THE SUPREME COURT OVERTURNS COURT OF APPEAL DECISION SO BRINGING REYNOLDS QUALIFIED PRIVILEGE BACK TO LIFE (21 MARCH 2012)

Times Newspapers Limited successfully appealed against a decision that it could not rely on Reynolds privilege to defeat a defamation claim brought by the respondent police officer, Sergeant Gary Flood. In June 2006, the Times published an article naming the respondent as at the centre of an investigation of accepting bribes in return for revealing confidential extradition information to a security firm, ISC Global (UK).


The Background
ISC’s clients included high profile Russians who were the subject of extradition requests. An ‘ISC insider’ said he had identified cash payments totalling £20,000, to a recipient codenamed as Noah in the accounts which could have been the respondent police officer. The source reported this to the police. In April 2006 journalists contacted the police and stated that the police might not be properly conducting an enquiry into the respondent. It was only then that the police approached the respondent and other persons concerned with the allegations so causing an investigation to commence.


As a result of this enquiry, warrants were issued and the respondent’s home was searched. The ISC insider later passed a dossier of information to the police and to the paper. On 2 June 2006 the Times published an article with the title “Detective accused of taking bribes from Russian exiles”, in which Sergeant Gary Flood was named as being the Detective in question. It was published both in its print and online edition. The latter continued to be published after the date of the print publication. (The online publication was the second limb of Times’ Supreme Court appeal which has recently been dropped.) Flood was temporarily suspended from his job, but was reinstated in January 2007. In September 2007 the police told the parties that the investigation had been completed and no recommendations of criminal or disciplinary proceedings against the respondent were made.


Flood sued Times Newspaper Limited for libel over both the print and online publications. He claimed that the article suggested there were strong grounds to suspect he had abused his position of power as a police officer. One of the defences the Times relied on was the defence of Reynolds privilege. Reynolds privilege is the right of journalists to defend journalism which turns out to be wrong when they have acted responsibly in gathering and publishing the information. When this defence to defamation actions was established Lord Nicholls listed 10 factors to be taken into account, which include the seriousness of the allegations, the steps taken to verify them, whether the subject matter is of public concern, the source of the information, urgency and whether comment was sought.


On 16 October 2009 Judge Tugendhat, sitting in the High Court, found that the publication of the article in the newspaper (and on the website up to the date the investigation was completed) was protected by Reynolds privilege but the publications online after that date were not protected. This difference in approach was because on 5 September 2009 the police informed the Times that its investigation had concluded and that the respondent had been exonerated. He held that the Times should have either withdrawn or amended the online edition of the article reflecting this new development. Instead the Times decided to keep the article published in its original form on the website for almost 2 years from that date.
On 13 July 2010 the Court of Appeal overturned Judge Tugendhat’s decision by stating that the first limb publications were not protected by Reynolds privilege.


The Supreme Court Decision
On 21 March 2012 the Supreme Court overruled the Court of Appeal allowing the Reynolds privilege and held the following in regard to the print publication of the Times article:
• Naming the individual in the article did not prevent the Reynolds defence from succeeding.
• The trial judges decision on the publications up to 5 September 2007 should not have been overturned by the Court of Appeal. The accusations made against Flood were supported by the facts described in the article. The journalists had, at the time, been reasonably satisfied that the supporting facts set out in the article meant that there was a high degree of probability that the respondent had been guilty of the corruption of which he was suspected by the ISC source.
• This meant that the defence succeeded because the publication of such information was in the public interest.


Responsible Journalism
Arguably, this landmark judgment may signify that the law of defamation may be moving in favour of defendants. Depending on what a journalist reasonably knew at the time of a publication will enable the Reynolds defence to be pleaded. Indeed, in this case journalists had acted responsibly in verifying their ISC source and had reason therefore to believe that the information they published was true, especially given that an investigation by the police followed.


It was irrelevant that the police investigation and search warrant were driven by the questions asked by the journalists. Indeed, the story had been published with the legitimate aim of ensuring a proper investigation by the police, as journalists had reason to doubt whether an enquiry into the corruption was in fact occurring. Lord Mance highlighted that there is no principle that a journalist should postpone his or her publication until after the conclusion of investigations which might lead nowhere. The Supreme Court identified the significance of flexibility within the Reynolds defence – allowing for an editorial judgment together with a pragmatic way of viewing the standard of reasonable journalism.


On the 3 April 2012 the Times withdrew its second limb of the appeal regarding the online publications. The Supreme Court was due to hear this appeal on 23 April 2012. The online publications were not the result of responsible journalism because the article was not amended to reflect the fact that the respondent had been cleared of all charges against him.
The Supreme Court was at pains to point out that each Reynolds privilege defence will turn on its facts. However, this decision will help to enable allegations to be published where journalists are satisfied that the facts set out in the article demonstrate that there is a high degree of likelihood that the subject has been properly suspected of carrying out the particular matter about which he is being accused even before any official enquiry.

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