ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Tugendhat
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE MOSES
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Richard Rampton Q.C. and Miss Kate Wilson (instructed by Times Newspapers Limited for the respondent
Hearing dates : 25th and 26th May 2010
Crown Copyright ©
Lord Neuberger MR:
The publication of the article
"Detective accused of taking bribes from Russian exiles. Police investigating the alleged sale to a security company of intelligence on the Kremlin's attempts to extradite opponents of President Putin, Michael Gillard reports".
TNL also published the Article on its website, and has continued to publish it there.
" Allegations that a British security company with wealthy Russian clients paid a police officer in the extradition unit for sensitive information are being investigated by Scotland Yard.
 The officer, who has been moved temporarily from his post, is alleged to have provided Home Office and police intelligence concerning moves by Moscow to extradite a number of Russia's wealthiest and most wanted men living in Britain.
 Anti-corruption detectives are examining documents detailing the client accounts of ISC Global (UK), a London based security firm at the centre of the investigation. The financial dossier, seen by The Times, shows that ISC was paid more than £6 million from off-shore companies linked to the most vocal opponents of President Putin of Russia.
 Between 2001 and 2005, ISC provided a variety of specialist security services including "monitoring" the Kremlin's attempts to extradite key clients to Moscow, where they face fraud and tax evasion charges.
 A former ISC insider passed the dossier to the intelligence arm of the anti-corruption squad in February. The informant directed handlers to a series of ISC payments, totalling £20,000, made to a recipient codenamed Noah. Detectives from Scotland Yard professional standards directorate were told that Noah could be a reference to an officer in the extradition unit who was friendly with one of ISC's bosses.
 The officer under investigation has been identified as Detective Sergeant Gary Flood. His home and office were raided last month.
 A spokesman for the Metropolitan Police said yesterday:
'We are conducting an investigation into allegations that a serving officer made unauthorised disclosures of information to another individual in exchange for money.'
 Anti-corruption detectives are examining the relationship between Sergeant Flood and a former Scotland Yard detective, one of the original partners in ISC. The men admit to being close friends for more than 25 years but deny any impropriety and are willing to co-operate with the inquiry.
 Sergeant Flood has not been suspended. His lawyer said: 'All allegations of impropriety in whatsoever form are categorically and unequivocally denied.'
 ISC Global was set up in October 2000 by Stephen Curtis, a lawyer. He was already acting for a group of billionaire Russians led by Mikhail Khodorkovsky and Leonid Nevzlin, who controlled Yukos Russia's privatised energy giant…
 The dossier also reveals … Boris Berezovsky was a client of ISC.
 … Two companies linked to Mr Berezovsky – Bowyer Consultants Ltd … and Tower Management Ltd … - appear to have made payments totalling £600,000 to ISC.
 ISC stopped trading last year after Curtis, the chairman, died in a helicopter crash. Subsequently, two former Scotland Yard officers, Keith Hunter and Nigel Brown, whom Curtis recruited to set up ISC, fell out and Mr Hunter bought the company and renamed it RISC.
 A spokesman for Mr Hunter said: 'Neither my client nor his associated companies have ever made illegal payments to a Scotland Yard officer.'
 Mr Brown, who lives in Israel said: 'Scotland Yard recently contacted me as a result of receiving certain information. I have been asked not to discuss this matter.'"
The instant proceedings
"[DS Flood] was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether the Claimant received payments in return for passing confidential information about Russia's possible plans to extradite Russian oligarchs."
"in the circumstances the publication of the Article was in the public interest and its journalists acted responsibly in composing and publishing it."
"The parties both submit that it is unnecessary for me to make any decision on meaning. TNL admits that the article is defamatory. The meanings pleaded by the parties respectively are not so far apart that a decision on meaning is required for the purposes of considering the defence of qualified privilege. Accordingly I heard no submissions on what meaning the article would be understood to bear by the reasonable reader. Both parties have made brief submissions on the meaning which they submit that a responsible journalist should have considered, [but n]othing turns on this at this stage, and I see no need to say any more about it. "
The judgment below
The relevant facts
The law as considered by the Judge
"that the article as a whole should be on a matter of public interest (at ), that the inclusion of the defamatory statement should be part of the story and should make a real contribution to it (at ), and that the steps taken to gather and publish the information should have been responsible and fair (at ). In regard to this last requirement, the following summary in Bonnick [v Morris  1 AC 300] was expressly approved by Lords Hoffman and Scott in Jameel (at  and ):
'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 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 interest of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.'"
"The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 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. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 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. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.
In general, a newspaper's unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. 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, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication."
The reasoning of the Judge
"216. ... [T]he publication on 2 June 2006 was a proportionate interference with [DS Flood's]'s right to his reputation, given the legitimate aim in pursuit of which the publication was made. I uphold the defence of qualified privilege ... . The story was about a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police officer now working on behalf of very wealthy and controversial Russians living in England. That was a story of high public interest. The purpose of publishing the story was to ensure that that investigation was carried out promptly. That too was a matter of public interest.
217. This is not to say that the judgment of TNL was a good judgment in the circumstances, but only that it was within the range of permissible editorial judgments which the court is required to respect. It is not the function of the court to express views on whether it was a good judgment or not, and I do not do so.
218. The naming of [DS Flood] was within the range of judgments open to TNL in this case, partly because it gave the story the interest referred to by Lord Steyn in Re S at para 34 cited above, but more importantly because not naming [him] would not have saved his reputation entirely. Rather it would have spread the damage to reputation to all the officers in the extradition unit."
Can Reynolds privilege apply even in principle in this case?
Publication of the press statement and of the identity of DS Flood
Can Reynolds privilege attach in principle to the report of the Allegations?
"Although [the board of guardians] admit the public on an occasion when ex parte charges are made against a public officer, which may affect his character and injure his private rights, it is most material that there should be no further publication; there is no reason why the charges should be made public before the person charged has been told of the charges, and has had the opportunity of meeting them … Such a communication as the present ought to be confined in the first instance to those whose duty it is to investigate the charges."
Baggallay and Bramwell JJA agreed, the latter saying at (1877) 2 CPD 215, 223 that "Serious and grievous harm has resulted to the plaintiff, whose character has been assailed, and for no public good."
"Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognised there are occasions when the public interest requires that publication to the world at large should be privileged. In Cox v. Feeney (1863) 4 F. & F. 13, 19, Cockburn C.J. approved an earlier statement by Lord Tenterden C.J. that 'a man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know'. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.
This issue has arisen several times in the context of newspapers discharging their important function of reporting matters of public importance. Two instances will suffice, together with one instance of the publication in book form of information originating with the publisher. Purcell v. Sowler (1877) 2 C.P.D. 215 concerned a newspaper report of a public meeting of poor-law guardians. During the meeting the medical officer of the workhouse at Knutsford was said to have neglected to attend pauper patients when sent for. In deciding that publication of this allegation was not privileged, the Court of Appeal looked beyond the subject-matter. The court held that the administration of the poor-law was a matter of national concern, but there was no duty to report charges made in the absence of the medical officer and without his having had any opportunity to meet them. The meeting was a privileged occasion so far as the speaker was concerned, but publication in the press was not. In Allbutt v. General Council of Medical Education and Registration (1889) 23 QBD 400, 410, the defendants published a book containing minutes of a meeting of the council recording that the plaintiff's name had been removed from the medical register for infamous professional conduct. This was after an inquiry at which the plaintiff had been represented by counsel. The Court of Appeal held that the publication was privileged. Giving the judgment of the court, Lopes L.J. expressly had regard to the nature of the tribunal, the character of the report, the interests of the public in the proceedings of the council and the duty of the council towards the public. Perera v. Peiris  AC 1, 21, was an appeal to the Privy Council from the Supreme Court of Ceylon. The 'Ceylon Daily News' had published extracts from a report of the Bribery Commission which was critical of Dr. Perera's lack of frankness in his evidence. The Judicial Committee upheld a claim to qualified privilege. In the light of the origin and contents of the report and its relevance to the affairs of Ceylon, the due administration of the affairs of Ceylon required that the report should receive the widest publicity."
"Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely."
Is the publication of the Allegations protected by Reynolds privilege?
The proper approach on an appeal
"The right to publish must however be balanced against the rights of the individual. That balance is a matter for the judge. It is not a matter for an appellate court. This court will not interfere with the judge's conclusion after weighing all the circumstances in the balance unless he has erred in principle or reached a conclusion which is plainly wrong."
Reynolds privilege and the allegations included in the article
Responsible journalism: public interest and steps to verify
"[W]hile the basis for the allegation was weak, in that there was no evidence that the Claimant was Noah, or that any confidential information had been received by ISC, nevertheless, as early as 9 May, and up to the time of publication on 2 June, the police had confirmed that they had had sufficient evidence to obtain a search warrant and to carry out an investigation."
"While the information was sufficient to enable MPS to obtain a search warrant, it was not a strong case, on the basis of what was known to the journalists. There was no evidence known to the journalists that [DS Flood] had received payments from ISC, and none that he had disclosed confidential information. The ISC Insider had specifically said, as reported in the article at para , that 'Noah could be a reference to an officer in the extradition unit', not that Noah was in fact a reference to him. So far as known to the journalists, the allegations were based on the facts that [DS Flood] served in a Unit which might have had information of use to ISC's clients, and that he enjoyed a close friendship with Mr Hunter, and that in his own personal circumstances he might have been thought to be a potential target for corruption if Mr Hunter was that way inclined. There was no evidence that Mr Hunter was so inclined, but his clients were individuals about whom much adverse information has been published."
Did publication on the website attract privilege after September 2007?
"Each party was entitled to reject the form of words tendered by the other in correspondence. The parties to a dispute are not obliged to settle it, and may choose to litigate. But the risk in relation to the Reynolds public interest defence lay on TNL, and not on the Claimant. It is for a defendant to make good his defence. It may well be good practice to seek to agree a form of follow-up publication in a case such as this. But if there is no agreement, then the publisher must take his own course, and then defend it if he can at trial. He cannot offer the claimant a form of words which the claimant refuses to accept, and then rely on that refusal to relieve him of the obligation of acting responsibly and fairly, at least when the claimant's refusal is reasonable, as it was here."
The only qualification I would make to that analysis relates to the last sentence. The fact that the claimant's refusal is unreasonable will, save perhaps in the most unusual circumstances, not be enough to justify the defendant doing nothing if responsible journalism would otherwise require him to retract or modify a website publication if further relevant information comes to light. The essential point is that it is for a defendant to decide on the appropriate course to take. As well as being contrary to principle, it seems to me to be literally adding insult to injury to enable a defendant to require a claimant, after new evidence has come to light, to agree a form of words to amend a publication, which is defamatory of him but against which he cannot protect himself in law, so as to ensure he still cannot protect himself against it in law.
Lord Justice Moore-Bick :
Lord Justice Moses :