The Court of Appeal decision in Gary Flood v The Times ( EWCA Civ 804) has been portrayed as a blow to the Reynolds defence and to investigative journalism. It is nothing of the sort. The only significant legal development brought about by Flood has been that the Court of Appeal accepted the inevitable – that the Reynolds defence needs to be re-balanced in order to take account of the recognition (arrived at since Reynolds was decided) that a claimant has an Article 8 right to reputation.
In all other respects Flood upheld and applied the principles set out by the House of Lords in Reynolds v The Times and Jameel v Wall Street Journal.
Mr Flood was a Detective Sergeant with the Metropolitan Police Service’s Extradition Unit. The Times article Detective accused of taking bribes from Russian exiles reported that allegations had been made by an unidentified source against him to the Met and that the Met was investigating those allegations.
The allegations were that a police officer with the codename Noah had taken bribes from a company called ISC which was headed by Ian Hunter (a friend of Mr Flood’s of 25 years standing) in return for passing confidential information to it concerning Russia’s attempts to extradite one of its clients, Boris Berezovsky. The source said that Noah “could be” Mr Flood.
Mr Flood sued in regard not only to the initial print publication (2 June 2006) but also in regard to the continuing publication on the The Times website. Crucially, on 5 September 2007 The Times was informed that the Met’s investigation into Mr Flood had concluded and that there was no case to answer. However, it chose to continue to publish the article on its website unchanged: with no update to the effect that the investigation had found nothing to implicate Mr Flood.
Following a trial on the Reynolds defence before Tugendhat J without a jury, the trial judge found that the defence succeeded for all of the original print publications and all website publications up to the time when The Times was notified that the Met’s investigation had concluded in Flood’s favour.
However the judge found that once The Times found out about Flood’s exoneration, its failure to either update the web article accordingly or to remove it meant that those publications after 5 Sep 07 were not protected by Reynolds.
The Times appealed to the Court of Appeal re the decision that the Reynolds defence could not apply to its continued website publications after it was notified that the investigation had concluded that there was no case to answer.
Flood cross-appealed to the effect that none of the publications was protected by Reynolds: there was no public interest in them and/or they were not the product of responsible journalism.
This post considers only that part of the appeal which concerned the decision as to whether the publication was in the public interest and was the product of responsible journalism.
The information in the article fell into three categories:
a. the fact that an allegation had been made by an unidentified person to the Met;
b. the fact that the allegation was being investigated; and
c. which gave credence to the allegation: which suggested that “there was something in it” – the inculpatory information.
At the trial, Tugendhat J did not find that Reynolds succeeded because the article was a result of a journalistic investigation into whether or not Mr Flood had actually taken bribes for passing confidential information to ISC.
Tugendhat J focused on the fact that the article was, on The Times’ case, about a police investigation into a police officer receiving corrupt payments: “The story was about a police investigation that an officer . . . had been corrupted . . . This was a story of high public interest.” The Court of Appeal also concluded that this case did not concern a journalistic investigation into the substantive allegation concerning corruption: “The article did not take the form of a classic piece of investigative journalism, in which the newspaper reports facts uncovered by the journalist.” (Moore-Bick LJ)
By the Tugendhat J judgment The Times was permitted to publish an article which gave credence to the allegation made against Mr Flood with the protection of the Reynolds defence because that information had been given to the Met, which was indeed investigating it. This was the extent of the journalistic investigation: the journalists succeeded in discovering that an investigation was taking place and in getting the police informant to tell them what he or she had told the police (§57 of the first instance judgment).
Because Gary Flood was a serving police officer there was clearly a public interest in knowing about the fact of the investigation into him. This also meant that there was a public interest in knowing that an accusation had been made against him (which was obvious given the existence of the investigation)
Tugendhat J did not find that the article complained of was a story about actual corruption – it was not a case of The Times acting as society’s bloodhound by uncovering wrongdoing.
Indeed, The Times could not have successfully defended the case on the basis that there was a public interest in uncovering police corruption because, whilst that would clearly have been an article in the public interest, it would have fallen down on its execution of the journalistic investigation of such corruption.
As Tugendhat J. found: “There was no evidence known to the journalists that the Claimant had received payments from ISC, and none that he had disclosed confidential information.” (§210)
Tugendhat J concluded that the House of Lords decision in Jameel meant that the inclusion in the article of information which added credence to allegation against Mr Flood was acceptable and that in any event its inclusion was a matter for editorial judgment.
So the Reynolds defence did not succeed at first instance (and could not have succeeded at first instance) because The Times had established any objective reason to support the allegation which was set out in the article complained of. It succeeded because Tugendhat J gave The Times a wide discretion to include the inculpatory information in the article. This was because on his analysis a report of a police investigation into police corruption gave The Times a licence to include this other material without losing the Reynolds defence.
The Court of Appeal
In the Court of Appeal it was not in issue that the report of the mere fact that Mr Flood was being investigated by the Met could be reported under the protection of privilege. As Moses LJ put it: “That he police are pursuing an investigation of corruption against a fellow police officer is a matter of public interest because corruption undermines the necessary public trust in those responsible for upholding the law and protecting the public. Trust depends, at least in part, upon the belief that corruption will be investigated and rooted out wherever it occurs and that the police will investigate and pursue the investigation with due rigour against one of their own.” (§113) This also meant that the bare allegation which had been made against Mr Flood could also be reported. The Court of Appeal concluded that it was important for the public to know that the police was policing (or not policing) itself.
The appeal focused on whether the inclusion of the inculpatory information caused the article to lose the cloak of privilege.
The Court of Appeal concluded that such material could only be protected by Reynolds if the journalists had verified it; which they had not done.
This was fully in accordance with the principles set out in Reynolds. In that case the House of Lords chose not to grant privilege to categories of information. A newspaper couldn’t claim privilege merely because, for instance, there was a public interest in knowing that a police officer was acting corruptly. The House of Lords imposed an obligation upon the relevant journalist to establish by means of his or her journalistic skills that there was evidence which supported the allegation.
Thus Reynolds did not introduce privilege for information which was merely in the public interest, it had to be information which the journalists had taken proper steps to verify as being true (even if ultimately it was discovered that the allegation was untrue). It did not introduce a form of absolute privilege for the reporting of certain types of information.
The Court of Appeal was unimpressed with an argument to the effect that given that the report was about the fact of the allegation and the investigation were of public interest, the accompanying material which gave credence to the allegation ought to be permitted because its inclusion was a matter for editorial judgment. The extra material took the article away from being an impartial report upon a police investigation and contributed to the “finger pointing” nature of it.
The Court of Appeal was adamant that such material could only be included if it was independently verified by the investigating journalists.
The appeal court was struck by the dangers of dispensing with the need for verification. On the facts, it would have meant that a very serious allegation with accompanying information suggesting it was true could be published and the claimant denied the chance to vindicate himself even though the allegation had not been verified by the journalists.
A claimant’s right to a chance to vindicate him or herself would be lost merely because the informant had gone to the police first, caused an investigation to be started, and then repeated to the journalists what he or she had told the police.
Fairness demands independent journalistic verification.
There needs to be a check on the making of such allegations to the world at large and the check is journalists independently checking the substance of an accusation before publishing it.
On the facts in Flood, allowing such a publication to be protected by Reynolds would mean that a newspaper could publish malicious allegations made against a police officer (including details of exactly what his or her accuser was saying) merely because the newspaper had established that the accusations and the supporting material had been passed to the police. Hardly Pullitzer winning stuff and probably not what the House of Lords had in mind in the Reynolds judgments when referring to the important role the media plays as a bloodhound sniffing out stories of wrongdoing.
In considering whether the journalists had taken sufficient steps to verify the allegations the Court of Appeal relied upon Tugendhat J.’s findings on the evidence given at the trial: there was none.
The Master of the Rolls agreed: the inclupatory information re Mr Flood which added credence to the corruption allegation: “was no more than unsubstantiated unchecked accusations from an unknown source, coupled with speculation. The only written evidence available to the journalists did not identify any police officer, let alone DS Flood, as the recipient of money from ISC at all, let alone for providing confidential information.” (§73)
But what of Jameel?
Jameel was clearly a timely shot in the arm for the Reynolds defence and Tugendhat J relied upon it in finding that the Reynolds defence had succeeded. He concluded that on the facts of Jameel it was apparent that Reynolds could apply not only to a report of an investigation but also to the reasons for it – to the inculpatory information.
But the Court of Appeal found that Tugendhat J misinterpreted Jameel.
It concluded that in Jameel the article which was protected was the report of the bare fact of an investigation. No additional information was published which suggested that there was good reason for monitoring the relevant bank account; there was no inculpatory information of the type included in the Flood article. The WSJ stated that around 150 bank accounts were being monitored “to prevent them being used wittingly or unwittingly” for funnelling terrorist funds. Thus, in Jameel, the WSJ had not needed to verify whether the relevant investigation was well-founded because it went no further than reporting the fact of it; it did not set out additional information which suggested that there was “something in it”.
A key factor in considering whether to uphold a Reynolds defence will be to what extent the claimant’s version of events was sought and published. But what of the position, as in Flood, where the claimant is subject to a police investigation in regard to the subject matter of the journalistic investigation? He or she will have a right not to be forced to respond to the relevant allegations before the police investigation has been carried out and charges have been made. In assessing whether Reynolds applies in such circumstances, the court has to be aware of the risk of subjecting the claimant to trial by media.
Lastly, Flood is important because the Court of Appeal upheld the Tugendhat J finding at first instance that the Lord Nicholls statement in Reynolds that “lingering doubts” ought to be resolved in favour of a defendant can no longer stand. This was inevitable in the light of the recognition that the right to reputation is an article 8 right. As no right has presumptive priority over another, in deciding whether a Reynolds defence succeeds or fails the court will have to balance the rival article 8 and 10 rights as best it can: where matters are finely balanced it will have to engage in an “intense focus” in order to decide where justice lies.
This is an extract from a speech given by the barrister William Bennett at the recent 5RB media law conference.
William is junior counsel to Gary Flood.