In Coker v Nwkanma [2021] EWHC 1011 (QB), the Claimant sued his former friend over an allegation that he had sexually assaulted a woman – anonymised in the proceedings as ‘X’ – at the Defendant’s home.

Both parties were litigants-in-person, and, by the time the proceedings came to trial before Saini J, there remained ambiguities about the parties’ cases, and in particular, precisely which publications were in issue.  Ultimately, the Judge found that the Defendant had published one defamatory statement to a single third party, the relevant words of which were:-

‘Told everyone who came yesterday about you rapist’.

The meaning of this statement was held to be that:-

‘The Claimant has committed a serious sexual assault involving non-consensual penetration of the sexual organs of a victim’

Pausing there, lawyers might be mindful that the statutory definition of ‘rape’ – as now provided by section 1 of the Sexual Offences Act 2003 – is non-consensual penetration of the vagina, anus, or mouth, with the penis.  X’s allegation against the Claimant was one of digital penetration.  It is not clear whether the Claimant attempted to take this point at trial, but towards the end of his Judgment, Saini J remarked that insofar as one might try to argue, in this context, that rape meant penetration by the penis, he saw no merit in it.

In his view, a person who carries out a violent and non-consensual penetration of the vagina, would in substance rightly be described as a rapist, and a reasonable person would regard such an act to be essentially akin to rape.  The law of defamation is, of course, concerned with factual meaning, as understood by the reasonable reader, and not statutory construction (see, for example, Bukovsky v CPS [2016] EWHC 1926 (QB)).

The Judge found that the language of the publication in this case meant that serious harm could be inferred, despite the fact that publication was only to one (the Defendant’s sister) and that she had already been told by X of the Claimant’s alleged assault by the time of the publication (the latter point irrelevant in light of the rule in Associated Newspapers Ltd v Dingle [1964] AC 371).

The Judge had therefore to determine the Defendant’s truth defence in which, inter alia, X gave evidence on behalf of the Defendant, as to what had allegedly happened to her.  This, the Judge observed, inevitably required him to make findings of fact as to the Claimant’s alleged assault of X.  Although, as with all civil proceedings, the standard of proof is the ‘balance of probabilities’, Saini J noted that, in practice, more serious allegations require stronger or superior quality evidence before a court will find the allegation proven.  Notwithstanding this qualification, the Judge went on to find – on the balance of probabilities – that the Claimant had committed a serious sexual assault involving forceful vaginal penetration of X with his fingers and non-consensual touching of X’s breasts.  He had no hesitation accepting X’s evidence as accurate and wholly truthful.

Conversely, he found that the Claimant’s suggestion – that the Defendant and X had been engaged in an attempt to blackmail him – was an attempt to cover up a serious sexual assault and turn the blame on the victim and those who supported her.  The fact that there had been no criminal proceedings, despite a complaint to the police having been made, was not relevant to the Judge’s decision. The Judge noted that a lack of prosecution was common in this type of case (the criminal burden of proof being ‘beyond a reasonable doubt’).

The Defendant therefore succeeded in substantially proving that the meaning of the words complained of were true.  The Judge concluded by noting that if his view as to the difference, if any, in substance between digital and penile penetration were wrong, and it could be said that the Defendant had not proved the substantial truth of the latter, he would have ruled that the Claimant, on such limited success, would have been entitled to only nominal damages.

Comment

This case – like that of Starr v Ward [2015] EWHC 1987 (QB), in which the late comedian Freddie Starr was found to have groped a 14-year-old, and the more recent case of Depp v NGN [2020] EWHC 2911 (QB), in which the actor Johnny Depp was found to have violently abused his former wife, Amber Heard – demonstrates the potential folly in pursuing libel proceedings in respect of allegations of serious criminality (see our blog here).  Such claims may result in the Claimant’s conduct effectively being tried, but to a lower standard of proof, and – in all likelihood – a shrewder tribunal, than in the criminal courts.  The judgment in this case suggests that the claimant, like some others before him, had failed to truly appreciate this. It is the reason why – despite the plethora of claims asserted, in particular, following the #metoo campaign – relatively few accusers find themselves being sued.

Saini J’s observation about the apparent ‘flexibility’ in the application of the civil standard of proof is a doubled-edged sword: whilst it means that a Judge will be less quick to make findings of serious criminality, it also means that the reputational damage arising from such findings, if made, is worse (because the findings, whilst on the balance of probabilities, have expressly not been made lightly).

This post originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks.