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Cite as: [2002] EWCA Civ 1772, [2003] EMLR 11, [2003] EMLR 218

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Neutral Citation Number: [2002] EWCA Civ 1772
Case No: A2/2002/1281

Eady J

Royal Courts of Justice
Strand, London, WC2A 2LL
3rd December 2002

B e f o r e :






Stephen Suttle (instructed by Russell Jones & Walker) for the Respondent
Richard Spearman QC (instructed by Daniel Taylor) for the Appellants
Hearing date : 1st November 2002



Crown Copyright ©

    Lord Justice Brooke :

  1. This is an appeal by the defendants against so much of an order made by Eady J at a case management conference on 31st May 2002 as directed that paragraph 12 of the defence and the particulars pleaded under that paragraph be struck out in their entirety.
  2. I am happy to adopt the judge's exposition of the relevant facts. The claimant's nursing qualifications include that of state registered sick children's nurse. She was formerly employed as a paediatric community sister by the South Essex Mental Health and Community Care NHS Trust ('the Trust').
  3. Her claim relates to articles published in issues of the Sun newspaper dated 22nd and 23rd June 2000. The claim form was issued on 15th June 2001 and the particulars of claim served on 18th September of that year. The allegations made were towards the highest level of gravity for defamation litigation and undoubtedly received enormous prominence. The articles were extensive, and the judge summarised them in the terms I set out below.
  4. On the front page of the newspaper for 22nd June there was a large headline "Nurse is probed over 18 deaths: World Exclusive". The article said that she was suspected of overdosing terminally ill "youngsters" with painkillers. It identified the children concerned as nine boys and nine girls, aged between eight weeks and 17 years.
  5. The article went on to describe the nurse concerned as being unmarried and in her forties. It did not name her, but it is the claimant's case that the circumstances were such that even at that early stage a significant number of readers would identify her. The nurse was said to have been suspended the previous year. It was said, too, that Essex police were seeking assistance from Lincolnshire detectives who had been involved in the notorious case of Beverley Allitt (described by the Sun as "the Angel of Death"), who had been in 1993 convicted of murdering a number of children in her care.
  6. Attention was drawn to a two page spread inside, which was published under the heading "Exclusive: Nurse probed over 18 child deaths: A graveyard holds the secret". The theme is continued with the introductory words: "Six tiny graves in a children's cemetery hold the key to the mystery deaths of 18 youngsters". Although the deaths were not seen as suspicious at first, the Sun went on to allege: "But now it is suspected that they might have been given huge overdoses of morphine or other painkillers". It added: "The case already has echoes of the crimes of killer GP Harold Shipman".
  7. The nurse was alleged to have been suspended following a letter of complaint over serious misgivings about her professional conduct which, according to a mother, "jeopardised and compromised" her son's treatment. There followed an inquiry in which her colleagues were interviewed as well as the parents of some child patients. Reference was made to internal reports seen by the Sun, one of which referred to the nurse's mood swings and to episodes of aggression and "self-isolating behaviour".
  8. It was alleged that senior health service officials then went to the police, following the inquiry, and told them that the nurse was suspected of accelerating the deaths of 18 children. There was further reference to the cases of Harold Shipman and Beverley Allitt in the context of the help sought by Essex police from the Greater Manchester and Lincolnshire police.
  9. The Beverley Allitt analogy was pressed further because she had "injected her victims with chemical drugs and tried to suffocate them". The Essex nurse, too, said the Sun, would have been able to administer morphine (subject to various safeguards).
  10. The article went on to quote "a health source close to the inquiry" as saying that "she was suspended so that her capacity for doing harm would be eliminated". There was a good deal more about the suffering of parents, and comments from a doctor to the effect that the medical profession does not have the "legal right to play God with the lives of terminally ill children and take a decision on when their lives should end". He referred to Dr Shipman giving a single dose of morphine or diamorphine and described it as "almost the perfect murder method".
  11. There were then two separate sections under the sub-headings respectively of "Allitt" and "Shipman", reminding readers of how those trusted professionals had murdered patients.
  12. The Sun's allegations, it seems, were republished in this jurisdiction and in many other places around the world. This was made clear the following day. On page 2 of the issue for 23rd June there was a piece headed "Blockbuster Sun" in which many such republications were listed.
  13. The meaning attributed in the particulars of claim to the material published on 22nd June was that there were very strong grounds to suspect the claimant of having serially murdered at least 18 terminally ill children entrusted to her care and of having behaved in a evil manner comparable to the behaviour of Beverley Allitt and Harold Shipman. The defendants do not assert that the words are incapable of bearing such a meaning.
  14. The Sun returned to what it described as its "sensational scoop" on 23rd June. A photograph of the claimant appeared on the front page. Because of an injunction obtained the previous evening her face was obscured. There was a caption describing her as the "Woman at centre of 18-death probe". The photograph was also described as the "First photo of the Nurse" and, moreover, as "the first picture of the nurse being investigated over the deaths of 18 children". The story is then developed: "Cops are probing claims exclusively revealed by the Sun that terminally ill youngsters aged eight weeks to 17 years were given overdoses of painkillers". It was revealed that 20 detectives were working on the case, but that, although this nurse was said to have been "suspected by NHS bosses last year", police had not yet interviewed her. The point was also made that they had "no power to prevent her leaving the country".
  15. Police were said to have visited the homes of every family involved in the probe; that is to say, the parents who had suffered the loss of a child. It was added, "But the parents were only told of the inquiry by cops on Wednesday after the Sun had learned about it". The judge was told that the reason for that was simply that the police wanted to tell the parents rather than leave them to pick up the story from the media. The police did not think it right at that time to alarm the parents or add to their anguish since they had no sufficient basis to do so. Their hand was, in effect, forced by the Sun.
  16. In addition to the extensive article on pages 1 and 4 of that issue, there was other coverage on pages 2, 4, 5, 6 and 7. On page 2 there was a piece referring to the "Blockbuster Sun", and to the previous day's scoop. It claimed that it was "followed up across the world proving yet again that Britain's favourite newspaper is simply Sun-beatable". Its desperate rivals were scrambling to catch up. The heading asserted "Another fantastic scoop as our desperate rivals droop". On pages 4 and 5 there was a two page spread under the heading "Probe into 18 child deaths: She was brutal". There was then a piece which referred to complaints made by a particular mother. The defendants' plea of justification in relation to this piece was not the subject of a strike-out application, and in the interests of brevity I will not summarise the effect of what was written about this particular case.
  17. Three meanings were attributed to the 23rd June articles. The first was the meaning relied upon for the previous day's coverage (see para 13 above). There then followed two additional meanings relating to the description of the individual mother's case, which gave rise to a plea of justification in paragraph 13 of the defence. This sub-issue is not of any relevance to the present appeal.
  18. The defence (served on 26th November 2001) contained a plea of justification. This was sub-divided in paragraphs 12 and 13 between the two Lucas-Box meanings relied upon. In paragraph 12, which the judge was to strike out, the defendants said that the articles meant that there were reasonable grounds to suspect the claimant of involvement in hastening the deaths of child patients. The particulars of justification said to support that defamatory meaning were pleaded in the following terms:
  19. "(1) The claimant, a paediatric community nurse, was suspended by the South Essex Mental Health and Community Care NHS Trust on 28th September 1999, following a letter of complaint to the Trust dated 24th September 1999 from the mother of a patient known to Ian Hepburn only as 'JA'.
    (2) The mother's complaint was that she had serious misgivings about the professional conduct of the claimant, which she claimed had jeopardised and compromised her son's treatment. She also alleged that her son's confidentiality had been breached by the claimant.
    (3) Following the complaint, the Trust began its own internal investigation, which is still continuing at the date hereof. That investigation was into alleged abuse of power by the claimant which intimidated fellow staff and the mother of JA.
    (4) In the course of the Trust's initial investigation, the claimant was accused by witnesses of abuse of power which led to fear and intimidation among staff and patients. In particular, there was a complaint of bullying and of upset caused to parents upset by her behaviour. The claimant suffered severe mood swings and episodes of aggression and "self-isolatory behaviour", in the course of which she would lock herself away and have nothing to do with people. Moreover, she became intensely involved with families of sick children and felt a sense of martyrdom after a child's death.
    (5) As the investigation proceeded, the investigators looked at the claimant's treatment of her child patients, and in particular of 187 children who had died between 1996 and 1999 and whose names and dates of birth and death are pleaded at paragraph 11(10)(ii) above. Some nurses in the community paediatric team made allegations to the investigators that her administration of drugs was irregular, particularly to James Banks, and they expressed concerns about the extent to which she was present at the deaths of children and would volunteer to be with terminally ill children.
    (6) In October or November 1999, the Trust called in Essex police, who appointed Det Insp Clifford Haynes to look into the claimant and her treatment of James Banks. When the investigation was extended to about 18 children, Det Supt McNeill from the Major Investigations Team at Harlow took over day to day command. The investigation then reviewed all cases of child deaths that had occurred during the claimant's career. Of those, about 40 cases required more detailed analysis and investigation. In the course of the investigation, which involved 53 police officers including 12 detectives, 155 police interviews were carried out and 98 statements were taken.
    (7) Acting on suspicion that the claimant might have been stockpiling controlled drugs, the police applied for a warrant to search her house, where on 20th October 2000 ten officers found a small quantity of controlled drugs. The claimant was arrested on suspicion of possession and theft of Class C drugs and the supply of Class A drugs. On 17th February 2001 Essex police announced their conclusion that the claimant played no part in hastening the deaths of any children, and on 1st March 2001 it was decided that it was not in the public interest to proceed against her on the drugs charges, and she was released from police bail.
    (8) Without limiting the generality of the above pleas, the defendant will contend (a) that those pleas are and should be held to be both available to the defendant and made out on the facts of the present case, in accordance with the balance to be struck between the right to freedom of expression of the defendant and its readers on the one hand and what is necessary and proportionate to protect the reputation of the claimant on the other hand, having regard, in particular, to the vital considerations that interference with the right to freedom of expression created by the law of defamation must be confined to what is necessary in a democratic society to protect a good reputation and that there must be a pressing social need for any restriction on free speech; (b) that, in accordance with the duty of the Court under section 6 of the Human Rights Act 1998 to act in way that is compatible with the defendant's right to freedom of expression contained in Article 10 of the European Convention on Human Rights, the Court should declare and apply the law of defamation so as to hold that the above pleas are available to the defendant and should uphold the above pleas on the facts of the present case; and (c) that if and to the extent that the above pleas do not accord with prior case law then (i) the case law is itself incompatible with the defendant 's Convention right and (ii) the Court has a duty to depart from that case law and to declare the law so as to make it compatible with that right."
  20. The defence also contained a plea of justification in answer to the specific allegations about the claimant in respect of Mrs W's son, and a plea of qualified privilege. The claimant then served an extensive reply. This put in issue much of the factual narrative in the defence. It is unnecessary for the purposes of this appeal to refer in any greater detail to those aspects of the parties' cases.
  21. Because the claimant's application was made under CPR Part 24 (which permits evidence to be filed in support of an assertion that parts of a defence have no reasonable prospect of success) in addition to CPR 3.4, she relied on a number of additional matters in addition to the text of paragraph 12 of the defence. In particular, she relied on the contents of a draft affidavit, which was subsequently sworn, by Mr Richard Collier, a solicitor acting for the NHS Trust concerned in the case. This affidavit was prepared in support of the trust's successful application, also made to Eady J, for an interim injunction during the early evening of 22nd June, directed to preventing publication of broadly similar material on the BBC's Newsnight programme later that evening. The injunction was sought for the protection of the confidentiality of the families concerned, and also to protect the claimant herself. In his affidavit Mr Collier provided a considerable amount of information about the background of the investigation and the extent of the police's involvement, in addition to explaining why the trust thought it appropriate to seek an injunction.
  22. Mr Collier said that the nurse in question had remained suspended from duty from 28th September 1999 to the date of the affidavit. She had not during the intervening period undertaken nursing duties of any kind, nor been in contact with any of her patients or their families. The trust would maintain her suspension until the conclusion of these investigations. It did not believe that there was any substantial risk that she would seek to work as a nurse in the intervening period.
  23. The police had worked in close co-operation with the trust since they were instructed in this matter The police investigations were of their nature complicated, requiring as they did a review of a substantial body of evidence. This evidence included hospital and nursing notes, community nursing notes, consultants' reports and notes, and the notes and reports of the general practitioners concerned. While the trust had been able to make available to the police all the documents within their ownership and under their control, they could not supply them with the notes of every hospital involved that was outside the trust's area of operation, nor the notes of consultants or GPs. Gaining access to these notes took time. The strict confidentiality which the relevant medical practitioners and health bodies owed towards their patients and staff contributed significantly to the delay.
  24. A meeting had been held at the Essex County Police headquarters in Chelmsford on the evening of 21st June 2000. At this meeting Assistant Chief Constable John Broughton, who had overall command of the police investigation, had made it absolutely clear that on the basis of the information currently available to them the police had no grounds whatever upon which they could arrest the nurse in question. Nor was he able to say how soon he believed that a final decision could be made with regard to this investigation. He confirmed that the police could not abandon the investigation until they had had an opportunity of reviewing all the evidence that might be available.
  25. Mr Collier said that the trust believed that it was unlikely that any police action would be taken against the nurse, when the full investigation was complete. The trust had taken its own expert advice in relation to two cases being investigated by the police whilst the police investigation was continuing. It was told by the experts that the nurse's administration of drugs in those two cases fell well within the bounds of good professional management of pain. The same reports raised some questions about the nurse's suitability to continue in the highly charged and emotional atmosphere of paediatric community nursing of terminally ill children. The police had raised no further matters such as to lead the trust towards the view that an early conclusion of these matters was likely, or that the result would be that the nurse would be charged with the commission of criminal offences.
  26. Mr Collier complained that in the publication of the Sun newspaper on 22nd June 2000 the defendants had paralleled the nurse's case with those of Beverley Allitt and Dr Harold Shipman. The implication of such juxtaposition was unmistakable. Its implications for her were self-evidently serious, both with regard to the pressure to which she would be subjected whilst the investigation continued and to her future professional career in the event of her reinstatement as a nurse.
  27. He then went on to identify the trust's reasons for making the application. In particular, it seemed clear to him from the articles published in the Sun that day that they had obtained at least one internal report, the content of which was described as "confidential to the trust". It also contained the names of patients and other members of staff.
  28. The following day, following publicity outside the jurisdiction of this court, it became obvious that it was impractical to prevent further publication of the claimant's identity. The injunction was accordingly varied in that respect.
  29. The claimant also relied on letters written in February 2001 by a detective superintendent in the Essex police to the claimant and her solicitors. From these letters it appeared that following an in-depth investigation and a full review of all the available information on each of the cases, the police had concluded that there were no grounds to suspect that the claimant had played any part in hastening the deaths of any of the children. In the circumstances the Crown Prosecution Service had decided to take no further action.
  30. It appears that the defendants did not respond to a request for further information about the identity of those who made allegations about the claimant to the investigators, the circumstances in which such allegations were made, the matters on which the allegations were based, and whether or not the defendants were asserting that the claimant had in fact behaved as alleged. The defendants have also never suggested in argument that anything which was alleged to the investigators or investigated by them was true. In these circumstances Mr Suttle, who appears for the claimant, not unreasonably says that the defendants are seeking to rely only on the fact that allegations were made by largely unidentified third parties in broad terms about the claimant, irrespective of whether those allegations were true or false, and without even being able to give details of how she was alleged by those third parties to have behaved on any specific occasion.
  31. When deciding whether he should strike out paragraph 12 of the defence the judge said that he should take into account three principles of English law which had only been articulated in the last ten years, although they each carried the genetic traces of much older case law. He set them out in these terms:
  32. (i) A defence of justification based upon "reasonable grounds for suspicion" must focus upon some conduct of the individual claimant that in itself gives rise to the suspicion: Shah v Standard Chartered Bank Ltd [1999] QB 241, 261 (Hirst LJ), 266 (May LJ) and 270 (Sir Brian Neill).
    (ii) In such a case it is not permitted to rely upon hearsay: Shah at pp 241 (Hirst LJ), 269-270 (May LJ) and 270 (Sir Brian Neill); see also Bennett v News Group Newspapers Ltd [now reported at [2002] EMLR 860, 869].
    (iii) Nor may a defendant plead as supposed "grounds" matters post-dating publication: Bennett [p 877]; see also Evans v Granada Television Ltd [1996] EMLR 427, 435-6.

    The first of these principles is often now called the "conduct" rule, and the second is now regarded as part of the "repetition" rule.

  33. The judge held that the binding force of these three principles had been in no way affected by the coming into force of the Human Rights Act 1998 ("the HRA"). In those circumstances he struck out paragraph 12 of the defence on the grounds that the particulars were incapable of supporting the Lucas-Box meaning pleaded. The issue at the heart of this appeal, and the reason why Latham LJ granted permission to appeal, is whether English defamation law, so recently defined by this court, ought now to be changed because the HRA requires us to look at these matters in a different light.
  34. Before considering the effect of the HRA it is convenient to say a little more about the relevant principles of English libel law as it now stands.
  35. English law does not permit a claimant to recover damages in respect of an injury to a character which he/she does not possess, or ought not to possess. For this reason a successful plea of justification is an absolute defence to a claim in libel because it shows, as a matter of objective fact, that a claimant is not entitled to the unblemished reputation which he/she claims to have been damaged by the publication of which complaint is made.
  36. For such a plea to succeed, there must be a final finding on the merits by a court (usually a jury) on admissible evidence that the defamatory "sting" of the allegation complained of is objectively true as a matter of fact. The defendant does not have to prove that every word he/she published was true. He/she has to establish the "essential" or "substantial" truth of the sting of the libel. To prove the truth of some lesser defamatory meaning does not provide a complete defence.
  37. The burden of proving justification rests on the defendant. Although the standard of proof is the balance of probabilities, the more improbable an allegation the stronger must be the evidence that it did occur before, on the balance of probabilities, its occurrence will be established.
  38. I take these principles from such cases as McPherson v Daniels (1829) 10 B&C 263, 272; Berezovsky v Forbes Inc [2001] EMLR 1030, 1039 at para 12; McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774; and Re H (minors) [1996] AC 563, 586F-H.
  39. Under modern libel practice a defendant must set out in his/her statement of case the defamatory meaning he/she seeks to prove to be essentially or substantially true. This is now known as the Lucas-Box meaning, following the leading case of Lucas Box v News Group Ltd [1986] 1 WLR 147. By this means the claimant (and the court) will know unequivocally what the defendant is seeking to justify. In the Lucas-Box case itself Ackner LJ said at p 153G that if the particulars originally given by a defendant of a Lucas-Box meaning are not clear then the situation must be made unequivocal. The defendant must then give proper particulars of the facts on which he/she relies to justify that meaning (see McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 770).
  40. The adoption of this procedure means that at the trial the jury must undertake a two-stage process. They must first decide whether on the admissible evidence called by the parties the defendant has proved to their satisfaction, according to the appropriate standard of proof, all or at least some of the factual propositions asserted by the particulars of justification. They must then decide whether the whole of the facts which they have found to be proved are such as to establish the essential or substantial truth of the "sting of the libel".
  41. I have referred to "admissible evidence". To some extent the Civil Evidence Act 1995 ("the 1995 Act") has altered the landscape. It remains the law (subject to any HRA considerations) that if a defendant repeats a libel he/she has heard from others, a plea of justification will only succeed if he/she can prove by admissible evidence that what they said was substantially true. The relevant law was authoritatively restated by this court in Shah v Standard Chartered Bank Ltd [1999] QB 241. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Devlin observed at pp 283-4 that:
  42. " you cannot escape liability for defamation by putting the libel behind a prefix such as 'I have been told that ..' or 'It is rumoured that ' and then asserting that it was true that you had been told or that it was in fact being rumoured. You have to prove that the subject matter of the rumour was true."
  43. In Shah Hirst LJ observed at p 263F that one most salutary advantage of holding fast to the repetition rule was that it avoided lengthy investigation of the reliability of the makers of hearsay statements which might otherwise be admissible. I would add that I agree with Hirst LJ's views on the correct approach to the judgment of Schiemann LJ in Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132 (see Shah at p 263E-F).
  44. It appears to me, however, that in Shah May LJ could not have had the provisions of the 1995 Act in mind when he said at p 270C:
  45. "Allegedly credible hearsay may not contribute to such proof [viz that there are reasonable grounds to suspect a plaintiff of discreditable conduct]. Defendants will have to call their informants or provide other direct evidence."
  46. Provided that the requirements and safeguards of the 1995 Act and CPR Part 33 are observed a defendant may now in theory adduce hearsay evidence of whatever degree in an attempt to prove the truth of the particulars of justification. Mr Suttle, who appeared for the claimant, accepted that this must be the case, since the 1995 Act contains no exceptions so far as defamation cases are concerned.
  47. The statutory and regulatory safeguards, however, include:
  48. (i) a requirement that a party proposing to adduce hearsay evidence must notify the other party. (Failure to do so in accordance with the rules contained in CPR Part 33 can adversely affect the weight of the evidence);
    (ii) a power to require the maker of a hearsay statement on which reliance is placed to be called for cross-examination on the contents of that statement;
    (iii) a power to permit the other party (subject to due notice) to call evidence attacking the credibility of the maker of the hearsay statement;
    (iv) a requirement that the court, in estimating the weight (if any) to be given to hearsay evidence in civil proceedings, must have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
  49. These safeguards are set out in sections 2 to 5 of the 1995 Act and in CPR 33.2-33.5. So far as the fourth safeguard is concerned, section 4(2) of the Act provides that the factors to which the court may have regard include, in particular:
  50. (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
    (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
    (c) whether the evidence involves multiple hersay;
    (d) whether any person involved has any motive to conceal or misrepresent matters;
    (e) whether the original statement was an edited account or was made in collaboration with another or for a particular purpose;
    (f) whether the circumstances in which the evidence was adduced as hearsay were such as to suggest an attempt to prevent proper evaluation of its weight.
  51. The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.
  52. This distinction was first made by Lord Devlin in his speech in Lewis v Daily Telegraph Ltd at p 282 when he said:
  53. "I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three different categories of justification proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt."
  54. Mr Spearman QC, who appeared for the defendants, wished us to observe that this dictum did not go directly to the reason for the House of Lords' decision. The issue on that appeal was whether the words complained of, which commenced with headlines such as "Inquiry on Firm by City Police" were capable of bearing the meaning that the appellant was in fact guilty of fraud, and Lord Devlin was merely plotting out a number of possible meanings.
  55. Given what I have said about the nature of a plea of justification it is hardly surprising that in Shah this court held that in order to justify a publication to the effect that there were reasonable grounds to suspect that a claimant was guilty of an offence (in other words, Lord Devlin's second meaning), a defendant had to establish that there were objectively reasonable grounds for such suspicion. This is how May LJ put the matter at p 269G. At p 261B Hirst LJ observed that:
  56. " it is an essential requisite of a defence of reasonable suspicion that it should focus on some conduct on the plaintiff's part giving rise to such suspicion."
  57. It is unnecessary on the present appeal to consider in any depth the law relating to a possible lower meaning than that pleaded in paragraph 12 of the defence in this action (for which see para 18 above). A possible alternative meaning (namely that there were serious grounds to investigate the claimant) first surfaced at the hearing before the judge after Mr Spearman's attention had been drawn for the first time to the judgment of this court, given by Robert Walker LJ, in Bennett v News Group Newspapers Ltd [2002] EMLR 860. (This judgment was not reported at that time). Mr Spearman repeated the same arguments before us, but in my judgment the judge was clearly right when he said (in relation to both issues of the newspaper) that:
  58. " what matters is that the words are simply incapable of bearing such a meaning. The Sun clearly went further and conveyed the imputation that there were reasonable grounds to suspect. I accept [counsel's] submission, therefore, that the proposed amendment is hopeless."
  59. I would accept, however, Mr Spearman's further submission that the language used by the members of this court in Shah should not be treated as if they were the words of a statute. There may be cases, of which this is unquestionably not one, in which, depending on the terms of its publication, a defendant may rely on matters which do not directly focus on some conduct on the plaintiff's part giving rise to a relevant suspicion.
  60. A defendant may, for example, rely on strong circumstantial evidence implicating the claimant which might amount, objectively speaking, to the requisite grounds for reasonable suspicion. It is not, however, necessary to explore this possibility on the present appeal.
  61. The final rule of general application is that a defendant may not rely on matters which occurred after the date of publication complained of in order to support a plea that there were, objectively speaking, reasonable grounds for suspecting that the claimant performed the actions attributed to him/her in that publication.
  62. There has for a long time been a rule that if a publication contains general aspersions on a claimant's character, a plea of justification may include reliance on subsequent events if they happen within a reasonable time from the date of publication (see Maisel v Financial Times Ltd [1915] 3 KB 336). This rule was vividly restated by Lord Denning MR in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916, 919F-G:
  63. " if a libel accuses a man of being a 'scoundrel', the particulars of justification can include facts which show him to be a scoundrel, whether they occurred before or after the publication."
  64. As Pickford LJ observed in Maisel at p340, however, the question whether it is admissible to rely on subsequent events in support of a plea of justification must depend on the nature of the libel and also on the nature of the subsequent acts. In Bennett v News Group Newspapers Ltd [2002] EMLR 860 the defendants asserted that their publication meant that the plaintiff was one of eight police officers accused of drug dealing and bribery who were transferred to other police stations while an enquiry was carried out and that sufficient grounds accordingly existed for investigating the allegation against him. After referring to Lord Denning MR's dictum in Cohen, Robert Walker LJ said that Lord Denning went no further than to note that it might be proper to include post-publication facts in particulars of justification. Whether it is proper must depend on the facts of the particular case. A little later, he said:
  65. "In our judgment it cannot be right, in relation to 'sufficient grounds' to allow particulars of events since the date of publication. The sufficiency of the grounds must be assessed on material available at that date."
  66. Although there appears to be no authority directly in point, the same principle seems to be properly applicable when the meaning sought to be justified is that there were reasonable grounds at the date of publication to suspect that the claimant was guilty of the matters attributed to him/her. The viability of a plea of justification cannot, for instance, be weakened if subsequent events reveal that it is no longer reasonable to hold that suspicion. What will be in issue at the trial is whether, at the time of publication such reasonable grounds existed. This, presumably, was the reason why leading counsel abandoned a ground of appeal in the Shah case whereby the defendants were seeking to rely on subsequent events as a justification of publishing that there were reasonable grounds for suspicion (see Shah at pp 244E and 264G-H).
  67. Mr Spearman sought to persuade us that in the context of the law of defamation weight should be placed on another dictum of Lord Devlin when he said in Hussien v Chong Fook Kam [1970] AC 942, 948 in the context of the law of false imprisonment:
  68. "suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete: it is ready for trial and passes on to its next stage."
  69. This approach, however, was authoritatively rejected by Hirst LJ, with whom May LJ and Sir Brian Neill agreed, in Shah at p 263C-D:
  70. "I do not gain assistance from the wrongful arrest cases, since I think that the position of a police officer, who is carrying out a public duty and who may have to take action, frequently under pressure, on information which is at that stage incomplete, is very different from that of a publisher of defamatory words who, save in special circumstances where a defence of qualified privilege is likely to be available, is under no compulsion to make any statement at all. I am not persuaded that the latitude rightly granted to the former in the difficult circumstances in which he operates in any way justifies the extension of a similar latitude to the latter in his very different environment."
  71. There is a clear contrast between a situation in which a police officer is exercising a subjective judgment as to whether to arrest a person for the purposes of investigating whether he/she has committed a crime and a situation in which a publisher has to prove, by reason of what he/she has written, that there were, as a matter of objective fact, reasonable grounds for suspecting that the person may actually have committed the crime in question.
  72. Does the enactment of the Human Rights Act 1998 ("HRA") make any difference? Article 10 of the European Convention on Human Rights ("ECHR") provides, so far as is relevant, that:
  73. "1. Everyone has the right to freedom of expression. This right shall include freedom to impart information without interference by public authority
    2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such restrictions as are prescribed by law and necessary in a democratic society for the protection of the reputation or rights of others."
  74. The European Court of Human Rights has visited questions relating to the balancing of the Press's right to freedom of expression with an individual's interest in the protection of his/her reputation in Jersild v Denmark (1994) 19 EHRR 26 at para 31 and Bladet Tromso and Stemsaas v Norway (1999) 29 EHRR 125 at paras 58-59. From these two cases the following principles can be derived:
  75. (1) Freedom of expression constitutes one of the essential foundations of a democratic society, and the safeguards to be afforded to the press are of particular importance.
    (2) Not only does the press, playing its vital role of "public watchdog", have the task of imparting information and ideas of public interest or serious public concern, but the public also has a right to receive them.
    (3) The test of "necessity in a democratic society" requires the court to determine whether the "interference" complained of corresponds to a "pressing social need", whether it is proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient.
    (4) Notwithstanding the essential function the press fulfils in a democratic society, it must not overstep certain bounds, in particular in respect of the reputation and rights of others.
  76. In English law these principles have been articulated most vividly in two recent speeches by Lord Steyn. In Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 208 he said:
  77. "The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule, and regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation."

    And in McCartan Turkington and Breen v Times Newspapers Ltd [2001] 2 AC 277, 297 he said:

    "In the leading speech in Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 Lord Nicholls of Birkenhead described freedom of expression as the starting point: see p 1022H. In the Simms case a majority of the Law Lords explicitly treated freedom of expression as the primary right in a democracy, observing that without it an effective rule of law is not possible. Nevertheless, it is not an absolute right. Sometimes it must yield to other cogent interests such as the protection of the reputation of individuals The position is now as Lord Nicholls of Birkenhead felicitously put it in the Reynolds case: 'To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.'"
  78. On this appeal Mr Spearman QC challenged the continuing validity, in this new HRA world, of the three main principles on which Eady J relied (for which see para 30 above).
  79. The effect of the HRA on defamation law and practice has already been touched on by Sedley LJ in Berezovsky v Forbes Inc [2001] EWCA 1251. He accepted (at para 10) that the legal landscape is susceptible of change under the direct or indirect impact of the ECHR, and he noted that the House of Lords had recently reiterated the need to be prepared to cull sacred jurisprudential cows. He observed, however, that the right set out in Article 10 was conditioned by the reputation and the rights of others. In those circumstances he said (at paras 11-12):
  80. " regard for the Article 10 right inexorably involves regard for the qualifications to it. It remains therefore for national legal systems to set their own thresholds of defamation and justification subject always to the Convention standard of proportionality and the right to a legal remedy for breaches.
    To require a defendant to be able to justify not a diminished version of a damaging assault on a claimant's reputation but the essence or substance or sting of that assault is not in our judgment a disproportionate invasion of the right of free expression. It meets the legitimate purpose, recognised by Article 10(2), of protecting people from the publication of damaging and unjustified falsehoods. The important question for Convention purposes is whether it does so by disproportionately restricting the ability of the press, even at the cost of exaggeration or inadvertent error, to bring to light matters of serious concern
    it seems to us that it is not disproportionate, nor therefore unacceptable in a democratic society, to limit justification to the essential damage done by the publication (if necessary by disaggregation under section 5 [of the Defamation Act 1952]) and to test exaggeration and error separately by allowing defences of fair comment and qualified privilege provided these give adequate weight and liberty to press freedom. It is here that [counsel] is entitled to point to the increased solicitude for responsible journalism shown by the decision on qualified privilege in Reynolds, but also to Lord Hobhouse's reminder in that case that a democratic society has no interest in the dissemination of untruths."
  81. On this approach I cannot see that the requirement of English law that a defence of justification based upon "reasonable grounds for suspicion" must focus on some conduct of the individual claimant that itself gives rise to the suspicion, subject to a necessary gloss in appropriate cases (for example, where the circumstantial evidence to be relied upon by the defendants is compelling), gets out of kilter the relationship between the right of the media to publish information and the right of an individual to the protection of his/her reputation. Nor can I see that the "repetition" rule, in the context of a plea of justification, is objectionable on ECHR grounds, particularly when it is understood that appropriate use may be made of the Civil Evidence Act 1995. The prohibition on a defendant relying on events which occurred later than the occasion on which he/she said that there were at that time reasonable grounds for suspecting the claimant of serious crime is simply a consequence of the contents of the publication whose sting it is sought to justify. I do not see it as a disproportionate restriction on press freedom.
  82. On the appeal to this court Mr Spearman made no attempt to challenge the judge's rulings on specific elements of his clients' plea of justification in paragraph 12 of the defence in the event that he was unable to persuade us that the HRA had any effect on the relevant principles of defamation law and practice which have so recently been restated by this court. It appears to me that if these particulars were allowed to stand they would have the effect of transferring the burden onto the claimant of making a positive case to disprove then. This the law does not permit (see McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774 per May LJ).
  83. For these reasons I would dismiss this appeal.
  84. Lord Justice Rix:

  85. I agree.
  86. Lord Justice Keene:

  87. I also agree.

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