Sensationalised articles concerning gangland crime populate tabloid pages in Ireland, even more so than celebrity scandals. Chronicling criminals has been glamorised by journalists such as Paul Williams whose articles satiate the public’s morbid thirst for scoops on the criminal underworld. However, while some nefarious individuals or those with questionable reputations appreciate a boost to their profiles and an elevation to a somewhat warped celebrity status, others do not and claim to be defamed. Brothers Alan and Wayne Bradley took a libel action against the now defunct Irish Daily Star Sunday which alleged in an article that the brothers were “the most dangerous criminal gang operating in Dublin’s underworld”. The High Court in 2006 dismissed the action, the jury having found that the article did not identify the brothers. However, on 1 June 2011, the Supreme Court gave judgment on the plaintiffs’ appeal ([2011] IESC 17).   A five judge court held that there were significant errors in the conduct of the case in the High Court and consequently set aside the verdict of the jury and directed that there be a retrial.

The facts

The Irish Daily Star Sunday published a two-page spread in June, 2004 claiming that the plaintiffs were involved in serious organised criminality in Dublin. While the article itself did not mention the brothers by name, it did publish a picture of them with their faces pixellated. The newspaper, referring to the brothers as “Fat Heads”, asserted that they had made €4 million out of proceeds from ATM robberies, gun crime and money laundering. It was also contended that they were under investigation by the Criminal Assets Bureau. The newspaper published a further article in August, 2004, this time expressly identifying the brothers. However, the trial judge rendered this subsequent publication inadmissible as she found that the question was whether the words were understood to refer to the plaintiffs. She opined that there must be a complete cause of action in a defamation action at the time of publication. In her opinion it was not admissible to rely on matters arising subsequent to publication.

The defence of justification was not pleaded by the newspaper in this case; it was satisfied to run the defence that it merely claimed that the brothers were suspected by the gardaí of committing serious crimes and not that the publication was a statement of fact. In that regard the newspaper pleaded that the article meant something other than what the plaintiffs alleged and that, in that sense, it was true. Thus while any plea of justification was ruled out, the defence asserted that: (1) the publication did not identify the plaintiffs therefore they could not maintain that the publication was “of and concerning” them, an essential element of the tort of defamation; and (2) that the plaintiffs had so poor a reputation that the damages to which they would otherwise be entitled for the libel should be reduced or mitigated.

While the jury did find that the publication did not identify the plaintiffs, it was found that there were a number of fundamental errors with the trial judge’s rulings. The appeal thus centred on four issues:-

(1) Whether the learned trial judge was wrong to rule that a witness could not go beyond evidence that her attention was drawn to the article concerned as a result of conversations;

(2) Whether the learned trial judge was right to exclude from the jury’s consideration evidence of a subsequent article which identified the plaintiffs and referred to the original article;

(3) Whether the learned trial judge incorrectly directed the jury that they were not entitled, when considering whether the plaintiffs were identified in the article, to have regard to the evidence which had been called by the defendant with regard to the reputation of the plaintiffs;

(4) Whether the learned trial judge was right to admit evidence called by the defendant in mitigation of damage from witnesses of the plaintiffs’ general bad reputation.

Judgment

1. Witness evidence concerning identification:  A witness by the name of Sandra Browne, who knew Alan Bradley or “fat head” from childhood, had been prevented from going beyond her evidence that her attention was drawn to the article of June, 2004 as a result of conversations with locals whom she engaged with after Sunday mass. The testimony was ruled out by Dunne J. on the grounds that it was potentially hearsay as it was not possible to cross-examine the persons who alleged that the article referred to the plaintiffs. On appeal, Fennelly J. held that the trial judge was wrong. He asserted that if a plaintiff can show that persons who have read the article have identified him that is evidence of that objective fact, which can be admitted for consideration by the jury. In making his decision, Fennelly J. referred to the case of Jozwiak v. Sadek [1954] 1 W.L.R. 275 in which it was held that evidence of statements made at public meetings to the plaintiff were admissible to show that words complained of related to the plaintiff.

2. Subsequent publication:  Although there were two publications, the second of which explicitly identified the plaintiffs, the trial only concerned the first article (which had pixellated a photograph of the brothers which accompanied the story) as Dunne J. had ruled out the second publication as it constituted “a more or less replication and reference back to the first article”. It was unanimously held that this was wrong. The jury were entitled to consider any part of the evidence which they considered relevant and helpful to them in reaching their verdict.

In coming to this decision the Court had regard to the English cases of Hayward v. Thompson [1982] Q.B. 47 and Grappelli and Anor. v. Derek Block (Holdings) Ltd. [1981] 1 W.L.R. 822. The authorities are confusing. It was held by Lord Denning in the former that it was permissible for the jury to look at a second article to see to whom the first article referred. In that case a plaintiff complained of two articles published in a Sunday newspaper on consecutive Sundays in the first of which he was not mentioned by name. However, in the latter case, the Court of Appeal stated that publication takes place at the place where the statement is read or heard and is complete at the time of publication. In that case it will be recalled that the plaintiff, who was a musician, alleged that he was defamed by the defendants who cancelled his concerts without his authority, claiming that he ill and that he would never work again. However, a few months later a press release announced a number of concerts which gave rise to an innuendo that the plaintiff had given a false reason for cancelling the concert which he knew to be false.

Hardiman J. distinguished the cases submitting that in Grappelli the first publication in was “innocent” in the sense that it was not capable, on the face of it, of a defamatory meaning about the person to whom it related. In Hayward however there was no doubt from the report but that the first publication was highly defamatory. In applying Hayward then, Hardiman J. declared that the original publication clearly referred to a person, although there was no express statement of identity. This was later supplied by the subsequent article.

In that regard, as the second article was almost a complete republication of the first article, it should have been put before the jury.

3. Whether reputation evidence relevant to identification:  At trial the newspaper led evidence from a garda that the plaintiffs had a reputation for the robbery of ATM machines. However, the issue at trial was one of identification and the picture accompanying the publication showed the site of an ATM, the text of which said “A gang led by two brothers” were involved. The jury asked the trial judge whether bad reputation evidence could be taken into account when deciding the identification issue to which the judge replied “no”. The judge later realised that she had made a mistake but for some reason this was never communicated to the jury. Thus some confusion arose.

Hardiman J. pronounced that the jury were wrongly told that they could not consider a particular section of the evidence, the defendants’ evidence as to reputation, in considering the issue of identification. He claimed the jury were entitled to consider any part of the evidence which they considered relevant and helpful to them in reaching their verdict. The learned judge proceeded to articulate that the judge’s error had been a substantial wrong:-

“In those circumstances, when the jury addressed the question of identification on a basis subsequently stated by the learned trial judge herself to be an incorrect one it seems to me that a substantial wrong or miscarriage did indeed occur. The plaintiffs’ were entitled to have the question of identification addressed on the basis of all of the evidence in the case and that did not occur.”

4. Bad reputation evidence:   The plaintiffs objected to the admission of testimony which was led for the purpose of establishing that the plaintiffs had a reputation for being criminals. The newspaper called three garda witnesses, all of whom stated that the plaintiffs had a reputation for being involved in serious criminal activity. On this point the Supreme Court made it clear that evidence of bad reputation is admissible but that it should be separated from hearsay and not confused with justification because it is only relevant in mitigation of damage. Fennelly J. stated as follows at paragraphs 85-86:-

“As might be expected and as is clear from experience, it is inevitably exceptionally difficult in practice to draw the line between evidence of reputation in the strict sense and evidence of rumour or hearsay, which may…“creep in.” Equally, it will be difficult to prevent witnesses, without appreciation of fine legal distinctions, to resist referring to specific instances. The present case illustrates the problem of framing suitable questions inviting witness to give evidence of a person’s reputation. The task of cross-examining a witness as to the bad reputation of the plaintiff will be hazardous and may be impossible. Counsel must be particularly careful about the questions asked both in examination in chief and cross-examination. All this calls for a high level of vigilance from the trial judge. Nonetheless, the evidence of bad reputation is, in principle, admissible.”

Comment

The decision touches on two important issues: (1) the express identification of a plaintiff following a subsequent publication where the first article did not explicitly identify the plaintiff; and (2) the dangers of “bad reputation” evidence. The case is authority that where words are defamatory the jury can look at a subsequent publication to see to whom the first publication referred. However, it is pointed out that “where there is a series of publications with a continuing currency, it is one libel” (Hayward v. Thompson [1982] Q.B. 47, p. 53). This is because there is no change of meaning from the first article to the second. Both articles were practically the same, except that the second expressly identified the plaintiffs, therefore if the plaintiffs are eventually found to be defamed it is arguable that only one verdict should be returned.

In terms of bad reputation evidence, the Supreme Court has made it clear that trial judges should treat such evidence with caution. It is interesting to note that Fennelly J. submitted that the decision in Scott v. Sampson [1882] 8 Q.B.D. 491 can be relied on in Ireland. The tenet of the aforementioned case is that while a defendant may lead general bad reputation evidence, it may not give evidence of specific acts of misconduct. The exception to that rule occurs if the defendant has previous convictions (Goody v. Odhams Press Ltd [1967] 1 Q.B. 333) or the evidence forms part of the directly relevant background context in which the publication came to be made (Burstein v. Times [2001] 1 W.L.R. 579 ). Fennelly J. rightly pointed out that “a settled reputation which has been accumulated over a period by a series of misdeeds runs a very real risk that a witness will start to speak of those specific misdeeds”. On the other hand, evidence strictly related to general reputation may run the corresponding risk of being based on hearsay. Therefore, where this situation arises, Fennelly J. has advised that the trial judge at a future trial will have the task of seeing that evidence of rumour or hearsay is not given but that does not exclude evidence of reputation.

It remains to be seen how the plaintiffs will fare at retrial.

Yvonne Moynihan is a barrister in Ireland and PhD candidate in media law