Flood v Times Newspapers Limited

The Supreme Court allowed the appeal and held that Reynolds privilege (the public interest defence) protected The Times’ publication of an article reporting allegations that a serving Metropolitan Police officer (Detective Sergeant Flood) was under investigation for corruptly passing sensitive information. The Court restated that Reynolds privilege requires (i) publication on a matter of public interest and (ii) responsible journalism. The judges emphasised the need to distinguish reportage (where the public interest lies in the fact that allegations were made) from publication where the public interest lies in the truth of the allegations; the degree of verification required depends on that distinction and on the range of meanings the publication may bear.

Applying those principles the Court concluded that, on the facts found by the trial judge, the journalists had taken reasonable steps and were justified in concluding there was a serious circumstantial case and that publication (including naming the officer) was within the range of responsible editorial judgment. The Court of Appeal’s reversal was therefore wrong. The Court noted that the second limb of the appeal, relating to continued online publication after the police report clearing Sergeant Flood, was adjourned for further argument.

Background and parties: Detective Sergeant Gary Flood (respondent) sued Times Newspapers Limited (appellant) for defamation arising from a 2 June 2006 article alleging that the respondent was the subject of a Scotland Yard investigation into corrupt payments in return for disclosure of sensitive extradition information. The defendant relied on Reynolds privilege.

Procedural posture: The trial judge (Tugendhat J) found that Reynolds privilege applied ([2009] EWHC 2375 (QB)). The Court of Appeal reversed ([2010] EWCA Civ 804). The case came to the Supreme Court on the question whether Reynolds privilege protected the publication (first limb); a second limb (online republication after police clearance) was adjourned for further argument.

Nature of the claim / relief sought: Claim for defamation by Sergeant Flood (relief sought: Not stated in the judgment).

Issues framed by the Court:

• The meaning issue: what range of defamatory meanings the article could bear and how the judge should approach meaning when deciding a Reynolds issue.
• The public interest issue: whether and when it is in the public interest to publish allegations made to the police about a named individual, and whether publication of supporting details is ever justified.
• The verification issue: what steps responsible journalists must take to verify allegations before publication and how reportage differs from content-based publication.

Court’s reasoning (concise): The Court reviewed Reynolds and subsequent authorities (notably Jameel, Bonnick and cases on reportage) and emphasised that the required degree of verification depends on whether the public interest is in the mere fact an allegation was made (reportage) or in the content of the allegation. A responsible journalist must take reasonable steps to verify the matters that make the story of public interest and must assess the full range of meanings a reasonable reader might draw. On the facts (unchallenged findings of the trial judge about sources, documents, meetings with police and police actions), the Supreme Court concluded that the journalists had a strong circumstantial case, could reasonably infer that the police were treating the matter as credible, and had sought and recorded responses; naming was within editorial judgment because anonymity would have rendered the story effectively unpublishable and would have spread suspicion through the whole small unit. The Court therefore restored the trial judge’s decision on the first limb and allowed the appeal on that point. The Court also emphasised that each case turns on its facts and that there is no absolute rule precluding publication of investigative material about allegations made to the police.

Wider context: The judgment explains the balance between article 10 and article 8 considerations and confirms that Reynolds privilege remains a fact-specific balancing test; reportage is a recognised, narrower category. The Court noted that the second limb of the appeal (online persistence after police clearance) remained to be argued.

Appeal allowed. The Supreme Court held that Reynolds privilege protected The Times’ 2 June 2006 article on the facts found by the trial judge because the publication was on a matter of real public interest and the journalists had acted as responsible journalists in the circumstances: they had a strong circumstantial basis, had sought comment and had reasonable grounds to treat the police action as supporting the allegation. Naming the officer was within the range of responsible editorial judgment. The Court quashed the Court of Appeal’s decision which had reversed the trial judge on grounds of inadequate verification. The second limb concerning continued online publication after police clearance was adjourned for further argument.

First instance: High Court (Tugendhat J) [2009] EWHC 2375 (QB) – held Reynolds privilege applied. Court of Appeal: [2010] EWCA Civ 804 – reversed the trial judge. Supreme Court: [2012] UKSC 11 – allowed the appeal on the first limb and restored the trial judge’s decision; second limb adjourned for further argument.