Flood v Times Newspapers Limited  UKSC 11
Supreme Court restores Times’ Reynolds privilege defence
The Claimant is an officer in the Metropolitan Police Service (‘MPS’), who worked in its Extradition Unit. He brought a libel action over an article published in The Times on 2 June 2006 and on www.timesonline.co.uk. The article reported that allegations had been made to the police about the Claimant and that the MPS was investigating whether he had corruptly received money for information. Times Newspapers Limited (‘TNL’) advanced defences of justification and Reynolds privilege.
The Reynolds defence was tried as a preliminary issue by Tugendhat J. He found in favour of TNL in respect of the publication in the newspaper and all online publications until 5 September 2007, which was when the MPS informed TNL that its investigation was concluded and no evidence of wrongdoing had been found  EWHC 2375 (QB). The Court of Appeal reversed Tugendhat J’s decision that Reynolds privilege applied ( EWCA Civ 804).
In this decision, the Supreme Court (Lords Phillips, Brown, Mance, Clarke & Dyson) overturned the Court Appeal on the “first limb” of the appeal, holding that the Reynolds defence was made out in respect of all publications until TNL was informed of the outcome of the police investigation. Two of the principal issues which fell to be considered were the public interest in publishing the article and whether the journalists had sufficiently verified the information. (The question of the website publications after 5 September 2007 (the “second limb”) remains to be determined.)
Summary of the facts
Tugendhat J had made extensive findings of fact at trial, none of which had been challenged by the Claimant on appeal.
In essence, the article was the result of a lengthy investigation by three journalists, Michael Gillard, his father (Mr Gillard Snr) and Jonathan Calvert, editor of Insight at The Sunday Times. Between December 2005 and April 2006, the journalists had various contacts with sources, from whom Michael Gillard had learned about the possibility that a security company, ISC, had been paying the Claimant for information about extradition matters which would be of interest to its clients, including Boris Berezovsky. In the course of this investigation, the journalists learned that an “ISC Insider” had gone to the police in February 2006 with allegations and information. Mr Gillard Snr had various meetings with the ISC Insider who provided the journalists with copies of the documents which he had given to the police, including ISC financial documents which showed payments of £20,000 to “Noah”. The ISC Insider told Mr Gillard Snr that he believed Noah was the Claimant.
In April 2006, the journalists tried to contact the Claimant (in order to put the allegations to him). The Claimant put the matter into the hands of the MPS’s press office and asked for any contact to be made through it. It subsequently appeared that, as a result of the journalists’ contact, the MPS started an investigation; this involved temporarily removing the Claimant from his post and obtaining search warrants for his home. That investigation, by a DCI Crump, ultimately cleared the Claimant some months later.
The article reported the fact that the police were investigating the matter, which the MPS had confirmed in a statement to the journalists in April 2006, the Claimant’s name and various other facts, including the financial documents which the ISC insider had given to the MPS in February 2006 (which Lord Phillips referred to as the “supporting details”)
The Claimant’s case was that the article conveyed a Chase level 2 meaning (i.e. that there were grounds to suspect him of corruption), while TNL’s case was that the article conveyed essentially a Chase level 3 meaning (i.e. that there were grounds to investigate the matter). With the justification matter outstanding, at trial Tugendhat J had not made any rulings on meaning and accepted that he did not have to do so as the parties’ pleaded meanings were not too dissimilar.
The Reynolds defence: an overview
Lord Phillips reviewed the relevant case law (paras 26-52). He re-iterated that the Reynolds defence engages two broad questions, namely the public interest and responsible journalism and stressed their interconnectedness: responsible journalism requires “striking the right balance between the public interest in the subject matter of the publication on the one hand and the harm to the claimant should the publication prove to be untrue on the other” (para 30). Lord Mance also stressed that how the questions were intertwined: “It will not be, or is unlikely to be, in the public interest to publish material which has not been the subject of responsible journalistic enquiry and consideration” (para 123).
In the course of reviewing the House of Lords decision in Jameel v Wall Street Journal  1 AC 359, Lord Phillips referred to Baroness Hale’s formulation of the public interest test of Reynolds. She had stated that the defence sprang from “the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information. ” and “there must be some real public interest in having this information in the public domain”. Lord Phillips observed that he doubted that formulation could be bettered (para 42), something with which Lord Mance agreed (para 126).
Lord Mance emphasised that the authorities required the publication to be considered in the round and that, even where journalists could be criticised in some respects, that did not necessarily deprive a publication of Reynolds defence (para 130-131). Unlike Lord Phillips, he stressed the role to be afforded to editorial judgement when considering what details (including the subject’s name) were permissible (paras 132 & 137). Lord Dyson also focused on the defence requiring all the circumstances to be considered (para 188).
One difference of approach between Lord Phillips and the other Justices was the relevance afforded to decisions outside the law of defamation. Lord Phillips held that although Reynolds privilege engages rights under Article 8 and 10 and is a “balancing operation”, caution should be exercised in applying the balancing exercise between those rights from other circumstances (para 45-46). Although he did not expressly disagree with Lord Phillips, Lord Mance relied on a number of English and Strasbourg authorities not concerned with defamation.
Meaning in a Reynolds case
Lord Phillips held that it is necessary to consider what an article means, in order to consider what needed to be ‘verified’ in order to satisfy the standard of responsible journalism. He observed that in many cases, it may be sensible for parties to agree to trial by judge alone, so that Reynolds may be tried as a preliminary issue (para 49). It did not matter in this case that this had not happened, because the meanings advanced by the parties were not substantially different and there was no dispute that the parties’ respective cases fell within the range of possible meanings. Lord Phillips stressed that this range of meanings will always inform a judge’s conclusions on whether the journalism was responsible because a responsible journalist will take such matters into account in deciding what and whether to publish (para 52) (see also Lord Brown at 111).
The public interest in the article
The Supreme Court held (contrary to the Claimant’s case), that the Reynolds defence can apply to reports of allegations of criminal conduct, whether they are the subject of a police investigation or not, and to reports which include details of that accusation (Lord Phillips at para 68.) Lord Mance noted that publishing unproven allegations of serious wrongdoing risks serious damage to reputation, but went on to hold that “any journalist who publishes allegations must consider carefully the public interest in doing so and the terms in which he does so, at a time when the allegations have not been investigated or their accuracy determined, and weigh these against the risk of unjustified damage to the reputations of those affected.” (para 177). Lord Dyson held that there was no basis for any general rule that details apparently supporting an accusation of wrongdoing made to the police cannot be published, whether because of “risk of trial by media” or otherwise (something which Lord Moore-Bick had held in the Court of Appeal). Such a rule would be inconsistent with the decision in Reynolds, with Strasbourg authority which requires restrictions on freedom of speech to be necessary and with giving appropriate weight to the role for editorial judgement (paras 192-194).
Although Lord Brown expressed some concern about this type of story attracting a Reynoldsdefence, he held that it was appropriate for the defence to be available where, as in this case, the matter was of obvious public importance and it was justifiable for the journalists to think there was a strong circumstantial case against the Claimant (para 119).
Of particular interest is Lord Dyson’s distinction between when accusations are made against ordinary individuals and when they are made against those who perform public functions and the accusation relates to that performance. The risks of “trial by media” may weigh heavily in the former case, but Lord Dyson doubted that they would weigh heavily in the latter (para 195).
Considering The Times’ article, Lord Phillips held that “The story, if true, was of high public interest. That interest lay not merely in the fact of police corruption, but in the nature of that corruption. The object of the Extradition Unit of the Metropolitan Police was to assist in the due process of extradition. The accusation was that there were grounds for suspecting the respondent of selling sensitive information about extradition for the benefit of Russian oligarchs who might be subject to it. What was suggested was not merely a corrupt breach of confidentiality, but the betrayal of the very object of his employment by the police.” (para 68)
Lord Phillips also recorded that Tugendhat J had accepted Michael Gillard’s evidence that one reason for publishing the story was because he suspected the police were not investigating the ISC insider’s allegations properly. As Lord Phillips noted this finding was not challenged on appeal, and he accepted it was a “legitimate aim” of publishing the story (para 69). As it subsequently turned out, Michael Gillard had good reasons for doubting that the police were being diligent. Lord Mance observed that there were no grounds on which the Court of Appeal could depart from the trial judge’s finding on that point even though the article itself was not framed in such terms, that is, it did not report any failure of the police to investigate (para 165). Lord Mance also held that the article, stripped of the details, was unlikely to have been published and a bare report of the police statement would not have furthered the public interest of pushing the police into investigating the matter (para 170). This aspect of the public interest, namely to promote a proper investigation, is an important consideration behind much of their Lordships’ reasoning.
The public interest in naming the Claimant
Lord Phillips’ speech also invokes a distinction between public figures and others. He held that he would not have accepted that identifying the Claimant was in the public interest had it been possible to publish the story without such details because, as most would not have heard of the Claimant, naming him would not “engage” the public (para 73). However, Lord Phillips held that on the facts it was not possible to report the story without naming the Claimant and doing so “did not conflict with the test of responsible journalism or with the public interest”.
Lord Mance differed in his reasoning. Although he held that naming the Claimant did not reinforce a central part of the story in the same way as it did in Jameel (where naming the claimants who were such prominent Saudis showed how seriously the Saudi authorities were co-operating with the US in the wake of 9/11), it would have been “very much disembodied” to have reported the ISC insider’s allegations in an anonymised article. In so holding, he was referring to the (non-defamation) case of Re S (considered at para 135). Lord Mance highlighted the fact that, in order to avoid identifying the Claimant, the article would have had to anonymise others who were touched by the ISC insider’s allegations, namely the head of ISC and its client, Mr Berezovsky. Such an article would not have served the purpose of encouraging the police to investigate properly (para 169). Lord Dyson agreed that as a matter of editorial judgement, naming the Claimant was justified (para 199).
The steps taken to verify the information (Lord Nicholls’ 4th circumstance)
In Reynolds, “the steps taken to verify the information” was one of the 10 circumstances which Lord Nicholls held could be relevant to determining whether the publication in question satisfied the requirement for “responsible journalism”. The question of verification assumed importance in the litigation, because the Court of Appeal had found that the allegations were ‘unverified’.
Lord Phillips stressed that what verification may be required will vary with the facts of each case and the meaning of the article. In this case, where the public interest lay in the contents of what was reported (and not merely in the fact of it, as in reportage cases) the responsible journalist must consider the likelihood of his allegations being true. Although there can be “no hard and fast principles”, what may be required of a journalist can include the journalist satisfying himself based on information from reliable sources. Lord Phillips held that in this case “responsible journalism required that the journalists should be reasonably satisfied that both the “supporting facts” were true and that there was a serious possibility that Sergeant Flood had been guilty of the corruption of which he was suspected. The latter requirement reflects the range of meanings that the Article was capable of conveying to its readers” (para 81).
Based on the unchallenged findings of the trial judge, the “supporting details” were true (para 87) and the information from the ISC insider amounted to “quite a strong circumstantial case” (para 96).
Lord Mance held that the Court of Appeal’s findings “undervalue the nature and significance of the steps which the TNL’s journalists actually took” (para 160) and that it was not possible to fault Tugendhat J’s conclusion that “no criticism could be made of what the journalists did by way of steps taken to verify the information received …” (para 167) .
In addition, it was responsible for the journalists to conclude that, at the time of publication, the ISC insider’s allegations were part of DCI Crump’s investigation. While hindsight showed that that was not the case (DCI Crump was never passed the information which the ISC insider gave to the police in February 2006), the MPS’s own statements in April 2006 reasonably led the journalists to believe that it was these older allegations (and not their own inquiries) which had prompted the police to investigate and obtain the search warrants (para 95).
Lord Mance (with whom Lords Clarke & Dyson agreed, paras 184 & 190) considered all the relevant factors and held that Reynolds was made out: the subject matter of possible police corruption in the area of extradition of a Russian oligarch was of “great public interest and sensitivity”; the journalists were concerned that it was properly investigated; they had investigated their sources and the allegations as much as they could; the facts (supporting facts) were stated accurately; the tone of the article was balanced, and did not assert guilt; and the editorial judgement exercised in this case should be respected (paras 179-181).
The test to be applied on an appeal from a decision on Reynolds
Part of TNL’s case on appeal to the Supreme Court had been that the Court of Appeal had taken the wrong approach when considering the appeal from Tugendhat J. Lord Phillips discusses this issue briefly, but the Court left it open to be determined on another occasion, as it was not necessary to their decision. Lord Phillips recognised that there are many questions of law where there is room for legitimate difference in judicial opinion. There is a spectrum of questions where the legal standard to be applied may be more or less vague and where the factors engaged are more or less numerous. Where a question falls on that spectrum, may affect how an appellate court approaches a trial judge’s decision. This issue of where the Reynolds defence falls on that spectrum may be left open to the next Reynolds decision which is appealed to the Court of Appeal.
The judgment is available here.