JUDGMENT of Mr. Justice Fennelly delivered the 1st day of June 2011.
1. The Star Sunday on 13th June 2004 published a sensational article alleging highly serious organised criminality against two unnamed “Brothers in Arms,” accompanied by two digitally disguised photographs captioned “The Fat Heads.” In a later article, published after the plaintiffs had sued, the newspaper revealed that the original article did, in fact, refer to the plaintiffs.
2. A High Court jury dismissed the plaintiffs’ separate claims for damages because the jury found that they were not identified in the article. Two principal points arise for consideration:
3. There are other two other grounds of appeal. The jury clearly were not convinced by the evidence of identification called on their behalf; they asked the trial judge whether they could take into account, on that issue, the evidence called by the defendants of the plaintiffs’ general reputation. The learned trial judge told them that they could not. There is also an issue concerning the exclusion of evidence of one witness on the identification issue. Hardiman J, in the judgment which he has delivered, deals principally with the first ground which I have mentioned in paragraph 2 and with the way in which the learned trial judge responded to the jury’s question.
The article
4. The defendant publishes a newspaper called "The Star Sunday," a Sunday version of its daily newspaper. It has a circulation of between 50,000 and 60,000 copies.
5. On 13th June 2004, The Star on Sunday contained an article covering two pages. The first page had a very large heading, "BROTHERS IN ARMS, under a smaller heading, “INSIDE GANGLAND, Siblings.” Under those headings were two large photographs digitally disguised to make the subjects unidentifiable. Underneath the photographs appeared the words, “THE FAT HEADS,” and a statement that the subjects “the brothers—aged 25 and 31—are responsible for a series of lucrative armed raids over the past four years.”
6. The second page of the article was headed across the page: "leading the underworld’s most dangerous armed gang.” In the middle of the page was a heading: “Massive CAB probe into pair’s €4m fortune from the bank raids.”
7. The article appears under the name of John Mooney, Crime Correspondent. Its introductory paragraphs are as follows:
“THESE two brothers lead the most dangerous criminal gang operating in Dublin's underworld today, Star Sunday can reveal.
The notorious pair -- dubbed the Fat Heads -- have made a cool €4m from their crimes.
They are now the focus of a massive investigation involving several specialist Garda units into a string of cash-in-transit robberies, gun crime and money laundering in West Dublin.
The Criminal Assets Bureau is also investigating their substantial wealth. The pair each have a string of criminal convictions.
Their activities have even been brought to the attention of Justice Minister Michael McDowell - such is their fearsome reputation in the underworld.
Gardai and CAB officials believe the brothers -- aged 25 and 31 -- have benefited from a string of cash-in-transit robberies carried out since 2000…”
8. There then follows a list of 10 thefts and robberies alleged to have been carried out on security vans, at ATM machines and some unidentified premises in the Dublin area. The rest of the article gives accounts of large-scale criminal activity, the brothers are alleged to have carried out, the strings of cars used, the methods used to avoid Garda surveillance and their use of violence. The article claims to have linked the gang “to gangland murders and several shootings in west Dublin.” It is alleged that they turned West Dublin "into a hotspot for gun crime," that, while appearing to be penniless, they have invested hundreds of thousands in ‘front businesses,’ in short, that they are the "top dogs in the Dublin underworld." Hardiman J has quoted the article in full in the judgment which he has delivered.
9. The article does not name the brothers, although the nickname "the Fat Heads" became an issue at the trial.
10. The plaintiffs’ solicitors wrote a letter to the defendant on their behalf on 7th July 2004, complaining about the article and alleging that it identified them, in particular by the use of their nicknames and personal details. The letter called for a retraction, an apology and an agreement to pay damages. The defendant did not reply at that time. The plaintiffs commenced these actions by the issue of a plenary summons on 16th August 2004.
11. On the 22nd August 2004 The Star Sunday published a second article under the name of John Mooney with the title: “WE ARE NOT ATM THIEVES.” This article identifies each of the plaintiffs by name. It refers to the plaintiffs’ solicitor’s letter. Referring to the demand for a statement that no allegation was being made against the plaintiffs and their threat to sue, it says that senior gardaí have confirmed that they were the focus of a special investigation into armed theft and cash-in-transit robberies. It repeats the general gist of the article of 13th June and includes a reduced size facsimile of it. It is also accompanied by two photographs of the plaintiffs, this time undisguised and easily identifiable.
The proceedings
12. The pleadings in the case at present before the Court relate only to the article of 13th June. It emerged during the hearing in the High Court that the plaintiffs had issued separate proceedings in respect of the article of 22nd August. Those proceedings are not before the Court. Nonetheless, the article of 22nd August has played an important role in the proceedings on the issue of identification of the plaintiffs.
13. Each of the plaintiffs delivered a statement of claim on 23rd September 2004 in which, it is pleaded that the article with the photographs "referred and were understood to refer to the plaintiffs."
14. Each statement of claim alleged that the published words bore the following defamatory meanings relating, respectively, to each of the plaintiffs:
a) that the plaintiff was one of the leaders of the most dangerous criminal gang operating in Dublin's underworld;
b) that the plaintiff was guilty of carrying out armed raids and robberies;
c) that the plaintiff made €4m out of the proceeds of cash-in-transit robberies, gun crime and money laundering;
d) that the plaintiff was guilty of murder, violence and intimidation;
e) that the plaintiff was guilty of gun crime and money laundering;
f) that the plaintiff organised various people to carry out armed raids, shootings and gangland murders on his behalf.
15. The defences filed constituted seriatim denials: they denied that the article referred to the plaintiffs and that it bore any of the defamatory meanings pleaded. It was also pleaded that if, in each case, the plaintiff was identified by the words complained of those words were true in substance and in fact.
16. When asked to deliver particulars of the plea of justification in each case, the defendant's solicitors replied that each plaintiff was “suspected” of being involved in serious crime and that there were "reasonable grounds for that suspicion." The letters furnishing particulars referred to a number of other matters of suspicion such as that the plaintiffs had been brought to the attention of the Minister for Justice, that they had been stopped and searched, that they had engaged in police surveillance activity, had associated with major crime figures and led a lavish life style which could not be supported from the occupations which they admitted to pursuing. The particulars did not contain any allegation that either of the plaintiffs had, in fact, committed any of the many crimes attributed to them by the article, save that, they had committed the crimes of which they had been convicted: in the case of Wayne Bradley, this was one road traffic offence.
17. The defendants’solicitor, while replying to the request for particulars of justification, also provided particulars of the character of the plaintiffs, purporting to rely upon Order 36, rule 6 of the Rules of the Superior Courts in the following terms:
a) the reputation that the plaintiff has of being a man engaged in the most serious crime.
b) the reputation that the plaintiff has of being a man engaged in crime including but not limited to robbery and gun crime.
c) the reputation that the plaintiff has of being a leader of a criminal gang.
d) the reputation that the plaintiff has of being a man of whom his community is afraid.
e) the matters set out under (1) above. [ these were the purported particulars of justification, already referred to]
f) of the plaintiff’s reputation for having acted in the way described at (1) above. [ see paragraph e)]
18. The two actions came on for joint trial before Dunne J in the High Court on 14th February 2006. At the commencement of the trial, counsel for the plaintiffs objected to the defendant maintaining the plea of justification on the basis that an accusation of the commission of a crime cannot be justified by proof that the plaintiff was suspected of that crime. Dunne J ruled that the article was clearly capable of bearing the meaning that the plaintiffs were leaders of the most dangerous gang operating in Dublin's underworld, were guilty of carrying out armed raids and robberies and of murder, violence and intimidation as well as gun crime and money laundering. She ruled, however, that the defendant would not be permitted to advance the plea of justification, since the particulars furnished did not meet the sting of the libel. An allegation of suspicion was not the same as a plea that a person is actually guilty of the particular offence alleged.
19. The trial lasted for six days. The plaintiffs each gave evidence. They said that they identified themselves and each other principally by reference to the accompanying photographs and the nickname “fat head,” by which each of them said that he was known. A number of other witnesses gave evidence of recognising the plaintiffs as referred to in the article, generally by reference to the photographs and to the nickname “fat head.” Some also associated the plaintiffs with details such as references to dealing in cars or in horses. One witness, Sandra Browne gave evidence of buying the newspaper and of herself identifying the plaintiffs, but the learned trial judge ruled that she could not give evidence of what others said to her on that occasion. This ruling forms one of the grounds of appeal.
20. The defendant called two members of the Garda Síochána to give evidence of the reputation of the plaintiffs. The defendant also called a Parish Priest from Finglas South, but the learned trial judge directed the jury to disregard his evidence as not coming within the scope of the reputation evidence she had been prepared to admit.
21. There were two questions on the issue paper for the jury. There was no possible doubt that the article was defamatory. The only question on liability was whether the plaintiffs were identified in the article. The jury found that they were not and did not have to consider the second question, i.e., damages.
Issues on the appeal
22. The arguments on the appeal have centred on two points. The appellants complain that the learned trial judge wrongly excluded evidence bearing on the issue of identification and that she incorrectly directed the jury, in answer to a question, relating to the same issue. They also complain that the evidence of reputation was incorrectly admitted and, in any event, that it exceeded what had been permitted by the learned trial judge.
23. The major controversy concerns the trial judge’s ruling excluding the second article published by the defendant from evidence. This is a point of some difficulty and calls for detailed consideration of some English authority.
Evidence of Sandra Browne
24. I propose to consider, in the first instance, the ruling made regarding the proposed evidence of the witness, Sandra Browne.
25. Ms Browne gave evidence that she had known the plaintiff, Alan Bradley, from childhood and also that he was called "fat head." She said that on Sunday 13th June 2004, the day of publication of the article, she had been at the Finglas market, that a huge number of people had mentioned the article to her and that, as a result, she bought the paper. She had no doubt that the article concerned the plaintiffs.
26. The learned trial judge had ruled, in advance of her being called, that she could not go beyond evidence that her attention was drawn to the article as a result of conversations. Counsel for the plaintiffs had told the judge that "after Mass on Sunday, everyone was talking about the Bradleys.” It appears that, in fact, these events happened at the Finglas market. Counsel for the defendant had argued that evidence of this sort had to be treated with caution because it was not possible to cross-examine the people who are alleged to have said the various things ascribed to them.
27. It is unsatisfactory and unfortunate that we do not know what evidence Ms Browne in fact wished to give. It is notable that the learned trial judge expressed the view that it would not be "appropriate that we have a witness reporting on the reactions of other people who are not before the court to see what those other people were doing, thinking, talking about.” I propose to consider this matter on the assumption that the witness would have given evidence that other people informed her that the article was about the plaintiffs: counsel had said people were “talking about the Bradleys.”
28. Counsel for the plaintiffs cited the following passage to the trial judge from paragraph 34.20 of Gatley:
“Evidence may be admissible that the claimant has been identified as the subject of the article, even though the means of identification or the reason why the claimant was connected with the libel, is not established. Thus evidence that the claimant was pointed out and made the subject of ridicule and laughter at a public meeting, shortly after the publication of the libel is admissible “as identifying the subject of the libel and as proof of the consequences necessarily resulting from its publication.” The claimant can give evidence about persons who made contact with him, and by of their contact, conduct or statements had indicated that they identified him as the subject of a libel. Evidence of anonymous telephone communications to the claimant after the publication of the libel are also admissible, although the jury should be warned to treat such evidence with caution. Moreover where the libel takes the form of a statue, picture or caricature, statements made by persons looking at it are admissible in evidence to show that they understood it to represent the claimant.”
29. On this appeal, the appellants have relied on the authority cited for the proposition advanced in the penultimate sentence, an English High Court decision at first instance, namely Jozwiak v Sadek and others [1954] 1 W.L.R. In fact they could have cited a decision of this Court to the same effect. First, I will refer to Jozwiak.
30. The facts of that case were as follows. An article in “The Polish Daily,” a newspaper circulating among the Polish community in London, was written as a purportedly fictitious account of the suicides of two people who had hanged themselves because of financial difficulties: it suggested that their difficulties had been caused indirectly by the actions of a man who was the chairman of an association. There had in fact been two suicides in those circumstances in the Polish community. At the relevant time the plaintiff was the chairman of an association of business people in the Polish community. The issue was whether the plaintiff was identified in the article. Ormerod J admitted evidence of statements made by persons at a meeting of the Polish community in London showing that they identified the plaintiff as the person referred to in the article.”
31. The judge referred to a very old case of Du Bost v Beresford (1810) M. & P., where Lord Ellenborough held that "the declarations of spectators while they looked at the picture in the exhibition room, or evidence to show that the figures portrayed were meant to represent [ certain persons].” Ormerod J also cited Cook v Ward (1830) 2 Camp. 511.
32. As it happens both the decisions to which Ormerod J referred were also cited in the High Court in Fullam v Associated Newspapers (1953-4 Irish Jur. Rep. 79). That was a libel action by a former renowned international footballer. The libel questioned his ability to kick with his right foot. At trial the defendant sought to introduce evidence of words and comments of a crowd at a football stadium and jeering cries of men in his own neighbourhood for the purpose of identifying him as the subject of the libel. Haugh J admitted the evidence. On appeal to this Court it was conceded that Haugh J had been correct. (see Irish Jur. Rep. 1955-56 45).
33. The respondent, in written submissions, accepts the principle set out in the passage quoted above from Gatley.
34. It might be thought that the admission of such evidence constitutes some form of exception to the hearsay rule. Evidence is given of comments, remarks often insulting, made by third persons (not witnesses) saying or implying that they thought the article referred to the plaintiff. I do not think that it should be considered as such. The question is whether the plaintiff in a defamation action is identified in the article of which he complains. If he can show that persons, who have read the article, have identified him, that is evidence of that objective fact, which can be admitted for consideration by the jury.
35. I believe that the ruling of the learned trial judge was unduly narrow. Once the witness was allowed to say that the people at the Finglas market had said something which caused her to buy the paper, she should have been permitted to give evidence of the fact that they identified the plaintiffs as the persons named.
Admissibility of the second article
36. This is a larger and more difficult issue and calls for consideration of one of the more controversial judgments of Lord Denning, which, in addition, appears to be in conflict with at least one decision of this Court.
37. Counsel for the plaintiff urged the trial judge to admit in evidence the article published by the defendant on 22nd August 2004 for the purpose of showing that the plaintiffs were the persons identified in the first article. Counsel relied on the decision of the Court of Appeal in England in Hayward v Thompson [1982] 1 Q.B. 47, principally for the proposition that, where the defendant aimed at or intended to refer to the particular person, it should be treated as having referred to him. Counsel for the defendant supported the application of an objective standard and relied on the decision of this Court in Murphy v Times Newspapers Limited and Others [ 2000] I.R. 522.
38. The learned trial judge declined to admit the second article in evidence. She considered that Lord Denning had gone further than the law permits. She held that there must be a complete cause of action in a defamation action at the time of publication. The question was whether the words were understood to refer to the plaintiffs. The test was an objective one. It was not admissible to rely on matters arising subsequent to publication.
39. The appellants, in their written submissions, continue to place their principal reliance on Hayward v Thompson. They shifted their emphasis from Lord Denning to the other two judges, Sir George Baker and Sir Stanley Rees. At the Hearing, Mr Paul O’Higgins, Senior Counsel, resiled from reliance on evidence of intention. He submitted that the second article simply said that the first article referred to the plaintiffs.
40. One of the fundamental principles of the law of defamation is that the intention of the publisher is irrelevant to his liability if what he publishes is defamatory. This is most clearly demonstrated by the famous case of Hulton v Jones [1910] AC 20, a case which raised the converse issue, whether a publisher who publishes a libel innocent of all knowledge that it refers to a particular person is, nonetheless, liable to that person. A well-known newspaper published an article describing the attendance at a motor race at Dieppe. It described the antics, intending to refer to a fictitious person, of one Artemus Jones, and said of him that he was “with a woman who is not his wife, who must be, you know - the other thing!' It added: “Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad? Who would suppose, by his goings on, that he was a churchwarden at Peckham?” The real Artemus Jones was not, of course, a chrchwarden at Peckham or anywhere else. He was a barrister on the North Wales Circuit. Nonetheless, a majority in the Court of Appeal and the House of Lords unanimously held that the test was not whether the defendant intended to refer to the plaintiff but whether the words published were understood by reasonable people who knew the plaintiff to refer to him.
41. Lord Loreburn L.C. put it as follows:
“A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff.”
42. That passage was quoted by Keane J, as he then was, when giving judgment for a unanimous Supreme Court in Murphy v Times Newspapers limited and others, cited above. The somewhat unusual facts of that case were that two brothers, both named Murphy, brought defamation actions arising from an article in The Sunday Times concerning IRA terrorism. The defendant successfully pleaded justification in an action brought by the first brother. When the second brother sued on the same article, the defendant again pleaded justification. The plaintiff objected on the ground that, since the jury in the first action had found the words complained of to be true in substance and in fact insofar as they accused the first plaintiff of IRA activity, they should not be allowed to raise the same plea against a different person. Keane J dismissed that submission, at page 530, in the following forceful terms:
“That proposition is, in my view, wholly unsustainable. If the defendants are in the position that two plaintiffs in successive actions can satisfy the jury that an article, although clearly written about one person was capable of being understood, and was, understood, to refer to each of the plaintiffs, the defendant is entitled to rely on whatever defences are open to him at law, including a defence in these proceedings that, although he never intended the words to refer to the plaintiff in these proceedings, they are nonetheless true concerning him, so far as the allegation of being a prominent member of the I.R.A. is concerned. That conclusion flows inevitably from the fact that the intention of the writer is immaterial when one is determining whether the words complained of are not only defamatory but were understood to refer to the particular plaintiff concerned. If the proposition contended for represented the law, the plaintiff in these proceedings, assuming that he satisfied the jury that the words were understood by one or more persons to refer to him and were defamatory, could recover damages, although the defendants were in a position to adduce evidence before the jury that the allegation in question was true.”
43. Among the better known cases which have restated the irrelevance of intention in defamation are Youssupoff v Metro-Goldwyn-Meyer (1933) 50 TLR and Newstead v London Express NewspapersTorts [1940] 1 KB 371. The test is an objective one. It does not depend on the intention of the writer. The test is well established in Irish law. (McMahon and Binchy Butterworths Dublin 2000 at paragraphs 34.111 to 34.114) and implicitly recognised by the Oireachtas in enacting section 21 of the Defamation Act, 1961 permitting the limited defence of an offer of amends for cases of innocent defamation. The Law Reform Commission Consultation Paper on The Civil Law of Defamation (March 1991), of which Mr Justice Keane was then President dealt with the issue under the heading: “At common Law the test of identification does not take into account the intention of the defamer.”
44. The foregoing authorities surely dispose, at least so far as Irish law is concerned, of the statement of Lord Denning at page 60 of the report in Hayward that the defendant should “be giving credit for hitting the person whom he intended to hit.” This statement is a curious echo of an exchange which took place in Hulton v Jones, where Lord Loreborn responded to a suggestion from counsel that the question was “who was meant”, by asking: “Is it not rather who was hit?”
45. Nonetheless, Hayward concerned successive publications and , to that extent, is relevant. The plaintiff was a wealthy philanthropist and generous supporter of the Liberal party at the time of sensational goings-on, the Scott affair, surrounding that party’s leader in the 1970’s. On 9th April 1978 the Sunday Telegraph published an article which, without naming the plaintiff, stated that the names of two more people "connected with" the affair had been given to the police and that one was "a wealthy benefactor of the Liberal party." On 16th April, it published a second article naming the plaintiff and referring to him as "the Bahamas-based millionaire, who once gave the Liberal party £150,000," and said that the police wanted to interview him.
46. The plaintiff brought an action in respect of the two articles. At the trial the judge ruled that the jury could look at the second article in order to see to whom the first article referred and that they were not to bring in separate verdicts.
47. It can be seen immediately that the Hayward case can be distinguished on the ground that the plaintiff brought a single action in respect of the two publications, that there was a single award and that this was upheld on appeal.
48. The relevant part of the appeal, for the purposes of the present issue, is whether the trial judge was correct to permit the jury to look at the second article to see whether the first article referred to the plaintiff. On this issue, Lord Denning said at page 60 :
“It is that the words should be defamatory and untrue and should be published "of and concerning the plaintiff." That is, the plaintiff should be aimed at or intended by the defendant. If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name.”
49. He also referred to other evidence from witnesses who said that they had identified the plaintiff when they read the first article. Neither Sir George Baker nor Sir Stanley Rees decided the matter on intention. The former laid greatest emphasis on the other evidence identifying the plaintiff. The latter seemed to be most impressed (see page 72) by the three circumstances that (1) the original publication is defamatory; (2) when the second publication relied upon explicitly identifies the person defamed; and (3) it is published by the same party who published the original libel.
50. In considering the relevance of the Hayward case, I would have to emphasis that the principle of intention as the test for identification of a plaintiff in the words complained of as pronounced by Lord Denning is inconsistent with Irish law. I would prefer the reasoning of Sir George Rees. The key points are that the first article was defamatory; the second article was published by the same publisher; it espressly referred to the plaintiff and to the first article.
51. I would add that the principle that intention is irrelevant is a sound one. As already stated, the Oireachtas intervened by enacting section 21 of the Defamation Act, 1961 (now repealed) to mitigate the effects of innocent defamation. There are sound reasons of principle for not making intention the test. The press frequently prints stories concerning many sorts of wrongdoing, without identifying the miscreants. There may be many reasons. They may not have sufficient evidence to stand up in court as a justification defence. They may be in fear. Stories often develop piece by piece. Journalists may be motivated by a wish to protect persons. The stories may, nonetheless, be of public importance. If intention were to become the test, it would, for example, be open to a person not named in an article to seek to establish intention by means of discovery or interrogatories. The test for identification would cease to be whether the words, construed objectively, referred to the plaintiff, but rather whom the writer had in mind.
52. I now turn to the present case. There are unique circumstances which persuade me that the learned trial judge should have admitted the second article into evidence. Firstly, the second article constitutes a more or less explicit republication and reference back to the first article. The entire two pages of the first article are produced in facsimile in the second over a caption: “STAR SUNDAY JUNE 13: We first told of CAB probe.” That, in itself constitutes a complete republication of the first article. The second article refers to the solicitor’s letter from the plaintiffs about “a recent article about a gang of armed robbers from Finglas…”
53. For these reasons, I would allow the appeal on this ground and remit the matter to the High Court for rehearing.
Judge’s direction to the jury
54. In these circumstances, it does not seem necessary to deal at any length with the complaint concerning the learned trial judge’s direction to the jury, as the situation is very unlikely to reoccur. The forelady of the jury asked the judge whether they were entitled, when considering whether the plaintiffs were identified in the article, to have regard to the evidence which had been called by the defendant with regard to the reputation of the plaintiffs. The judge, without consulting counsel, advised the jury that they were not. This was, I believe, a mistake for all the reasons given by Hardiman J in his judgment. The jury were in principle entitled to consider any part of the evidence which they considered relevant and helpful to them in reaching their verdict. Neither the fact the defendant called the evidence for a different purpose nor the irony of the plaintiffs’ choosing to rely on evidence which, as to its content, was uniformly hostile to them contervails against the basic principle that it was a matter for the jury to decide.
Evidence of reputation
55. In view of the judgments delivered in this case, these actions will have to be retried in the High Court. Therefore, it is not strictly necessary to decide whether the appeal should be allowed and a retrial ordered on the further ground, advanced by the appellants, that evidence of the plaintiffs bad reputation was wrongly admitted. On the other hand, evidence of this kind may well be tendered by the defendant at a new trial. I believe that it is both appropriate and necessary to express a view on this issue. It is best to do so in response to the grounds of appeal advanced by the appellants. Even then, it has to be acknowledged that there is an element of the hypothetical in doing so. Mattters will inevitably not play out in the same way at a retrial.
56. The defendant furnished particulars referred to above pursuant to Order 36, rule 6 of the Rules of the Superior Courts, which provides:
"In actions for libel and slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence."
57. The evidence of the character of the plaintiffs which the defendant would wish to call pursuant to this rule is necessarily evidence of their bad character.
58. The learned trial judge gave advance rulings, following argument form the counsel for the respective parties, as to the extent and nature of the evidence which might be given. She took the decision of Cave J in Scott v Sampson [1882] 8 QBD 491 to be the governing authority. Although counsel for the defendant argued that Scott v Sampson did not represent settled law in this jurisdiction, it has been accepted on appeal that it does.
59. She held that it was open to the defendant to introduce evidence of the bad reputation of the plaintiffs but that did not extend to specific instances of misbehaviour, especially if those instances were calculated to support or to justify the sting of the particular libel.
60. The defendant called three witnesses on the issue of reputation.
61. Detective Inspector Bernard Sherry had served for thirty five years in An Garda Síochána. At the time of the trial he had responsibility for investigating all crime in K District which included Finglas. Invited to speak of the reputation in the community of the plaintiffs, he said they were “known as two brothers who are involved in crime in the area.” He went on to say:
“They are feared in the area by the local people. A lot of people would have fear of them……………..They are people like, I mean, who are---how would I put it---they are involved in, we believe they are involved in serious crime. Local people would have that belief as well………………….Their reputation is that they are involved in serious crime within the area. They are believed to be involved in armed robberies. They are believed to be involved in drug dealing, and that type of crime.”
62. He was then asked about their reputation in the police force and answered:
“Well, within the police force, the Bradley brothers have, what would be described as a notorious reputation. I mean they are believed to be, from our perspective, they are believed to be…….
“Their reputation within the police force is that they are serious criminals, [involved in] Armed robberies, particular in respect of automated banking machines…………………ATM’s Banklinks, ………………That type of robbery in particular. They are also known as involved in robbing the likes of security vans that deliver cash from various business premises. They are also believed to be involved in the distribution, wholesale distribution of a lot of what we would class as heavy duty drugs, like I mean cocaine, cannabis, that type of stuff.”
63. Returning to their reputation in the local community, he said:
“I would believe that their reputation in the area that they live in is of a similar reputation as the police would have. The ordinary people living in the area would have that………………”
64. In cross-examination, the Detective Inspector agreed that neither of the plaintiffs had ever been charged with any armed raid or robbery, money laundering, anything to do with drugs, violence, intimidation, shooting or murder and that he had never dealt with either of them personally.
65. Garda Michael Clavin gave evidence that he was a community garda in the Finglas area. Asked about the reputation of the plaintiffs in the Finglas community, he said that “the community would be in fear of them” and that “they would have a reputation for being involved in serious crime in the area……..the likes of armed robberies and involved in drugs in the area as well.”
66. The defendant’s third witness on reputation was Fr Seamus Ahern, the Parish Priest of Finglas South. He said that he was “involved in the language currency of the place” and that he knew “the perception around the place about people.” While he knew Finglas South better, he said that Finglas South, East and West were “in a sense a unity.”
67. He said that the perception, the reputation of the plaintiffs in the community was they “are involved in serious crime.” He mentioned “robbery and possibly drug dealing” He added: “I tell you what I hear and I don’t say what I know” and “I don’t even form an opinion. This is what I hear.” He also said: “All I can say is when any serious crime happens so often their name is mentioned.” Fr Ahern went on to deal more generally with the prevalence of crime and the fear of crime in the Finglas area.
68. Counsel for the plaintiffs objected that all of Fr Ahern’s evidence was inadmissible because it did not relate to the time of publication of the article but to the time of the trial.
69. The learned trial judge thought the evidence had gone far beyond general bad reputation but, insofar as the witness referred to the plaintiffs’ names being mentioned whenever serious crime was committed, it was evidence of particular crimes and inadmissible.
70. The appellants object to all the reputation evidence given on behalf of the defendant for a number of reasons. These apply to the three reputation witnesses in slightly different ways, but they can be treated together. The objections are that:
1. the witnesses did not know the plaintiffs personally;
2. the witnesses did not know the relevant area of Finglas;
3. the evidence was based on rumour, hearsay or suspicion ;
4. the evidence of reputation tended towards justification of the defamatory statements;
5. the evidence went beyond the content of the articles by referring to dealing in drugs;
6. the evidence did not relate to the plaintiffs’ reputation at the time of the publication.
71. The parties referred to the following English authorities: Scott v. Sampson [1882] 8 QBD 491; Hobbs v CT Tinling & Co. Ltd [1929] 2 K.B. 1; Plato Films v. Speidel [1961] A.C. 1090; Associated Newspapers v. Dingle [1964] A.C. 371. The defendant cited the decision of this Court in Murphy v. Times Newspapers [1996] 1 IR 169.
72. The judgment of Cave J in Scott v. Sampson is credited with having clarified the confused and somewhat incoherent state of the authorities prior to 1882. The propositions there laid down have been treated in England as settled law now for more than a century. Hobbs v CT Tinling & Co. Ltd was cited in this Court in the Murphy case (though on a different point).
73. Cave J identified three classes of evidence which had been considered in the cases:
The effect of Scott v. Sampson has been that the second and third categories of evidence are not admissible.
74. Cave J identified the competing considerations at page 503 of the judgment:
“Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation.”
75. Later on the same page, he added:
“On principle, therefore, it would seem that general evidence of reputation should be admitted, and on turning to the authorities previously cited it will be found that it has been admitted in a great majority of those cases, and that its admission has been approved by a great majority of the judges who have expressed an opinion on the subject.”
76. Cave J gave reasons for excluding the second category, evidence of rumours, at page 503 as follows:
“As to the second head of evidence or evidence of rumours and suspicions to the same effect as the defamatory matter complained of, it would seem that on principle such evidence is not admissible, as only indirectly tending to affect the plaintiff's reputation. If these rumours and suspicions have, in fact, affected the plaintiff's reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue. To admit evidence of rumours and suspicions is to give any one who knows nothing whatever of the plaintiff, or who may even have a grudge against him, an opportunity of spreading through the means of the publicity attending judicial proceedings what he may have picked from the most disreputable sources, and what no man of sense, who knows the plaintiffs character, would for a moment believe in. Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all that those who know him best can say is that they have not heard anything of these rumours. Moreover, it may be that it is the defendant himself who has started them…………………………………………… Upon the whole, both the weight of authority and principle seem against the admission of such evidence.”
77. He dealt finally with evidence of particular facts and circumstances as follows on page 504 to 505:
“As to the third head or evidence of facts and circumstances tending to shew the disposition of the plaintiff, both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation, and to admit evidence of this kind is in effect…………………to throw upon the plaintiff the difficulty of shewing an uniform propriety of conduct during his whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of. Among all the cases which have been reviewed there is not one which can be cited in support of the admissibility of this evidence.”
78. The House of Lords, in Plato Films v. Speidel in 1960 unanimously approved and followed Scott v. Sampson, which is not to say that the application of its proposition is free of difficulty in practice. To begin with it is easy to confuse reputation and character. The reputation of a person is what people in general think of him, what Cave J called “the estimation in which he stands in the opinion of others.” His character is the sort of person he is in fact. Cave J made this distinction when he referred, in his third category, to facts tending to show the character and disposition of the plaintiff, which he excluded.
79. Scrutton L.J. in Hobbs v CT Tinling & Co. Ltd, cited above said:
“The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation, and the plaintiff may rebut it by coming prepared with friends who have known him to prove that his reputation has been good."
That passage suggests that the defendant’s evidence will be of general (bad) reputation, i.e., what society in general thinks, whereas the plaintiff’s own witnesses will be persons who know him well and will speak more to his character. Lord Denning, in Associated Newspapers v. Dingle touched on the same problem:
“In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his worth. If they consider he has a bad reputation, they are very likely right, and he has nothing very much to lose. If it is a settled reputation which has been accumulated over a period by a series of misdeeds, they will know of it. If it is a reputation which has been destroyed at one blow by a single conviction, they will know of it too. Either way, if you call those who know him well, you are likely to get the truth…But if you go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation…”
80. Again, the early part of that passage prompts the query: are we speaking of evidence of character or evidence of reputation? I believe the evidence must be of the latter variety. Lord Denning’s reference to “a settled reputation which has been accumulated over a period by a series of misdeeds” runs a very real risk that a witness will start to speak of those specific misdeeds, evidence which is firmly excluded by Scott v. Sampson. On the other hand, it has to be acknowledged that evidence strictly related to general reputation may run the corresponding risk of being based on hearsay or rumour, evidence of what others say they think.
81. The matter was addressed in very clear terms by Barrington J, speaking for this Court in the first Murphy case, Murphy v. Times Newspapers [1996] 1 IR 169. The plaintiffs, two brothers, sued the defendants for defamation in a newspaper article in which it was alleged that a "farmer in the Republic" known as "Slab Murphy" was the Operations Commander for the IRA in Northern Ireland and was"likely to have had to approve" a bombing campaign in seaside resorts. The defendants pleaded partial justification, claiming that the words complained of were true insofar as they asserted that each plaintiff was a member of the IRA and also pleaded, in mitigation of damages, that each plaintiff was, and was known to be, at all material times actively supportive of the IRA.
82. Barrington J pointed out that the second line of defence was concerned with the plaintiffs' reputation or standing in the community and was an endeavour to prove that their reputation or standing in the community was so low that the article did them little or no damage. Further, he emphasised that “evidence which would support the conclusion that a man had a bad reputation in the community would not necessarily support, or even be admissible to support, a plea of justification.” The learned judge ruled, at page 181, that the defendants had been entitled to adduce evidence of the plaintiffs’ “reputation with the security forces on both sides of the border with a view to presenting an alternative picture of their general reputation.”
83. In an important passage, he laid particular stress on the distinction between the function of evidence as justification of the truth of the libel and evidence of bad reputation which is relevant only in mitigation of damage. At page 182 he said:
“Mr. Sutton, for the defendants, has pointed out that evidence admitted under the head of reputation was properly before the jury even though it might not have been admitted if the jury was concerned only with the questions of justification. This is quite so. But the evidence did not change its nature simply because it got before the jury on the question of reputation. Even if the jury were satisfied that Thomas Murphy had the reputation of being a man of violence and a member of the Provisional IRA that did not prove that he was a man of violence or a member of the Provisional IRA nor was it even an issue which the jury was entitled to take into consideration in deciding whether he was a man of violence or a member of the Provisional IRA. A fortiori, if, under the heading of reputation, evidence crept in which was merely opinion evidence or based on hearsay it was essential that the jury should have been told that this evidence was of no value and that they should attach no weight to it.”
84. Thus, Barrington J was particularly concerned that the trial judge had not made it sufficiently clear to the jury that evidence which was relevant to the issue of reputation was not evidence on the justification issue and evidence of mere opinion or hearsay was of no value at all.
85. As might be expected and as is clear from experience, it is inevitably exceptionally difficult in practice to draw the line between evidence of reputation in the strict sense and evidence of rumour or hearsay, which may, to use the phrase of Barrington J, “creep in.” Equally, it will be difficult to prevent witnesses, without appreciation of fine legal distinctions, to resist referring to specific instances. The present case illustrates the problem of framing suitable questions inviting witness to give evidence of a person’s reputation. The task of cross-examining a witness as to the bad reputation of the plaintiff will be hazardous and may be impossible. Counsel must be particularly careful about the questions asked both in examination in chief and cross-examination. All this calls for a high level of vigilance from the trial judge.
86. Nonetheless, the evidence of bad reputation is, in principle, admissible. I turn to consider the complaints advanced on behalf of the appellants. I emphasis that I do so on the assumption that similar problems may arise at a retrial.
87. As to the first two complaints, there is no requirement that the witness know the plaintiff personally. This is clear from the Murphy case. It suffices if the witness knows the plaintiff by reputation. That postulates a sufficient degree of connection with the area in which the plaintiff lives, is known and operates. That is a matter for the trial judge to consider, if necessary in a voir dire. It is a question of fact. For example, Fr Ahern was Parish Priest of Finglas South, not where the plaintiffs lived but gave evidence of knowledge of Finglas generally.
88. Evidence of rumour or hearsay is, in principle, inadmissible. It is not clear to me that Detective Inspector Sherry gave his evidence on the basis of hearsay. In the final analysis, evidence of general reputation is necessarily founded on what people in the community think about the plaintiff. As Barrington J observed in Murphy v Times Newspaper, at page 179, “a man’s reputation is a fact which rests on the opinion of other people concerning him but it is not the same as that opinion.” The trial judge at a future trial will have the task of seeing that evidence of rumour or hearsay is not given but that does not exclude evidence of reputation.
89. It emerges from all the authorities that evidence of bad reputation must not be allowed to become confused with justification. The Murphy case illustrates the problem very well. Certain parts of the evidence given by Detective Inspector Sherry seem to me to be particularly problematic. Where a garda officer of the high rank of the Detective Inspector gives evidence of the reputation of the plaintiffs for committing precisely the types of crime of which the newspaper article accused them, a jury are either going to believe that the plaintiffs were actually involved in committing those crimes or, at least, be prejudiced against the plaintiffs. Moreover, the Detective Inspector was not so much giving evidence of the general reputation of the plaintiffs in the community as evidence of the opinion and belief of the members of the police force: “we believe they are involved in serious crime.” This last statement is evidence of opinion.
90. The appellants complain that the reputation evidence suggested that they were involved in dealing in illegal drugs, although there was no such suggestion in the article. Moreover, it is difficult to resist the observation that neither of the plaintiffs was ever even charged with such offences or, indeed, with any of the sorts of crimes attributed to them by the article. The reputation evidence must relate to the plaintiffs’ reputation in the area of character with which the alleged defamatory publication is concerned. For example, if a publication accused a person of dishonest dealing or of marital infidelity, it would scarcely be permissible to call evidence that he was an excessive drinker or that he was notoriously inefficient in his work. It would be a matter of degree and judgement. I am not sure and would prefer not to say definitively whether drug dealing is so far away from the sort of criminality alleged in the article as to render reputation for that activity inadmissible. That would be a matter for the trial judge after full argument.
91. Finally, the learned trial judge directed the jury to ignore the evidence of Fr Ahern, apparently on the ground that it did not relate to the time of the publication complained of. This point was made powerfully by counsel for the plaintiffs at the trial and accepted by the trial judge. I have to say that the authorities to which we have been referred do not appear to lay down any such requirement and I am not clear why they should. The underlying principle is that a person should not be compensated for loss of a reputation he does not have, a principle which would appear to be applicable just as much to the time of trial as to time of publication.
Conclusion
92. I would allow the appeal, set aside the verdict of the jury and order a retrial.
I would add that it seems obvious that the actions arising from the two articles should be heard together or consolidated. It would be quite wrong to permit the plaintiffs to continue with two separate actions arising from substantially the same libel. All future procedural steps are a matter for the parties and for the High Court.
