Times can use leaked Police documents in libel defence
25 October 2011
Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor  EWHC 2705 (QB) (24 October 2011) – Read judgment.
Mr Justice Tugendhat has held that, with restrictions, The Times Newspapers Ltd (TNL) should be allowed to use information from leaked documents in its defence to a libel claim brought by the Metropolitan Police Service and the Serious Organised Crime Agency (SOCA). However, proportionality limited the reach of this judgment to the next stage in the libel claim, after which reassessment may be necessary.
It was held that restrictions in the order made did not interfere with TNL’s right to a fair trial in the libel case nor offend its right to freedom of expression. Decisions on specific documents was dealt with in a closed judgment because of the sensitivity of the subject matter.
The claim arises from an article written by the second Defendant, investigative journalist Michael Gillard, published in May 2010 in the Sunday Times. The article used information from leaked Police and SOCA (together, the Claimants) documents to allege that a man named David Hunt was the head of a renowned organized crime group and was aiming to profit from compulsory purchase of land in London. Mr Hunt then issued a libel claim against TNL.
The draft amended defence to this claim, shown to the Claimants, referred to to 10 documents of which TNL had sought disclosure but which the Police and SOCA objected TNL using in its defence. TNL sought to use this information in its libel defence of justification, or truth, but was also running a Reynolds defence of qualified privilege.
The Claimants issued this claim alleging breach of confidence and breach of the Data Protection Act 1998. The claim rested on grounds familiar to applications to prevent disclosure of evidence in criminal trials because of public interest immunity: that use of the information risks attacks, or threats of attacks, on the persons and property it identifies, including informants; and it puts at risk the Claimants’ current and future investigations by revealing information known to them and the extent of information they don’t know (para 19).
In reply, TNL argued that its Article 10 of the European Convention of Human Rights (ECHR) right of freedom of expression and information, sanctioned the original publication and publication so far as necessary for the libel action and, further, that forcing it to give up the documents would violate its Article 6 ECHR right to a fair trial in the libel claim (para 22).
Mr Justice Tugendhat gave a long and reasoned judgment in the case, which included a number of pronouncements of law. The judge ruled that Article 6 could be invoked. The European cases cited to persuade him otherwise did not apply, because the burden in English libel law is on the Defendant to prove the defence of justification or truth and denial of the use of the documents could deprive TNL of the means of proving its case (paras 39, 47).
However, the judge also held that interference on material that would trigger public interest immunity would not be interference with Article 6 and that this case did not require a definitive judgment on whether TNL’s rights in the libel claim would be infringed, though it may be a strong consideration (para 48).
The effect of Article 8 ECHR (the right to private and family life) was a crucial consideration. The Claimants alleged the documents interfered not only with the Article 8 rights of Mr Hunt, of those Police and SOCA employees identifiable by the documents but also, interestingly, of those not involved with the case but that Mr Hunt may – both accurately and incorrectly – identify as party to the information (para 60). It was therefore argued that TNL should be prevented from using the information, partly to protect the rights of unnamed and unknown individuals.
Against this, it was held TNL’s Article 10 rights had to be balanced. Tugendhat J said there was a “high public interest” in TNL’s use of the documents not only because the original publication was on a serious allegation of criminal activity, but also because the only remaining intended expression to which the material would be put was use in defending legal action. To this end,
… There may be more than one reason why speech should attract a high degree of protection from the courts, but what matters is whether or not the court concludes that the speech in question should attract a high degree of protection…  Moreover, the principle of freedom of expression in proceedings in court is so highly valued by the law that it is given effect to by the defences of absolute (and in some cases qualified) privilege and witness immunity. These principles can be traced back to the origins of the right to a fair trial, which had already been recognised before it was included in Magna Carta in 1215.
In balancing these two rights, Tugendhat J had in mind the “ultimate balancing test” as referred to by Lord Steyn Re S (A Child)  1 AC 593 (at para 17) and guidance from Lord Bingham in R v Shayler  1 AC 247 (at para 26) that interference of the ECHR right must not be stricter than necessary to achieve the state’s legitimate aim.
The law on breach of confidence also required explanation. Tugendhat J described the test to establish a breach as whether a reasonable person’s conscience would be troubled by the use of the information, considering ECHR rights when they are engaged (para 106).
It was argued on behalf of the Defendants that the information would not be put in the public domain, as required to establish a breach of confidence, simply by its use in a defence to the libel claim. This did not hold sway with the learned judge: just by disclosing the information to the Claimant in the libel action, Mr Hunt, the major damage feared by the Police and SOCA could possibly occur, namely that Mr Hunt would have information about individuals and practices at the two Claimant law enforcement agencies, potentially putting both at risk.
In light of Tugendhat J’s findings of law, four main decisions on the facts of the case remained: whether TNL’s right to a fair trial would be infringed by forcing TNL to give up the information; whether its right to freedom of expression would be unlawfully infringed; whether Article 8 rights of Claimant employees, their families and unknown others would be harmed by allowing the information’s use; and whether such use would constitute an unlawful breach of confidence.
In summary, the judge found partially in TNL’s favour, allowing documents to be used subject to specific restrictions set out in the closed judgments. He held that the order to be made in the case would not automatically infringe TNL’s Article 6 right (para 188) but also that TNL had not established that, “without the confidential information from the Claimants’ documents, it cannot adequately plead the substance of a defence of truth” (para 169).
The judge also held that TNL’s Article 10 rights would mean it would be allowed to make some use of documents in its defence. However, to ensure only a proportionate interference with Article 8 rights of those identified in or as a result of the documents, this use would only be sanctioned for the purposes of the very next stage of the libel claim: service of the amended defence. After this, and in light of the reply by Mr Hunt in the libel claim, it would be for court in the libel action to determine what information should be made public, considering Article 8 rights again. These findings meant that the Claimants’ claim only succeeded to the extent of the restriction set out in closed judgment (para 207).
A significant judgment
The judgment is significant because of its clear statement of a number of principles, including whether restricting the use of a defence inhibits a Defendant’s right to a fair trial, notwithstanding the availability of another defence.
Libel law campaigners may also reflect that part of the reason TNL was allowed to use this information under Article 10 rights was because of the burden of proof on the Defendant in the defence of justification English libel law, something that has been the target of reform. It is clear from the case that in some circumstances, even a potential risk to individuals and investigations at law enforcement agencies are subject to inhibition when a strong public interest requires the use of confidential information.
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