Police of the Metropolis & Anoir v Times Newspapers Ltd & Anor

On 30 September 2010 TNL served its Defence. It raised defences of truth, including to the meanings complained of by Mr Hunt, and Reynolds Public Interest Privilege. TNL pleads that he is a violent and dangerous criminal and the head of an organised crime group (“OCG”) involved in murder, drug trafficking and fraud. In the alternative it pleads lesser meanings which it states to be true. On 4 November 2010 Mr Hunt applied to strike out large parts of the defence of justification, but not the Reynolds defence.

On 30 November TNL applied for non party disclosure orders against the MPS, SOCA, Essex Police and HMRC (“the law enforcement agencies”), seeking documents in support of its defence of justification in Mr Hunt’s libel action. The little that Mr Hunt has been told about that application appears from the witness statements of Ms Sarma of TNL dated 25 February 2011 and of Mr Jenkins for Mr Hunt dated 16 March 2011.

At a hearing on 2 December 2010 I struck out most of the Particulars of Justification pleaded by TNL, while giving permission to apply to amend to re-plead justification. Mr Millar for TNL stated that TNL wished to have an opportunity to re-consider the pleading both of the defence of justification and of the Reynolds defence, by, in particular pleading further details in relation to the sources of the information relied on.

There are passages in the words complained of which refer to “police sources” or to information which the writer, Mr Gillard, appeared to have obtained from police sources. The particulars of the Reynolds defence make a number of references to “authoritative police sources” for example in para 9.13 it is pleaded:

“Numerous police sources, … identified Mr Hunt to Mr Gillard as a well known East London organised crime boss implicated since the 1980’s in murder, drug trafficking and fraud. The information received from the different police sources was entirely consistent in this regard and there was therefore verification of this information from a number of authoritative sources.”

At the end of the article there is a reference to the trial of a Mr Charles Matthews Junior. It is stated that that had been abandoned when he made allegations that three police officers in the case were in a corrupt relationship with Mr Allen, who is also mentioned in the article. The article reports that the officers were exonerated following an inquiry.

The article concludes by saying Mr Hunt declined to comment. In the particulars in support of the Reynolds defence it is pleaded that on 21 May 2010 Mr Gillard had spoken to Mr Hunt’s solicitor, a Mr Ewing, offering Mr Hunt an opportunity to comment, but Mr Hunt did not avail himself of this opportunity.

Those advising TNL prepared a draft Amended Defence with a view to applying for permission to amend. Before doing that, they provided a copy to the law enforcement agencies, together with a number of documents which TNL intended to rely upon in support of its applications for non party disclosure.

On 26 January 2011 TNL gave the law enforcement agencies notice of its intention to serve Mr Hunt with the draft Amended Defence the following day. On 27 January 2011 at a hearing held in private, MPS and SOCA applied to me for an interim injunction to prohibit TNL from doing this. In a public order I recorded that I accepted undertakings from TNL and Mr Gillard to keep documents containing confidential information secure and made an order restraining TNL and Mr Gillard, until trial of the injunction proceedings, from using the confidential material in Mr Hunt’s libel action (including by referring to that material in any draft amended defence).

On 28 January 2011 MPS and SOCA issued a claim form against TNL and Mr Gillard. The court file in those proceedings (“the injunction proceedings”) has been sealed. It also served a Defence in the injunction proceedings on 7 March 2011.

It is against that background that the following applications came to be before the court on 22 March in the libel action: (1) On 23 February 2011 Mr Hunt applied for further directions in his libel action, and in particular for an order that TNL serve its amended Defence within seven days; (2) On 25 February 2011 TNL applied for an order that Mr Hunt’s claim be “stayed generally” or until the conclusion of the claim brought against it by MPS and SOCA in the injunction proceedings. On the same day there was also listed (3) an application in the injunction proceedings by TNL and Mr Gillard to vary the order I had made on 27 January 2011 so as to allow TNL to defend the libel action by unrestricted use of the confidential information referred to in that material.

The basis of Mr Hunt’s application, as advanced by Mr Tomlinson, was that Mr Hunt is being deprived of his rights, under Article 6 and the common law, to access to the court and to a fair trial within a reasonable time. However, although his application was for directions, which he wishes to be made quickly, Mr Tomlinson submitted that TNL’s application for a stay should not be heard by me. The reason he gave is a powerful one, as I indicated at the hearing. It is that I have heard and seen things in the injunction proceedings which Mr Hunt has not seen, and which the law enforcement agencies object to being disclosed to Mr Hunt. Mr McCormick submitted that I should hear TNL’s application in the libel action before its application in the injunction proceedings. I decided that I should hear TNL’s application in the injunction proceedings first. I adjourned Mr Hunt’s application. It is to be refixed before another judge, unless this court is asked to, and does, rule otherwise. It is likely to be heard on the same occasion as TNL’s application for a stay of the libel action.

I then sat in private to hear the application of TNL and Mr Gillard in the injunction proceedings. There is little that can be said about the details of that case in this open judgment. However, an outline of the issues has already been given to Mr Hunt in the skeleton argument of TNL produced in relation to Mr Hunt’s application.

It is not only Mr Hunt who relies on Art 6. TNL also relies on its rights, under Article 6 and the common law, to a fair and public hearing within a reasonable time. It also relies on its right to “equality of arms” which requires that it be afforded a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis a vis its opponent, Mr Hunt.

Mr Millar submits that TNL cannot have a fair trial if it is not permitted to use the material from police sources that it already has, and further material which it is seeking by non party disclosure. He refers to a number of authorities including De Haes and Gijsels v. Belgium (1997) 25 EHRR 1.

TNL also relies on its rights to freedom of expression under Article 10. It submits that that right would be infringed if it is not permitted to establish the truth of the statements contained in the article. Mr Millar refers to a number of cases including Castells v Spain (1992) 14 EHRR 445.

It is important to stress the scope of this submission, which, as far as I am aware is a novel and important one. Mr Millar submits that it is not sufficient, even if it be the case (which he does not accept), that TNL could have a fair trial of its Reynolds defence. It will not have a fair trial, and its rights under Article 6 and Article 10 will be infringed, if it does not also have the right to present its case on truth under conditions that do not place it at a disadvantage to Mr Hunt.

As to the Reynolds defence, TNL wishes to use the material from the police sources referred to in the article to demonstrate that it has acted responsibly, while at the same time protecting its and Mr Gillard’s confidential sources. It is open to a journalist to conduct a Reynolds defence without revealing confidential sources. But it is generally more difficult to make good the case that the journalist has acted responsibly if the trial court is not told details about the source, and the material provided by the source, from which the journalist claims to have derived the material published in the words complained of. This is one reason why a defendant may wish to rely on both a Reynolds defence and a defence of truth or justification.

It is an important feature of the law of England and Wales, and the law of most other common law jurisdictions, that the defendant in a libel action has a right to plead a defence of truth, and if he does so, he has the rights of disclosure or discovery against his opponent and against non parties. These rights and procedures enable the court to conduct a full investigation into the truth or falsity of the allegation. The trial will be conducted orally, with cross-examination of witnesses. The importance of this right has been illustrated in many cases in the past in which claimants have sometimes been vindicated, and sometimes proved to be serious criminals. In each type of case this has occurred when the outcome was different from that expected on the basis of initial appearances.

The application by TNL and Mr Gillard in the injunction proceedings is an interim application. But it raises many, if not all, of the issues which are raised in that action. So the first question that has to be decided is whether this application can be dealt with by way of interim proceedings, or whether I should dismiss the interim application and leave the matter to be decided at a trial. Mr McCormick, for the Claimants in the injunction proceedings, submits that the court should take this course, whether or not there should be a stay of Mr Hunt’s libel claim. He also submits that it is only if a stay of the libel action is refused that it could be necessary to consider the application by way of an interim proceeding.

However, for reasons I have already stated, I have not heard the application in the libel action. So I must proceed to decide what issues I can in the injunction proceedings without knowing whether or not on another occasion the court will or will not order a stay of the libel action.

Mr McCormick also submits that it is difficult for any judge in the injunction proceedings to determine at this stage of the libel action to what extent TNL’s rights to a fair trial or to freedom of expression are actually prejudiced by the order I granted on 27 January 2011 in the injunction proceedings. Accordingly it is equally difficult to decide to what extent it is necessary or proportionate to vary that injunction at this stage. He submits that there are further steps that TNL could take in the libel action which would clarify the position, and that there are other means available to TNL to obtain relevant documents or evidence upon which it ought to rely, rather than on the confidential material it already has in its possession, if it is going to pursue its defences. Mr McCormick referred to my decision in another action brought by Mr Hunt on allegations which are similar to those made by TNL, and in which a defence of justification survived challenge in terms that were more extensive than TNL claim that they are in a position to plead in this action: Hunt v Evening Standard Ltd [2011] EWHC 272 (QB) (18 February 2011)

Having heard argument for much of the day from both Mr McCormick and Mr Millar, I concluded that it is not possible to resolve the issues in the injunction proceedings on an interim application. The matter must proceed to a trial.

In the time available I did not hear full argument on the points of law referred to above, and the other legal issues involved. These are important points, and it may be difficult to resolve them without hearing argument from all those involved. It may be that these legal points will arise for consideration separately in the injunction proceedings and in the libel action. If it were possible for the same judge to decide the issues in both actions, having heard all parties who wished to be heard, then that would have advantages. But for reasons stated above, that may well not be possible.

I see the force of the argument based on Castells and the other authorities referred to by Mr Millar on the right of defendants to advance a defence of truth. But my provisional view is that they do not address the situation in this case. The situation in this case is that the defendant does have another defence, namely Reynolds,andthe court could take the view that a fair trial of the action based on that defence is possible, whether or not the TNL can rely on the defence of truth or justification. If Castells and the other authorities do not determine the point, the submission for TNL is not necessarily any the worse for that, but it will require more argument.

Nor did I hear full argument on how the court should resolve what is here said to be a conflict between the Art 6 rights of each side, Art 6 being, of course, an unqualified Convention right. In cases such as De Haes the Strasbourg court found that what the national courts had done was a breach of the defendants’ Convention rights. It did not give any indication as to what the national courts ought to have done, in particular in the event that the rights of third parties to keep the relevant documents to themselves could not be overridden. Mr Tomlinson in his skeleton argument for Mr Hunt referred to Al-Rawi v the Security Services [2010] EWCA Civ 482, where related issues have arisen. Mr Tomlinson also included in his authorities bundle the extract from Gatley on Libel and Slander 11th ed at para 13.32, in which it is suggested that if material protected by Parliamentary privilege, or some other privilege of third parties must be excluded, and if the fair determination of the case is then quite impossible, the correct course would be to stay the proceedings. The footnote refers to Hamilton v The Guardian, The Financial Times, July 22, 1995, where the claim was stayed. However, 1995 was before the coming into force of the Human Rights Act 1998. The suggestion that a stay of the claim is sometimes the appropriate outcome reflects jurisprudence in the USA (in some cases but only some cases), based on the principle in Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875). See Fitzgerald v Penthouse International Ltd 776 F.2d 1236, 1237 (4^th Cir. 1985) and Price v Viking Penguin, Inc., 676 F. Supp. 1501, 1514-15 (D. Minn. 1988), aff’d, 881 F.2d 1426 (8^th Cir. 1989). But this line of authority has never been adopted or even discussed in any English authority, so far as I am aware.

The position of Mr Hunt following this judgment

In the present case the allegations against Mr Hunt could not be more serious, and his Art 8 rights are engaged, in addition to his Art 6 rights. And he is entitled to the presumption of innocence. Effect is given to the presumption of innocence not only by Art 6(2), which refers to persons charged with a criminal offence, but also by the requirement of the law of libel that TNL, as the defendant, prove the allegations of criminality that it pleads in its defence of truth.

It follows that nothing in this judgment should be taken by anyone as derogating in any way from the presumption that the allegations against Mr Hunt are false unless and until they are proved to be true by TNL.

The position of TNL following this judgment

TNL has not succeeded on this application to vary the order I made on 27 January 2011. But it is also concerned about certain matters which it would have wished me to include in this judgment, but which I have omitted.

I have not set out anything about the submissions or evidence of the law enforcement agencies other than what Mr Hunt has already been told in one way or another in documents produced in the libel action. McCormick objected to the suggestion that I should include such matters. I decided not to include them because, until the issues in the injunction proceedings have been determined, any such disclosure might risk prejudicing the outcome of those proceedings.

Nor have I expressed any view as to the merits of TNL’s submission that its ability to defend the libel action is materially restricted if it is unable to use material which is the subject of the injunction proceedings. There are two separate but related bases upon which TNL is seeking a finding that its ability to defend the libel action is materially restricted if it is unable to use material which is the subject of the injunction proceedings. In the injunction proceedings it is seeking that finding as a ground for its main submission that it is necessary in the public interest, and in the interests of justice being done in the libel action, that the claims of the law enforcement agencies should be overridden. If it fails in the injunction proceedings, TNL seeks the finding in the libel action as a ground for its submission that it is necessary in the interests of justice that Mr Hunts’ claim be stayed.

All that I can say on TNL’s submission at this stage is that it raises a serious issue to be tried. This is implicit in the decision expressed above that the injunction proceedings must proceed to trial, and from the submissions of Mr McCormick set out in para 22 above.

Conclusion

For these reasons, Mr Hunt’s and TNL’s applications in the libel action will be adjourned to be heard by another judge. TNL’s application for a variation of my Order of 27 January 2011 will be dismissed. And I invite the parties to this action to agree directions for it to proceed to trial.