England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2013

Mr Justice Tugendhat :

1. The Claimants are police constables serving in the Metropolitan Police Service ("MPS"). At the material time they had been serving the Enfield Crime Squad ("ECS"). The Third Defendant ("Mr Israel") is a journalist employed by Channel 4 News.
2. On 2 November 2011 the Defendants published, or caused to be published, a news item. It has remained available for viewing on the Channel 4 website since that date.
3. Following correspondence, on 1 November 2012, one day before the expiry of the one year period of limitation which applied to the first day on which the Broadcast was published, the Claimants issued a claim form claiming damages for libel, and an injunction. The Particulars of Claim are dated 29 August 2013. In them the Claimants state that they do not complain of any part of the Broadcast other than the words underlined below.
4. On 1 November 2013 the Defendants gave notice that they were seeking orders that the claim be struck out as an abuse of process (CPR r.3.4(2)), alternatively summary judgment in their favour (CPR r24), alternatively a ruling that the words complained of are not capable of bearing the meaning attributed to them in the Particulars of Claim. There is a further application for inspection of documents mentioned in the Particulars of Claim. No defence has been served.

THE CLAIM

5. The claim is in respect of the audiovisual image ("the Broadcast"). But for the purposes of this judgment I shall set out the words complained of as they have been transcribed. I have, of course, watched the Broadcast, and made my decision on the basis of that, and not on the basis of the transcript.
6. The transcript reads as follows (the words complained of are underlined):

"C4 news Presenter: Now, six police officers who smashed up a car with baseball bats while arresting a suspect have kept their jobs even though they've been found guilty of disreputable conduct. A disciplinary hearing was played footage of the incident involving officers from the Enfield Crime Squad in north London. The unit has now been disbanded and is at the centre of a wide–ranging corruption Inquiry as our Home Affairs correspondent, Simon Israel ("Simon Israel"), now reports.

[Film footage is shown]

"Attack, attack! Come on, out, out! Police, police."

Simon Israel: This was Enfield Crime Squad in action one evening in June 2008. In the car was Jonathan Billinghurst ("JB"), aged 18. He was still in uniform, having just left work in Ikea in Edmonton, north London.

"Get him on the floor."

JB: I hear a loud bang and the window to my left gets caved in and glass is just flying in my face. And then as I looked up, all I can see was just lots of baseball bats hitting and smashing my window, so I thought I was gonna be the victim of a car robbery. I thought I was gonna get dragged out and they just wanted to take the car.

Simon Israel: But Mr Billinghurst was wrong. They weren't robbers, they were police officers after him, not the vehicle. Mr Billinghurst was driving without a full license in a car which had been stolen. He was later convicted of handling stolen goods. But a lengthy disciplinary investigation has found he was the victim of excessive force by officers using unauthorised methods. Several brandished baseball bats neither issued nor sanctioned by the Metropolitan Police. Then there was the pickaxe handle. And then the clothing, a jacket, non-regulation uniform, with Crime Squad printed on the back. Five police constables have been reprimanded, and the detective sergeant, who ran the squad has been demoted, but none have been dismissed.

JB: I was practically beaten and dragged out of the vehicle, I could have had my sight… I could have been blinded with the glass flying everywhere, and all that's happened is they've just stepped down a position, but they're still police officers. They still have more powers than a normal citizen, so I feel hard done by.

Simon Israel: What would you have liked to have happened to these officers?

JB: Um, well, I would have liked the officers to have been completely removed from the police force.

Simon Israel: Channel 4 understands that the officers justified the violent arrest on this road because intelligence suggested Mr Billinghurst carried weapons and had threatened the police before. But the inquiry found no evidence that such intelligence even existed and that the victim had no history of violence.

Simon Israel: Can you think of any possible reason as to why they staged such a dramatic way of making an arrest on you?

JB: I personally believe that they may have thought that I have… I may have links or connections. It could have been - not pulling the racial card or anything – but it could have been that because I'm a male, I'm a black male, they could have thought that I…or I must know somebody in a gang, or I must know who stole the vehicle or where it came from, but they were mistaken.

Simon Israel: The Independent Police Complaints Commission which supervised the investigation said: "Officers acting in this way bring the police service into disrepute. You do not expect to see police officers smashing a car with a baseball bat. Whatever the threat they claimed to experience, their actions should be proportionate and reasonable – which in this case they plainly weren't." What happened on this road 3 years ago, is only one of 43 specific incidents under investigation surrounding the general behaviour of the Enfield Crime Squad which was run out of this police station in north London. 16 Officers and a member of police staff have been questioned following a 10 month covert operation by the Yard's Anti-Corruption Command. There've been no criminal charges, but further disciplinary proceedings are planned."

7. The Claimants set out in para 11 of the Particulars of Claim the natural and ordinary meaning which they attribute to the words complained of, as follows:

"The words complained of bore the natural and ordinary meaning that each Claimant dishonestly conspired with the other Claimants in order to mislead the police disciplinary tribunal. Each Claimant did so by cynically giving false evidence to the tribunal, dishonestly and in breach of his or her duties as a police officer, that prior to the arrest of Mr Billinghurst each Claimant had reason to believe that he carried weapons and had threatened the police before."

8. The Claimants are not named or identified in the Broadcast. So the Claimants had to set out their case as to why any, and is so what, viewers would understand the Broadcast to refer to them. They did this in paras 12 to 14, as follows:

"12. A significant but unquantifiable number of people who watched the report either live on 2 November 2011 or on any subsequent date via the Channel 4 News web site would have understood the defamatory allegations complained of to have referred to the Claimants.
13. Publishees who knew that the Claimants were subject to disciplinary proceedings in regard to the arrest of Mr Billinghurst would have concluded that the defamatory allegation complained of was made against the Claimants. Such publishees included
13.1 the Claimants' superior officers;
13.2 their colleagues within the Metropolitan Police; and
13.2 members of their immediate families.
14. Publishees who recognised the Claimants from that part of the report which included a film of the arrest would have concluded that the defamatory allegation complained of was made against the Claimants. All of the Claimants, apart from the Fourth, were visually identifiable from that part of the report which included a film of the arrest of Mr Billinghurst."

9. There is a claim for aggravated damages. This is on two bases. The first basis is pleaded in paras 16.2 and 3 to 8 of the Particulars of Claim. These read as follows:

"16.2 On 22 November 2011 a letter of claim was sent to the Editor of Channel 4 News.

a. The letter quoted that part of the Presiding Officer's Account which made it clear that the words complained of were palpably false. The finding reported in the words complained of had not been made and, in fact, there had been a finding that the Claimants had grounds to believe ("intelligence") that Mr Billinghurst might be violent and/or carry a weapon (the information set our in paragraph 8 above was quoted in the letter of claim [the letter of 22 November 2011]).

b. Despite receiving this information, the Defendants refused to retract the allegation complained of and, despite having hard evidence which contradicted the words complained of, refused even to withdraw (temporarily or otherwise) the allegation complained of from the Channel 4 News website, where it continues to be published….

3. On 3 June 2008 the Claimants arrested a Jonathan Billinghurst. The arrest had been planned in advance. It was believed that Mr Billinghurst was in possession of a stolen car. The plan was to arrest him whilst he was driving the car. The decision about how to effect the arrest was informed by intelligence received by the Claimants which indicated that there was a risk that Mr Billinghurst might react violently upon arrest.

4. When the arrest took place and Mr Billinghust was stopped in his car, various implements, including a baseball bat, were used to smash the windows of his car.

5. The way in which this arrest was conducted was investigated by the Independent Police Complaints Commission. A disciplinary hearing took place on 18-29 July (when the bulk of the relevant evidence was considered) and on 31 October and 1 November 2011. On the latter date the Presiding Officer's Account (the adjudication) was formally handed down.

6. It was found that each of the Claimants had been in breach of Section 12 of the Police Code of Conduct, which states that: "Whether on or off duty, police officers should not behave in a way which is likely to bring discredit upon the police service." This conclusion was reached in regard to the way the arrest had been conducted (the smashing of the car windows) and the tools used to smash the windows. Consequently the First Claimant was demoted from the rank of a Detective Sergeant to that of a Police Constable. The other Claimants were reprimanded.

7. In regard to the way in which the arrest was conducted and the tools used to conduct the arrest, there was no significant contest of evidence. The Presiding Officer's conclusions depended upon an interpretation as to whether the method and tools used constituted discreditable behaviour further to section 12 of the Police Code of Conduct.

8. The hearing did consider what intelligence in regard to Mr Billinghurst was known to the officers prior to arrest. The Presiding Officer's Account concluded that the Claimants were given intelligence that Mr Billinghurst had PNC (Police National Computer) warning markers for both violence and weapons, that he was a known disqualified driver (for which he had been arrested numerous times), that the car he was currently driving was stolen and had false number plates, that he had been in a vehicle with his brother when it had sought to evade arrest by speeding at 80-90 miles per hour (which pursuit ended with his brother's death) and that Mr Billinghurst was believed to be part of an organised criminal network. The Account concluded that this information caused the Claimants to conclude that Mr Billinghurst was a high risk suspect but that he was unlikely to be in possession of firearms."

10. The second basis for the claim for aggravated damages is pleaded in para 16.3 of the Particulars of Claim. This reads as follows:

"16.3 In correspondence the Defendants have asserted that the words complained of were spoken by a representative of the Metropolitan Police Service at a media briefing held on 1 November 2011.

a) The Claimants' solicitors obtained a transcript made by the Metropolitan Police Service of what was said at that briefing.

b) This was sent to the Defendants on 24 July 2013.

c) The transcript showed that the words complained of were not spoken at the media briefing and yet the Defendants still refused to retract the allegation complained of and/or to withdraw it from publication."

THE BASIS OF THE APPLICATIONS

11. The basis of the application to strike out is that the proceedings can yield nothing of value to the Claimants, and the Defendants should not be put to the time, trouble and expense of defending them: see Jameel v Dow Jones Inc [2005] QB 946. In summary, the only part of the Broadcast that is complained of caused the Claimants no substantial damage to their reputations beyond that brought upon themselves by their own actions in carrying out the arrest of Mr Billinghurst in the way they did and then unsuccessfully contesting the disciplinary proceedings.
12. The basis of the application for summary judgment is (as foreshadowed in the letter referred to in para 16.3 of the Particulars of Claim) that the words complained of are a report of the briefing given to Mr Israel (and to another journalist) on the morning of 1 November 2011 ("the Briefing"). And either it is a report of a matter of public interest published responsibly (Reynolds v Times Newspapers), or it is a fair and accurate report which is protected by the statutory qualified privilege pursuant to the Defamation Act 1996 s.15, Sch 1 para 9, namely a report of matter issued for the information of the public by the MPS. Further, having regard to what the Claimants do admit (or cannot deny) about the findings of discreditable conduct made against them, there is no real prospect of the Claimants recovering anything other than minimal damages (Payim Tamiz v Guardian News and Media Ltd [2013] EWHC 2339 (QB) para 72).
13. In each case it is the Defendants' case that the Claimants have no real prospect of defeating the defence, which, although not pleaded, has been sufficiently canvassed in correspondence and argument.
14. The application is supported by two witness statements, of which the most important is that of Mr Israel himself, and the other is by the Managing Editor Mr Fraser. The Claimants have not filed any evidence in response. Many of the facts are either expressly not disputed, or are incapable of dispute, it is submitted.

FACTS NOT IN DISPUTE

15. The disciplinary hearing, or tribunal, referred to in the first two sentences of the Broadcast, and in the meaning attributed to the words complained of by the Claimants, was a Police Misconduct Hearing. It had taken place in private over three days, two in July and one in October, before a Presiding Officer and two Assessors. The Presiding Officer's Account (that is the equivalent to a judgment), including findings of fact and reasons for it, was handed down in writing in an unpublished document on the afternoon of 1 November 2012.
16. What was made public was the nature of the charges (discreditable conduct), the decision that the charges had been proved, and the sanctions. Constable Kneafsey had been a Detective Sergeant and was reduced to the rank of constable. A Reprimand was issued to the other five Claimants, who were constables at the time.
17. The Presiding Officer's Account covers nine pages. It is the document referred to in the fourth paragraph of the application notice. The application for an order for its inspection was not opposed by the Claimants. The MPS objected on the grounds that it was irrelevant and confidential. During the hearing the MPS provided a copy to the Defendants, and I made an order under CPR 31.22 prohibiting any report of its contents other than that which is in this judgment.
18. There was at the material time a separate inquiry, referred to in the third sentence of the Broadcast as the "corruption inquiry".
19. On 3 June 2008 the Claimants intercepted Mr Billinghurst in what has been referred to as a 'hard stop' on Meridian Way in Enfield. The officers had made the audiovisual recording ("the film") of those events as they occurred. On 29 June 2009 MPS referred allegations that the Claimants had used excessive force to the Independent Police Complaints Commission ("IPCC").
20. On 9 May 2009 the IPCC issued a statement that it was investigating the conduct of six (unnamed) police officers during the execution of two drug warrants, and allegations of mishandling of property. On 30 July 2009 the IPCC issued a second statement saying that the file had been passed to the Crown Prosecution Service ("CPS").
21. There were two occasions on which there were public statements purporting to set out the Claimants' justification for the degree of force that they had used on 3 June 2008.
22. The first of these was a statement issued to the public by the CPS on 22 December 2010. This statement related to a number of matters involving police officers, none of whom were named. One of the allegations the subject of the CPS's statement was described in that statement, and the reason for the decision not to bring charges in respect of it was set out, as follows:

"… an allegation that in June 2008, officers used excessive force to stop a stolen car… In particular I considered whether a number of officers could be charged with misconduct in public office for using excessive force when detaining a disqualified driver in a stolen car. The driver of the stolen car would not assist the DPS investigation and the officers justified their approach by saying they had been told the driver was dangerous and had a history of carrying weapons and violence towards police officers. In those circumstances it was impossible to prove that the force used was not proportionate and reasonable…"

23. On the same day the IPCC issued a third statement that the MPS anti-corruption command had run an investigation into mishandling of property under the supervision of the IPCC. The statement also referred to the events of 3 June 2008, and other matters. The IPCC said that the actions of 12 officers in total were being investigated, and several of the officers were being investigated for more than one incident.
24. On 27 April 2011 the IPCC issued a fourth statement, saying that five officers from the former ECS were to face a misconduct hearing on 4 July 2011 to answer allegations of discreditable conduct in relation to the events of 3 June 2008 when they conducted an interception on a suspect stolen car.
25. On 23 May 2011 there was published in The Sun an article purporting to explain why the officers had used the force they did use on 3 June 2008. It was headed "Call in the cops? We are the cops. Squad 5 face axe in 'too violent' arrest". It was illustrated with still images taken from the film, parts of which were later included in the Broadcast.
26. Mr Israel suggests, and Mr Millar submits, that the date of publication (shortly after a DVD of that image had been disclosed to the Claimants) and the sympathetic tone of the article give rise to the inference that the image had been leaked to The Sun by the Claimants, or persons close to them. And the MPS have raised a question to the same effect in a letter dated 15 March 2013 (para 39 below: "We would be grateful if you would confirm…."). But the Claimants have chosen not to confirm or deny that suggestion, at least at this stage. I can make no finding of fact.
27. The article includes the following:

"… five male officers with the Enfield Crime Squad now face a misconduct rap after allegedly using unnecessary force in the 'hard stop' arrest… A source said: 'He was supposed to have had links to a gang and his brother had been killed while being chased by the police. There was intelligence that he had threatened to shoot a police officer in revenge. The guys on the ground couldn't afford to take chances. They were hard but fair'… A Met spokeswoman said: 'Misconduct charges have been served on five officers from the Enfield Crime Squad. All five face allegations of discreditable conduct'. … Watch footage of the arrest at thesun.co.uk [and this link took readers to the recording of the 'hard stop']".

28. On the morning of 1 November 2011 the MPS Briefing was given. It was given an on the record, but it was embargoed until after publication of the outcome of the Police Misconduct Hearing, which was due to take place that afternoon. It lasted between one and one and a half hours. Notes were taken by Mr Israel and by Ruth Shulver. She was from the MPS press office. Also present was Sean O'Neill of The Times.
29. Ms Shulver's notes were disclosed by the MPS. The typed version covers three pages. In the first part there are references to corruption. Half way down the second page the notes refer to the arrest of Mr Billinghurst, as follows:

"Report in Sun re Mr Billinghurst – some this inaccurate. He was convicted handling stolen goods
Alleged intel armed + previously threatened to shoot
officer - looked at it + found no evidence to suggest threatened to shoot an officer – ever.
No intel gang links, brother killed in car accident
but not after being chased by police
(21 Feb 06 car accident Meridien Way) head
on collision + Mr Billinghurst was in car with
his brother).
No officer not wearing overt body armour but some were wearing covert body armour.
Arrested suspected theft of motor vehicle + disqualified
driver – chrg handling stolen goods + disqual + found guilty.
*Check re handling stolen goods*…"

30. In his witness statement at para 32 Mr Israel states:

"The briefing officers seemed concerned to make clear the MPS' position on some of the matters reported in the Sun article. This had reported that the officers believed Mr Billinghurst was armed and had previously threatened to shoot an officer. In the briefing we were told that in the internal investigation the officers had alleged, by way of justification of the hard stop and arrest, that they had had intelligence suggesting that Mr Billinghurst carried weapons and that he had threatened to shoot a police officer. The MPS had therefore investigated this. But they found no evidence of intelligence to this effect. We were also told that no intelligence was found during the investigation of Mr Billinghurst being linked to any criminal gangs, as was suggested in the Sun article. We were also told that the suggestion in the Sun article that Mr Billinghurst's brother had been killed whilst being chased by police, was wrong. The briefing officers told us that his brother had been killed in a car accident on the same road (Meridian Way) in 2006 but this was not during a police car chase. These parts of the briefing are recorded in the MPS' NOTES …. We were also told that Mr Billinghurst had no history of violence. This part of the briefing is recorded in my note where I note: "no violence" …"

31. Mr Israel's notes, as transcribed, cover two thirds of a page. The part relating to the subject of this action reads:

"Billinghurst – convicted of handling stolen good. No evidence to suggest links to gangs – no evidence to support that – no violence"

32. Mr Israel states that he had already made contact with Mr Billinghurst before 1 November. He prepared a report to be broadcast following the publication of the result of the Police Misconduct Hearing. He intended to include, as he did, the footage of the 'hard stop' made available to the public by The Sun, the information provided at the Briefing, and an interview with Mr Billinghurst. At para 36 of his statement Mr Israel states:

"Mr Billinghurst was quite open about his previous convictions. He told me that when he was at school, aged around 15 or 16, he had accepted a caution for having a Stanley knife in his pocket. He explained that in his area many young people had carried knives for protection at this time. The knife had been in his pocket and sheathed. He had neither brandished it nor threatened anyone with it, he said."

33. Mr Israel exhibits to his statement an exchange of e-mails between himself and the First Claimant in which he asked to speak to the First Claimant about the case, but he declined. These e-mails are dated on and between about 2pm on 1^st and 2^nd November. In his statement Mr Israel describes his attempts to obtain comment from the officers as follows in paras 41 to 43 of his statement:

"41. I was aware that the officers who faced the disciplinary charges as a result of the hard stop incident had been represented by the Police Federation solicitors, then Russell Jones and Walker. The last step I needed to take in the preparation of my report was to contact the officers and seek a comment about the matters I was going to report on.

42. I did know the names of the police constables involved at that stage. I understand that the Detective Sergeant was the First Claimant as he had been filing Freedom of Information Act requests about the case. This was apparent from a website, "What do they know", on which he had been active. On the afternoon of 1 November 2011 I emailed the First Claimant through this website, introducing myself and asking him to get in touch with me about the case. He replied to the effect that he did not think it was correct to speak to the press about the case as the officers were intending to appeal the adjudication. I emailed him the next day asking if the Police Federation would have a comment but he did not reply to this email. At … is a copy of this email chain which continues on into some post-broadcast email exchanges between myself and the First Claimant about the case. I do not know why he changed his mind about discussing the case with me after the report had gone out. But as I have indicated he declined to do so at the stage when his comments could be included in the report.

43. Since the officers were legally represented by a single firm of solicitors, I also followed the usual procedure in this sort of situation and contacted the solicitors to see if their clients were willing to make a comment. I telephoned Russell Jones and Walker identifying the police disciplinary case/the group of clients I wanted a comment from. In response I was informed that there would be no comment on the case from the Police Federation solicitors."

34. On 1 November 2011 the Presiding Officer's Account included words which were cited by the Claimants' solicitors in their letter of 22 November 2011.
35. On 22 November 2011 solicitors for the Claimants wrote a letter of complaint to Channel 4. They did not identify their clients by name. The letter sets out the passage from the Broadcast which are the words complained of. The letter gives the meaning then attributed to those words, which is less serious than the meaning attributed to them in the Particulars of Claim. It is as follows:

"The consequence of reporting as a matter of fact that there was no intelligence to justify the actions of the officers was that the viewers of the bulletin would doubtless have agreed with the opinion expressed by Mr Billinghurst in his interview, namely, that the officers concerned should have been thrown out of the police.
Indeed, the meaning of the bulletin is that the officers shown in the film footage, by attacking Mr Billinghurst's car in the manner that they did without any valid justification, have no place in the police service and should properly have been dismissed rather than receiving the lesser sanctions administered by the misconduct panel"

36. The letter went to set out what the solicitors said was the true position. In relation to intelligence they wrote that: "The true position … is that Mr Billinghurst… had Police National Computer warning markers for both violence and weapons… " In support of that contention they quoted a passage from the Decision of the Police Misconduct Hearing, as follows:

"We accept that there was a briefing in the Crime Squad office during which both PSM and DSK provided input. Whilst individual recollections vary as to the nature and the extent of the briefing, and exactly who was present and for how long, we find that the following matters were raised and would have been within the officers' minds – that the suspect was Jonathan Billinghurst, that he had PNC warning markers for both violence and weapons. He was a known disqualified driver, an offence for which he had been arrested numerous times, and was believed to be in possession of a stolen Mini Cooper S which was on false plates. He had previously been in a vehicle that had been involved in a police pursuit at speeds of 80-90 mph when his brother had been killed in a road traffic accident on Meridian Way. He was believed to be part of an organised criminal network as the Mini had been stolen in an organised and systematic fashion as one of a series of burglaries. He also had a street name of 'J Bills'.

As a result of this information, the officers formed the view that he was a high risk suspect. However, they also formed the view that he was unlikely to be in possession of firearms and that the assistance of CO19 was unnecessary."

37. The Head of Compliance at ITN asked for a copy of the document from which the solicitors had quoted. That was refused on the ground that the MPS (but not the Claimants) objected on grounds of confidentiality.
38. On 3 August 2012 solicitors for the Claimants sent a letter of claim to MPS, complaining that they were responsible for the publications complained of in this action (and for another publication in The Guardian).
39. On 15 March 2013 the MPS replied. Their letter included:

"The briefing was attended by Commander Peter Spindler, DCI Chris Robson, Ruth Shulver and Ian Pickett on behalf of the MPS and Mark Pearson of the IPCC. The journalists who attended were Simon Israel of Channel Four News and Sean O'Neill of The Times, Sandra Laville of The Guardian did not attend the briefing.

At the time the Presiding Officer had yet to give the decision in the Disciplinary Hearing involving your clients. The briefing was on the record, but the information imparted was embargoed until the result of the Disciplinary Hearing had been announced. The briefing was oral; no documents were handed to the journalists.

The briefing had the purpose of informing the two journalists present (who had previously expressed an interest) in the background to the disciplinary process and to assist with accurate reporting once the result was announced.

The briefing also had a secondary purpose of correcting false accusations which had been made against Mr Billingshurst in early inaccurate reporting about the case.

On 23 May 2011 the Sun published an article in relation to the arrest of Jonathan Billingshurst, which was accompanied with stills of the video of the arrest, which was also published online. Other newspapers such as the Daily Mail picked up on the article. The article contained the following words:

"The men [i.e. the arresting officers] claim they believed their suspect was armed and had previously threatened to shoot an officer."

He was supposed to have had links to a gang and his brother had been killed while being chased by the police. There was intelligence that he had threatened to shoot a police officer in revenge."

The source of that information is not stated in the article. The source claims to speak as to the belief of your clients. We would grateful if you would confirm whether any one of your clients was the source of the information, or, if not, whether any one of them is aware of the source of that information.

This was not your clients' evidence at the Disciplinary Hearing. For example the Presiding Officer's account, parts of which you rely on in the Letter of Claim, states expressly that your clients formed the view that Mr Billingshurst was not armed. There is no mention of any suggestion by them that they believed that he had threatened to shoot a police officer….

Nor are we aware of such claims having been made on the record at any other time by or on behalf of your clients. For example, the CPS statement of 22 December 2010 announcing the decision not to bring charges against your client said the following:

"… the officers justified their approach by saying they had been told the driver was dangerous and had a history of carrying weapons and violence towards police officers."

It appears to be common ground that the allegations against Mr Billinghurst which the Sun claimed your clients believed, were untrue. Although he had PNC markers for weapons (having once being found carrying a Stanley knife) and for violence (having once hit an officer on the shoulder with the back of his fingers) there is no evidence of him carrying firearms or that he ever threatened to kill an officer.

We enclose with this letter the handwritten notes taken by Ms Shulver at the 1 November 2011 briefing, and a typed transcript of those notes created by her. Ms Shulver had attempted to make an audio recording of the briefing but the recording device did not work, and these notes were taken as a back-up. She is confident that nothing significant was omitted. The redacted part of the sixth page contains Ms Shulver's notes on unrelated matters…

It is clear from this note that the journalists were being told that the allegations against Mr Billingshurst which appeared in The Sun in May 2011 were untrue, namely that there was no evidence he had threatened to shoot an officer or had gang links, and that his brother had not been killed whilst being chased by the police. The journalists were not being told that your clients had given false evidence during the disciplinary process.

There is nothing in the notes to suggest that words complained of by your clients, or any similar words, were spoken by the MPS representatives at the briefing.

The memories of those MPS personnel in attendance confirm that the purpose of relevant section of the briefing was to correct inaccurate reporting about Jonathan Billingshurst, not to challenge any claims made by your clients at the Disciplinary Hearing…

The content of the words complained of also support this. The second sentence of the words complained of refers to what "the inquiry had found". Yet at the time the briefing was given the inquiry had not announced its findings."

40. The contents of the letter of 15 March 2013 is not in the form of, or exhibited to, a witness statement. I shall have regard to it nevertheless, while bearing in mind that it was not written for the purposes of this hearing.
41. After further correspondence, and agreements as to extensions of time, solicitors for the Defendants wrote to the Claimants' solicitors on 3 October 2013. In this letter they set out the case that they proposed to advance, and subsequently did advance, to the court in support of these applications. But in addition they suggested that the Claimants should pursue their grievance against the MPS (for what they had said at the briefing on 1 November). They also asked the Claimants to state how they justified the force they had used on the 'hard stop'.
42. As appears from the above, a number of different statements as to why the Claimants used the force they did have been made by them, or attributed to them without any explanation or contradiction being given by them:

i) 22 December 2010, by the CPS: "they had been told the driver was dangerous and had a history of carrying weapons and violence towards police officers"

ii) 23 May 2011, by The Sun: "A source said: 'He was supposed to have had links to a gang and his brother had been killed while being chased by the police. There was intelligence that he had threatened to shoot a police officer in revenge.'"

iii) 1 November 2011 am, in the MPS Briefing: "Alleged intel armed + previously threatened to shoot officer - looked at it + found no evidence to suggest threatened to shoot an officer – ever. No intel gang links, brother killed in car accident but not after being chased by police"

iv) 1 November 2011 pm, in the Presiding Officer's Account: "intelligence that Mr Billinghurst had PNC (Police National Computer) warning markers for both violence and weapons… they also formed the view that he was unlikely to be in possession of firearms …"

v) 2 November 2011, by the Defendants in the words complained of: "because intelligence suggested Mr Billinghurst carried weapons and had threatened the police before"

vi) 22 November 2011, by the Claimants' solicitors, repeating what the Presiding Officer had said on 1 November, as set out in para 36 above.

vii) 15 March 2013, by the MPS: "This [the account given in The Sun] was not [the Claimants'] evidence at the Disciplinary Hearing … [they] formed the view that Mr Billinghurst was not armed. There is no mention of any suggestion by them that they believed that he had threatened to shoot a police officer … although he had PNC markers for weapons (having once been found carrying a Stanley knife) and for violence (having once hit an officer on the shoulder with the back of his fingers) there is no evidence of him carrying firearms or that he ever threatened to kill an officer"

viii) 29 August 2013, by the Claimants in the Particulars of Claim para 3: "intelligence received by the Claimants … indicated that there was a risk that Mr Billinghurst might react violently on arrest".

43. What is in dispute is Mr Israel's evidence that:

"The briefing officers seemed concerned to make clear that the MPS's position on some matters reported in The Sun article. This had reported that the officers believed Mr Billinghurst was armed and had previously threatened to shoot an officer. In the briefing we were told that in the internal investigation the officers had alleged, by way of justification of the hard stop and arrest, that they had intelligence suggesting that Mr Billinghurst carried weapons and that he had threatened to shoot a police officer. The MPS therefore investigated this. But they found no evidence of intelligence to this effect".

THE SUMMARY JUDGMENT APPLICATION

Reynolds

44. The Reynolds defence was first recognised in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, and was restated and further explained in Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, Bonnick v Morris [2003] 1 AC 300 and Flood v Times Newspapers Ltd [2012] 2 AC 273.
45. The position can be adequately summarised for the purpose of this judgment in Mr Millar's words. In essence the elements of the defence are that (a) the publication concerned a matter of public interest and (b) the steps taken to gather, verify and publish the information were responsible and fair. The single meaning rule does not apply.

Summary judgment

46. The CPR r.24 provides:

"24.2 The court may give summary judgment against a claimant ... on the whole of a claim ... if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim ...

and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

47. The law can conveniently be taken from the judgment of Sharp J (as she then was) in Tamiz v Guardian News & Media Ltd [2013] EWHC 2339 (QB):

"10 On an application for summary judgment under CPR rule 24.2 the applicant must establish that the respondent has no real prospect of success and there is no other compelling reason why the claim should be disposed of at trial. The word "real" directs the court to the need to consider whether there is a realistic as opposed to a fanciful prospect of success: Swain v Hillman [2000] 1 All ER 91. The respondent must have a case which is better than merely arguable.

11 The rules provide for the service of evidence in support of the application and in response: see CPR para.24PD.1. The court should not conduct a mini trial but it does not have to accept everything said by a party, particularly where such statements are contradicted by the contemporary documents; summary disposal where appropriate, saves the costs and delay of trying an issue the outcome of which is inevitable: ED&F Man Liquid Products Ltd v Patel [2003] EWCA 472, paragraph 10, per Potter LJ and Three Rivers DC v Bank of England (No.3) [2001] UKHL/16 per Lord Hope of Craighead at [95].

12 The court should also consider the evidence that could reasonably be expected to be available at trial or the lack of it: see CPR PD para.24PD1.3 and Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ, 550 C.A. The court can make that assessment it seems to me on a sensible appraisal of the issues and evidence which are before it on the application: but in my view, it does not mean that the decision should be made on a speculative basis, nor does the rule assist a litigant who has simply failed to put in credible evidence when such evidence is plainly called for. Though the overall burden of proof rests on the applicant, if credible evidence is adduced in support of the application, the respondent then becomes subject to an evidential burden of showing some real prospect of success or some other reason for a trial: see the note at para. 24.2.5 in Civil Procedure, 2013, Vol 1 p.689.

13. In the context of libel actions, and the right to a jury trial (as things currently stand) judgment should not be given at any stage which has the effect of depriving the parties of a jury decision in any case where the defence or claim, as the case may be, may depend upon a finding of fact which would be properly open to a tribunal: see Alexander v Arts Council Miller v Associated Newspapers Ltd [2003] EWHC 2799 (QB) at [13]; Wallis v Valentine [2003] EMLR 8 at [13] and further, the approach of Eady J in Bataille v Newland [2002] EWHC 1692 (QB) at pp6-7 cited at para 32.32 of Gatley on Libel and Slander (11^th ed)."

48. In that case the claimant admitted that his Facebook site referred to women as sluts. He had resigned as a Conservative Party candidate in local elections because of this. He complained of publications at Guardian Online which alleged that he had also been member of a Facebook group called Girls in THANET … you are all slags, hoes, brasses and bheads
49. Sharp J gave summary judgment for the Defendant:

"71 What lies therefore at the heart of his complaint is his assertion that there is a qualitative difference between what he admits saying (and what this says about him) and what the allegation that he is a member of the Facebook Group says about him. However in my judgment, this is a case where the distinction between what he admits and what he complains of, is a distinction without a difference. Thus, the damage to his reputation caused by what he admits, and what he disputes is minimal, and it is fanciful to suppose in those circumstances the Claimant would receive anything more than minimal damages (at best).

72 I say at best since in my view, an action based upon that 'distinction without a difference' stands no realistic prospect of success, whether the words complained of are defended as honest comment or characterised as fact and defended as true. But even if I am wrong about that, partial justification and/or the availability of such matters as the Claimant would be bound to admit, as relevant background would in my judgment operate to reduce the recoverable damages in this case to vanishing point: see for example, Pamplin v Express Newspapers Ltd [1988] 1 WLR 116n; and Burstein v Times Newspapers Ltd [2001] 1 WLR 579. Any assessment of damages would also have to take into account whatever compensation the Claimant had received from the publishers of Evening Standard in settlement of his claim against them: see section 12 Defamation Act 1952. Thus I consider, there is no real prospect of the Claimant recovering anything other than minimal damages even if he were to succeed in his claim."

Submissions for the Parties on Summary Judgment

50. Mr Millar refers to Mr Israel's statement as to what he understood the words complained of to mean. He did not understand them to bear the meaning attributed to them in para 11 of the Particulars of Claim. He understood the MPS Briefing on the morning of 1 November, and the words complained of, to be referring, not to what the Claimants had said at the private Police Misconduct Hearing (the outcome of which was to be announced that afternoon), but to the internal inquiry, and what that inquiry had found or not found.
51. Mr Millar submits that the Defence should be assessed on this basis, and by reference to the well known criteria of responsible journalism set out in the cases. Mr Millar submits that there can be no question but that this was a case of responsible journalism. (The Defendants' submissions on the range of meanings which the words complained of are capable of bearing are set out below).
52. Mr Bennett submits that it is premature to ask the court to find that there is no real prospect of the Claimants defeating a defence which has not yet been pleaded.
53. He submits that the court must presume that all contested facts will be found in favour of the Claimants.
54. He sets out in his Skeleton argument the case for the Claimants as it is at present, but submits that it may change when the Defence is pleaded, or after disclosure or exchange of witness statements, including witness statements from the MPS.
55. Mr Bennett submits that the finding of the Presiding Officer's Account on the question of intelligence, set out in para 36 above, represents the evidence the Claimants gave, and shows that their evidence was believed: the suspect had PNC markers for both violence and weapons, but they formed the view that he was unlikely to be in possession of firearms.
56. Mr Bennett submits that there is a real contest of evidence in regard to what was said at the Briefing. The MPS cannot be understood as having stated that the evidence that the Claimants gave to the Misconduct hearing was the same as the explanation attributed to them in The Sun, and which the MPS were stating to be incorrect. He relies in support of this on the statement in the MPS letter of 15 March 2013 that neither the words complained of, nor any similar words, were spoken by the MPS, and that "the journalists were not being told that [the Claimants] had given false evidence during the disciplinary process".
57. Mr Bennett submits that the Presiding Officer's Account can be treated as corroboration of the Claimants' case that the MPS at the Briefing did not state what the Claimants submit the words complained of mean. He submits that the officers who gave the Briefing would have known what the Presiding Officer's Account said. Thus it is not to be believed that at the Briefing they told Mr Israel that the Claimants' account of what they believed had been found to be false, when in fact it had been believed. Nor is it likely that the Briefing would have given information about a separate anti-corruption inquiry.
58. I reject this part of Mr Bennett's submission without further consideration. I see no real prospect of the court finding at trial that the Briefing was informed by the Presiding Officer's Account, the result of which was to be announced that afternoon. As Mr Bennett went on to say in his skeleton argument, the MPS policy was to reveal only what were the relevant charges and findings.
59. Further, whatever may have been the position on 2 November, Mr Bennett submits that once the Claimants' solicitors had quoted from the Presiding Officer's Account in their letter of 22 November, it could not be responsible journalism for the Defendants to continue to publish the Broadcast on their website, as they still continue to do. It should have been taken down or corrected.
60. Mr Bennett does not make any more serious allegation against Mr Israel than that he wrongly jumped to the conclusion that at the Misconduct hearing there was an issue as to whether the Claimants were to be believed or not.
61. But Mr Bennett does criticise the Defendants for saying that the inquiry found no evidence that Mr Billinghurst carried weapons when, as Mr Billinghurst said himself in the interview that Mr Israel recounts in his witness statement, Mr Billinghurst admitted:

"that when he was at school, aged around 15 or 16, he had accepted a caution for having a Stanley knife in his pocket … He had neither brandished it nor threatened anyone with it, he said".

62. In his oral submissions Mr Millar submits that it is clear that in the Briefing the MPS did refer to the article in The Sun, and repeat the purported explanation which, in the words complained of, it is said that the Defendants "understand" that the Claimants gave. This is apparent from the note of Ms Shulver on which the Claimants rely where she wrote: "Alleged intel armed + previously threatened to shoot officer". Further, not having been at the Briefing, nor having produced any evidence from anyone who was at it, the Claimants cannot contradict what Mr Israel states.
63. Moreover, there appears to be some confusion or inconsistency in the MPS letter of 15 March 2013 (only disclosed to the Defendants a few days before the hearing). The letter includes the passage:

"… The second sentence of the words complained of refers to what 'the inquiry had found'. Yet at the time the briefing was given the inquiry had not announced its findings".

64. Mr Millar intended no criticism of the writer of that letter: it was not written for the purposes of this hearing. But the Defendants' case is that the inquiry was not the Misconduct Hearing.
65. Mr Millar submits that the Claimants have had an opportunity, and were invited (both by the Defendants and by the MPS), to state their case as to whether the explanation attributed to them in The Sun was an explanation they had given. But since they have not so far taken that opportunity, there is no real prospect of them denying that they did in the past give that explanation, or, if they do deny it, there is no real prospect of their denial being believed. This is all the more so, in that although what the CPS attributed to them is not exactly the same, it is similar. And as to the Misconduct Hearing, while the Claimants' solicitors have said that the findings demonstrate that their evidence was believed, the Claimants have not stated what their evidence was which they say was believed.
66. It is not in dispute that the intelligence available to the Claimants before the 'hard stop' was at best, from the Claimants' point of view, what is said in the Presiding Officer's Account. It is not clear whether it also included the further explanation of the PNC markers for the weapon (a Stanley knife) and the violence (hitting an officer with the back of his fingers) which was given in the MPS letter of 13 March 2013. I shall assume, in the Claimants' favour, that it did not.
67. Mr Millar submits that even if their evidence at the Misconduct Hearing was limited to referring to the intelligence described in the Presiding Officer'sAccount, then, in the circumstances referred to in para 65 above, there is no real prospect of them being awarded anything more than nominal damages.

Discussion

68. I bear in mind that the Reynolds defence has not yet been pleaded, and that the Claimants are not obliged to put in evidence at this stage. I do not draw an adverse inference from that omission. But I must nevertheless consider what the real prospects of success of the parties are, having regard to the information available to me. I cannot assume that the Claimants will give an explanation which they have not given.
69. In the absence of evidence from the Claimants, this is not a case where there is conflicting evidence of fact. And on an application for summary judgment the court is not required to assume that the facts pleaded in Particulars of Claim by a claimant will be proved. What the court is required to consider is whether the Defendant has a defence which the Claimants have no real prospect of defeating.
70. I find that the Claimants have no real prospect of persuading the court to reject Mr Israel's evidence in so far as he states that at the Briefing the MPS did mention the explanation attributed to the Claimant in The Sun. That is evidence is supported by Ms Shulver's note; "Alleged intel armed + previously threatened to shoot officer- looked at it + found no evidence to suggest threatened to shoot an officer – ever".
71. On this finding, and having regard to the phrasing of the words complained of, I see no real prospect the Claimants defeating the Reynolds defence the Defendants have intimated that they would advance if the claim were to go forward. The words complained of are consistent with Ms Shulver's notes, as I read them.
72. But there is a second basis for reaching the same conclusion, following Payam Tamiz para [72]. In my judgment there is no real prospect of the Claimants denying, or of being believed if they do deny, that at some stage material to the investigation of the events of 8 June 2008 they did advance, as a justification for the force they used, that there was intelligence that Mr Billinghurst had a history of carrying weapons and of using violence towards police officers.
73. I accept that, from the extract quoted in their solicitors' letter of 22 November 2013, there is a real prospect of a court finding that, at the Misconduct Hearing, they were not saying that the PNC markers led them to form the view that he was likely to be in possession of a firearm. The Presiding Officer's Account states that they did not believe that, and that their conduct was discreditable because they used more than reasonable force.
74. But if, as I find, there is no real prospect of them denying, or of being believed if they do deny, that, at some earlier stage of the investigation, that was their case, then there is no real prospect of them recovering anything other than minimal damages. That is so, even on the assumption (which I make for this purpose) that the Claimants succeed in their case that the words complained of refer, and refer only, to the Misconduct Hearing. The distinction between their not having said at the Misconduct Hearing, when they had said it at an earlier stage of the investigation, and there having said it at the Misconduct Hearing, is a distinction too small to make a significant difference to the outcome of their claim.
75. There are further reasons why I find that the Claimants have no real prospect of succeeding in this action. The putative viewers referred to in para 13 of the Particulars of Claim are police officers and friends and family who would have known, or been likely find out, much more about the Misconduct Hearing and the inquiry than was stated in the broadcast. They would have been less likely to confuse the two investigations, and less likely have their opinions of the Claimants affected by these two sentences in a short news report.
76. As to other possible viewers, having watched the Broadcast a second time to consider how readily recognisable the Claimants might be, I have to say that the definition of the recording is low. I accept, as is common ground, that the faces of five of the six Claimants are shown. But, with such low definition, recognition would not be easy. I think it very unlikely that the Claimants would be able to prove publication to a substantial number of persons who did not already know much more about the allegations against them, and about the outcome of the Misconduct Hearing, than is stated in the Broadcast. Further, any damage to the Claimants' reputations would have to be assessed after taking into consideration the damage their reputations had suffered by reason of the finding of discreditable conduct.
77. I turn then to the continuing publication. In the absence of any clear and convincing denial by the Claimants that that was their case at some point in the investigation, the Claimants have no real prospect of defeating the Reynolds defence in respect of the continuing publication.
78. For these reasons the application for summary judgment succeeds.
79. Mr Millar did not suggest that he could succeed in his applications on the basis of the statutory defence of qualified privilege if he could not succeed on the broader Reynolds defence. In my judgment he was right to take that approach. So I do not need to consider further the statutory privilege.
80. And having regard to the second basis on which I have found in favour of the Defendants on the summary judgment application, it is not necessary for me to consider separately the abuse of process argument. However, my preliminary view is that the Claimants would have faced a serious obstacle. While a publication to even a single publishee can be very important, where the proven publishee is a person who already knows about the matters which are the subject of the words complained, the further damage caused by the words complained of is not likely to be so important.

THE MEANING APPLICATION

81. In case I am wrong in deciding to give summary judgment in favour of the Defendants, I shall consider the meaning application.

The law

82. The CPR Practice Direction to Part 53 provides in para 4.1 that:

"At any time the court may decide – (1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case; (2) whether the statement is capable of being defamatory of the claimant; (3) whether the statement is capable of bearing any other meaning defamatory of the claimant."

83. There is no dispute as to the applicable law. Since, if the case goes forward, the parties have a right to a trial with a jury, the court cannot at this stage make a ruling on the actual meaning of any words complained of. That would be an issue for the jury to decide.
84. The principles governing a meaning application are as summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]:

"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' …. (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'"

85. The hypothetical reasonable viewers of the Broadcast are publishees included in the descriptions give in the PoC at paras 13 and 14: the Claimants' superior officers, their colleagues within the Metropolitan Police, members of their immediate families, and publishees who recognised the Claimants from that part of the report which included the images of their faces.

Submissions for the Parties on Meaning

86. Mr Bennett submits that the words complained of are capable of being understood as a reference to the Misconduct Hearing, notwithstanding the use of the word 'inquiry'.
87. Next he submits that on that basis, the only explanation for the difference between the evidence which the Claimants are alleged to have given about the intelligence and the intelligence that was found (or not found) must be that the Claimants had conspired together to lie. Without such a conspiracy they could not have all given the same false evidence.
88. Mr Millar submits that the words complained of are incapable of referring to the Misconduct Hearing. The inquiry was a separate matter. The putative viewers identified in the Particulars of Claim para 13 were other police officers and family members. They at least must be assumed to have some understanding about the allegations and the different procedures under which they were being investigated.
89. Mr Millar submits that in any event the Claimants' meaning is pitched at a higher level of gravity than a reasonable viewer could understand. The true range of permissible meanings involves a less serious, and a less specific, meaning, namely that the inquiry had found no evidence for a factual justification advanced by, or on behalf of, the Claimants for the degree of force used by them in the arrest of Mr Billinghurst.

Discussion

90. In my judgment the words complained of are capable of being understood as a reference to how, in the Misconduct Hearing, the Claimants sought to justify their use of force. Whether or not that is the actual meaning of the words complained of is not for me to decide at this stage. So, on this point I find in favour of the Claimants.
91. But in my judgment the words complained of are incapable of being understood as meaning that the Claimants had in fact advanced a dishonest or lying case, whether to the Misconduct Hearing or to the inquiry. And they are incapable of being understood as meaning that the Claimants had in fact conspired together.
92. In my judgment the words complained of are capable of meaning that the Claimants had been mistaken, and culpably mistaken, in believing that there was intelligence relating to Mr Billinghurst (to the effect that he carried weapons and had threatened the police, when in fact he had not). That is a low level, but nevertheless defamatory, meaning, which the words complained of are capable of bearing, in my judgment.
93. But the highest level of meaning which the words complained of are capable of bearing is not one of actual guilt. It is, at best, a meaning that there are reasonable grounds to believe that the Claimants might have given false or misleading evidence as to the existence of such intelligence. No reasonable viewer (as described in Jeynes), least of all another police officer, ought to jump to the conclusion that the justification which the reader understands to have been advanced by the Claimants was rejected on the ground that it was dishonest and part of a conspiracy. As any reasonable viewer would know, where a tribunal rejects a party's explanation given in evidence, it by no means follows that the evidence was dishonest. Nor is there anything in the facts of the present case which could lead such a viewer to conclude that that was the only probable explanation. Further, in the context of the Broadcast as a whole, the use of the tentative expression "Channel 4 understands" is inconsistent with the words complained of complained being capable of being understood as an allegation that the Claimants had given dishonest evidence, or conspired together to do so.
94. Accordingly in my judgment the most seriously defamatory meaning which the words complained of are capable of bearing is that there are reasonable grounds to believe that the Claimants might have advanced to the Misconduct Hearing false or misleading evidence, to the effect that before arresting Mr Billinghurst they had intelligence that he carried weapons and had threatened the police.

CONCLUSIONS

95. For these reasons I shall enter judgment against the Claimants on the whole of their claims pursuant to CPR r24. If I were wrong about that, I would make the finding that the range of defamatory meanings which the Broadcast is capable of bearing is as set out in paras 92 to 948 above.