Flood v Times Newspapers Ltd

Factual and Procedural Background

Defendant, Company A, published a newspaper and online article on 2 June 2006 alleging that Plaintiff, a detective sergeant in The Police Service Extradition Unit, was under investigation for accepting bribes from Russian exiles and supplying confidential extradition information to Company B. The article repeated assertions made by an unnamed “insider” at Company B and quoted an official Police Service press statement confirming an investigation into “unauthorised disclosures for money”.

A police inquiry subsequently concluded that there was no evidence of corruption, and the trial judge (Judge [Tugendhat]) accepted Plaintiff’s sworn evidence of innocence. Plaintiff sued Company A for defamation.

At first instance, Judge [Tugendhat] held that the publication was protected by the common-law “Reynolds” public-interest defence. The Court of Appeal (Judges [Neuberger], [Moore-Bick] and [Moses]) reversed, finding that Company A had failed to act responsibly, mainly for want of adequate verification. The Supreme Court (Judges [Phillips], [Mance], [Brown], [Clarke] and [Dyson]) allowed Company A’s appeal on the principal limb considered in this judgment; the second limb (continued web publication after 5 September 2007) was adjourned.

Legal Issues Presented

1. Whether the article concerned a matter of sufficient public interest to engage Reynolds-style qualified privilege (“public-interest issue”).
2. Whether Company A acted with “responsible journalism”, in particular as to the steps taken to verify the allegations (“verification issue”).
3. Whether naming Plaintiff and including detailed supporting facts was itself in the public interest or constituted an unnecessary and oppressive “trial by press”.
4. The appropriate appellate approach to a trial judge’s evaluative balancing of Articles 8 and 10 and the Reynolds factors (left unresolved for future cases).

Arguments of the Parties

Plaintiff’s Arguments

• Reynolds privilege should rarely, if ever, cover publication of unverified criminal accusations against a named individual, especially where details supplied to police are reproduced.
• Company A failed to take adequate steps to check whether the allegations were true; mere confirmation that allegations had been made was insufficient.
• Publishing the supporting material and Plaintiff’s name created an unfair “trial by media” and caused serious reputational harm.

Defendant’s Arguments

• Police corruption in extradition cases is a matter of high public concern; the public was entitled to know both that an inquiry existed and the factual basis for it.
• The journalists undertook a lengthy investigation, interviewed multiple sources (including the insider), obtained documentary material and sought comment from all protagonists; this satisfied the responsible-journalism test.
• The story aimed to ensure the investigation was pursued diligently; naming Plaintiff prevented speculation against other officers and served legitimate editorial purposes.

Table of Precedents Cited

Court’s Reasoning and Analysis

Public Interest. All justices agreed that potential corruption within The Police Service, especially in extradition matters involving high-profile foreign nationals, was of substantial public concern. An investigation’s existence, and the factual basis underpinning it, therefore passed the public-interest threshold.

Verification. The journalists spent months interviewing three sources, obtained Company B accounting records showing payments to the codename “Noah”, sought comment from Plaintiff and others, and consulted The Police Service press office. Although they could not prove Plaintiff’s guilt, they had reasonably verified that:

• an insider’s dossier existed and had been given to police;
• payments recorded as made to “Noah” totalled £20,000; and
• The Police Service had treated the allegations seriously enough to raid Plaintiff’s home and office.

Responsible journalism does not always require verifying the truth of accusations where the story’s essence is that reputable bodies are investigating them; it is enough to verify that the accusations and investigation genuinely exist.

Naming Plaintiff. Publishing Plaintiff’s name lay within editorial discretion. Without it, the article risked wrongly implicating other officers and would have lacked context and impact. Given that colleagues already knew who had been removed from the Extradition Unit, naming added little incremental harm.

Balance of Articles 8 and 10. Weighing the reputational harm to Plaintiff against society’s interest in disclosure, the Supreme Court held that Company A’s publication struck a proportionate balance. The article was measured in tone, included categorical denials, and served the legitimate aim of ensuring diligent police inquiry.

The Court of Appeal had placed disproportionate emphasis on lack of exhaustive verification and on the risk of “trial by press”. It also erred in discounting the trial judge’s findings on the journalists’ motives and the police’s apparent delay.

Holding and Implications

Holding: The Supreme Court reinstated the first-instance decision; publication up to 5 September 2007 was protected by Reynolds qualified privilege.

Implications: (1) Detailed reporting of allegations under police investigation can attract privilege where responsible journalism is shown. (2) Verification focuses on the reality of the allegation and investigation rather than conclusive proof of truth. (3) Editorial judgment in naming individuals and including supporting facts commands deference, especially where public-office holders are involved. (4) Older authorities limiting press freedom must be viewed through the modern Article 10 lens.