Mr Justice Eady :
- On 30 January 2012, I handed down a judgment in this case dealing with an extensive application to amend the defence in relation to justification and Reynolds privilege: [2012] EWHC 110 (QB). Following that judgment, the Defendant sought to reformulate the defence in a number of respects, most of which were concerned with the Reynolds defence. I heard argument on 9 and 12 March 2012 and reserved judgment. Not surprisingly, counsel approached my clerk after the hearing and sought permission to make further submissions in writing, if appropriate, following the promulgation of the Supreme Court judgments in Flood v Times Newspapers Ltd [2012] UKSC 11 which was then imminent. They were made available on 21 March and Mr Millar and Mr Tomlinson duly made their submissions thereafter. These arrived shortly before the beginning of the Easter Vacation and have been taken into account in preparing this judgment.
- I do not intend to repeat the factual background or the discussion of the issues contained in my earlier judgment.
- The only outstanding paragraph in the particulars of justification which remained in dispute on 9 March was numbered 7.41. This concerned a Jersey company called Galleons Reach Ltd ("GRL"), which had also played a role in the first draft and was discussed in my earlier judgment at paragraphs [68] to [71]. What is said in the present draft is that the Claimant used this company "to launder the proceeds of his criminal activities and that these included income from prostitution at the Claimant's property at 2 Green's Court, Soho". There then follow sub-paragraphs (a)-(h) containing allegations of fact from which it is said that this inference can legitimately be drawn. Objection is taken to the pleading on the basis that such a serious allegation needs to be properly particularised for the Claimant to know the case he has to meet and, in parallel, so as to avoid reversing the burden of proof.
- I should approach this pleading on the assumption that the facts pleaded in the relevant sub-paragraphs will be proved at trial and judge the legitimacy of the inference accordingly.
- It is said that from 1995 onwards the premises at 2 Green's Court were being used for the purposes of prostitution and that on 29 January 1996 GRL acquired the unencumbered freehold title to that property. It is also pleaded that GRL had been incorporated on 20 June 1995 by Peter Michel on the instructions of a solicitor called Chris Williams who was acting on behalf of the Claimant. It was acknowledged that the shareholders in the company were two other Jersey companies run by Mr Michel, but asserted that this was "simply a matter of form", the true beneficial owner of GRL being the Claimant, on whose behalf Mr Michel operated the company.
- It is also pleaded that in 2001 search warrants were executed at Mr Michel's premises and, thereafter, that his financial services businesses were put under the control of court appointed managers. Eventually, in 2005, he was charged and convicted on ten counts of assisting another to retain the benefit of criminal conduct contrary to the Proceeds of Crime (Jersey) Law 1999. There were two trials before the Jurats, one in 2006 and the other in 2007.
- The nine convictions in the second trial were subsequently overturned by the Privy Council (for reasons of inappropriate judicial intervention), and there was to have been a retrial in 2010. At that point Mr Michel pleaded guilty to seven of the ten counts and was sentenced to four years' imprisonment.
- The Defendant asserts that the prosecution case at Mr Michel's retrial would have been that between 1993 and 2001 he offered his clients a "standing arrangement", whereby he would launder proceeds of crime by means of operating a number of "pooled" bank accounts. The modus operandi is pleaded as follows:
"Clients who wanted to get rid of cash which was the proceeds of crime gave it to Mr Michel and received re-imbursement to the bank account of their company from the pooled bank accounts. Clients who wanted cash from Mr Michel paid for it by transfer from their Jersey company account. Undisputed evidence before the court in the second trial showed that: £5.6m in cash was made available to clients under this standing arrangement; £1.5m of this was made available after the 1999 law came into force (under which he had been charged); of this the sum of £1.2m was hand delivered by Mr Michel in England in person."
- The inference is then invited that the Claimant used Mr Michel to incorporate and run GRL for him because he had become aware that Mr Michel offered this "standing arrangement" to his clients and he wished to participate in it in order to launder the proceeds of his crimes, including the proceeds of prostitution at 2 Green's Court.
- I have come to the conclusion that, on the basis of this new formulation, the plea is a legitimate one. It is at least clear what case the Claimant has to meet and there is no reason to suppose that it will place unfair burdens upon him by way of disclosure or the gathering of evidence.
- As I have said, the remainder of the particulars now under challenge relate to the Reynolds defence.
- The following propositions seem to be common ground between counsel in the light of the judgments in Flood:
i) The development of Reynolds privilege reflected a perception by the House of Lords that at that time English law had not adequately catered for the protection of the right of freedom of expression as contained in Article 10 of the European Convention on Human Rights and Fundamental Freedoms. (For a recent discussion of this theme, see A Mullis and A Scott, The swing of the pendulum, NILQ 63(1), 25-56.)
ii) There is a duty of verification imposed upon a responsible journalist which will be assessed in the circumstances of the case. Each case must turn on its own facts.
iii) This involves a "spectrum" and will depend on the extent to which the defamatory allegations are adopted or endorsed by the publisher.
iv) A journalist in making the decision whether to publish will need to have regard to the full range of meanings that a reasonable reader could attribute to the article.
v) The duty of verification will be correspondingly more onerous the more serious the allegations. (No doubt, though, it is still necessary to have some regard to Lord Denning's warning in Plato Films Ltd v Speidel [1961] AC 1090 as to rumour being a "lying jade".)
vi) Verification involves a subjective and an objective element. The journalist must believe in the truth of the defamatory allegation and that must be a reasonable belief to hold.
vii) In a case such as the present, where there is a "Chase Level 1" meaning, the journalist will have to satisfy himself on reasonable grounds that the relevant claimant is guilty of the defamatory "charge".
viii) The starting point in considering whether a publication was in the public interest will be to ask whether the subject-matter of the publication is itself a matter of public interest.
ix) At the next stage, when deciding to what extent the defamatory allegations about the individual claimant were appropriate to be included in the coverage of the subject-matter, allowance has to be made for editorial judgment.
x) "Reportage" provides an example of circumstances in which the public interest may well justify publication of defamatory inferences without there being imposed on the journalist a duty to verify the truth of the inferences – at least where the inference relates to grounds for suspicion rather than a firm conclusion of guilt. Such circumstances may include the fact that there are police investigations on foot or that someone has been arrested.
xi) There is apparently a distinction to be drawn between the "objective" aim of a publication and the "subjective motives of the journalist" for publishing it. Ordinarily, the subjective motives of the journalist will be irrelevant to the issue of whether the publication is in the public interest.
There is some difference between counsel on the significance of motives in the present case. Mr Tomlinson argues that if the subjective motive of the journalist for publishing is normally irrelevant, it would follow a fortiori that his motives for deciding to investigate, in the first place, would also be irrelevant. What will matter, in judging the public interest in the publication of the present allegations, is the "objective" aim at the material time.
- What seems to be emerging clearly is that the "new methodology" sanctioned by the House of Lords in 2004, both in Campbell v MGN Ltd [2004] 2 AC 457 and in Re S (A Child) [2005] 1 AC 593, originally in the context of privacy, where we had little established jurisprudence of our own, is now finding its way inexorably into the application of our well known principles of defamation.
- Reynolds privilege provides fertile ground for this development – not least because it was introduced partly to take account of the provisions of the European Convention: Reynolds v Times Newspapers Ltd [2001] 2 AC 127. Its purpose was to introduce flexibility into the law by reference to the concept of "responsible journalism". This had what Lord Nicholls, in Reynolds at p.202, called "the merit of elasticity". The concomitant downside of flexibility, as always, is unpredictability and uncertainty. This is well illustrated, of course, by the early case law. Although the Reynolds decision was promulgated in October 1999, it took some years before it yielded positive results through decisions of the court. In the two cases where it has so far succeeded, Jameel v Wall Street Journal [2007] 1 AC 359 and Flood itself, it was necessary for the parties to go as far as the highest court before the matter was determined. It may be thought that the element of uncertainty will be reduced as further time passes, but the facts tend rather to get in the way. As the present case illustrates, the courts are confronted by an infinite variety of situations: facts often have to be addressed in a unique combination for which there is no obvious precedent.
- As the starting point, I should ask whether the subject-matter of the article is of public interest. It is, of course, a long, detailed and fairly complex article, so that I should be wary of fixing upon one broad topic as the subject-matter. I think it fair to say, however, that it is an inherent part of its subject-matter that criminals (not merely suspected criminals) had been seeking to benefit from the compulsory purchase by the London Development Agency of land at Silvertown Way in Canning Town. I believe that in this case, therefore, there can be little doubt that the answer to the first question should be in the affirmative.
- Making allowance for editorial and journalistic judgment, I would conclude also that it would be a reasonable approach to provide evidence for this general assertion, since readers would expect some convincing support for such an important and troubling claim. Without it, the article would lose not only its impact but also much of its value to readers. It needs at least some degree of specificity to be taken seriously.
- In a Reynolds context, therefore, the next line of approach is to explore how "responsible" the underlying preparation for the article was, having regard to the gravity of the allegations and the undoubted fact that they were not confined to the reporting of mere accusations, inquiries or reasonable grounds to suspect. It seems clear that where a journalist chooses to make "Chase Level 1" charges his duty of verification is correspondingly more demanding. There is nothing new or surprising about this. It is clearly linked to the proposition which I mentioned in the earlier judgment, discussed in Roberts v Gable [2008] QB 502, to the effect that the extent of the genuine public interest of any article must be judged by reference, not only to subject-matter, but also to the quality of the journalism. Is it as good as the public is entitled to expect of journalism addressing the subject-matter in question?
- One further factor that arises in a Reynolds context, and which is perhaps unique to it, is that it may sometimes be legitimate to rely upon the cumulative effect of material to the same or similar effect – even though the quality of the individual sources may not be as high as one would normally expect. "Responsible journalism" may be judged partly on quality and, perhaps, partly on quantity. It is a factor that I need to bear in mind here.
- The first sub-paragraphs under challenge are 9.11(a) and (b). The objective is apparently to introduce a narrative as to how Mr Gillard became interested in "the Claimant's involvement in the land dispute". Yet (a) and (b) do not mention the Claimant. They are concerned with "Operation Kayu", which is said to have been an investigation into alleged corruption on the part of three police officers in Newham. It is claimed that two major criminal trials had to be abandoned, namely R v Matthews, Matthews and Grant and R v McGuinness. Mr Tomlinson accordingly submits that they cannot be relevant to a Reynolds plea and should not be permitted. That seems to be correct.
- Paragraphs 9.12 and 9.13 concern what Mr Gillard is said to have been told in 1999 by "Source A". This related to an operation called "Soldier 3" begun in 1983 which involved investigating a number of suspects including the Claimant. Source A also told him about a different operation run by Plaistow CID in the late 1980s and "beliefs" held by certain officers about "the Claimant's crime group". It is also suggested that the information deriving from Source A was confirmed by a Source C.
- Mr Tomlinson argues that these passages are subject to the same flaw identified in paragraph [82] of my earlier judgment, which included the following sentence:
"It is not easy to understand how an allegation by Source A merely to the effect that he was investigated can support, as responsible journalism, an allegation that he was guilty of criminal activity."
The addition of Source C would not cure the problem. Again, I think this submission must be correct.
- Source A comes into play again in relation to paragraph 9.14. He is alleged to have told Mr Gillard, again in 1999, about "Operation Haddock" in 1990. This concerned investigations into £2m worth of travellers' cheques stolen in the course of an armed robbery at St Pancras Station. The Claimant's brother was arrested and convicted in 1992 of handling some of the cheques. Mr Tomlinson rightly submits that "guilt by association", by reference to the Claimant's brother, would not in itself go to support the object of the pleading, i.e. to demonstrate "responsible journalism" underlying an allegation of guilt. The only mention of the Claimant in the paragraph is to the effect that Source A informed Mr Gillard that he was head of a family crime group.
- More generally, it is difficult to see how, in relation to a Chase Level 1 allegation, it would be possible to establish responsible journalism merely on the basis of a single source's beliefs or suspicions (or the beliefs or suspicions of others, as reported by the source). That is, however, subject to questions about the authority and quality of the source, and the extent of any corroboration. There is also the distinct issue of the "status" of police records to which I shall return shortly.
- In this paragraph, the only mention of the Claimant is to the effect that Source A informed Mr Gillard that he was head of a family crime group. At that point, therefore, there is an allegation from one source and no indication that Mr Gillard carried out any verification. The allegation has a legitimate part to play, however, where it becomes linked to later material to similar effect. Mr Gillard did not publish on the basis of one unverified source. It was an early part of his research, but it does not have to be put to one side for that reason. It was part of a continuum. It formed part of his overall store of information which gradually accumulated over the years and has to be assessed for Reynolds purposes at the time of publication.
- Paragraphs 9.15 and 9.16 relate to allegations made in 1999 by Source B. These concern an investigation into the Claimant and others, who were suspected of financing the importation of a large quantity of class A drugs. This apparently led to nothing because, it was said, customs officers had failed to intercept the lorry at Harwich. He was also the source of allegations about Operation Blackjack, which investigated organised crime in north and east London in 1999. Source B apparently alleged to Mr Gillard that the Claimant ran criminal operations from Palmer's Motors in Woodford and that, in the course of Operation Blackjack, information had emerged which led to his being charged with the unlawful wounding of Paul Kavanagh (who later withdrew his statement).
- I think it is possible to draw a distinction between paragraphs 9.15 and 9.16. Mr Tomlinson highlights a passage from paragraph [83] of my earlier judgment:
"Merely repeating allegations from an unidentified source could never found a plea of justification. It is necessary to focus, therefore, exactly on how they can support a defence of "responsible journalism" in making allegations of guilt that cannot be justified."
The suspicion concerning class A drugs came to nothing, so it seems. But matters did progress as far as the Claimant's being charged with the offence relating to Paul Kavanagh. If Mr Gillard satisfied himself that the statement was withdrawn later, for fear of reprisals, I think it possible that this material could be relied upon in support of "responsible journalism".
- Paragraph 9.17 takes the form of a list of other publications containing allegations about the supposed activities of "the Claimant's crime group". Reference is made to a series of articles appearing between 1996 and 2003. Mr Tomlinson argues that merely repeating defamatory allegations about the Claimant from other journals cannot form the basis of a "responsible journalism" defence in itself and there is no suggestion of independent verification. There must be more to a defence of Reynolds privilege than simply bypassing the repetition rule.
- In paragraph 9.18 reference is made to Mr Gillard's own book, referred to in the earlier judgment, which describes "the Claimant's group" having been recruited by a Mr Erkin Guney as "muscle" in a dispute over a mobile phone company. This, of course, suffers from the "bootstraps" problem and I cannot imagine that it would suffice for a journalist to establish "responsible journalism" merely to show that he had said something similar before. There is no element of verification about it.
- In paragraph 9.19 reference is again made to Operation Kayu and to Mr Gillard's investigations having led him, in 2008, to the information about the Claimant's arrest over the incident at the Central London County Court. It contains the following passage:
"It was another example of the Claimant's organised crime group being recruited/operating as 'muscle' in the criminal underworld for profit. Mr Gillard wanted to know how and why the Claimant, whom he understood had been successful at avoiding arrest, charge or conviction in the past, would take the risk of being arrested in such circumstances."
This does not consist of verification but merely of assertion. The formulae of what "Mr Gillard wanted to know" or what "he understood" do not seem to me to be appropriate in a pleading. Moreover, in so far as the pleading refers to "another example", this appears to be a reference back to the content of Mr Gillard's book (referred to above). Mr Tomlinson submits that this takes the form of an allegation of guilt being supposedly supported by the fact that the Claimant had not been convicted of any offences. He suggests that, in so far as there is anything permissible here, it is already contained in paragraph 9.11(c) and that matters should be left there. That deals with the Claimant's involvement on Mr Matthews' side in the land dispute and the fight on 7 February 2006. I would agree that paragraph 9.19 adds nothing legitimate.
- Paragraph 9.20 is also challenged as "pure speculation". It rehearses, rather expansively, how Mr Gillard looked into the background of the compulsory purchase order relating to a 2.3 hectare strip of land part of which had formed the dispute before the Central London County Court between William Allen and Charles Matthews Snr. It came into effect in due course on 6 June 2007. The key allegation is that the information he had discovered "helped explain why the Claimant had become involved on the Matthews side … ". That is relevant to the issue of responsible journalism. It is true that his inference that the Claimant stood to share in the proceeds of the compulsory purchase, in return for his support, is "speculative" in nature. But an inference may be pleaded on the basis of certain facts and left for consideration at trial. I would not accept that it "cannot possibly form any basis for 'responsible journalism' and should not be allowed to stand". Whether it actually succeeds at trial is another matter.
- Paragraph 9.21 raises a quite different issue. It seeks to introduce into the pleading nearly 130 pages of redacted documents. This is an exercise to which objection is raised in principle. Pleadings are meant to set out concisely the facts relied upon, so as to notify the opposing party of the case he has to meet. They are not supposed to introduce evidence. Their function is quite different from that of witness statements. Mr Tomlinson voiced the concern that the device of introducing all this material in the guise of a pleading might be to enable their content to be published in one or other of the Defendant's newspapers under the shelter of privilege. It is not for me to decide that issue, but simply to adjudicate on paragraph 9.21 as a pleading in the Reynolds context. In any event, Mr Millar accepts that the documents are not part of the pleading but argues that they can be appended to it in accordance with CPR 16 PD 13.3. This provides that a party may attach to or serve with his statement of case a copy of any document which he considers is necessary to his claim or defence, as the case may be. Here, so the argument runs, it is necessary to the Reynolds defence to identify and produce any documents on which Mr Gillard relied in arriving at the decision to publish the words complained of.
- The Defendant seeks to rely on nine Metropolitan Police documents and one deriving from the Serious Organised Crime Agency ("SOCA"). These are embraced by the order of Tugendhat J in the other High Court action (HQ11X00308), to which I referred in the earlier judgment. But redacted copies or summaries have been served on the Claimant to the extent permitted by that order. It is upon these that the Defendant now seeks to rely. It seems to me, in principle, that the right approach is to permit reliance on the documents in the pleading (albeit not their incorporation by reference), subject to the following conditions:
a) they must be relevant to "responsible journalism" in the sense of supporting the decision to publish the actual allegations made;
b) to reveal them in these proceedings, for that purpose, would not infringe the restrictions imposed by the order of Tugendhat J in the other action.
- One of the difficulties is to make a judgment about how far an individual document could support a plea of "responsible journalism" in circumstances where Mr Gillard saw the document in its unredacted state but the Claimant and the court are now only permitted to see a redacted version. If the redacted version is uninformative as to the reasoning process, then it may not serve its purpose. There may, in that event, be a need to make a further application in the other proceedings (as Tugendhat J contemplated might be appropriate at a later stage, if necessary to do justice between the parties).
- One of the objections is that reference is made to Judas Pig (the fictional work said to be based on true events). It was struck out in the context of the plea of justification and one would naturally look sceptically at an attempt to reintroduce it. On the other hand, the rationale of Reynolds privilege is quite different and it may fulfil a legitimate purpose in that context. I understand that its role in the present plea is to show the state of police knowledge (as communicated to Mr Gillard). The various elements of evidence contributing to the knowledge of police sources will not, of course, be subject to the constraints of a plea of justification. In piecing together material from his various sources, documentary or otherwise, a journalist may be able to satisfy himself that he can "responsibly" publish an allegation (at whatever level of gravity) without necessarily being able to make good a plea of justification. Otherwise the defence of Reynolds privilege would be too closely tied to the rules of justification to serve its separate and independent purpose.
- More generally, it is necessary to consider the status of police records. Although Parliament has chosen to attach statutory privilege to certain information emanating from police authorities, there has never been accorded any blanket immunity in domestic law to the content of police records. That is not surprising. It has to be recognised that police records are far from infallible or inherently reliable. Police officers can be lazy, unreliable or corrupt. (That is a matter of general knowledge and I am not referring to any of the many officers involved, over the years, in these inquiries.) Against that background, how are the courts to approach police materials outside the scope of statutory privilege? Reference was made by Mr Millar, in this context, to Selisto v Finland (2006) 42 EHRR 8 at [60]-[61] and to the recent Supreme Court decision in Flood. In the former case, the Strasbourg court was addressing allegations made in a pre-trial record by police officers. Significance was attached to the official status of those documents. (Reference was also made in this context to Dalban v Romania (2001) 31 EHRR 39 at [49]-[50].)
- Logically, of course, it is fair to say that allegations made by members of the public do not acquire a greater veracity for being written down by a police officer. It is now recognised, nevertheless, for reasons of public policy, that absolute privilege or immunity attaches to allegations of criminality made to the police: Westcott v Westcott [2008] EWCA Civ 818. This is largely to afford some protection to those who might otherwise be inhibited in reporting allegations of crime. It would by no means follow for the same reasons that privilege should attach to the repetition of such confidential information by police officers or by those to whom they have passed it on. Different policy considerations come into play. It thus becomes necessary to consider the reasoning applied in these cases to published material based on police records.
- In Selisto, the view was taken that Article 10 rights would be to a significant degree undermined if the law required information derived from such official sources to be independently verified. No distinction seems to have been drawn, for this purpose, between "information" and "allegations". Accordingly, it does appear to be the case that allegations to the police may, in some circumstances, be reported under the
- cloak of privilege merely by dint of having been recorded in a police document. One cannot derive necessarily a hard and fast rule that this must always be so. It may, in the end, be a matter of balance and proportionality. I doubt whether it would be suggested, even today, that if an alleged rape victim makes her accusations to a police officer, which are then entered into a police record, thereafter they can be reported under cover of Reynolds privilege. I suspect that the right approach is to apply an intense focus to the particular facts before the court and then to make a judgment, taking into account as always the competing interests under Article 8 and Article 10. This may well require the drawing of some very fine lines.
- If I am right about this, it will become relevant sometimes to take into account the quality, consistency, frequency and indeed pervasiveness of such allegations. If police records suggest, for example, that (i) for many years a man reputed to be a serious and persistent criminal had been observed and investigated, (ii) evidence of wrongdoing became available, but (iii) he had always managed to avoid prosecution or conviction, then those circumstances would in themselves arguably give rise to a matter of public interest. It would not necessarily follow, however, that such an accumulation of facts would support a "responsible journalism" defence in relation to an allegation of guilt. It would almost certainly depend on how compelling the evidence was as a whole and how far the journalist had gone in reliance upon it: see e.g. White v Sweden (2008) 46 EHRR 3.
- On the facts of the present case, I would permit reference to be made in the pleading to the documents identified at paragraph 9.21. They do not for this reason, however, form part of the pleading.
- Paragraph 9.22 consists of a list of "facts and matters" upon which Mr Gillard relied in researching the article and in deciding to include within it the allegations about the Claimant. Not all are the subject of challenge. For example, reference to the CCTV footage outside the County Court on 7 February 2006 is not objected to; nor, generally, are the CRIS entries relating to Operation Epsom in September 2006 covering investigations into the Claimant over what happened at the court and also threats to kill William Allen. But objection is taken to the first bullet point under paragraph 9.22(d). It refers to evidence from Mr Allen that he had received anonymous messages calling on him to drop his claim to the land in question, as well as a threat by gesture from a Mr Donnigan (said to be an associate of Charles Matthews Snr). The point taken is that it does not refer to the Claimant, but it is included to show that Mr Gillard had discovered a pattern of threats of violence directed at Mr Allen over the land dispute and that the Claimant was involved in this process in the specific respects pleaded against him. It is thus in my judgment legitimate in the Reynolds context to plead the broader picture of what may have been a concerted campaign, on which the journalist based his decisions, rather than in this instance confining it to those parts of the material directly referring to the Claimant.
- Reference is made at paragraph 9.22(e) to an Operation Houdini intelligence report of 17 August 2006, dealing (it is said) with the criminal activities of various persons including the Claimant. The contents are said substantially to confirm what Mr Gillard had been told by sources in 1999. The allegations cited are serious and link the Claimant to organised crime on a grand scale over a long period of time and, as to the position in 2006, it is said that he was "still making vast amounts of money from various activities which range from drug trafficking to protection rackets". One of the entries records that he had acquired a reputation as a "hard man" who would stop at nothing "even [resorting] to murder if required".
- Mr Tomlinson understandably complains that these entries merely record unsupported beliefs and that no particulars are given. He suggests that the overall effect is to reverse the burden of proof and asks why Reynolds privilege should attach to what is no more than a "story of failed police investigations". The point is made that no express plea is entered to the effect that the records are such as to acquire authority from their quality, but this may be one example where it is appropriate to take into account not only quality but also such factors as quantity, consistency and durability. This is a very unusual set of facts. It is not simply that a police inquiry has been carried out into allegations and led to nothing. The story has persisted through decades. Moreover, it would be too simplistic to say that inquiries led to nothing, since a recurrent theme is that proceedings have come to nothing through "witness issues", by which is meant reluctance to give evidence by reason of fear or intimidation. It was re-emphasised in Flood, as I have already noted, that each case must turn on its own individual facts: see e.g. at [68].
- In the light of these considerations, and the fact that this area of the law appears to be in a state of development, I have come to the conclusion that the entries quoted in paragraph 9.22(e) should not be struck out, but left for consideration by the trial judge.
- Objection is also taken to paragraphs 9.22(f), (g) and (h). These contain further assertions, purportedly taken from police records, some of which are very serious indeed. Reference is made in (f), for example, to a written application for authority to conduct "directed surveillance" on the Claimant in January 2007. It refers to the Claimant having been at the head of an organised crime group and associated with "extreme acts of violence, murder, blackmail and intimidation". Mr Tomlinson argues that the Defendant is employing a device to reintroduce material which has been struck out of the plea of justification. He may be right, but that is not conclusive. Again, it is necessary to bear in mind the fundamental point that Reynolds privilege is intended to serve a separate function from that of justification. Other factors come into play, such as the status of the source from which the allegation is derived (where that is ascertainable). Article 10 is to an extent about the entitlement of the public to know about information, including sometimes information to the effect that allegations have been made (irrespective of truth or falsity). The recently developed reportage privilege provides an example of this. Thus, as discussed above, a defence of "responsible journalism" may sometimes be advanced in respect of allegations to be found in documentary records to which it is reasonable to attach a certain status, and particularly if a consistent pattern has emerged in such sources over a period of time.
- I appreciate that paragraph 9.22(g) presents the Claimant's advisers with special difficulties by reason of its generality, gravity, lack of particularity and tendency to reverse the burden of proof. It is pleaded that the same written application of January 2007 contained the following:
" … Hunt has evaded justice over many years by corrupting police and the judicial system. He is seen by many as untouchable. It has historically been impossible to support criminal cases against him with private witnesses, most of whom have withdrawn their evidence through threats of violence or have simply 'disappeared' … "
- These are quite exceptional circumstances. Notwithstanding the difficulties highlighted by Mr Tomlinson, I am persuaded that it can stand as a pleading. This is part of Mr Gillard's research that the Defendant wishes to rely upon in establishing that his journalism was "responsible". Whether the defence is made out in due course will have to be decided at trial, but I believe he and the Defendant are entitled to put it forward at this stage.
- The same application of January 2007 is prayed in aid at paragraph 9.22(h). Reference is made to unsolicited remarks made by the Claimant and his brother Stephen on 7 and 8 November 2006 and also to remarks of Stephen Hunt on 18 December of that year. In a Reynolds context, the issue cannot be resolved simply by reference to questions such as whether what was said amounted, strictly, to "admissions" or whether any of the statements would be admissible in a criminal trial. Here their relevance arises at one remove: what matters is whether it was "responsible" for the journalist to take the statement into account when deciding whether to publish. I would not strike them out.
- It is said that paragraphs 9.22(j) and (k) relate to a trial against individuals other than the Claimant and that those allegations that do relate to him are convoluted, unclear and confused. I rather agree. Paragraph (j) refers back to the wounding of Mr Kavanagh in 1999 and to the allegation that the Claimant's associates had dissuaded the witness from testifying. In this instance, it is said to have been referred to in a written request for jury protection dated 17 August 2007. The same document also suggests that in October 2006 attempts had been made by "criminal associates" of one Paul Monk, including the Claimant, to interfere with jurors involved in Monk's Crown Court trial for cannabis importation. It seems, for the reasons already canvassed, that the Defendant is entitled to rely on the August 2007 document as one that Mr Gillard relied upon as part of the research he carried out prior to publication. It is relevant as tending to confirm the Claimant's supposed readiness to interfere with the administration of justice, but the paragraph as a whole does need sharpening up so as to exclude other matter, the relevance of which is unclear.
- Paragraph 9.22(k) merely records, as a fact, that jury protection was arranged for the trial of R v Matthews, Matthews and Grant. I do not see that this by itself adds anything to the Reynolds plea or supports "responsible journalism".
- It is submitted by Mr Tomlinson that paragraph 9.22(l) cannot stand in the light of paragraph [92] of my earlier judgment, which contained the sentence: "Facts must be capable of proof even if relied on in support of Reynolds privilege". In itself, I believe that proposition must be right. Yet again, however, it is necessary to recall that sometimes, for the purpose of a Reynolds defence, the "facts" in question may range more widely than would be the case with particulars of justification in respect of the same published allegations. They may include the fact that an allegation has been made or recorded in a particular context.
- The pleading refers to another police document containing a request for advice and assistance, made in 2007 by officers investigating the Claimant, to the Criminal Justice Protection Unit. It gave an account of the investigation and referred to the arrest of the Claimant and his brother in November 2006. It alleged, in the context of the arrest, that the officers concerned had been told only to identify themselves by rank and number. There is also a reference to 40 cases of champagne, already addressed in the earlier judgment. This incident was permitted to stand even as part of the plea of justification: see paragraph [73]. Here, it was supposed to show a similarity and link to the thefts investigated earlier as part of Operation Houdini.
- Even more seriously, the pleading asserts that the request for assistance had been prompted by "recent intelligence" to the effect that the Claimant had engaged someone to carry out a contract killing who had been seeking to establish the movements of a police officer whose responsibilities included investigating the Claimant.
- I will allow paragraph 9.22(l) to stand for the reasons I have already discussed.
- Finally, there is objection to paragraph 9.22(m) on similar grounds. It seems to be a new allegation that is not reflected in the plea of justification, as Mr Tomlinson points out, but that is of no particular significance. It relates to a written report of 25 January 2008 in which an investigating officer stated that he believed that he and other officers were in danger from the Claimant. The request was for a review of the risks involved for officers investigating him. The documents referred to allegations that he had in the past carried out surveillance on police officers and that he had been responsible for "attacks on their homes and in public". Yet again there appears the allegation that he ran a criminal network "by use of extreme violence" and that "murder is second nature to him". It is recorded that he is believed to have been involved in past contract killings and that he has avoided arrest "no doubt due to his links with corrupt officers and officials". The officer adds that he believes that there is a real risk, as the Claimant and his associates "have historically been involved in attacks on police officers".
- Much of what has been set out is, of course, very serious and there is no real indication of Mr Gillard having carried out any significant independent verification. But, in these rather exceptional circumstances, it would appear that the trend of modern jurisprudence is not to impose that burden on journalists. There can be little doubt, for example, that the suggestion of "links with corrupt officers" gives rise in itself to an element of public interest: see Flood at [202]. It may well be also that the frequency and consistency of the police records would go to support a defence of "responsible journalism". I will leave these allegations to be assessed by the trial judge in the light of the evidence.
- There is a new "sweep up" paragraph 9.35 in which the various threads of the Reynolds defence are drawn together. In relation to this the Claimant submits that:
" … the fact that two sources may have been found which make wholly unsupported allegations against the Claimant does not provide any grounds for considering the allegations to be true and it would clearly not be responsible to suggest such in a published article (as Mr Gillard did)."
I do not accept this. Subject to the minor points I have made en route, I have reached the conclusion that these allegations, taken as a whole, are not such that they can be struck out at the pre-trial stage. There is enough material to justify the issue of "responsible journalism" being determined after the evidence has been fully considered.
- On a separate point, paragraph 10 is concerned with making a plea of general bad reputation. Mr Tomlinson says it will not do, as it is not properly pleaded and particularised. This paragraph replaces that which I described in the earlier judgment, at [104], as "curiously hybrid". There is no doubt something unsatisfactory about pleas of general bad reputation, as a concept, but Parliament chose to reject the recommendation of the Neill Committee in 1991 to do away with the rule in Scott v Sampson (1882) 8 QBD 491. In those circumstances, the plea now seems to me to be acceptable. Lack of particularisation is not a valid objection. Such pleas, when they are made, are supposed to consist of general assertions as to how the relevant claimant is regarded.
- It is only very rarely that such pleas come to be adjudicated upon at a trial. There is thus little practical experience of how they are to be dealt with. Lord Denning famously gave the example of calling a local police officer to give evidence of general bad reputation: Plato Films Ltd v Speidel, cited above, at 1139. As he said, " … the evidence often takes the form of a police officer who knows him being called and saying: 'I know the defendant (sic) and have known him (or her) for some time. He is a well known pickpocket', or 'She is a common prostitute', or as the case may be". Precisely because it is about "general" reputation, it is inappropriate to permit grounds to be given as to why the claimant has such a reputation. In this instance, if it comes to trial, I would expect one or more senior officers to give evidence as to the Claimant's general reputation in London. Accordingly, I decline to strike out paragraph 10.
