Flood v Times Newspapers Ltd

In Reynolds v Times Newspapers Ltd [2001] AC 127 the House of Lords reconsidered the weight which the law accords to protection of reputation and freedom of the press, and redressed the balance in favour of greater freedom to publish matters of genuine public interest: Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359 paras 35 and 38.

Mr Rampton submits that in Jameel Lord Hoffman summarised Reynolds as requiring that the article as a whole should be on a matter of public interest (at [48]), that the inclusion of the defamatory statement should be part of the story and should make a real contribution to it (at [51]), and that the steps taken to gather and publish the information should have been responsible and fair (at [53]). In regard to this last requirement, the following summary in Bonnick was expressly approved by Lords Hoffman and Scott in Jameel (at [57] and [136]):

“Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interest of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.”

As Lord Bingham said in Jameel at para 33:

“Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner”.

The Convention rights in issue here are Art 8 and Art 10. They read as follows:

Article 8:

"1.

Everyone has the right to respect for his private … life, his home and his correspondence.

"2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the protection of disorder or crime, … or for the protection of the rights and freedoms of others."

Article 10

"1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …

"2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, … or public safety, for the prevention of disorder or crime, … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The question whether the subject matter of the article was a matter of public interest depends upon the effect of the article as a whole, and not upon the effect of the particular defamatory statement which is complained of, which, unless it has no contribution to make to the overall effect of the article, should not be isolated for separate consideration: Jameel (at [48] and [51]).

The question whether the defamatory statement is true or not is irrelevant; it is a “neutral circumstance” (Jameel per Lord Hoffman at [62])

The question whether or not it is responsible in this sense for a journalist to name a person such as the Claimant is to be decided in the light of guidance given by the House of Lords since Reynolds.

In Re S (A Child)(Identification: Restriction on Publication) [2005] 1 AC 593 Lord Steyn said at para 34:

"…..it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

Similar statements have been made in In re BBC [2009] 3 WLR 142 para 25 – 26 by Lord Hope of Craighead and 65-66 by Lord Brown of Eaton-under-Heywood.

There is no dispute between the parties that the conduct of police officers in general and police corruption in particular, is a matter of interest to the community. So that in principle the first test in Reynolds is satisfied in this case, so far as the subject matter of the article is concerned.

Mr Price does not dissent from Mr Ramptons’s statement of the law, so far as it goes. He stresses that what is required is that the steps taken both to gather and to publish the information should have been both responsible and fair. He emphasises that if the publication complained of has passed the public interest test then, in the words of Lord Hoffmann at paras 52 and 54 of Jameel:

“… the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair… The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information”

He also cites the words of Lady Hale at paras 149, who draws a distinction as follows:

“the publisher must have taken the care that a responsible publisher would take to verify the information published ... The requirements in ‘reportage’ cases, where the publisher is simply reporting what others have said, may be rather different.”

Lord Hoffmann also refers to reportage at para 62. Mr Price submits that in the present case the allegations are reporting what others have said (namely what the ISC Insider has said), and so the naming of the Claimant must be justified, if at all, on the grounds applicable to such cases. But, he submits, reportage is not available where the accuser is not named: Roberts v Gable [2008] QB 502 paras 53 and 61. Mr Price notes that Mr Rampton has not attempted to justify the publication on that basis.

In my judgment there is a difficulty for Mr Price on this submission. The House of Lords did not consider in Jameel that there needed to be any consideration of the information which led the Saudi Authority to put the companies on their list for monitoring, but only of the information that they were on the list. All that was required in Jameel was verification of the making of the accusation, and the Saudi Authority’s response to it, not verification of the information made to the Saudi Authority, and which led to the monitoring: see para 59. So the House of Lords did not consider that the defence should fail because it did not meet the conditions necessary for the application of the principles relating to reportage.

Mr Price made a more radical submission. He referred to the passage in Reynolds at p205F where Lord Nicholls concluded by saying “Any lingering doubts should be resolved in favour of publication”. The new guidance, given by the House of Lords since Reynolds was decided, namely in Re S, governs how the court should hold a fair balance between freedom of expression on matters of public concern and the reputations of individuals. That case was decided in October 2004.

In Re S the House of Lords was concerned (as it subsequently was in In re BBC), with whether the court should permit the name of an accused in criminal proceedings to be reported. The principles at stake were the private life of the individual accused, and his family, on the one hand, and freedom to report proceedings in court on the other hand. The issue did not arise in the context of defamation, because under the law of defamation, if the name could be published, then the publication would be on an occasion of privilege. So the protection of reputation had to be put in place at an earlier stage, if at all, by prohibiting publication.

The balance between protection of reputation and freedom of expression requires the same approach in whatever legal context it arises. As Lord Hope and Lord Brown of Eaton-under-Heywood said in In BBC at paras 8 and 54, the court is a public authority for the purposes of s.6 (1) of the Human Rights Act 1998, and must act compatibly with the Convention rights. He went on to say this:

“16 The BBC claim to assert this right on behalf of the public. Their position is that the information that they wish to broadcast is information which the public has a right to receive. Section 12(4) of the 1998 Act states that the court must have particular regard to the importance of that Convention right and, among other things, to the extent to which it is or would be in the public interest for the material to be published. As Sedley LJ said in Douglas v Hello! Ltd [2001] QB 967, para 136, the court must also bear in mind when it is applying that test that the qualifications in article 10(2) are as relevant as the right set out in article 10(1). The phrase "for the protection of the reputation or rights of others" is the qualification that is in point in this case. Millar for the BBC submits that it is in the public interest that a programme that identifies D in relation to the rape in the context of the removal of the double jeopardy rule should be broadcast. There are two questions, then, that must be answered. Would disclosure of D's identity in such a programme engage his article 8 Convention right? If so, does his article 8 Convention right outweigh the right of freedom of expression under article 10 which the BBC wish to assert, bearing in mind the qualification in article 10(2)?

17 As in Campbell v MGN Ltd [2004] 2 AC 457, these arguments involve the familiar competition between freedom of expression and respect for an individual's privacy. In that case, Lord Nicholls of Birkenhead said, at para 12:

"Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well being and development of an individual."

As Lord Hoffmann said, at para 55, there is no question of automatic priority. Nor is there a presumption in favour of one or the other. The question is rather as to the extent to which it is necessary to qualify the one right to protect the underlying value that the other seeks to protect. The outcome is determined principally by considerations of proportionality: Douglas v Hello! Ltd [2001] QB 967, para 137, per Sedley LJ”.

Lord Brown expressed it this way at para 55:

“Lord Steyn … described, at para 17 [of Re S], what he meant by "the ultimate balancing test" (as to "the interplay between articles 8 and 10"), in four propositions derived from Campbell v MGN Ltd [2004] 2 AC 457:

"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."”

Lord Brown went to say at para 69:

“… to my mind D's best argument for asserting a continuing article 8 right to anonymity is that suggested by my noble and learned friend, Lord Hope of Craighead, at para 22 of his opinion. I agree with Lord Hope that the presumption of innocence is of relevance … under article 8 in so far as it bears on D's reputation.”

The reference to Article 8 bearing on a person’s reputation reflects a further important development in the law since Reynolds, namely the recognition that reputation is a Convention right within Article 8, at least in some cases. That came in Cumpana and Mazare v Romania (Application no. 33348/96), 17 December 2004; (2005) 41 EHRR 14, para 91, and subsequent Strasbourg case law. More recent cases include Karako v Hungary 28 April 2009 No 39311/05, para 22-23, and those referred to in the Partly concurring Opinion of Judge Jociene, including Pfeifer v Austria 15 November 2007, No 12556/03, para 35. I shall adopt the same assumption as that adopted by the Court of Appeal in Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462; [2005] QB 993 para 68, namely that a person’s right to protect his or her reputation, at least in a case such as the present, is amongst the rights guaranteed by Art 8.

The recognition of reputation as an Article 8 right, and the consequential necessity of applying to defamation cases the ultimate balancing test from Re S, had not occurred, even by the time Jameel was tried at first instance in late 2003 (see [2007] 1 AC p362H). In consequence, neither Campbell nor Re S was cited in Jameel. There is no reason to suppose that it would have made any difference to the outcome of Jameel (or for that matter any of the other Reynolds cases that have come before the courts) if Re S had been cited. But there will be cases where following the course enjoined in that case will or may make a difference to the fate of a Reynolds defence. However, the approach of the House of Lords in Jameel is fully consistent with Re S. Once it is understood that the court must perform the "the ultimate balancing test", it follows that the failure of a journalist to satisfy one of Lord Nicholls ten tests cannot of itself be fatal to his defence.

In In re BBC Lord Hope, after concluding that Art 8 was engaged in that case, set out the tests that then had to be applied in para 23:

“23 The question then is whether publication of the facts that the BBC wish to publish in the exercise of their right of freedom of expression under article 10 can be justified under article 8(2). The tests that must be applied are well settled. They are whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. Any restriction of the right of freedom of expression must be subjected to very close scrutiny. But so too must any restriction on the right to privacy. The protection of private life has to be balanced against the freedom of expression guaranteed by article 10: Von Hannover v Germany 40 EHRR 1, para 58. One must start from the position that neither article 8 nor article 10 has any pre-eminence over the other. The values that each right seeks to protect are equally important. The question is how far, as article 8(2) puts it, it is "necessary" for the one to be qualified in order to protect the values that the other seeks to protect”.

There is little dispute that the publication by TNL of the words complained of in the present case is in pursuit of a legitimate aim. Although Mr Price’s points go to this issue, they are best seen in my view as directed to proportionality. When he came to the issue of proportionality Lord Hope said:

“27 There remains the question of proportionality. As against the public's right to receive information there is D's right to be protected against publication of details of his private life. But the weight that is to be given to his right has to be judged against the potential for harm if publication does take place. …

28 There is a risk, as Lord Pannick has pointed out, of D's being tried by the media. That, of course, is to be deprecated. If this happens it will add to the effects on his personality that will flow inevitably from the mention of his name in the broadcast. …”

The criteria in Reynolds were set out by Lord Nicholls as follows at p204-5:

“The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern.

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuable corpus of case law will be built up.

In general, a newspaper's unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

In my judgment Mr Price is correct when he submits that the last sentence cannot stand as the law today, in the light of the subsequent statements of the House of Lords in Re S and In re BBC. The law now requires the court, to consider the ten circumstances referred to by Lord Nicholls, in accordance with the guidance in those cases. The reference in item 1 to the individual being harmed includes, of course, a reference to what is now recognised as interference with the individual’s Article 8 right to reputation. And other points, for example 7 and 8, are particularly relevant to the question of fairness and the proportionality of any interference with an Article 8 right.

Lord Nicholls explained in some depth the two values at stake. He said at p200-2001:

“… there is no need to elaborate on the importance of the role discharged by the media in the expression and communication of information and comment on political matters. It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally.

Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed, choice, the electorate needs to be able to identify the good as well as the bad. Consistently with these considerations, human rights conventions recognise that freedom of expression is not an absolute right. Its exercise may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputations of others.

The crux of this appeal, therefore, lies in identifying the restrictions which are fairly and reasonably necessary for the protection of reputation”.

What has changed is that the House of Lords has since recognised that neither freedom of expression nor reputation has any presumptive priority, and that the approach laid down in Re S must be followed. The formulation of Lord Hope in In re BBC para 23 of the tests to be applied may be adapted to libel. They then serve as a summary of what Lord Nicholls set out in more detail in his ten non-exhaustive factors. The tests would then be as follows:

“They are whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to reputation”.

The result is that the factors identified by Lord Nicholls have to be considered separately, both as they relate to freedom of expression, and as they relate to the right to reputation. So, for example, Lord Nicholls states that “the more serious the charge, the more the public is misinformed and the individual harmed”. That is focussing on the right to reputation. But as he also said, investigative journalism is part of the vital role of the press. Investigative journalism tends to result in serious allegations. The seriousness of the allegation may also support the journalist’s contention that there is a public interest in the making of the allegation. A recent example may be certain allegations that MPs have been claiming as expenses money spent for private purposes.

Given its importance as the most recent and authoritative statement of the law in relation to Reynolds public interest privilege, it is important to bear in mind what the Jameel case was about, and how it resembles, and is to be distinguished from, the present case. As summarised by Lord Bingham:

“4 The gist of the article … was that the Saudi Arabian Monetary Authority, the kingdom's central bank, was, at the request of United States law enforcement agencies, monitoring bank accounts associated with some of the country's most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to "US officials and Saudis familiar with the issue". In the second paragraph a number of companies and individuals were named, among them "the Abdullatif Jamil Group of companies" who, it was stated later in the article, "couldn't be reached for comment"

5 The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify….

6 … Thus there were questions about whether, and to what extent, the kingdom was co-operating with the United States authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known”.

In the present case the meanings complained of are in a similar range: reasonable grounds to suspect, or reasonable grounds to investigate, the Claimant being involved in corruption. But the meaning may be less serious in Jameel, because the article included the words ‘wittingly or unwittingly’, which could not be said in the present case.

Another similarity is that the Wall Street Journal was reporting an investigation by an investigatory authority, in that case the Saudi Arabian Monetary Authority, and in the present case the police.

But an important difference between that case and the present case is that in Jameel the allegation that there was any investigation at all was dependent upon the reliability of the sources in that case. That became one of the main issues in the case. By contrast in the present case there has never been any doubt that by the time of the publication on 2 June 2006 there was an investigation into the Claimant. MPS had made a press announcement to that effect. So the sources whose existence and reliability were in question in Jameel have no equivalent in the present case. The source for the existence of the investigation in the present case is the investigating authority itself, MPS. There is no mention in the speeches in the House of Lords of any consideration of the existence or reliability of the sources of the information or allegation being investigated by the Saudi Authority. There could not have been. It is clear that the journalist in Jameel had no access at all to any source as to why the Saudi Authority was investigating any of the companies on the list disclosed by the journalist.

The parties’ submissions are as follows.

Mr Rampton submits that the article does not convey a meaning at the upper end of the scale of gravity. In other words, it is not suggested that The Times has said that the Claimant is in fact guilty of corruption. The article must be read a whole, and not just the title, which as he put it ‘gilds the lily’, that is it overstates the substance of the article itself.

Mr Price submits that the allegation, relating as it does to corruption, is as serious as it can be for a police officer. The strength of the case against him is presented as powerful. Naming the Claimant, or even identifying the Extradition Unit, added nothing to the story, or not enough to justify doing so. Mr Price submits that there is no public interest in reporting an investigation at the stage at which The Times reported it. He enlarges on this submission, and it is addressed separately below.

Mr Price further submits that the quality of the information was poor in the sense that the most that the ISC Insider was able to say was that the Claimant could be Noah, but he did not know whether he was or not, and he did not know of any information that might have come from the Extradition Unit. Further Mr Price submits that Michael Gillard should have appreciated that the police had a low opinion of the quality of the information, since that would explain why they had not progressed the investigation.

Mr Rampton responds that there was in fact an investigation by the police, so they must have regarded the quality of the information as sufficient for them to commence such an investigation.

Both parties address this point on the footing that it refers to the information Michael Gillard alleged was being investigated, not the source of the fact that there was an investigation. The reason for this is that while the MPS was the source for the fact that there was an investigation, MPS had not announced anything else. So the source for the information in the article about what they were investigating could only be the Sources A, B and C, and the ISC Insider.

Mr Rampton submits that Michael Gillard understood that his source (the ISC Insider) had given to the police the same information. The source provided documentary evidence which he had given to DPS, namely the Note. He was in a position to know about the underlying matters and to understand internal ISC documents.

Mr Price submits that the sources obviously had an interest of their own (an axe to grind) and no direct knowledge either that ISC had received information from the Extradition Unit, or that any payment had been made by ISC to the Claimant. Michael Gillard and Mr Gillard did not deny that the sources had their own interests to pursue, but only remarked that this was commonly the case with sources.

Mr Rampton submits that Michael Gillard had investigated all that he could. He had verified with Sources A and B that information had been given to DPS. He had verified with Mr Berezovksy’s representatives that he had been a client of ISC. The ISC accounting document showed cash withdrawals for payments to Noah. The journalists understood the MPS press statement of 28 April 2006 to refer to an investigation that had started before they had raised the matter. They had reason not to accept the statements from Mr Hunter’s representatives that the police investigation was prompted only by their raising the questions that they had.

Mr Price submits that the journalists do not pretend to have attempted verification of the accusation (as opposed to verification of the making of the accusation, and the alleged police response to it). So, he submits, this case can be defended, if at all, as one of reportage, but not otherwise. A defence of neutral reporting, where it applies, relieves the journalist of the obligation to verify – indeed it makes verification otiose, since it would involve the journalist in abandoning neutrality (as Simon Brown LJ points out in Al Fagih v HH Saudi Research and Marketing [2002] EMLR 13 para.50). If, on the other hand, verification was required, it would, by virtue of the repetition rule, have to be of the truth of the ISC insider’s reported “accusation”.

Mr Price submits that the journalists could and should have checked to find out if there was any confidential information that the Claimant could have passed to ISC. Since the Claimant’s unchallenged evidence is that he did not have any such information that would have shown the poor quality of the information received from the sources. Mr Rampton responded that the journalists did not need to check this. They had been informed by the police on 9 May that an investigation was in progress, following a search of the Claimant’s home. The police were best placed to know if the Claimant had any confidential information, and if it were clear that he had none, then they would not have carried forward the investigation as they did.

Mr Rampton refers to Michael Gillard’s evidence that the allegation against the Claimant was not just a rumour, or just an allegation. The ISC Insider had gone to great lengths to give it to the DPS.

Mr Price submits that the information has no status at all. It is just an allegation that was being investigated.

Mr Rampton does not suggest there was any urgency in making the publication that it did. But TNL waited until 2 June before making it, following the representations made in response to the questions raised on 28 April.

Mr Price submits that there was no reason not to await the outcome of the investigation.

Mr Rampton submits that TNL sought comments from the Claimant (and others concerned) and published the denials that the Claimant made, as well as denials from Mr Hunter, which added weight to those of the Claimant. The article also included their statements that they were willing to co-operate with the police. Mr Rampton submits that whatever the reason (and he made no criticism of the Claimant in relation to this), the journalists had done what they could to put the allegations to the Claimant personally for his comments.

Mr Price submits that it is unfair to ask for a comment from a person in the position of the Claimant, namely one who is reported to be the subject of an investigation into an allegation of corruption. It interferes with his right to silence in the criminal investigation and so engages his Convention rights under Art 6. It follows that while the article does contain his denials, it does not contain details which the Claimant might have been free to disclose if he had not been the subject of a criminal investigation.

Mr Price submits that there was further information given by Mr Hunter which should, in fairness, have been included in the article. The article should have reproduced Mr Hunters’ statement that the investigation had been triggered by the questions raised and allegations made by the journalists.

Mr Rampton submits that this was factual, as in Jameel.

Mr Price submits that whatever its form, the article seriously overstates the value and quality of basis for the ISC Insider’s allegation, and omits matters which could have been added to show the strength of the Claimant’s denials.

Mr Rampton submits that the article was published only after months of enquiries, which included looking into the backgrounds of the individuals concerned. The publication was not by Michael Gillard alone, who was himself an experienced investigative journalist, but also by Mr Calvert, and by the editorial team of TNL, a newspaper with great experience of investigative journalism.

Mr Price submits again that, at the stage which the police investigation had reached in February, and on 2 June, the public interest was respectively, against a parallel investigation by journalists, and against publication at any time before the outcome of the police investigation. Once the outcome of the investigation was made known, TNL did not publish that outcome as a matter of public interest. All they did was to seek to use the prospect of such a publication (which never took place) as a bargaining counter in their negotiations with the Claimant.

Some of Mr Price’s submissions mentioned above need to be considered in more detail. He submitted that it could not be in the public interest for the press to be conducting an investigation in parallel with an investigation by the police, and for the press to disclose matters which the police would not and could not disclose.

There was an argument in Jameel which has some similarity to a submission made by Mr Price, and it was rejected. In Jameel Lord Scott said this at para 142:

“142 Finally the judge appears to have regarded it as reprehensible or, at least, inconsistent with "responsible journalism" for the "Wall Street Journal Europe" to have published a story disclosing the names on a list that the United States authorities had undertaken to keep confidential. Coupled with this is the denial by SAMA and the Saudi banks that the list existed: see para 54 of the judgment. The judge said, at para 58:

"where there was an inter-governmental agreement not to reveal the names of those being investigated in the fight against terror, cogent grounds are required to show why the public interest called for that agreement to be breached."

I would, for my part, answer that point in two ways. First the importance of the story was not the identity of the names on the list but that there was such a list, evidencing the highly important and significant co-operation between the United States and the Saudi authorities in the fight against terror. The names gave credibility to the story. Second, I know of no government that discloses information to which sensitivity may attach otherwise than with great reluctance. Subject to D notices and the like, it is no part of the duty of the press to co-operate with any government, let alone foreign governments, whether friendly or not, in order to keep from the public information of public interest the disclosure of which cannot be said to be damaging to national interests.”

As to the dangers of parallel investigation, Mr Price cited two examples from the evidence. First, there was Michael Gillard’s own evidence that following the journalists’ visit to Mr Hunter’s office on 27 April, there had been extensive shredding of documents. Second, there were the notes of DCI Crump made on 28 April, to the effect that as a result of the enquiries and questions the journalists made and raised on 26 to 28 April, the Claimant and Mr Hunter were aware of the investigation, which limited the effectiveness of what DCI Crump’s investigation could achieve.

As to the unfairness of the parallel investigation, and publication before the outcome of the police investigation was known, Mr Price made these submissions. First, as already noted, he made submissions based on the Claimant’s Article 6 rights and his inability to defend himself against the press allegation while at the same time facing a police investigation. Secondly Mr Price referred to a long line of authorities on duty/interest qualified privilege at common law (that is cases preceding the development of Reynolds public interest privilege). Thirdly, he submitted that the police are subject to limits imposed by law as to what they can reveal about a suspect, and it would be wrong if the media were not subject to a similar restriction. Related to this is his submission that the defence of TNL can succeed, if at all, only on the footing that it is reportage.

Mr Price accepts that as a general proposition the public interest in the exposure of police misconduct is well-established. The fact that the police are investigating a possible crime is also a matter of public interest, and it will sometimes be in the public interest to publish that fact: obvious examples are the police investigation of cash-for-honours, and now the investigation into possibly fraudulent claims by MPs for expenses. But he submits that there is no public interest in publishing the complaints, accusations, or hearsay statements made privately to the police (often under protection of absolute privilege), or the documents and other evidence handed in to the police. Most accusations against police officers are false or malicious, as noted above. Publication of such accusations is opposed to the values of a democratic society, and is more akin to the values of McCarthyism, or of societies in which people may be ruined by anonymous denunciations to the police. TNL insists that the accuser must be assured of anonymity, even if malicious, but then argues that the accused must be exposed in the national media, with every detail of the accusation and evidence that the press can discover, under the protection of privilege. Further, Mr Price draws an analogy with reports of court proceedings in public, which attract absolute or qualified privilege, by reason of the public interest in such proceedings. It cannot be argued from the undoubted public interest in court proceedings, that media publication of, for example, witness statements or affidavits not yet put in evidence in open court is in the public interest: see Stern v Piper [1997] 1 QB 123. The affidavit which the defendant published in the Stern case was in effect the accusation against him by his accuser, which is essentially what The Times has published in the present case. Such a publication is clearly not privileged.

I accept that there is force in these submissions. But it seems to me that the anomaly, if such it is, that Mr Price draws attention to is a consequence of Reynolds and Jameel. In my judgment it is a point that cannot be viewed on its own, but must be considered as part of the ultimate balancing test, which I address below.

The short answer to the other points raised by Mr Price seems to me to be that if they were well founded, then they would have been as much an answer to the Wall Street Journal’s defence in Jameel as to TNL’s defence in the present case. But I would add the following observations, which lead me to the conclusion that none of these arguments is sound.

The law provides for interference with the course of justice, or contempt of court. If newsgathering interferes with a police investigation, then there are sanctions that the law imposes, and even, in rare cases the possibility of an injunction, as occurred in ex p HTV Cymru (Wales) Ltd [2002] EMLR 11. In that case Aikens J granted an injunction to restrain the media from interviewing witnesses during a criminal trial. A general rule that it is against the public interest for the media to engage in investigative journalism on a matter which is, or (in the media’s view) should be, the subject of a police investigation must be far too wide.

Mr Price submits that the journalists misled the police on two occasions. First they asserted in the conversation with Ruth Shulver, and in the e-mail on 27 April to MPS, to be put to the Claimant, that “Scotland Yard received information early this year alleging that Mr Hunter paid you for information…”. This was an overstatement, in that the most the ISC Insider had said was that Noah could be the Claimant, and the ISC Insider did not know about any information. Second, on 9 May the journalists misled DCI Crump by misleading him, or at least failing to respond candidly to his request for the documents which Michael Gillard in fact had. On both occasions the journalists were obstructing the investigation.

It is possible that there may be particular cases where the public interest in there being no interference with a police investigation is so great that a Reynolds public interest defence would fail on the facts of the case in question. I make no comment on that, one way or the other. But if that is so, this is not such a case. First, there is no evidence that the journalists did in fact interfere with the course of justice, or the police investigation. Michael Gillard’s evidence, which I accept, is that he considered that possibility early in 2006 and believed the information given to him, to the effect that Mr Hunter was already aware of the media’s interest. Second, there is no evidence on which I could find that Mr Hunter did destroy any evidence following the visit of the journalists to his office in April. Mr Hunter denied it, and it was not put to him by Mr Rampton in cross-examination. Further, as Michael Gillard stated, there are channels of communication between the police and editors of responsible newspapers, such as The Times and The Sunday Times. If there is a danger of interference with an investigation, or with matters relating to the national interest or national security, editors may be so advised by the public authority concerned, and when so advised they generally respond as requested. That consideration is mentioned in Jameel also at para 86: if the US Treasury had indicated that the information should not be published, the Wall Street Journal would probably not have done so. Michael Gillard said that neither he nor his editor received any such suggestion in the present case.

The fact that a person is the subject to a police investigation may well put him at a disadvantage when asked by a journalist for comments on a proposed story about the investigation. In the present case there is no criticism of the journalists on the basis that they failed to take sufficient trouble to obtain the Claimant’s comments. And there is no criticism of the fact that the Claimant chose to respond by reporting the journalists’ approach to his superiors as soon as it occurred.

In my judgment it cannot be a general principle that a journalist is obliged to desist from asking for comments of a person when they find out that he is subject to a police investigation. Here the article sets out the fact that the Claimant is subject to a police investigation. That is what the story is about. The readers can therefore judge for themselves the significance, or otherwise, of there being no greater comment from the Claimant than is in fact set out in the article. Further, in Jameel (para 84) it was held to be important that all that the claimant in that case could have said, if he had been asked, would have been that he knew no reason why anyone would want to monitor his accounts. So he too was at the disadvantage of not being able to give a comment that would balance the allegations against him. If Mr Price’s submissions on this point were correct, they would have been available to the claimant in Jameel, and could, in any event, hardly have escaped the notice of the judges before whom that case came at its various stages.

Mr Price relies on what he refers to as to a consistent stream of authority which denies privilege to reports of ex parte accusations, or interim stages of official inquiries. The line of authority stems from Purcell v Sowler (1877) 2 CPD 215, which concerned a report in a Manchester newspaper of proceedings at a meeting of the board of guardians for a local poor-law union, in fact held in public, though the CA considered that it would have been better held in private, at which ex parte charges of neglect were made against the plaintiff, the medical officer of a union workhouse. Cockburn CJ said [p.218] that “it is impossible to doubt that the administration of the poor-law is a matter of national concern”. But that, plainly, was by no means enough to give rise to privilege. Mellish LJ gave the reason for denying privilege at p.221:

“Although [the board of guardians] admit the public on an occasion when ex parte charges are made against a public officer, which may affect his character and injure his private rights, it is most material that there should be no further publication; there is no reason why the charges should be made public before the person charged has been told of the charges, and has had the opportunity of meeting them …….

Such a communication as the present ought to be confined in the first instance to those whose duty it is to investigate the charges….

I do not mean to say that the matter was not of such public interest as that comments would not be privileged if the facts had been ascertained …… But that is a very different thing from publishing ex parte statements, which not only are not proved but turn out to be unfounded in fact.”

Another cases cited is De Buse v McCarthy [1942]1 KB 156, but that is very different. The publication was by a public authority. There the words sued on were not a report by a newspaper, but an announcement by a local authority convening a meeting of the council to consider the report of a committee regarding loss of petrol from one of the council depots. The notice included a complete copy of the committee report, which summarised the evidence which it had heard, and recommended that the employees, who were named, should be transferred to other positions [pp.157-8, and foot of p.164]. De Buse v McCarthy is an illustration of the principle discussed in Wood v Chief Constable of West Midlands [2005] EMLR 20 and R v Chief Constable of North Wales ex p. Thorpe [1999] QB 396. In Thorpe the Court of Appeal held that police should not generally disclose information that came into their possession relating to a member of the public except for the purpose of, and to the extent necessary for, the performance of their public duty. (These cases may explain why the police were not as candid as Michael Gillard thought they ought to have been in response to his enquiries). These cases would now fall to be considered not under Reynolds public interest privilege, but under the Human Rights Act 1998 (“HRA”) s.6(1) and Article 8 directly, or, if applicable, under the Data Protection Act 1998 (the 1998 Act): see Clift v Slough BC [2009] EWHC 1550 (QB). In any event, where Reynolds public interest privilege is the defence, the most that these cases show is that the reputation right of a claimant under Article 8 is of great importance and must be taken into consideration. The cases cannot be taken as going further than that. Other cases cited included Henry v BBC [2005] EWHC 2787 (QB) and Miller v Associated Newspapers [2004] EMLR 33. But as Mr Price accepts, these must be read subject to the subsequent case of Jameel. On that basis, I do not find them of assistance.

Further Mr Price submits that in this case TNL’s position is circular, in that the article is a report of an investigation precipitated by the journalists’ own allegations. There are a number of observations to be made of this submission. First, on 9 May 2006, long before the publication on 2 June 2006, the journalists had been informed by the police that a search warrant had been executed at the Claimant’s home. That requires the grant of a warrant by a judge. The journalists’ evidence was that they were surprised at the suggestion, and did not believe, that the questions they raised and the allegations they put should have had led to the issue of a search warrant. I accept that they were reasonably entitled to be of that state of mind. They did not have to accept the statements of Mr Hunter’s solicitors that it was they who had started the investigation. They checked with MPS, but were given no further clarification.

Second, in any event, whatever precipitated the investigation, including the search warrant, the fact was that by 2 June a police investigation was in progress. Even if it had been precipitated by the journalists, that would not have been a reason why they should not report it (assuming other conditions necessary for reliance on a Reynolds public interest defence were fulfilled). This is not a case which is circular in the sense that TNL were simply reporting that they had made allegations to the police. They were not reporting that at all. What they were reporting was that there was an investigation by the police. The police do not automatically investigate every allegation that is made to them. They decide what to investigate and what not to investigate. So there is a very important difference between what the journalists may have alleged to the police, and the fact that the police were carrying out an investigation (even if that investigation may have resulted from what the journalists alleged).

Whether there were strong, or reasonable, grounds to suspect the Claimant of corruption, or grounds which objectively justified a police investigation into the Claimant is a different point. That is the point that arises on the defence of justification. I make no findings about that point.

Mr Rampton submits that facts not known to the journalist are relevant only to allowing evidence to be adduced to show that sources were unlikely to have told a journalist what that journalist says they told him: Jameel v Wall Street Journal (Europe) Sprl [2004] EMLR 6 at [31]-[32]; GKR Karate (UK) Ltd v Yorkshire Post [2000] 1 WLR 2571 at 2578F-2579A, where May LJ said:

“… the existence or otherwise of qualified privilege is to be judged in all the circumstances at the time of the publication. It is not necessary or relevant to determine whether the publication was true or not. None of Lord Nicholls's 10 considerations require such a determination and some of them (for example number 8) positively suggest otherwise. Nor is it necessary or relevant to speculate (for the purposes, for instance, of considerations 3, 4 or 7) what further information the publisher might have received if he had made more extensive inquiries. The question is rather whether, in all the circumstances, the public was entitled to know the particular information without the publisher making further such inquiries. The reliability of the source of the information is a relevant consideration, but that, in my view, is to be judged by how objectively it should have appeared to the defendant at the time. It is to be considered in conjunction with the inquiries which the defendant made at the time relevant to the reliability of the source. If the defendant made careful inquiries which, judged objectively, reasonably justified a conclusion that the source was apparently reliable, that will be a positive (though not determinative) indication in favour of the occasion being privileged. If the defendant made no, or only perfunctory, inquiries, a conclusion that the source was apparently reliable will be less likely. In neither instance is a subsequent investigation at trial into the actual reliability of the source relevant”.

Mr Price submits that evidence of matters the journalist did not know may be relevant to the question whether he “made careful inquiries which, judged objectively, reasonably justified a conclusion”. And the conclusion to which such evidence is relevant is not just the reliability of a source, in the sense of whether the source was telling the truth, but may include the reliability of the information. For example, in this case Mr Price submits that the journalists did not enquire whether the Claimant had any confidential information which might have been of interest to ISC’s clients, and he criticised that as a failure on their part.

Moreover, Mr Price submits that there are particular problems where, as here, the journalist maintains the anonymity of his sources. As Lord Nicholls pointed out in Reynolds at p201:

“If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification.”

If the journalist does not disclose his source, it may be very difficult for the court to assess whether the enquiries made by the journalist were, judged objectively, sufficiently careful inquiries which reasonably justified a conclusion. This is not the same as investigating what further information the publisher might have received if he had made more extensive inquiries. It may be that a journalist has made all the enquiries that were possible. It does not follow that those enquiries reasonably justified the conclusion which the journalist reached.

In the event, I have reached the conclusions I have reached in relation to the print publication on the basis of the evidence for TNL, and have drawn on the evidence for the Claimant only in so far as it was uncontroversial, save in one important respect. The evidence of the Claimant is relevant in my judgment to the assessment that has to be made as to whether the interference with the Claimant’s right to reputation under Article 8 was proportionate. The test there is whether the interference was proportionate, not whether the journalists believed it to be so.

However, in my judgment the evidence of the Claimant and Mr Hunter, and the information in the documents obtained from the IPCC is all relevant to the website publication, and as to what relief is to be granted in relation to that in the future, if any. This is discussed below.

I turn therefore to consider the weight to be attached to the rights to be balanced in this case. I do so on the basis that I do not need to consider further point 4 (the steps taken to verify the information), and points 6 to 9 (urgency, whether comment sought from the Claimant, whether the article contained the gist of the Claimant’s side of the story, and the tone of the article). On all of these points I accept Mr Rampton’s submission and find that no criticism can be made of what the journalists did.

In favour of freedom of expression in this case are, in my judgment, the following main points. First, the question whether there is corruption of public officials, in particular corruption of police officers by wealthy foreigners resident in England, is a matter of high public interest. It is similarly a matter of public interest that allegations of such corruption may not be being investigated in a timely fashion by the police. As Lord Nicholls said, a newspaper is entitled to raise queries or call for investigation. It was in pursuit of a legitimate aim that TNL published the article, with a view to attempting to ensure that an investigation took place, or that it took place in a timely fashion.

If it was to be published at all, then 2 June was not too early to publish. There would be no point requiring a journalist to await the outcome of a police investigation in circumstances where his purpose in publishing is to ensure that a timely police investigation takes place.

Second, if the article was to be published at all, in my judgment it was within the range of editorial judgments open to TNL to publish it in the form they did. The naming of the Claimant had the legitimate aims claimed for it by Michael Gillard, namely of adding to the credibility of the story, preventing suspicion from falling on other officers in the Extradition Unit and attracting potential witnesses. Weight should in this case be given to the professional judgment of the editor and the journalists. There is no indication that the decision to publish the article in the form it was published on 2 June was made in a casual, cavalier, slipshod or careless manner.

Third, while the basis for the allegation was weak, in that there was no evidence that the Claimant was Noah, or that any confidential information had been received by ISC, nevertheless, as early as 9 May, and up to the time of publication on 2 June, the police had confirmed that they had had sufficient evidence to obtain a search warrant and to carry out an investigation.

The fact that the journalists have not disclosed their sources in this case is of little significance. The fact that payments were made in cash to Noah was soundly based on the documents. It has not been suggested that the journalists ought to have doubted the authenticity of these. If the sources had claimed to give oral evidence that the Claimant was Noah, or that ISC had received confidential information, then their reliability would have been very much in issue. But they did not, and so it was not. Knowing their identity would not have strengthened or weakened the case. The background to the case, as known to the journalists, included that there had been a parting of the ways between those involved in ISC following the death of Mr Curtis. The journalists were aware that their sources might be pursuing their own interests.

I remind myself in particular of Lord Nicholl’s admonition that, is particularly apt in the case of journalists and a defendant with the experience of those involved in the present case:

“The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion.”

The fact that I take account of these factors is not be interpreted as an endorsement by me of the decision to publish. It is not for the court to express a view on the wisdom of the publishers. I do no more than say that these factors are ones which it was within the editorial judgment of the very experienced publishers and journalists in this case to take.

The right to reputation is not just of interest to the individual whose reputation is damaged. The public importance of reputation, in particular the reputation of a public official, is a matter of public importance. This was explained in general terms by Lord Nicholls in Reynolds in the passage from p 201 cited above. The passage bears repetition, because the Claimant’s unchallenged evidence is that it applies specifically to himself in this case:

“Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.”

In this case the Extradition Unit was deprived of the Claimant’s valuable services for many months, to the prejudice of the public service. It is of obvious advantage to a potential corrupter to know that if he can manipulate the media he can remove, or credibly threaten to remove, an honest public servant from his position.

It is necessary to distinguish the harm done by the publication on 2 June 2006 from the events that occurred on and between 27 April and 2 June. It was during that period that the Claimant was first removed from the Extradition Unit and suffered much of the injury to his feelings. But he has not sued on the publication of a libel by TNL to MPS on 27 or 28 April. He has sued on the publication on 2 June 2006 and thereafter.

In the present case, without trespassing impermissibly on to the issue of justification which is still to be tried, I can take the following into account. While the information was sufficient to enable MPS to obtain a search warrant, it was not a strong case, on the basis of what was known to the journalists. There was no evidence known to the journalists that the Claimant had received payments from ISC, and none that he had disclosed confidential information. The ISC Insider had specifically said, as reported in the article at para [5], that “Noah could be a reference to an officer in the extradition unit”, not that Noah was in fact a reference to him. So far as known to the journalists, the allegations were based on the facts that the Claimant served in a Unit which might have had information of use to ISC’s clients, and that he enjoyed a close friendship with Mr Hunter, and that in his own personal circumstances he might have been thought to be a potential target for corruption if Mr Hunter was that way inclined. There was no evidence that Mr Hunter was so inclined, but his clients were individuals about whom much adverse information has been published.

In addition, I remind myself that the Claimant and his wife suffered severe injury to their feelings, which even affected their health, although I must only take into consideration the injury suffered as a result of the publication on 2 June 2006. The greater part of the injury to their feelings was suffered on 28 April 2006.

I have not overlooked the points made to the effect that there has been no subsequent publication of the outcome of the investigation in which no evidence was found to support the allegation. But I do not consider that a subsequent failure to publish matters which vindicate the reputation of the Claimant can affect the question whether the publication itself is protected by Reynolds public interest privilege. These matters may, however, assume a different relevance in relation to the subsequent website publications.

Many criticisms have been levelled at the journalists on behalf of the Claimant. They should not have assumed that if the police were taking time to investigate (between February and 28 April before they announced an investigation), that there was no good reason for that. Even if the reasons were related to matters of international diplomacy, that does not mean that they were insufficient. Just because a police officer has the misfortune to have to incur personal expenditure on private matters, and just because he has remained friends with a former police officer who is now engaged in a business with wealthy clients who might be interested in confidential information, is not a sufficient reason for suspecting a police officer of corruption.

I do not endorse these criticisms, but neither do I say they are unfounded. They are matters which go to the quality of the editorial judgment, but do not take the case outside the range of editorial judgment which the court is required to respect.

In my judgment, the real issue in the present case in relation to the print publication comes down to whether the journalism was responsible in the sense of whether the publication of the article, as and when it was published, was fair to the Claimant, that is to say, whether it was a proportionate interference with his right to reputation given the legitimate aim in pursuit of which the publication was made.

Having considered carefully these points in particular, but also all the other matters referred to in this judgment, and having regard to the clear guidance given by the House of Lords, first in Reynolds and more recently in Jameel, I conclude that the publication on 2 June 2006 was a proportionate interference with the Claimant’s right to his reputation, given the legitimate aim in pursuit of which the publication was made. I uphold the defence of qualified privilege in respect of the publication in The Times newspaper of 2 June 2006. The story was about a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police officer now working on behalf of very wealthy and controversial Russians living in England. That was a story of high public interest. The purpose of publishing the story was to ensure that that investigation was carried out promptly. That too was a matter of public interest.

This is not to say that the judgment of TNL was a good judgment in the circumstances, but only that it was within the range of permissible editorial judgments which the court is required to respect. It is not the function of the court to express views on whether it was a good judgment or not, and I do not do so.

The naming of the Claimant was within the range of judgments open to TNL in this case, partly because it gave the story the interest referred to by Lord Steyn in Re S at para 34 cited above, but more importantly because not naming the Claimant would not have saved his reputation entirely. Rather it would have spread the damage to reputation to all the officers in the extradition unit.

If and in so far as the Claimant’s complaint is that there should never have been the investigation at all, given the evidence available, then that is a complaint which is not related to the publication of the article on 2 June 2006 or on the website.

As already noted, the claim is brought, not only in respect of the print version, but also in respect of the website version of the article. There are before the court two versions of the website printed out. The first was printed out by TNL. It is undated and bears at its top the following in capital letters:

“Warning this article is subject to legal dispute. It should not be relied on or repeated”.

The second version was printed off the internet during the trial on 13 July by the Claimant’s lawyers. It is the result of a search for the words “Gary Flood” using an internet search engine. The second item in the list of results is:

“Detective accused of taking bribes from Russian Exiles

…. Being identified as Detective Sergeant Gary Flood. His home and office were raided… the relationship between Sergeant Flood and a former Scotland Yard Detective… operate with the enquiry. Sergeant Flood has not been suspended but his lawyer… Michael Gillard 02 June 2006 The Times”.

A click on that link brings up the article as set out at the start of this judgment. In addition to the words set out in this judgment there are immediately after the name Michael Gillard and the first paragraph of the text the following words, and no more:

“[this article is subject to a legal complaint]”

The difference between these two versions has not been explained in evidence. But TNL have not disputed that the version printed out by the Claimant’s lawyers is correct. I take it to be the version as it is currently available, whether or not it was available in that form at the time of the issue of proceedings.

The internet is not a complete resource. It contains what people post on it. The Report is not posted on the internet, so far as the evidence before me discloses.

Mr Price submits that where a defendant defends a website publication on the basis of Reynolds public interest privilege, he must do so by reference to the circumstances as they existed at the time of the website publication complained of, and he cannot simply rely upon the circumstances which prevailed at the time of the original publication, that is to say the circumstances at the time when the words were first published in any form.

This was considered and decided upon by the Court of Appeal in Loutchansky v TNL Ltd (Nos 2-5) [2002] QB 783 at paragraphs 77 to 79 (upheld in Strasbourg in its judgment of 10 March 2009: Times Newspapers Ltd (Nos 1 & 2) v UK (Applications 3002/03 and 23676/03)). In that case the Defendant added the following rider to the website article there complained of:

“This article is subject to High Court libel litigation between Grigori Loutchansky and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”

At para 17 of the judgment it is recorded that the trial judge had held that “the defendants had no reasonable grounds to contend that [after a certain date] they remained under a duty to publish these articles over the Internet, nor could they sustain a separate argument for a special "archive" privilege” (the reference to “archive privilege” is explained in the citation from para 71, set out at para 230 below).

The question whether the so called single publication rule applied in relation to Reynolds privilege was considered and decided in the judgment of the Court delivered by Lord Phillips of Worth Matravers MR at para 79:

“A subsidiary reason given by the judge for striking out the defence was that the defendants had repeatedly republished on the Internet defamatory material that was the subject of a defamation action in which they were not seeking to justify the truth of the allegations without publishing any qualification to draw to the reader's attention the fact that the truth of the articles was hotly contested. The judge considered that the republication of back numbers of "The Times" on the Internet was made in materially different circumstances from those obtaining at the time of the publication of the original hard copy versions in September and October 1999. We agree. The failure to attach any qualifications to the articles published over the period of a year on "The Times" website could not possibly be described as responsible journalism. We do not believe that it can be convincingly argued that the defendants had a Reynolds duty to publish those articles in that way without qualification. It follows that we consider that the judge was right to strike out the qualified privilege defence in the second action although not for the primary reason that he gave for so doing. For these reasons the Internet single publication appeal is also dismissed.”

The Internet single publication appeal in Loutchansky had arisen first on a different point. It had arisen out of an interlocutory order by which Gray J refused permission to the defendants to re-amend their defence in one of the actions to contend that “as a matter of law the only actionable publication of a newspaper article on the internet is that which occurs when the article is first posted on the internet”, and so that the publication sued upon in that case was outside the one year limitation period. The judge had rejected that submission on the authority of Duke of Brunswick v Harmer (1849) 14 QB 185 and Berezovsky v Michaels [2000] 1 WLR 1004. The defendants submitted that he was wrong to do so. See Loutchansky paras 15-16.

The defendants argued that, in relation to a book, the limitation period would in practice never expire if the single publication rule did not apply, and that this would be an unjustifiable restriction on a writer’s freedom of expression, contrary to Article 10: Loutchansky para 65-71. The argument included in particular:

“71 Maintaining an archive of past press publications was a valuable public service. If a newspaper defendant which maintained a website of back numbers was to be indefinitely vulnerable to claims in defamation for years and even decades after the initial hard copy and Internet publication, such a rule was bound to have an effect on the preparedness of the media to maintain such websites, and thus to limit freedom of expression”.

The judgment continues as follows:

“72 In answer to these submissions Mr Browne started by emphasising that the principle in the Duke of Brunswick case 14 QB 185 that every publication of a libel gives rise to a separate cause of action is a well established principle of English law that was recognised by the House of Lords in Berezovsky v Michaels [2000] 1 WLR 1004. He submitted that this principle was not at odds with the Human Rights Convention. Article 10 recognised that the right of freedom of expression could properly be restricted "for the protection of the reputation or rights of others". The rule in the Duke of Brunswick case was part of the system of English law that balanced the right of freedom of expression against the entitlement to protection of one's reputation. If the defendants were exposed to liability in the second action they had only themselves to blame for persisting in retaining the offending articles on their website without qualifying these in any way.”

The Court upheld the submissions for the claimant:

“73 … In our judgment the crucial question in relation to this part of the appeal is whether the defendants have made good their assertion that the rule in the Duke of Brunswick case is in conflict with article 10 of the Human Rights Convention because it has a chilling effect upon the freedom of expression that goes beyond what is necessary and proportionate in a democratic society for the protection of the reputation of others.
74. We do not accept that the rule in the Duke of Brunswick case imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.

75 Turning to the defendants' wider argument, it is true that to permit an action to be based on a fresh dissemination of an article published long ago is at odds with some of the reasons for the introduction of a 12-month limitation period for defamation. But the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication. In the present case, as the judge observed, the action based on the Internet publication is subsidiary to the main action.

76 The change in the law of defamation for which the defendants contend is a radical one. In our judgment they have failed to make out their case that such a change is required. The Internet single publication appeal is therefore dismissed.”

Whether or not the scale of a website publication, and any resulting damage, is likely to be modest compared with that of the original publication, will depend on the facts of each case. But the judgment in Loutchansky was delivered eight years ago, in 2001. Since then the use of the internet, and in particular of internet search engines has increased. What has also increased is the amount of material on the internet. In 2001 there were relatively few years of back numbers of newspapers available on the internet. Since then each year’s publications have been added. In most cases, as time passes, the original print publication will become increasingly difficult to access, and would be forgotten. But the website publication will remain, and in some cases (where the fame of a person has increased) it may even be viewed with increasing frequency. So a person’s reputation may be “damaged forever” in the words of Lord Nicholls in Reynolds at p201 cited in para 207 above. As I remarked in another case, quoting from an article by a well known media lawyer, what is to be found on the internet may become like a tattoo (Clarke (t/a Elumina Iberica UK) v Bain & Anor [2008] EWHC 2636 (QB) para 55). Some actual and prospective employers, and teachers, make checks on people by carrying out internet searches. An old defamatory publication may permanently blight a person’s prospects. This may be so, even in those cases where the allegation has been authoritatively refuted, but the refutation is either not on the internet, or, where it is on the internet, its authority is not apparent, or is not credited, on the footing that there is no smoke without fire.

Michael Gillard’s evidence was in itself an illustration of the dangers of the view that there is no smoke without fire. In his evidence in this case he demonstrated at length his view that past allegations against serving or former police officers, even if rejected in proceedings in which these were investigated, remained relevant to his assessment of that police officer. I cannot give detailed examples of these matters without giving unjustifiable currency to defamatory allegations for which there is no evidence, but which were advanced under the protection of privilege which witnesses enjoy in court proceedings, and which the individuals concerned did not have an opportunity to comment upon.

Loutchansky was, of course, before Jameel, but I see nothing in Jameel that casts doubt on this part of the judgment in Loutchansky, and Mr Rampton did not submit that there was anything. On the contrary, at the time Mr Browne was making his submissions in Loutchansky, he could base them only on the qualification of Article 10, namely that freedom of expression could be restricted “for the protection of the reputation or rights of others”. The same argument today, assuming the recognition of reputation as an Aricle 8 right, is, if anything, stronger, since what is to be balanced is no longer a Convention right (Art 10) against a non-Convention right (reputation), but two Convention rights.

Mr Rampton submits that the qualifications which appear on the website, in whichever form they appear, make clear who the complainant is, namely that it is the Claimant. I do not agree. The reader might well understand that the complainant is Mr Berezovsky, or one of the other Russians mentioned in the article, or Mr Hunter. There is nothing to state that it is the Claimant.

Further Mr Rampton submits that TNL can rely on the fact that it offered to publish the outcome of the Report, but this was rejected outright. He relies on the exchange of correspondence that took place in September, as follows.

On 14 September 2007 Mr Brett, Legal Manager of TNL, wrote that TNL had been notified the previous week by DPS that the investigation into the Claimant had been concluded and “there was insufficient evidence to proceed with any criminal prosecution or internal police disciplinary process”. The letter includes an offer to publish what is called “a News in Brief item which would run along the following lines”. There then followed a draft consisting of three sentences. The first two sentences summarised the gist of the allegations made in the article complained of. The third read:

“The Metropolitan Police’s Directorate of Professional Standards has now concluded its investigation into [the Claimant] and found there is insufficient evidence to proceed with any criminal prosecution and [the Claimant] will not be subject to any disciplinary process”.

On 24 September 2007 solicitors for the Claimant responded that this added insult to injury, explaining:

“The investigation did not find ‘there was insufficient evidence to proceed with any criminal prosecution’. There was no evidence, and, as a result, ‘no formal disciplinary proceedings will be taken against’ our client”.

Solicitors for the Claimant drafted their own form of Apology. That did not follow the words of the Report either, and was not acceptable to TNL.

On 28 September 2007 Mr Brett wrote that there were a number of important witnesses who DCI Crump’s team were unable to speak to, including the ISC Insider, and that TNL would have to approach those witnesses if the parties could not resolve the matter in accordance with proposals that he then set out. The letter stated that if the Claimant really did want what he called “a follow up report” to appear in the paper (in the same terms as he had previously offered), the Claimant only had to say so. Mr Brett added:

“But please be under no illusions that your client’s counsel … cannot then in any way hold it against [TNL] for not publishing a follow up report when this matter goes to trial and we rely, not only on a plea of justification but also on a Reynolds qualified privilege defence”.

The wording put forward by TNL is different from that in the Report itself (“unable to find any evidence” – see para 4 above). The communication to TNL referred to by Mr Brett, which is the source for his wording (“insufficient evidence”), is a letter dated 4 September 2007 from DPS to TNL in which DCI Crump wrote:

“Having considered all of the available information, I am of the opinion now that there is insufficient evidence to proceed with any criminal prosecution. I am also of the view that insufficient evidence exists to mount any internal police disciplinary process”.

At this stage nothing turns on the difference between the parties on what was to be published, because in the event TNL did not publish any form of words along those lines. It may become relevant in relation to the form of any relief to be granted in due course.

Each party was entitled to reject the form of words tendered by the other in correspondence. The parties to a dispute are not obliged to settle it, and may choose to litigate. But the risk in relation to the Reynolds public interest defence lay on TNL, and not on the Claimant. It is for a defendant to make good his defence. It may well be good practice to seek to agree a form of follow-up publication in a case such as this. But if there is no agreement, then the publisher must take his own course, and then defend it if he can at trial. He cannot offer the claimant a form of words which the claimant refuses to accept, and then rely on that refusal to relieve him of the obligation of acting responsibly and fairly, at least when the claimant’s refusal is reasonable, as it was here.

The upshot is that in relation to the website, TNL has not put forward anything to show that the continued website publication, without any updating or correction, met the requirements of responsible journalism as time went by. It is true that the Claim Form was issued on 31 May 2007, and technically does not complain of website publications in and after September 2007. But no point is taken on that technicality. Mr Rampton relied on the correspondence referred to above.

Some of the factors that applied in relation to the print publication on 2 June 2006 apply to the website publications since then. But there have been significant developments since then. After September 2007 TNL knew that there had been an investigation which had been completed, and the outcome of it. The status of the information had therefore changed for the worse (Reynolds Factor 5). On 5 November 2008 TNL obtained copies of documents from IPCC, as set out above. No evidence adverse to the Claimant’s case has come to light from any of the further investigations to which Mr Brett was referring in his letter of 14 September 2007. TNL can no longer state that the website publication includes a fair representation of the Claimant’s case (Reynolds Factor 8). His case now includes the favourable outcome to the investigation.

Nor can TNL rely on any of the public interest factors which they relied on in relation to the print publication (Reynolds Factor 2). And Mr Rampton has not advanced any other. As already mentioned, one of the principal points of public interest advanced for the print publication was that Michael Gillard’s purpose was to call for an investigation, and, when he learnt that there was one, to ensure that it proceeded in a timely fashion. That purpose had been fulfilled to TNL’s knowledge by 14 September 2007, and The Times has not continued to call for an investigation, or otherwise explain the continuing public interest in the website publications.

A further factor is that the plea of justification is limited, as set out above. It may or may not succeed. Even if it succeeds, that would be consistent with the Claimant being entirely innocent. The most recent circumstance to have changed since the original print publication is that the Claimant and Mr Hunter have given the evidence I have summarised above, and that they were asked no questions at all. This will be relevant to any relief to be granted, and any further complaint the Claimant may make as to future publication on the website. But it also goes to the care that a responsible publisher should take to verify the information published (see Lady Hale’s words in Jameel para 149). TNL do not challenge the Claimant’s evidence, but neither do they act as a responsible publisher would act when faced with such evidence. TNL have been aware of the Claimant’s case, and his evidence, prior to trial in the usual way, but have shown no response to it, such as would be appropriate to such unchallenged evidence.

I reach the same conclusion in this case as the Court of Appeal reached in Loutchansky at para 79. The failure to remove the article from the website, or to attach to the articles published on The Times website a suitable qualification, cannot possibly be described as responsible journalism. It is not in the public interest that there should continue to be recorded on the internet the questions as to the Claimant’s honesty which were raised in 2006, and it is not fair to him. It is not in the public interest for the reasons given by Lord Nicholls in Reynolds at p201 cited in para 207 above.

In the form in which this judgment was circulated in draft I had included in the second sentence of the previous paragraph the words “over the period since at least September 2007”. In other words I found that the defence of qualified privilege failed from at least September 2007. And I added that I had not been asked to, and have not, made a finding as to the precise date from which it fails. Following circulation of the draft, TNL asked for clarification of the date from which the defence failed, and I permitted both parties to make further submissions, and to put before me letters exchanged between the parties which had been omitted from the trial bundle.

Mr Price’s primary submission was that it was clear from the draft judgment that I had rejected the defence of qualified privilege in relation to the website publications from their commencement, on the same day as the print publications. That is not correct. It was not my intention to find that that the website publications were unprotected from their commencement. Such a finding would be inconsistent with my finding that the print publication was protected by qualified privilege. Since the website publication commenced on the same date as the print publications, on any view for at least some period of time the factors that led me to uphold the defence of qualified privilege in relation to the print publication must apply with equal force to the website publication.

The reason why I was unable to make a precise finding as to the date from which the defence of qualified privilege failed was related to the way the parties had advanced their cases. TNL had made no separate case in respect of the website publications. Their case on the print and website publications was the same. They advanced no alternative case in the event that I might find (as I have) that the print publication was protected by qualified privilege, but at least from some subsequent date the website publications were not. For his part the Claimant had referred to a number of different dates upon which, on his case, the facts relevant to qualified privilege changed materially. In the Particulars of Claim he had pleaded that TNL had continued to publish the article online despite the contents of two letters, one dated 18 July 2006 and the other dated 22 December 2006. In his amended Reply the Claimant alleged that the TNL had no continuing duty (within the meaning of Reynolds) to publish the words complained of without a suitable update. In the Reply he identifies (amongst other later dates which are irrelevant) the dates of 18 July 2006 and 5 September 2007. He does not, in the Reply plead the intermediate date of 22 December 2006, but I attach no significance to that omission. However, the letters dated on and between 16 July 2006 and 4 September 2007 were not in the trial bundles, and I was not taken to them at the hearing.

The letter of 16 July 2006 is a letter before action. It sets out over two pages the allegations about which the Claimant complains, and the Claimant’s denials. It is to be recalled that in the article at paras [8] and [9] TNL recorded the Claimant’s denials of the allegations. In my judgment the letter of 16 July 2006 does not contain anything of substance which ought to have led TNL to update their website at that point. The Claimant also complains that the article did not report that the investigation was into allegations made by TNL. I do not accept that that is a complaint that affects the issue of qualified privilege, for the reasons set out in para 191 above.

In the letter of 22 December 2006 the Claimant’s solicitors wrote informing TNL, amongst other matters, that:

“… as of 20 December our client has been authorised to return to his original duties as the investigation has concluded that there is no evidence to support any allegations of wrong doing on the part of our client, whether as alleged by yourselves or otherwise and he has been totally exonerated”.

On 11 January 2007 TNL stated that they did not accept that the investigation had been concluded, although TNL accepted that the Claimant had recently returned to the Extradition Squad. TNL asked to see “the conclusions [of the investigation] and any recommendations made” and a copy of the official form supporting the Claimant’s statement. They received no response. The fact that TNL accepted the Claimant had returned to work was an important development, because the article stated that he had been moved temporarily from his post, albeit not suspended (paras [2] and [9]). However, I do not consider that it is so significant that I could find that a failure to update the website in response to the letter of 22 December 2006 means that TNL fell below the standard of responsible journalism or was unfair to the Claimant.

The Claim Form was served on 31 May 2007, and on 1 August 2007 the Claimant’s solicitors explained their letter of 22 December 2006. They said that they had seen no point in replying to TNL’s letter of 11 January. They stated that they anticipated receipt of the official form (known as form 163A) imminently. On 31 August 2007, following further correspondence from TNL, the Claimant’s solicitors stated that they had been able to say what they did on 22 December, namely that the investigation had been concluded, and that there was no evidence to suggest any wrongdoing by the Claimant, because that is what he had been told by his superiors, and because that was supported by the fact that he was returned to his original duties without restrictions. On 5 September 2007 the Claimant was issued with form 163A, which stated that there would be no formal disciplinary proceedings. The Claimant does not know why the form was not issued before that date. The Claimant’s solicitors sent a copy to TNL. The form is headed “Notification of Result of Investigation … referring to Investigation into allegations made by the Sunday Times”. TNL responded on 14 September referring to the notification made to TNL on 4 September, as set out in para 242 above.

In my judgment, as from receipt of the letter of 4 September, which would normally have been on 5 September 2007, responsible journalism required that TNL publish an update to their website. None was published, and I do not have to consider in what terms it should have been. Accordingly, the defence of qualified privilege fails in respect of subsequent publications.

There was a further point advanced by Mr Price which I do not accept. He submitted that the website publications were not responsible journalism because it was clear at some point, and in particular after the disclosure of documents by IPCC, that the MPS investigation on which the article complained of had reported had in fact been caused by the Defendant. The conclusion does not follow. As I have found in relation to the print publication, the fact that the investigation may have been precipitated by the journalists is not a reason why they should not have the benefit of Reynolds public interest if they report on the investigation. It might well be otherwise if what they were reporting was their own allegations made to the police on 27 and 28 April 2006. But that was not what the article reports on.

Although in this judgment, I have adopted the assumption that a person’s right to protect his or her reputation, at least in a case such as the present, is amongst the rights guaranteed by Art 8, it would have made no difference if I had not adopted that assumption. The assumption favours the Claimant. In relation to the print publication, the assumption has not enabled him to succeed, and so he would be no better off without the assumption. In the case of the website publication, I would have reached the same conclusion even if I had not adopted the assumption.

In summary, for the website publications sued on, I find that the defence of qualified privilege succeeds in respect of publications made up to 5 September 2007. It fails in respect of publications made as from 5 September 2007.

What I have decided determines the preliminary issue that was ordered to be tried. What is to follow from my decision on this point must be considered in the light of further argument, whether before me, or after the trial of the remainder of the issues in the action. On distribution of this judgment in draft I will invites submissions as to what directions or orders should be made.

In considering what these should be, much may depend upon what are the remaining issues in the action. There is a limited plea of justification as set out in para 7 above. It is a matter for further submission whether or not any order consequential upon my decision can or should be made before determination of the issues on the plea of justification.

The defence of qualified privilege succeeds in respect of the print publication and website publications made up to 5 September 2007. It fails in respect of the website publication made after 5 September 2007.