Peter Charlton: there is a libel defence of public interest

Peter Charlton was appointed to the High Court earlier this year. Immediately prior to his appointment he had been the lead counsel at the Morris Tribunal and before that one of the leading criminal barristers in the State – he appeared in most of the celebrated murder trials of the last decade, including the Catherine Nevin trial.

He is author of several criminal law text books, author of a recent book on evil, member of a choir and father of young children.

This is an edited version of his judgement on the law of libel, delivered during the Monica Leech trial.

“Is there such a thing as a public interest defence (in a libel action)? In my view, there is. The test as to qualified privilege involves a situation where a party has an interest in receiving information and another party has a duty to pass that information on to them.

“In Reynolds v Sunday Times Newspapers [2002] (House of Lords)… an issue arose as to whether there was such a thing as a general interest in the public in favour of them receiving information, albeit incorrect (information). And it seems to me that, yes, there is. The public have an interest in many matters, as opposed merely to being interested in matters. Being interested in matters, it seems to me, would refer to matters which are merely titillating or salacious or gossipy. Matters which are of public interest, on the other hand, have to be matters which affect the public in terms of the governance of the country, their safety, their security, and their right to judge their public representatives fairly on the basis of real information. …

“In Reynolds, a number of tests were set out by Lord Nichol... These are:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff's side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing….

“Therefore, I would rule that a public interest defence can arise where the subject matter of a publication, be it an article or radio or television report, considered as a whole, was a matter of public interest.

“As I previously indicated in this ruling, I would rule as well that there is a professional duty on the part of journalists to both seek out information that is of public interest and to impart it to the public and that while that is a matter of for professional skill and training, that it is also a matter of responsibility.

“And once a public interest is established in terms of the information the subject matter of the article, there is a second test to be met, which is as to whether on the evidence the steps taken to gather and publish the information were responsible and fair...

“I also agree that in considering whether there was fair and responsible conduct that the court or the jury has to have regard to the practical realities of news gathering. In that regard,

“Now, given that the public interest defence exists, on that ruling which I have just given, and given that it is up to me to decide whether it is to be put before this jury, the next issue is this: is this now a case where a public interest defence can be raised? The answer to that, to be perfectly frank about it, is that I do not know because I have not yet heard the evidence. My natural inclination is against shutting off persons who come to court from making the case which they wish to make, whether they are a plaintiff or a defendant.

“But in circumstances where we have only started the case and where long experience indicates that many defences are put forward in all kinds of cases on a basis that is tenuous or perhaps irresponsible, and where many plaintiffs make allegations which are tenuous or exaggerated, I feel that the right thing to do in this case is to follow the ordinary course of an ordinary trial judge doing an ordinary case, which this is, and that is to hear the evidence and to listen to it and, in due course, to deal with an application as to whether a public interest defence has been properly raised in accordance with the test already set out. And that is what I am going to do before speeches are made to the jury in this case.”