage defence, and (2) the proper test to apply in judging whether the journalism is responsible. Secondly, having established the proper principles, I must see whether they were correctly applied.
  62. Reportage

    The judge's findings in paragraphs 112 to 118

  63. The judge dealt with this defence as follows. He rejected Miss Page Q.C.'s argument on the defendants' behalf that because he had found that the passages complained of bore the meaning that there were cogent grounds to suspect Charman was guilty of corruption (as opposed to the meaning that he was guilty) it must follow that McLagan had not adopted Brennan's allegations as being true. He held that:
  64. "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."
  65. Although the present case was far removed from one where politicians and other public figures were reported to have been making allegations and cross-allegations against one another in the course of an ongoing dispute which was of itself of inherent public interest, "in a loose sense it could be said that there were two opposite sides to the debate" on "the controversial issue of corruption within the Met" about which there had been "extensive publicity … over the years". Whether the books "fully, fairly and disinterestedly" reported the facts underlying the Brennan allegations and Charman's response to them raised the question of whether the books were "in their context balanced", to which question he said he would return when considering "whether Mclagan's journalism achieved the requisite standard of responsibility". One significant respect in which the books lacked balance resulted from McLagan's willingness to draw inferences adverse to Charman from material which, as he should have appreciated, was weak. A balanced approach required McLagan to mention aspects of Brennan's story which cast doubt upon his credibility. The judge did not regard the account of the facts set out in each of the books to be "neutral" because:
  66. "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

  67. As for the law on reportage, the nature of the defence and its place within the Reynolds doctrine of qualified privilege was recently examined in Roberts v Gable [2007] EWCA Civ 721. The critical point of that analysis is that the defence will be established where, judging the thrust of the report as a whole, the effect of the report is not to adopt the truth of what is being said, but to record the fact that the statements which were defamatory were made. The judge's task is akin to the way in which at common law hearsay evidence used to be admitted or excluded. The protection is lost if the journalist adopts what has been said and makes it his own or if he fails to report the story in a fair, disinterested, neutral way. To justify the attack on the claimant's reputation the publication must always meet the standards of responsible journalism as that concept has developed in Reynolds, the burden being on the defendants. In that way the balance between Article 10 and Article 8 is maintained. Roberts v Gable was a good example of reportage in that the defendant newspaper simply republished allegation and counter-allegation of two politically opposed factions within the British National Party, each side accusing the other of theft of money collected at their "Grand Rally … to promote the BNP campaign for the London Mayoral and G.L.A. elections in 2004".
  68. Applying those considerations to this case, one sees at once why this case is miles removed from the confines of reportage properly understood. A defining characteristic of reportage is missing in that this book was not written to report the fact that allegations of corruption were made against Charman and the fact that he denied them and in turn accused the investigating officers of plotting against him. The whole effect of this book is, as its sub-title makes plain, to tell the "inside story of Scotland Yard's battle against police corruption" and the tale includes Charman's alleged corruption. McLagan was making a story, his story, of that corruption. This book, read as a whole, is a far cry from McLagan's simply reporting Brennan's account of corruption and Charman's refutation of it and counter-charge of his malicious mistreatment by other officers in the Ghost Squad. This was a piece of investigative journalism where McLagan was acting as the bloodhound sniffing out bits of the story from here and there, from published material and unpublished material, not as the watchdog barking to wake us up to the story already out there. As the judge found, he drew upon much more than the reports already in the public domain. He was not just reporting published material. The Gaspar tape transcript was provided by a confidential source. So was the Chaplin report. Information about alleged "forged entries" on informant logs written by Charman were provided by police sources as was information about surveillance tapes. The information about Coles being unhappy about the decision not to prosecute came from a private conversation. The fact is, and McLagan admitted it in cross-examination, this was the "inside story", the story of corruption in the Met which McLagan set out to tell in "Bent Coppers". That was the whole point of the book. Looking at the book as whole, it was hardly a neutral, disinterested report, even if the excerpts reported were factually accurate.
  69. In suggesting, as she seemed to do, that no more was needed to establish the defence than that the report was attributed, was neutral and was in the public interest, Miss Page pitched her case far too widely. No matter how overwhelming the public interest, it is not reportage simply to report with perfect accuracy and in the most neutral way the defamatory allegations A has uttered of B. As Lord Reid said in Lewis v Daily Telegraph Ltd [1964] A.C. 234, 236:
  70. "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.

  71. A great deal of the argument before us was devoted to the inter-relation between the single meaning found for the book and the question of adoption/neutrality. It will be recalled that the judge rejected Miss Page's argument that because the book bore the meaning of cogent grounds to suspect corruption (as opposed to meaning that he was guilty (the judge's emphasis) of corruption), it must follow that McLagan had not adopted the allegations as being true. He found that although the imputation might not have amounted to an unequivocal adoption of corruption, it was the partial adoption of a serious charge.
  72. It was common ground between the parties, relying on Galloway v Telegraph Group Ltd [2006] EWCA Civ 17, [2006] E.M.L.R. 221, that it is appropriate to start with the objective meaning of the publication. One must, however, see that in the context of that case. There the court posed the question whether the statements in the Baghdad documents were adopted and embellished and in answering that question the Court of Appeal considered it important to form a view as to whether the judge's conclusions about the meaning of what was published were correct. The enquiry was whether the "sting" of the coverage was not simply that Mr Galloway was obtaining money from Saddam's regime but that he was doing so for the purposes not only of political campaigning (or use in the Mariam Appeal) but of lining his own pockets so that the coverage imputed venality and greed. The court's conclusion was:
  73. "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.

  74. Thus in my judgment it is not particularly helpful to attempt to resolve the adoption/neutrality question by reference to the rules relating to the single objective meaning of the defamatory publication. It presents too many difficulties. If any comparison is properly to be made, then like must be compared with like, the meaning of the book with the meaning of the source material. By his judgment on meaning given in October 2005 the judge had established the single objective meaning of the pages and pages of book, but to ascertain a single meaning of the copious source material revealed in the investigation would be burdensome if not impossible given the range of information available to McLagan in writing the story. It is not a task which should be undertaken.
  75. In any event, meaning (in the sense of the single objective meaning) cannot determine whether the allegations have been adopted. It may well be that meaning can be affected by adoption, but not the other way round. If J, the journalist, simply reports that S, the source, says that C, the claimant, is corrupt, then the objective meaning of the source allegation and the report is the same, guilt. However, the fact that in so far as J simply repeated the allegation and, to the extent that he did may be said to have adopted it, that cannot determine the real question whether he had made the allegation his own. If, for example, J adds to his report, "and I agree", then the meaning remains the same, but adoption is clear from the added words. So meaning alone has not determined the question of adoption. What if J adds to his report, "X says C is not guilty, Y says he does not know and Z says it might be true"? Here the objective meaning of S's statement is at Chase level 1 but J's report is probably, say, at Chase level 2. But that difference cannot determine whether J has adopted S's report. As a matter of textual analysis, J was maintaining a position of neutrality and did not adopt S's words as his own. If J reports that S says C is corrupt and adds, "so there are reasonable grounds to suspect him" the meanings are different but one can find this time, again as a matter of textual analysis, at least the partial adoption of the allegation. One is not, however, driven to that conclusion by the difference in meaning but by the language used in making the report.
  76. My view is, therefore, that one should not get embroiled in meaning to answer the question of whether the journalist has adopted the allegations so as to make them his own. I draw support for this from the opinion of Lord Nicholls in Bonnick v Morris [2002] UKPC 31, [2003] 1 AC 300. Although this is an opinion of the Privy Council, it seems to me to be more than persuasive given that it was written by Lord Nicholls with other members of the Board including Lords Hoffman, Hope and Scott, all of whom later sat in Jameel v Wall Street Journal Europe SPRL (No.3) [2006] UKHL 44; [2007] 1 AC 359. Reference was made to it in Jameel without dissent, see the mentions by Lord Bingham (32), Lord Hoffmann (53 and 56) and Lord Scott (136). Bonnick is more relevant to Reynolds privilege in general, but paragraphs 20 to 22 are apposite here:
  77. "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."
  78. Those objections apply with equal force here. The single meaning principle is highly artificial and should not be imported to decide the quite different question of whether or not the allegations had been adopted. The issue is whether or not, looking at the article as a whole, the author made the allegations his own. This question is intimately bound up with other facets or other ways of looking at the same fundamental question in the same enquiry. Did he make the allegations his own by espousing or concurring in the charges in the source material or was it a piece of neutral, disinterested, impartial reporting? Was it a full, fair and accurate report or was it embellished or distorted? Has the author engaged in comment, description or elaboration of his own, as opposed to permissibly adding colour to the published account? Having regard to material additions to and omissions from the source material, can the resultant piece of journalism still fairly be said simply to be a report of the source material or has the author taken it over and transformed it? These questions which the ordinary reader, not one with particular knowledge, still less the trained lawyer, must answer. If one can treat them in that common sense way, as "jury questions" if you like to demystify them, then one is able to avoid the artificiality of the single meaning rule and the true elements of the reportage defence will be addressed.
  79. Here I am in no doubt at all that an ordinary reader would appreciate at once that McLagan was not simply reporting published material but mixing that material with other information his enquiries had revealed so as to write as the product of his own considerable researches an inside story of corruption in the Met. This was never a case of reportage as the defence must now be understood and so I turn to the real question of whether or not it was a work of responsible journalism.
  80. Responsible journalism

    The judge's findings in outline

  81. He said that it would by no means necessarily follow from a rejection of McLagan's claim that the book constituted a balanced account that his claim to privilege based on the responsible journalism had to fail.
  82. "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."
  83. Turning from "balance" to "responsible journalism" the judge held:
  84. "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]."
  85. As for his reporting the account of Brennan's trial the judge said:
  86. "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.

  87. As for the reported "new important disclosures of evidence" by Gaspar that Redgrave had received unexplained income and Charman had started an unusual spending pattern in October 1993 coinciding with the time Brennan had claimed to have made the corrupt payments, the judge said:
  88. "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."
  89. As for the passage in the book:
  90. "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."
  91. As for McLagan's account of Brennan's cross-examination including prosecuting counsel's "damning" words chosen "with care", namely, "I am not going to bring in criminals to give evidence", the judge said:
  92. "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."
  93. The judge concluded:
  94. "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."
  95. The judge then returned to the ten matters to be taken into account when deciding the issue of responsible journalism as identified by Lord Nicholls in Reynolds and I shall comment on this in due time. The judge's conclusion was that the defendants had not acted responsibly in communicating the information contained in Bent Coppers about Charman to the public.
  96. My commentary on responsible journalism

    An analysis of recent developments in the law

  97. When setting out his commendably careful and thorough statement of legal principle (see paragraph 43 above), Gray J. did not have the advantage of their Lordships' opinions in Jameel v Wall Street Journal Europe SPRL (No. 3) [2006] UKHL 44, [2007] E.M.L.R. 14. Jameel has made an important contribution to this developing jurisprudence for it reiterates the Reynolds principles but also clarifies their application. Had Gray J. had the benefit of it, he would, I do not doubt, have approach his task differently. The salient features of Jameel, some of which are of significance in this appeal, are these.
  98. (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.

  99. Turning away from Jameel, it is necessary to consider Bonnick in the context of responsible journalism. Having been cited without any disapproval in Jameel and it seems perfectly plain to me that we should treat it as not merely persuasive but as authoritative.
  100. One must appreciate the facts in that case. An article was published giving an account of litigation, referring to unusual aspects of the contracts there involved and making allegations of irregularities. Mr Bonnick was the managing director of the company concerned and he defended his position to the Sunday Gleaner emphasising that the contracts had properly been put out to tender, evaluated and awarded according to the rules and that the auditors were present on all occasions. He indicated he would sue anyone who suggested otherwise. Despite being told by the plaintiff that there had been no connection between the termination of his employment and the contracts, the journalist had made no enquiries about the reason for his dismissal and made no reference in the article to his explanation for it. The article then stated that Mr Bonnick's services as managing director were terminated shortly after the second contract was agreed. He asserted several defamatory meanings, namely, that his services had been terminated because of his impropriety, that he caused the company to enter into the contract irregularly and in breach of normal procedures and that he was insane, stupid or incompetent. The trial judge found that the words would be understood by the ordinary reader to mean that Mr Bonnick was dismissed as a result of the irregularities. In the Court of Appeal one of their Lordships held that the article was not defamatory at all. The second judge of appeal agreed with the trial judge on the defamatory meaning and the third judge expressed no view about it. The Privy Council upheld the trial judge. I have already cited paragraphs 20 to 22 at paragraph 55 above. Dealing with responsible journalism the Privy Council advised:
  101. "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."
  102. I have looked again at the Strasbourg jurisprudence. The consistent trend is very supportive of the right of free expression. It is necessary only to cast an eye over the Strasbourg decisions since Jameel was argued. White v Sweden [2007] EMLR 1 concerned the publication of a series of articles in which the murder of Olaf Palme, the Swedish Prime Minister, was ascribed to White based mainly on reports made by others, in particular a former senior official of the South African security police. In striking the balance, the court was satisfied that the public interest in publishing the information in question outweighed the applicant's right to protection of his reputation. In Verlagsgruppe News GmbH v Austria (Application Number 76918/01, 14th December 2006), [BAILII: [2006] ECHR 1092 ] the impugned statements had already been widely disseminated in another newspaper and as the court said, the applicant company quoted this letter "in the context of its reportage about the then pending defamation proceedings". The court recalled that:
  103. "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

  104. Let me first dispose of the Bonnick point about which there was some argument. The judge had said:
  105. "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].
  106. I turn, therefore, to the crucial question: did McLagan act with proper professional responsibility? As I have pointed out the judge did not have the benefit of Jameel. He would not have appreciated how far the courts have gone in releasing the shackles on the freedom of expression afforded to the media in matters of public interest. "Serious journalism" is to be encouraged, said Baroness Hale.
  107. Secondly, and importantly, the emphasis is on considering the article as a whole as opposed to the spotlight focussing on isolated individual pieces of information. The criticism that can, therefore, be made of the judgment is that whereas the judge set out to consider whether McLagan struck a fair balance "in relation to Charman and the allegations levelled against him", he did not consider the Charman story in the context of the whole story of the book about Bent Coppers. Charman was one story within the larger story of corruption or alleged corruption within the Met. Even within the confines of the Charman story, the reputation of others was affected by the way that, in mounting his defence, Charman did not flinch from accusing the investigating officers of corrupt practice directed against him and Redgrave. In failing to look at the bigger picture, the judge erred.
  108. Looking more closely at the judge's conclusions on balance, he held that "a balanced approach required McLagan to mention certain noteworthy aspects of the Brennan story", among others, "the very real reasons for doubting Brennan's credibility". This does not seem to me to be a fair criticism. The book described Brennan as one "given to lies and bluster" and, as the judge himself found in his meaning judgment:
  109. "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."
  110. In arriving at a judgment on balance the judge ought to have regard not only to what was said, but also to what was not said. I consider that the judge erred in not weighing the several matters which McLagan deliberately omitted to mention in the book in his pursuit of a fair balance such as, for example, the extraordinary fact that Charman and Redgrave declined to answer any police questions about Brennan's allegations against them. Surely innocent police officers should have nothing to fear from an unfounded complaint from a common criminal? They resorted instead to persuading the press to put their side of the story and Mr McKinlay M.P. to make a Parliamentary statement about the predicament in which they said they found themselves. As a further example of the omissions of adverse information, there was no mention of Charman's alleged fabrication of informant logs made in relation to aspects of Operation Nightshade.
  111. This analysis highlights another difficulty for the judge. Jameel emphasises how important it is that weight be given to the professional judgment of the journalist. Where opinions may reasonably differ over the details which are needed to convey the general message, then deference has to be paid to the editorial decisions of the author, journalist or editor. True it may be that the journalist has to subject the material, as the judge held, to "critical analysis". But it is his assessment of that evaluation which is important, not the judge's own evaluation of the material conducted with the benefit of hindsight and with the sharp eye of a trained lawyer. I do not see in this judgment any sufficient allowance made for McLagan's honesty, his expertise in the subject, his careful research, and his painstaking evaluation of a mass of material. Bringing the strands of criticism together,
  112. "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.

  113. To move from the general to the particular. The judge was critical of McLagan's failure to inform his readers that far from being "reliable" Smith was profoundly tainted by his answers during cross-examination in the Phillips trial. I do not agree. To have explored in depth whether or not Smith was "moonlighting" for Brennan would not dissolve the suspicion that he was and that he was doing so corruptly. That it was possible that Brennan had corrupted Smith would not make it less likely that he had also corrupted Charman. In my view blackening Smith's reputation would have added weight to the case against Charman.
  114. As for the account of Brennan's trial the judge's first criticism related to the fact that the inquiry into Wang's allegations of theft had been taken over by SERCS but the judge considered that there was "nothing unusual or sinister about it". That criticism ignores the fact that evidence was given by Gaspar that the transfer was "curious in itself". Deputy Assistant Commissioner Roy Clark also gave evidence describing the transfer as "something that made me suspicious" and as "strange because the regional crime squad do not reactively investigate crime. They work entirely proactively."
  115. The judge then commented on the fact that references to "unexplained income" and "an unusual spending pattern" for Charman were damning and observed that no balancing reference was made to other evidence which tended to exonerate Charman. This was said in the context of McLagan being criticised for treating matters of marginal relevance as if they formed a major part of the hearing. These were, however, certainly not matters of marginal relevance. They were central to the case against Charman and were matters put in the public domain in open court. McLagan did take steps to verify this "damning evidence" because he asked for and was allowed to read the financial report on which the cross-examination was based.
  116. The judge's next criticism in paragraph 147 of the judgment was that McLagan ought to have appreciated that there was in fact no possibility of Charman or Redgrave giving evidence at Brennan's trial. I disagree. If Brennan was to stick to his story that he was not guilty of theft and that all was part of the operation in which he was acting as the informer, then, if that had been true, one would have expected Charman and Redgrave to support him.
  117. Finally the judge accepted 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 the jury in the Brennan trial had to decide. The judge drew attention to McLagan's failure to mention that Latham had accepted there was no direct evidence that corrupt payments had been made to the officers. He (Gray J.) considered that a more serious omission was the failure to refer to the trial judge's advice to the jury in his summing up to ignore suggestions that any money was taken by Charman or Redgrave to assist Brennan. So McLagan was criticised for observing that for much of the time it was as if Charman and Redgrave were in the dock with Brennan.
  118. As it appears to me, the issue for the jury was whether or not the relationship between Brennan and the two officers was a proper one or an improper one. It was Brennan who made it an issue because it was his defence to the charge of theft that he was acting innocently with the officers' full knowledge and approval. If it seemed as if they were on trial and in the dock with him, they were in the same boat as Brennan because he put them there. He so allied his defence with their honesty that they three of them were bound to stand or fall together. The prosecution challenged Brennan's veracity through rigorous, even vigorous, cross-examination as the prosecution was entitled and in the circumstances bound to do. It was perfectly proper in a cross-examination as to credit to suggest money was paid to Redgrave and Charman without being able to place evidence before the jury to support the allegation. The alleged criminality of the officers in accepting corrupt payments had the most material bearing on the issue before the jury because if the jury disbelieved Brennan and his story of being the innocent informer, then his defence was in ruins. The jury could have decided that whether or not there was direct evidence of any corrupt payments having been made. The role of Charman and Redgrave remained a pivotal part of the defence and McLagan was in my judgement entitled to concentrate on them.
  119. I am reinforced in these conclusions having since read in draft a copy of the judgment of Hooper L.J. I agree with his close analysis of the Brennan trial and the way a responsible journalist could report it.
  120. Conclusions

  121. Although I have considerable sympathy for him since he did not have the benefit of Jameel at the time he wrote his judgment, I am satisfied that the judge erred in his approach. I am, moreover, satisfied that I have enough material before me to deal with this defence of Reynolds privilege. I have already expressed views about the professional responsibility of McLagan's conduct and I now turn to the ten matters identified by Lord Nicholls in Reynolds.
  122. (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.

  123. What seems to me to be lacking after the judge's analysis of those ten factors is some assessment of whether a fair balance was being held between the freedom of expression and the reputations of the individuals, bearing in mind that the court should suffer no greater limitation of press freedom than is necessary to hold that balance. Lord Nicholls concluded:
  124. "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.

  125. Having given the matter most careful consideration, I am totally satisfied that this was a piece of responsible journalism. As Lord Bingham said in Jameel (35):
  126. "It might be thought that this was the sort of neutral investigative journalism which Reynolds privilege exists to protect."

    Statutory privilege

  127. In the light of the above conclusions, it is unnecessary to go further and consider this defence. At its heart lies the question of whether the book as whole gives a substantially fair and accurate account of the court proceedings and the Parliamentary debate. It will be noted that fairness and accuracy play their part in considering reportage and, especially as emphasised by Lord Hoffmann, in the general question of responsible journalism. Fairness is the common thread that links all three aspects of privilege in this context. The question of fairness should be judged alike in each instance. I am satisfied that the book gives a fair portrayal of the trial and to that extent this defence of privilege should also prevail.
  128. The result

  129. The appeal must be allowed. The passages in Bent Coppers of which Charman makes complaint are protected by qualified privilege.
  130. Lord Justice Sedley:

  131. In agreement with the other members of the court, I consider that this appeal should be allowed. Like them, I do not think the case can possibly rank as a reportage case. Apart from anything else the book is much too wide-ranging to come within a class designed only to protect the factual reporting in the public interest of a dispute containing defamatory matter. I will return briefly to reportage below. But Bent Coppers is in my judgment an exercise of entirely responsible journalism and as such is entitled, to the protection of the law against what would otherwise be the consequences of its defamatory imputation against the claimant.
  132. Hooper LJ in his judgment explains why the author's carefully documented account of the complicated and murky events which are the subject matter of Bent Coppers could legitimately throw up the suggestion that there were cogent grounds to suspect that the claimant had colluded for reward with a professional criminal's fraud. It may well be that no explanation of this detail and clarity was proffered to Gray J; but it may equally be that Gray J's critique of the author's journalistic balance would still have driven him to the same conclusion.
  133. In my judgment, however, an otherwise sound defence of responsible journalism is not, or at least not necessarily, undermined by a presentation which could arguably have been less unfavourable to the claimant than it was. Such an approach risks embarking upon the kind of retrospective editorial function which is not the court's rτle. A point can of course come at which, without necessarily being able to be branded irresponsible, a defamatory account loses its balance and with it the protection of qualified privilege; but for the reasons given by both Ward LJ and Hooper LJ, the grounds on which the judge considered this point to have been reached in the present case do not stand up to scrutiny once the true character and import of the Brennan trial is appreciated. Balance, it should be appreciated, does not mean giving equal weight or credence to intrinsically unequal things – for example a telling accusation and an evasive reply. Such balance may be a sufficient answer for the purposes of a responsible journalism defence, but it is not a necessary one. A more selective or evaluative account is quite capable of staying within the bounds of responsible journalism.
  134. The reportage doctrine developed in Al Fagih cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected. Although no reference was made in the case to the classic decision of the Second Circuit Court of Appeals in Edwards v National Audubon Society Inc 556 F. 2d 113 (1977), Al Fagih  reflects this now classic limb of First Amendment jurisprudence. But the present case bears no substantive resemblance to either of those cases, nor to the case recently decided by this court of Roberts v Gable. These were all cases of a self-contained account of a dispute, libellous in its content but reported without adoption or more than marginal embellishment. It is the very dependence of a reportage defence on the bald retailing of libels which makes it forensically problematical to fall back upon an alternative defence of responsible journalism. Pleaders may need to decide which it is to be.
  135. Lord Justice Hooper:

  136. On 9 June 2003 a book entitled Bent Coppers written by the third defendant, Graeme McLagan ["McLagan"] was published in hardback by the first defendant. Nine months later the respondent, Michael Charman ["Charman"] wrote a letter before action. In the words of the outline submissions of Miss Page QC:
  137. 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.
  138. On 1 April 2004 the paperback edition was published by the second defendant. Although in the paperback edition changes were made, those changes, we were told, are not of significance for the purposes of this appeal.
  139. On 4 June 2004, the claim form in these proceedings was issued, claiming damages for libel.
  140. In October 2005 the judge, Gray J, concluded, after a hearing, that the relevant passages in the hardback edition bore the defamatory meaning that:
  141. "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".
  142. In the judgment the subject matter of this appeal Gray J said:
  143. 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.
  144. The judge decided the issue against the defendants, now appellants. I propose to concentrate on the part of the judge's decision in which he found that the defence of qualified privilege based on responsible journalism failed. I agree with Ward LJ that the judge was right to find (in paragraph 118 of the judgment) that the defendants could not rely on the so-called defence of reportage. In my view that "defence" was doomed to failure and should never have been advanced.
  145. I have to say that, in my view, far too much time was spent during the appeal on law. The law in this area is clear. Apart from referring us to a few minor alleged imperfections, Miss Page accepted that the judge had properly set out the law. Given what in my view was the hopeless reportage issue, the only realistic attack which could be made on the judge's finding was that he was wrong to have rejected the responsible journalism defence. Miss Page largely made that attack in a very detailed schedule.
  146. Geoffrey Brennan ["Brennan"] was described by McLagan in his book in the following way (page 41, all references being to the hardback edition):
  147. 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.
  148. Brennan's handlers included Charman and Det Sgt Chris Smith ["Smith"].
  149. McLagan had made a substantial witness statement and then was in the witness box for four days, most of which was taken up by cross-examination. The finding was in large measure based on points made during that cross-examination. Notwithstanding that there had been extensive pleadings, many of the points made by Mr Tomlinson QC during that cross-examination had not been foreshadowed in the pleadings. In the words of Miss Page:
  150. 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.
  151. I take the background facts about the parties from the judgment of Gray J:
  152. 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.

  153. To understand the case and this appeal, it is, in my view, necessary to take a step back and concentrate on what I consider to be the more important events. We have been provided with a chronology with two columns showing the "Event (per appellants)" and the "Respondent's comments". I shall refer to it as the "chronology" but I shall note the respondent's comments thereon when applicable. I understand that the trial judge did not have the benefit of the very detailed chronology with which we have been provided. If so, I find that surprising.
  154. In June 1993 Charman became Brennan's handler, taking over from Smith. In October Smith resumed as a handler of Brennan and according to the respondent both handled Brennan from that time until March 1994.
  155. At the same time, in the words of Gray J:
  156. 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.
  157. The Home Secretary was to say in the House of Commons in March 2000 about Operation Nightshade and arms deals that:
  158. 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.]
  159. As I shall show later in my judgment, Mr McKinlay MP was a vociferous supporter in the House of Commons of Operation Nightshade's attempts to uncover arms dealing involving Sierra Leone. Mr McKinlay attributed the downfall of Redgrave and Charman to a desire on the part of the intelligence services to bring Operation Nightshade's enquiries into arms dealing to an end.
  160. In November 1993 Brennan was arrested by a Kent officer, DC Inglis, for theft in September 1993 of £400,000 from an American businessman, named Sam Wang. Brennan was released on bail.
  161. Brennan was subsequently convicted of that theft at the Central Criminal Court many years later in April 2001 (HH Judge Barker QC and a jury).
  162. Returning to 1994, in the words of the book:
  163. 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.
  164. Detective Chief Superintendent Gaspar ["Gaspar"] had, in May 1994, been given permission to create what the book describes as a "secret ghost squad" to investigate corruption within the Metropolitan Police.
  165. According to the book, during the course of the conversation between Gaspar and Bill Griffiths ["Griffiths"], Griffiths had mentioned Redgrave as being involved with Brennan. According to the book, Redgrave's name was on a list of suspect corrupt officers only recently compiled.
  166. Two hours after the call, Gaspar met Brennan. According to the book, Brennan told Gaspar that confidential material relating to Brennan's informant status was now in the hands of criminals, that his life was in serious danger and that he had turned to Smith for help. According to the book Gaspar had no reason to disbelieve Brennan's story about the leak of the information "especially as it was corroborated by DS Smith". Gaspar then arranged for elaborate steps to be taken to protect Brennan (safe house, new name etc).
  167. According to the book there were many subsequent meetings between Gaspar and Brennan (some or all of which, it appears, Smith attended). Brennan agreed to some of the conversations being taped. Brennan was not cautioned. The book gives an account in some detail of what Brennan told Gaspar on tape. McLagan told Gray J that during Brennan's subsequent trial for theft, McLagan had been lent a copy of the transcripts for some two hours. The judge does not make a finding that McLagan's summary of the Brennan interviews was inaccurate nor does he find that it was not responsible journalism to rely on what he had read and noted during that two hours. The judge's summary of the critical parts of the tape takes up one paragraph of the judgment (paragraph 30).
  168. The account of the tapes in the book reads as follows (pages 44-48):
  169. Brennan recounted how he had been a police informant while running a mobile-phone shop. During the previous su