Wednesday, 22 June 2016

Libel Case: The Trial

Finally we were at trial.

Ten days ago I was acquitted of harassment. Now all I had to do was win the libel case and I was on a home run.

The libel case was very complicated.

We were complaining about 7 sets of publications. There was one Radio interview, one TV interview and 5 newspaper articles.

All of this occurred over a period of 5 weeks, between the 6th November 2014 to the 10th December 2014.

Each publication would have to be examined very carefully. The meaning of the words words have to be established, and whether it caused serious harm.

Our case was very strong. It was strong because I warned Mr de Freitas that I would take legal action after the first publication, but he continued defaming me.

Our case was that he continued defaming me over 5 weeks and each time I contacted his lawyers to protest at what he was saying, telling him that it wasn't true.

If he had stopped after the first defamatory statement then he might have been excused for making an honest mistake but he ploughed on regardless. There was no defence.

This trial was very long and complicated. It was much less exciting than the harassment trial. There were lots of complicated arguments between the lawyers citing many authorities.

The trial lasted for 7 full days. We were in courtroom 13 of the Royal Court of Justice, a big Gothic building in the strand. That's the room where many of the famous libel cases have been heard over the years. Hamilton v Fayed, Aitken v Guardian, Archer v The Star, and Mitchell v Newgroup. Unfortunately most libel cases fail. Libel is a very difficult thing to litigate. As the case progressed I looked around the room imagining the various parties over he years giving evidence from the witness box. This was a place of history with it's old wooden pews, stained glass windows and three foot thick stone walls.

On the final morning each party gave a closing speech and that was it. Time to wait.

I was feeling confident. There had been no surprises at trial, it went how we expected it to go. Mr de Freitas and his witness didn't say anything terribly helpful in his defence.

But this was to be the first time the section 4 defence had been deployed in a libel case. So it was new territory for the judge. The Defamation Act 2013 was relatively new, so there was an element of uncertainty.

What is the section 4 defence?
In libel cases usually the person making the defamatory statement has to prove that what they are saying is true. If they can't prove it was true then they lose. In this case David de Freitas was not going to go down that path. He was not pleading the truth. He was pleading a section 4 defence.

The section 4 defence is really designed to protect journalists, should they make an innocent mistake and can show responsible journalism. If a journalist wrote what he believed was an impartial story and accidentally libelled someone then they would be pardoned by the court if they had acted in a responsible manner.

Over the years the libel courts had come up with the following checklist, which is often referred to as the Reynolds Defence named after Albert Reynolds libel case. The court of appeal has previously ruled that:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

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.
The steps taken to verify the information.

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

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

6. 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.

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

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

9. The circumstances of the publication, including the timing.

This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgement than by a jury. Over time, a valuable corpus of case law will be built up.

In order to win the case Mr de Freitas would have to show that he followed the above checklist or at least a large proportion of it. Let's go through above list, in terms of my case:

1. He accused me of rape, and did not plead a case of truth at trial.

2.  It was agreed that rape or false allegations are of public concern (as opposed to kiss and tells story that wouldn't be)

3. He had his own axe to grind, he was an angry father. He also knew what he was saying was untrue.

4. The Director of Public Prosecutions had personally met Mr de Freitas and told him about the CCTV and text messages, yet he went to the press and said the opposite.

5. There was no urgency. His daughter had died 6 months before. He gave me no prior warning of his press campaign to prevent me speaking out at the same time and putting my side of the story.

6. He knew my side of the story, I told him to stop lying but he kept on lying regardless.

7. He never gave a gist of my side of the story of mentioned CCTV evidence to the press.

8. The tone was factual, as if he had special information that no one else knew.

9. He had ambushed the Director of Public Prosecutions statement, publishing his own article within 24hrs in order to confuse the general public.

Whatever the result of the judgement this was likely to go to court of appeal for a second opinion, this was new territory. Now we just and to wait and see what the outcome is. Fingers crossed...

Royal Courts of Justice

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