Flood v Times [2012] UKSC 11 (21 March 2012) Strong statement of libel defence of responsible journalism

Lord Phillips

99. Although the judge considered, on the basis of Jameel, that responsible journalism did not require verification of the accusation made by the Article, his careful analysis of the evidence involved consideration of the evidential base of the allegations made in the Article. The judge concluded that the case against Sergeant Flood was not strong on the facts known to the journalists, but found it significant that the police appeared to have sufficient evidence to justify obtaining a search warrant and the other action that they took. There is a danger of using hindsight in a case such as this. My initial reaction on reading the facts of this case was that the journalists had been reasonably satisfied, on the basis both of the “supporting facts” and of the action of the police that there was a serious possibility that Sergeant Flood had been guilty of corruption. After a detailed analysis of the case I remain of that view. Contrary to the decision of the Court of Appeal, I consider that the requirements of responsible journalism were satisfied. I would allow this limb of the appeal.

Lord Browne

114. To my mind the critical question in this appeal – indeed the only real point of principle calling for decision – is whether it can ever properly be said to be in the public interest to publish, as here, the detailed allegations underlying a criminal investigation – to publish, in effect, a summary of the case against the suspect, reliant in part on anonymous sources, before even the police have investigated the allegations, let alone charged the suspect.

118. At the end of the day, however, I am persuaded that there is no principle of law which precludes TNL from invoking Reynolds privilege in a case such as this. …

119. Of course not every anonymous denunciation to the police will attract Reynolds privilege. Far from it. That, as Mr Price QC for Sergeant Flood was at pains to point out, would indeed be a “charter for malice”. But where, as here, the denunciation is of a public officer, relates to a matter of obvious public importance and interest, and may justifiably appear to the journalists to be supported by a strong circumstantial case, it seems to me properly open to the trial judge to find the defence made out.

Lord Mance

137. The courts therefore give weight to the judgment of journalists and editors not merely as to the nature and degree of the steps to be taken before publishing material, but also as to the content of the material to be published in the public interest. The courts must have the last word in setting the boundaries of what can properly be regarded as acceptable journalism, but within those boundaries the judgment of responsible journalists and editors merits respect. This is, in my view, of importance in the present case.

179. … Balancing the competing interests in this case, the judge was in my view justified in the present case in regarding the article concerning DS Flood as covered by the public interest defence recognised in Reynolds and Jameel. The starting point is that the investigation into possible police corruption in the area of extradition of a Russian oligarch to Russia informed the public on a matter of great public interest and sensitivity. TNL journalists were motivated by a concern to ensure that the investigation was being or would be properly pursued. They had themselves investigated the sources and nature of the allegations exhaustively over a substantial period as far as they could. The article would have been unlikely to be publishable at all without details of the names and transactions involved in the alleged corruption. The facts regarding such transactions were accurately stated.

180. The article, although undoubtedly damaging to DS Flood’s immediate reputation, was balanced in content and tone (certainly much more so, I add in parenthesis, than the articles in issue in White v Sweden: paras 140-141 above). It did not assert the truth of the reported allegations of impropriety made by the ISC insider, but it identified them as the basis of an investigation in progress to establish whether there had been any impropriety. DS Flood and all others implicated in the allegations of impropriety were given the opportunity of commenting, and their denials in that regard were in each case recorded. Such omissions as there may have been in the reporting were in the overall context minor. The judgment of the journalists and editors of TNL as to the nature and content of the article merits respect: paras 127-137 above. All these and other relevant factors fell and fall to be weighed in the balance.

181. On this basis, there was, in my judgment, no good reason for the Court of Appeal to depart from the judge’s overall assessment that publication of the article was in the public interest, despite its immediate adverse effect on DS Flood’s reputation. On the contrary, I agree with the judge’s assessment.

Lord Clarke

184. I agree that the first limb of this appeal should be allowed for the reasons given by Lord Mance and Lord Dyson. I agree with Lord Brown that, for the reasons he gives, there is no principle of law that precludes TNL from invoking Reynolds privilege in a case such as this. I further agree with him that, as he puts it at para 113, in such a case the judge is deciding but a single question, namely whether those who published the defamation, given what they knew and did not know and whatever they had done or had not done to guard so far as possible against the publication of untrue defamatory material, could properly have considered the publication in principle to be in the public interest.

Lord Dyson

198. would, therefore, hold that for all the reasons summarised by Lord Mance at paras 179 to 181 above, there was a public interest in the publication of the details of the allegations or the supporting facts in the article. Subject to what I have said at para 195 above, I also agree with what Lord Phillips says about this.

via bailii.org

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