Turcu v News Group Newspaper Ltd

LORD JUSTICE RIX: This is a murky case. It comes before us today as a renewed application out of time for permission to appeal against the judgment of Eady J given on 4 May 2005. In these proceedings Mr Bogdan Maris sued, under the false alias of Alin Turcu, the News Group Newspapers Limited for defamation arising out of their publication in the News of the World of a story implicating Mr Maris in a plot to kidnap Mrs Beckham. The judge found that the News of the World's defence of justification was proved. Mr Maris gave no evidence at trial, not even a witness statement. He is a petty crook of 24 coming from Romania. He was temporarily, but unlawfully, in Britain at the time of the events giving rise to these proceedings. He had to leave the country shortly after he commenced these proceedings when he was refused leave to remain here, so he returned to Romania.

Mr Maris originally sought permission to appeal on paper, essentially on the basis that the judge had misapplied the burden of proof and had come to the wrong conclusion on justification. When that application was refused by Keene LJ on paper, there was a decision not to renew. This renewal occurs as a result of fresh evidence primarily but not exclusively from a Mr Gashi, who was the critical person who provided the News of the World with the lead to the story and assistance in obtaining details of it and photographs of some of the members of the conspiracy. It was Mr Gashi who in the main obtained photographs by covert video, although to some extent this was also done by the cousin of Mr Mahmood, the News of the World journalist involved, when he was infiltrated into the conspirators, or some of them, with the assistance of Mr Gashi.

At the time of the trial, Mr Gashi might have been expected to give evidence for the News of the World, to the effect that this was a genuine conspiracy. Mr Maris's case was that it was a put up job. However, the News of the World did not call Mr Gashi at that time. It is the submission of Mr David Price, the solicitor advocate on behalf of Mr Maris, that at that time Mr Gashi could be regarded as being in the camp of the News of the World, and that is certainly how the judge appears to have dealt with the absence of his evidence under the heading "The Missing Witness" at paragraph 44 and following of his judgment.

Mr Gashi was an important Crown witness in proceedings brought against the conspirators arising out of the story published by the News of the World. That prosecution however collapsed and was not proceeded with when it became clear inter alia that Mr Gashi had been paid by the News of the World for his story. That development is dealt with in the judge's judgment under the heading "The Crown offers no Evidence" at paragraphs 41 to 43 of his judgment.

It now appears that Mr Gashi has changed sides. He says that he has had a conversion and realises with guilt the errors of his ways. He now is prepared and wishes to give evidence, essentially against the News of the World and in support of Mr Maris. This willingness and his appearance on the scene on the material before us appears to have proceeded through his contacting a journalist who writes for The Guardian, a Professor Greenslade. We have before us a statement from Professor Greenslade saying that the account that Mr Gashi now wishes to put before the court in his witness statement

In that statement, Mr Price says that the evidence that Mr Gashi now wishes to provide was not available at trial to Mr Maris. At the time of trial Mr Gashi had given a statement to the police that was adverse to Mr Maris, who had no reason to believe that he would offer to give evidence that would assist him. Mr Gashi was understood to be on the witness protection programme, ostensibly to protect him from the conspirators, including Mr Maris. There was no way of knowing where he was. It would, it is submitted, in any event have been inappropriate to try to find him.

In this connection Mr Price has referred us to the decision of this court in Bills v Roe [1968] 1 WLR 925 at 930-931. The evidence that Mr Gashi now wishes to give on behalf of Mr Maris is to the effect that the conspiracy to kidnap Mrs Beckham was not a genuine conspiracy, it was a matter which he had put up for discussion to the persons concerned but something in which Mr Maris himself, although he had some role and some connection, had only a limited one.

Mr Gashi says in his witness statement that this put up job was something in which the News of the World journalist, Mr Mahmood, was complicit, albeit Mr Price submits that the defence of justification is destroyed by Mr Gashi's evidence even if one leaves out of account that part of it to the effect of Mr Mahmood's complicity. It is not quite clear to me as I give judgment today, whether or not it is intended to pursue a claim of complicity against Mr Mahmood himself; that is something which may emerge in due course.

Mr Price has sought to satisfy our concerns, at any rate for the purposes of this application, about the reasons why Mr Maris himself gave no evidence at trial. Essentially his submission is that Mr Maris could not get a visa to leave Romania to attend the trial and that it was his own, Mr Price's decision, not to put in a witness statement which he thought, in the absence of Mr Maris, would carry no weight whatsoever. In any event he submits that that question does not go directly to the issue of justification and admission of Mr Gashi's evidence. So far as Mr Gashi's evidence is concerned he submits, for reasons which I have indicated earlier in this judgment, that that evidence was not available to Mr Maris.

Mr Maris now says that he would like to give evidence at any retrial that might take place, and although there are obvious difficulties in the way of Mr Gashi being received as a credible witness — he accepts, for instance, that he lied to the police in his statement concerning these matters -- nevertheless, looking at all the material put before us, including the admittedly limited concerns of the judge about the nature of the video evidence which he saw, and also some aspects of that video evidence which have been made available to us for the purposes of this application, and considering Mr Gashi's new witness statement, it cannot be said that there is insufficient plausibility - at any rate, I put it no higher than plausibility -- in his account to raise some realistic prospect that his evidence might be received and accepted by this court on an appeal.

I would therefore be willing to give permission to appeal in the light of the new evidence, which covers statements from Mr Gashi, Mr Price, Professor Greenslade and the claimant himself, as well as a Mr Weston. It will of course be for this court on the appeal to decide whether it is willing to receive that evidence or even to hear it de bene esse.

It is necessary to say something further, however, about the original grounds of appeal. It seems to me that there is a very serious question mark about whether those original grounds of appeal could go forward in the absence of this court admitting on appeal the new evidence. I bear particularly in mind that there was no attempt to renew the original grounds of appeal to oral argument. Therefore, I have considered whether the order of this court should be that the permission to argue the original grounds of appeal, that is grounds 1 and 2, should only survive if this court on appeal admits the new evidence.

However, since there is to be an appeal in any event, on balance I could decide that the better course is to adjourn to the Court of Appeal the decision whether or not to give permission to appeal on the original grounds of appeal, in the absence of their admitting the new evidence under amended ground 3 of this appeal. Therefore, that ball is still in the air and will be a matter ultimately for the court that hears the appeal.

Formally, permission is needed to bring this renewed application out of time and for the amendment of the notice of appeal and I would give permission to do so.