Mr Justice Eady :
Introduction: The parties and the articles sued upon
- The Claimant in these proceedings is Mr George
Galloway who has been since 1992 the Member of Parliament for the Glasgow
Kelvin Constituency. Prior to that, he had been the Member for Glasgow
Hillhead from 1987. Having been an active member of the Labour Party from 1967
(when he was aged 13), he was eventually expelled on 23rd October
2003 for allegedly "bringing the Labour Party into disrepute". Thereafter he
became a founding member of a new political movement known as RESPECT, which
is an acronym for "Respect, equality, socialism, peace, environment, community
and trade unionism". Its foundation conference held on 25th January
2004 was attended by some 1,500 activists. The movement has its origins in the
widespread opposition to the military action against Iraq in 2003. It has
among its objectives those of challenging New Labour, bringing an end to the
hostilities in Iraq and the severing of the "special relationship" with the
current government of the United States.
- Over the years Mr Galloway has attracted a good deal
of public and media attention, mainly in the context of his activities and
public statements over Iraq and the Middle East more generally. In these
defamation proceedings, he sues the Teleraph Group Limited over articles
appearing in The Daily Telegraph on 22nd and 23r
April 2003, just over a month after the invasion of Iraq by coalition forces
and at a time when British and American troops were still heavily engaged in
fighting. Those articles were said to be based upon documents found in badly
damaged government offices in Baghdad. The first article published was on the
front page under the heading "Galloway in Saddam's pay, say secret Iraqi
documents". Underneath appeared three bullet point sub-headings as follows:
• "Labour MP 'received at least £375,000 a year'"
• "Cash came from oil for food programme"
• "Papers could have been forged, he says"
- The article is attributed to Mr David Blair "in
Baghdad". The whole of the article is complained of in the particulars of
claim. For present purposes, however, the flavour is sufficiently conveyed by
the introductory paragraphs:
"GEORGE GALLOWAY, the Labour backbencher received money from
Saddam Hussein's regime, taking a slice of oil earnings worth at least
£375,000 a year, according to Iraqi intelligence documents found by The
Daily Telegraph in Baghdad.
A confidential memorandum sent to Saddam by his spy chief said
that Mr Galloway asked an agent of the Mukhabarat secret service for a
greater cut of Iraq's exports under the oil for food programme.
He also said that Mr Galloway was profiting from food contracts
and sought 'exceptional' business deals".
- Complaint is also made of an article appearing on
page 3 of the same issue which has the headings "The go-between" and "Loyal
Ba'athist 'supplied Saddam with weapons"'. Again, the article is attributed to
Mr Blair in Baghdad. It is introduced by the following two paragraphs:
"GEORGE Galloway's Jordanian intermediary has a family history
of loyalty to Saddam Hussein's Ba'ath Party, according to his Iraqi
intelligence profile.
Fawaz Abdullah Zureikat, 53, would clearly be an ideal choice to
conduct any business dealings with the Iraqi regime.
His Mukhabarat secret service profile, attached to the
intelligence chief's memorandum to Saddam's office on Mr Galloway, refers to
him warmly as a 'sympathiser with Iraq"'.
- The article continues with a brief description of Mr
Zureikat's background and business activities. It also refers to him as Mr
Galloway's "representative in 2000" and to his company having been mentioned
(in one of the documents found) "as a front for Mr Galloway's business
dealings in Iraq".
- On page four of the same issue alongside a
photograph of Mr Galloway, sitting smiling with Saddam Hussein, there appears
an article attributed to Anton La Guardia, Diplomatic Editor. It is headed
"Oil for food" and "Billions poured through holes in sanctions". It is
introduced by the following paragraphs:
"FOR years, Saddam Hussein abused the United Nations
oil for-food programme to fund Iraq's own illegal activities and reward the
regime's favoured friends.
The embargo may have been designed to 'contain' Saddam, but
several loopholes allowed him to earn billions of pounds in illegal revenues
through oil sales.
The papers found in Baghdad suggest that George Galloway,
through his associates, was granted two kinds of deal.
The first was the right to buy Iraq's oil, under the
oil-for-food programme, at concessionary prices and sell it on at a profit.
The second was to sell food and perhaps other civilian supplies to Iraq".
- The fourth and final article selected for complaint
in the issue of 22nd April 2003 consisted of a leader headed
"Saddam's little helper", which was the only leader published in The Daily
Telegraph that day. It will require close consideration in due course, but
the flavour may be gathered from the first three paragraphs:
"It doesn't get much worse than this. George Galloway is
Britain's most active and visible peace campaigner. The Labour MP for
Glasgow Kelvin did not just oppose the recent campaign against Saddam
Hussein; he lobbied equally aggressively against the first Gulfwar, and -
during the years in between - for an end to sanctions. Yesterday, The
Daily Telegraph's correspondent in Baghdad, David Blair, unearthed
papers detailing alleged payments from Saddam's intelligence service to Mr
Galloway through a Jordanian intermediary.
There is a word for taking money from enemy regimes: treason.
What makes this allegation especially worrying, however, is that the
documents suggest that the money has been coming out of Iraq's oil-for-food
programme. In other words, the alleged payments did not come from some
personal bank account of Saddam's, but out of the revenue intended to pay
for food and medicines for Iraqi civilians: the very people whom Mr Galloway
has been so fond of invoking.
Speaking from abroad yesterday, Mr Galloway was reduced to
suggesting that the whole thing was a Daily Telegraph forgery, but
the files could hardly be more specific. One memo comments: 'His projects
and future plans for the benefit of the country need financial support to
become a motive for him to do more work, and because of the sensitivity of
getting money directly from Iraq it is necessary to grant him oil contracts
and special commercial opportunities to provide him with a financial income
under commercial cover without being connected to him directly'''.
- In the particulars of claim the Claimant attributes
four natural and ordinary meanings to the articles complained of from the
22nd April issue. No distinction is drawn between the articles for
this purpose:
(i) "That the Claimant was in the pay of Saddam Hussein and had
secretly received at least £375,000 a year from Saddam Hussein's regime;
(ii) That the Claimant had made very substantial secret profits
from Saddam Hussein and his regime, firstly by receiving money from the 'Oil
for Food' programme (the Claimant's share being 10-15 cents per barrel on
three million barrels of oil every six months) and secondly by receiving a
percentage of the profit on a number of food contracts the Claimant had
obtained from the Iraqi Ministry of Trade;
(iii) That, not satisfied with the very substantial personal
profits referred to above, the Claimant had, at a meeting on 26th December
1999, asked an Iraqi intelligence agent for even more money for himself;
(iv) That the Claimant used the Mariam Appeal as a front to
conceal his secret commercial dealings with the Iraqi intelligence service,
through which commercial dealings he sought to obtain very substantial sums
of money for himself".
- The story was followed up by more articles the next
day. On the front page there was a large photograph of the Claimant alongside
a poster of Saddam Hussein. Above this, alongside one another, there were
three "bullet point" headlines in the following terms:
- "Telegraph reveals damning new evidence on Labour MP
- Bluster, two homes and the unanswered questions.
- Tory party donor is named as key partner in oil contracts."
There is then a bolder headline: " Memo from Saddam: We can't afford to pay
Galloway more".
- The front page article is again attributed to Mr
Blair in Baghdad and the key
allegations may perhaps be gathered from the following extracts:
"SADDAM HUSSEIN rejected a request from George Galloway for more
money, saying that the Labour backbencher's 'exceptional' demands were not
affordable, according to an official document found by The Daily
Telegraph in Baghdad.
The letter from Saddam's most senior aide was sent in response
to Mr Galloway's reported demand for additional funds. This was outlined in
a memorandum from the Iraqi intelligence chief disclosed in The Daily
Telegraph yesterday.
Mr Galloway denies receiving any money from the regime ...
Saddam was rejecting two specific requests allegedly made by Mr
Galloway, as recorded in the intelligence chieFs memorandum.
The first was for a greater share of the profits from oil
exports. The memorandum said that Mr Galloway was already receiving between
10 and 15 cents per barrel of three million barrels exported every six
months: an annual sum of at least £375,000.
Mr Galloway's second reported request was for 'exceptional
commercial and contractual' opportunities with three ministries and the
state electricity commission. These requests for more sources of income fell
on deaf ears, but Saddam's decision not to allow them did not apply to Mr
Galloway's existing deals. Before Saddam issued his rejection, Mr Galloway
sent his 'work programme' for 2000 to Mr Aziz ... "
- The second complaint in relation to the issue for
23rd April concerns solely the headline on pages two and three,
which was in these terms "MP in Saddam's pay defends himself from £250,000
villa in the Algarve".
- The third complaint is of the article appearing on
the right hand page under the headline described above, which is attributed to
Sally Pook in Burgau and Nicola Woolcock. As part of the context of this
article I should record that there were photographs published alongside it,
including of Mr Galloway's "converted farmhouse near Burgau in the western
Algarve" and of his home in Streatham "estimated to be worth around £800,000".
The article refers to those houses and to a former home "in Glasgow's
fashionable West End", thought to have been sold about two years before the
article. There is also reference to a Range Rover and a Mercedes.
- The fourth and final complaint is of an article
appearing on page 25 under the heading "Galloway's gall". This again is a
leader, which was the only one published that day. It referred to Mr
Galloway's "characteristic bravado" and to his "bluster". It contains a number
of opinions expressed on a conditional basis, for example:
"lf Mr Galloway did receive this money, what precisely has he
done wrong? First and foremost, it is a betrayal of trust. He has betrayed
those who, out of genuine philanthropy, donated money to his campaigns. He
has betrayed his fellow campaigners against war and sanctions. He has
betrayed the voters of Glasgow. He has betrayed the Labour Party, both
locally and nationally. He has betrayed Parliament. He has betrayed his
country. Whether or not he has committed a criminal offence, he has done
great damage, not only to his own reputation, but also to that of
Parliament. Those who have fought alongside him would be wise not to fall
for his conspiracy theories, or defend him out of a misplaced sense of
loyalty or solidarity. Mr Galloway is a greater menace to his political
friends than to his enemies, as the Labour Party has evidently realised".
- The Claimant's natural and ordinary meanings are
attributed to the 23rd April articles compendiously. The pleaded
meanings are precisely the same as those set out above in respect of the
22nd April issue.
- There is no plea of justification; that is to say,
it is no part of the Defendants' case to allege that what they published was
true in any sense that was defamatory of Mr Galloway. So that there should be
no confusion, I need to make clear that despite references in their
submissions to a "strong prima facie case" and to the desirability of a
"full investigation" the Defendants do not allege that the words are true in
the sense that there were "reasonable grounds to suspect" or "grounds to
investigate": see e.g. Chase v News Group Newspapers [2003] EMLR 218.
- Because context is so often crucial in libel
proceedings, it is important to note that there are a number of other articles
contained within the relevant issues of the newspaper dealing broadly with the
same subject matter, of which no complaint is made. In particular, the
Defendants attach great weight to the fact that the critical documents, as
discovered by Mr Blair in the Foreign Ministry in Baghdad, were themselves
published in full, in facsimile and translation, and that the circumstances in
which they were found were accurately set out for readers to judge for
themselves what to make of them. They are not in themselves the subject of
complaint in these proceedings; yet anyone reading this judgment would not be
in a position to understand the issues fully without seeing the text of those
two Arabic language documents which appeared on page 2 of the 22nd
April issue. I set them out in translation:
(1) "In the name of Allah the Compassionate and Merciful
(2)
Republic of Iraq
President's Office
Iraqi Intelligence Service
Confidential and Personal
Letter no. 140/4/5
3/1/2000
To: The President's Office - Secretariat
Subject: Mariam Campaign
1 We have been informed by our Jordanian friend Mr Fawaz
Abdullah Zureikat (full information about him attached appendix no. 1), who
is an envoy of Mr George Galloway because he participated with him in all
the Mariam Campaign's activities in Jordan and Iraq, the following:
(a) The mentioned campaign has achieved its goals on different
levels, Arabic, international and local, but it is clear that by conducting
this campaign and everything involved in it, he puts his future as a British
member of parliament in a circle surrounded by many question marks and
doubts.
As much as he gained many supporters and friends, he made many
enemies at the same time.
(b) His projects and future plans for the benefit of the country
need financial support to become a motive for him to do more work. And
because of the sensitivity of getting money directly from Iraq, it is
necessary to grant him oil contracts and special and exception [ al]
commercial opportunities to provide him with a fmancial income under
commercial cover without being connected to him directly.
To implement this Mr Galloway gave him an authorisation
(attached) in which he pointed out that his only representative on all
matters related to the Mariam Campaign and any other matters related to him
is Mr Fawaz Abdullah Zureikat, and the two partners have agreed that
financial and commercial matters should be done by the last [Zureikat] and
his company in co operation with Mr Galloway's wife, Dr Amina Abu Zaid, with
emphasis that the name of Mr Galloway or his wife should not be mentioned
later.
2. On 26/12/1999 the friend Fawaz arranged a meeting between one
of our officers and Mr Galloway in which he expressed his willingness to
ensure confidentiality in his financial and commercial relations with the
country and reassure his personal security.
The most important things Mr Galloway explained were:
(a) He stressed that Mr Fawaz Zureikat is his only
representative in all matters concerning the Mariam Campaign and to take
care of his future projects for the benefit of Iraq and the commercial
contracts with Iraqi companies for the benefit of these projects.
But he did not refer to the commercial side of the authorisation
he granted to Mr Fawaz for reasons concerning his personal security and
political future and not to give an opportunity to enemies of Iraq to
obstruct the future projects he intended to carry out.
(b) He is planning to arrange visits for Iraqi sports and
arts delegations to Britain and to start broadcasting programmes for the
benefit of Iraq and to locate Iraq On Line for the benefit of Iraq on the
internet and mobilise British personalities to support the Iraqi position.
That needs great financial support because the financial support
given by [a named Arab sheikh] is limited and volatile because it depends on
his personal temper and the economic and political changes. Therefore he
needs continuous financial support from Iraq.
He obtained through Mr Tariq Aziz three million barrels of oil
every six months, according to the oil-for-food programme. His share would
be only between 10 and 15 cents per barrel. He also obtained a limited
number of food contracts with the Ministry of Trade. The percentage of its
profits does not go above one per cent.
He suggested to us the following:
First, increase his share of oil. Second, grant him exceptional
commercial and contractual facilities, according to the conditions and
suitable qualities for the concerned Iraqi sides, with the Ministry of
Trade, the Ministry of Transport and Communications, the Ministry of
Industry and the Electricity Commission.
(c) Mr Galloway entered into partnership with [a named Iraqi oil
trader] (available information in appendix 2) to sign for his specific oil
contracts in accordance with his representative Fawaz, benefiting from the
great experience of the first in oil trading and his passion for Iraq and
financial contribution to campaigns that were organised in Britain for the
benefit of the country, in addition to his recommendation by Mr Mudhafar
al Amin, the head of the Iraqi Interests Section in London.
3. We showed him we are ready to give help and support to him to
fmish all his future projects for the benefit of the country and we will
work with our resources to achieve this. But we should not be isolated from
Mr Tariq Aziz supervising the project in its different aspects.
4. We are going to make arrangements with him to unite the
positions and co-operate to make the work succeed.
In accordance with what we have said, we suggest the following:
(a) Agreement on his suggestion explained in article 2 b.
(b) Arranging with Tariq Aziz about implementing these
suggestions and taking care of the projects and Mr Galloway's other
activities.
Please tell me what actions should be taken.
With regards,
(signature illegible)
Chief of the Iraqi Intelligence Service
2/1/2000
Confidential and personal"
(3) "In the name of Allah the Compassionate and Merciful
(4)
Ministry of Foreign Affairs
Minister's Office
Letter no. 1/9/97
5/Feb/2000
Confidential and urgent
To: Mr Health Minister, Mr Information and Culture Minister, Mr
Transport and Communications Minister, Mr the Head of Friendship, Peace and
Solidarity Organisation
Subject: Work programme
We send you attached a translation of the work programme for the
year 2000 which was submitted by Member of Parliament George Galloway and
cleared by the President's office in its letter C/16/1/3562 on
31/January/2000.
Please read it and adopt suitable procedures to implement its
phases under discussion according to your specialisations.
With high regards,
Tariq Aziz
Deputy Prime Minister
Acting Foreign Minister
February/2000
Copies should be sent to: Mr Chief of Intelligence Service/with
a copy of the programme/to be read please. With high regards.
Mr Deputy Prime Minister's office/ with a copy of the programme
The First Political Unit/to take care of please".
- There is a dispute on meaning and a plea of
qualified privilege, based upon the law as expounded by their Lordships in
Reynolds v Times Newspapers Limited [2001] 2 AC 127.
There is also a more limited defence of fair comment in relation primarily to
the leader columns in the two issues of the newspaper. If the Claimant
succeeds on liability, there will then be the question of damages.
- I shall address each of those issues in the course
of my judgment, but it was only very recently that the mode of trial changed
to "judge alone" as a result of a consent order. In view of the procedural
history, I should explain at this stage some of the problems and uncertainties
which contributed to this change.
Mode of trial: The roles of iudge and iurv in Revnolds privilege
- The issue had been raised by the Defendants as
long ago as July of this year as to what questions, at least in general terms,
could usefully be put to a jury. This was with a view to establishing the
necessary factual substratum upon which the defence of "Reynolds
privilege" could be properly assessed. This proved something of a
stumbling block. Appointments were made in October for a pre-trial review
which had, on two occasions, to be adjourned in order for the matter to be
reconsidered. Its main purpose had been to decide what questions could or
should be left to a jury and also, more generally, to narrow the Issues In
accordance with modem case management practice.
- I am always reluctant to launch into any form of
jury trial without the jurors having signposts to enable them to know why they
are listening to the evidence, and to be able to relate it to the issues they
will have to resolve. This is particularly a problem in police cases, such as
wrongful arrest and false imprisonment, but it can happen in the more
complicated defamation cases. At least in broad terms, therefore, it is
helpful to sort out in advance what they will be asked to decide. The judge
and the parties owe it to those who serve as jurors not to launch them in a
state of confusion upon uncharted waters. Also, it is undesirable to leave the
resolution of such issues over to trial, with the almost inevitable
consequence that jurors, either on the first day or on later occasions, will
find themselves kicking their heels in their room. That is the sort of task
that can conveniently be disposed of at a pre-trial review. It is, I suppose,
conceivable that if submissions had not been addressed to these problems on
the first hearing of the pre-trial review the case would have progressed to
the first morning of the trial without the parties realising that a change in
mode of trial was appropriate.
- It was left on the first occasion that the
Claimant's advisers would come up with the questions they suggested the jury
would need to be asked, bearing in mind that the central issue on liability
here is Reynolds privilege. Mr Price QC, for the Defendants, took the
line at all three pre-trial hearings that there was little, if anything, for
the jury to decide. In other words, there were as far as he could tell no
issues of primary fact (or, for that matter, of secondary fact) that required
to be resolved in order for the judge to make the value judgments which play
such a central role in deciding this form of privilege.
- It is obvious that most of Lord Nicholls' ten
non-exhaustive criteria, as summarised in Reynolds, involve the judge
forming a view, objectively, in the light of either uncontroversial primary
facts or those found by the jury. Sometimes, as Mr Rampton QC points out on
the Claimant's behalf, it will be appropriate for the jury to come to
conclusions of fact on the basis of inference, but that is commonplace in all
jury trials both criminal and civil. Such conclusions are sometimes described
as being decisions of secondary fact: see e.g. per Lord Steyn in
Reynolds at p. 216C.
- What is important is to keep firmly in mind the
distinction between drawing inferences of fact, however they are described,
and making value judgments in the light of such facts. The latter exercise is
clearly for the judge. There is nothing new about this, although undoubtedly
Lord Nicholls' speech in Reynolds highlighted just how extensive the
judge's role is in media cases of publication to the world at large. He spelt
out and enumerated the considerations to be borne in mind in determining
public interest, as well as "social or moral duty", in the light of earlier
common law authorities and also European human rights jurisprudence.
- There is evidence in this case as to how certain
documents were found in Baghdad, on the basis of which the Defendants
published the articles complained of. These circumstances form part of the
Defendants' case on duty. (As I have already observed, the reproduction of the
content of those documents in The Daily Telegraph is also potentially
important as being part of the context in which the words complained of were
published.) To put it another way, the Defendants say that the public had a
right to know the content of the documents in April 2003, even if it was
defamatory of the Claimant and irrespective of whether the factual
content was true or not.
- There was no formal admission on the Claimant's
part as to the circumstances in which the documents were alleged to have been
found, and no doubt several witnesses could have gone through at length, in
front of a jury, how they were found, how they were collated and preserved,
and given evidence as to the journalists' belief in their genuineness as
documents. Mr Price, however, invited the Claimant to spell out any positive
case there might be on those allegations. To what extent, he wanted to know,
was it going to be suggested that any witness was lying or mistaken about the
finding or assembling of the documentary material? That was a stance he was
entitled to take in view of the overriding objective of the CPR. The days are
gone when parties were able to play their cards close to their chests, rather
than placing them face up on the table. In the absence of any challenge to the
Defendants' case in this respect, Mr Price suggested that the appropriate
course was for the judge to rule on privilege on the assumption that the
documents were indeed found as the Defendants claimed.
- I shall come to each of the jury questions
proposed on the Claimant's behalf shortly, but for purposes of further
illustration at this stage I can take one example. Question (vi), as it would
have been, would require the jury to decide:
"Did the Defendant take any steps to verify the contents of the
Baghdad documents, in so far as they related to the Claimant, by reference
to independent sources of information, such as the governments of the United
Arab Emirates or Saudi Arabia, Mr Fawaz Zureikat, the Foreign &
Commonwealth Office, the Home Office or intelligence sources, before
publishing the articles complained of?"
That may well be a relevant factor for the trial judge to take into account
when deciding what is now broadly called "responsible journalism", in the
Reynolds context. Mr Price submitted again that there was no issue of
primary fact. No one on the Defendants' behalf suggests that they did make
such enquiries. Mr Rampton would be in a position to make whatever he wished
of that on the privilege issue and also on damages. Indeed, it is a matter
that has now loomed large in the course of his submissions. Yet the primary
facts were in the end going to be relatively uncontroversial.
- The Claimant's advisers formulated twelve jury
questions altogether, in the light of which Mr Price maintained the same
stance. Why, he asked, would a jury need to decide those matters? It seemed to
me that the test we would need to apply, had this remained a jury trial, was
what primary facts were in dispute such that it was necessary and
proportionate to have twelve lay persons resolve them? I would certainly have
avoided saying to myself, "This is a jury case; therefore I must look around
for things for the jury to do". It would have been critical to decide what
were the "real issues between the parties". That is a different question, of
course, from asking how much has not been formally admitted in the statements
of the case.
- I now turn to the draft jury questions proposed on
the Claimant's behalf on 11th October. I am doing this because both
Counsel invited me, in the light of their submissions at the pre-trial
hearings, to set out my reaction because, they thought, it might prove to be
of some practical assistance and thus save costs in future cases. As I
observed in Jameel v The Wall Street Journal Europe SPRL (No.2)
[2004] EMLR 11 at [4], it is almost inevitable that in a Reynolds
privilege case to be tried by jury there will be presented to them a list
of questions, sometimes no doubt formidably long. The object is to enable the
judge to have the factual matrix upon which to make his value judgments and
the ultimate decision on the defence of privilege. So far, however, little
guidance has emerged as to how this is to work in practice. That is perhaps
surprising, in view of the fact that five years have now elapsed since their
Lordships' decision and one sees privilege pleaded on that basis routinely in
many media libel cases. The reality is, however, that (for various reasons) so
few libel actions now come to trial that there has been no opportunity to
develop a regular practice. It is, therefore, perhaps timely to address the
problems in the light of the helpful submissions I received.
- The questions proposed were as follows:
(i) Do the articles complained of [in the issue of
22nd April 2003] bear the meanings alleged by the Claimant in
paragraph 4 of the particulars of claim?
(ii) Did those articles reflect what was said about the Claimant
in the Baghdad documents which were in the Defendant's possession at the
time of publication?
(iii) In Andrew Sparrow's telephone conversation with the
Claimant on the afternoon of 21 st April 2003:
(a) Did Andrew Sparrow give the Claimant a full and detailed
account of the circumstances in which the documents had been found?
(b) Did Andrew Sparrow inform the Claimant of, and seek his
response to, the statements about him which the Defendant made in the
articles complained of?
(iv) In the issue of The Daily Telegraph on
22nd April 2003, did the Defendant fairly and accurately report
the Claimant's responses to Andrew Sparrow during their telephone
conversation on the afternoon of 21 st April 2003?
(v) Did the answers given by the Claimant to Mr Sparrow during
that conversation provide corroboration for the statements made about him by
the Defendant in the articles complained of?
(vi) [Set out above]
(vii) Do the articles complained of [in the issue of
23rd April 2003] bear the meanings alleged by the Claimant in
paragraph 6 of the particulars of claim?
(viii) Did those articles fairly and accurately reflect what was
said about the Claimant in the Baghdad documents which were in the
Defendant's possession at the time of publication?
(ix) In the issue of The Daily Telegraph for
23rd April 2003, did the Defendant fairly and accurately report
the Claimant's responses to Andrew Sparrow during their telephone
conversation on the afternoon of 21 st April 2003?
(x) Do the Daily Telegraph editorials of 22nd
and 23rd April 2003 contain any defamatory statements of fact
about the Claimant?
(xi) Do those editorials contain any defamatory comment about
the Claimant?
(xii) If the answer to question (xi) is "yes", are the contents
of the Baghdad documents and the Claimant's response to those documents (as
described to him by Mr Sparrow on the telephone) fully and fairly
represented in those editorials?
- Those numbered (i) and (vii) appear to be
traditional jury questions, since they relate to the meanings of different
sets of words complained of. Of course, if there were a plea of justification,
the jury would need to decide on the meaning or meanings of the words.
Likewise no doubt, when they are asked to award compensation to a claimant,
they will do so in the light of their interpretation of the words, their tone
and gravity and so on. Traditionally, they are not asked to draft in committee
the meaning or meanings which they, as a body, unanimously think the
words convey. That is an exercise fraught with difficulty, especially in the
case of lengthy, complicated or multi-layered newspaper articles. I explained
my misgivings about such an exercise in Jameel v The Wall Street
Journal SPRL (No.2), cited above. What if the jurors cannot agree
precisely on the drafting of the natural and ordinary meaning(s)?
Suppose they agree with one party or the other on some meanings but not on
others: how is one to explore different strands of meaning or, if the jury
were left with a choice between two alternative sets of meanings, find out how
close the words came to the meaning they have ex hypothesi rejected?
- I am concerned with ruling on Reynolds
privilege. For that purpose I need to make the value judgments upon the
circumstances that confronted the Defendants shortly prior to publication in
April 2003. I need to ask, broadly speaking, whether they were under a duty to
convey to the world the content of the documents that they discovered and
the words they actually published about the Claimant. Did they have such
an obligation irrespective of their truth or falsity? That is an important
element in both Lord Nicholls' exposition and that of Lord Phillips MR in
Loutchansky v Times Newspapers Limited [2002] QB 783.
- How is a judge to be helped in assessing the duty
of the defendants on one hand, and the right of the public to know, on the
other hand, by reading the composite natural and ordinary meanings, whether
negotiated amongst themselves or agreed upon unanimously, by twelve lay
persons ex hypothesi 19 months later? For all I know, the meanings
finally arrived at on such an exercise may represent a compromise between
various different interpretations of the articles which emerged in discussion
in the jury room. Moreover, it is the judge who is charged with the
responsibility of assessing the gravity and tone of the words for privilege
purposes (although, as I have said, it would be the jury's assessment that
counts for quantification of damages).
- There are two well established doctrines that
apply in the law of defamation - at least for certain purposes. I have in mind
the "single meaning" doctrine and the so-called "repetition rule". In a
multi-layered and complex newspaper article or series of articles, common
sense tells us that there may be several shades of meaning and that some
readers will simply understand the words in different senses from others. That
is obviously as true of readers who happen to be members of a jury as of any
other reasonable and fair-minded persons. For justification, however, it is
thought in English law necessary to decide upon the basis not of shades
of meaning but of a defined single meaning, or sometimes several such
meanings. The jury have to select what is called the "single meaning" out of
the available and possible shades of meaning. It is well settled that, in
doing so, they are not to be confined to the pleaded meanings of the parties,
which often owe more to the ingenuity of counsel than to first impression.
Jurors are free to decide meaning quite independently: see e.g. Slim v
Daily Telegraph [1968] 2 QB 157.
- The "single meaning" fiction has no place, it
seems to me, when one is assessing the important matter of whether a
journalist has behaved "responsibly" or in accordance with a duty. More
importantly, it has now been confirmed by the Privy Council in Bannick
v Morris [2003] 1 AC 300
that the doctrine would not be suitable for application in this context,
having been designed for a quite different purpose (see [22]):
"It is one matter to apply this principle when deciding whether
an article should be regarded as defamatory. Then the question being
considered is one of meaning. It will be an altogether different matter to
apply the principle when deciding whether a journalist or newspaper acted
responsibly. Then the question being considered is one of conduct".
Their Lordships indicated (at [24]) that the standard of conduct by which
journalists must be judged has to be applied in a practical and flexible
manner:
"The court must have regard to practical realities. Their
Lordships consider it would be to introduce unnecessary and undesirable
legalism and rigidity if this objective standard, of responsible journalism,
had to be applied in all cases exclusively by reference to the 'single
meaning' of the words. Rather, a journalist should not be penalised for
making a wrong decision on a question of meaning on which different people
might reasonably take different views. Their Lordships note that in the
present case the selfsame question has resulted in a division of view
between members of the Court of Appeal. If the words are ambiguous to such
an extent that they may readily convey a different meaning to an ordinary
reasonable reader, a court may properly take this other meaning into account
when considering whether Reynolds privilege is available as a
defence. In doing so the court will attribute to this feature of the case
whatever weight it considers appropriate in all the circumstances".
- The repetition rule is also important in the
context of justification. It is trite law that if a defendant asserts "X says
that Y has committed murder", he can only justify by proving that Y has
committed murder. It does not avail him to prove merely that X had made the
claim. He may call X, and X may be believed as a witness to the killing, but
that is a different point. Here, the Defendants do not seek to prove the truth
of the contents of the Baghdad documents, as they would have to do if pleading
justification. They repeated the content of the documents found in Baghdad
because they perceived it right, or so they have pleaded, to let the public
know of the allegations themselves irrespective of truth or falsity.
If a judge has to rule in the context of Reynolds privilege whether
there was a duty to repeat the allegations and, correspondingly,
whether the public had a right to be informed of them, it seems to me
that he or she is not going to be assisted by the jury's conclusions on
meaning. They will inevitably reflect the directions they have been given in
the summing up both on the "single meaning" doctrine and on the repetition
rule.
- My attention has been drawn by Mr Price also to
Mark v Associated Newspapers [2002] EMLR 839 at [33]-[35] and
Al-Fagih v H H Saudi Research Marketing [2002] EMLR 215 at [36].
These authorities support his submissions that the repetition rule does not
enter into the evaluation exercise for ruling upon Reynolds privilege.
Those cases, and the opinions of their Lordships in Bannick,
demonstrate that it has been gradually recognised and articulated over a
period of years that special considerations apply to this new, or rather
refurbished, form of privilege defence. In that sense, it is perhaps
appropriate to adopt Lord Phillips' description of the defence as being, in
some respects at least, sui generis. It clearly requires special
treatment as to the application of long-standing principles and a degree of
improvisation when it comes to case management. Above all, there has to be
flexibility (see e.g. the passage cited above from Bannick) because
cases will vary infinitely in their facts. The present circumstances, for
example, are hardly likely to be replicated.
- Mr Rampton submits that no court has
authoritatively laid down so far, save in the most general terms, the division
of responsibility between judge and jury for the implementation of the
Reynolds guidelines. It seems to me that the keynote must be
flexibility. It would be a mistake for me, as well as presumptuous, to attempt
to lay down hard and fast rules intended to apply to cases of Reynolds
privilege in all their infinite variety. Even an appellate court would no
doubt baulk at any attempt to put trial judges into a straitjacket in such
cases as to how they apply the overriding objective, of doing justice between
the parties, in circumstances as yet unforeseen and unpredictable.
- What is clear is that there is a duty on judges
who try defamation cases to do their best in attempting to make the House of
Lords' principles and guidelines in Reynolds and in McCartan
Turkington Breen v Times Newspapers Limited [2001] 2 AC 277
work in practice, however difficult that may be in a jury context. In many
cases, it would be likely to defeat that objective, rather than advance it, if
jurors are burdened with a long list of subtle questions and detailed
sub-questions, or pressed to answer supplementaries which run the risk of
intruding upon the confidential deliberations of the jury room.
- Here, Mr Price warned of a number of possible
scenarios which could arise in the light of the broad scope of the articles
complained of and the mass of factual allegations they contained. Not only are
there pitfalls over the multiplicity of possible meanings attributable to the
many paragraphs of prose complained of. There is scope for confusion inherent
in Mr Rampton's attempts to test the Defendants' coverage of the Iraq
documents, and indeed the pre-publication telephone conversation with Mr
Galloway, by reference to the concepts of "fairness and accuracy". "Pair and
accurate" is a term of art that is used in relation to the common law and
statutory privilege which attaches to the reporting of (say) judicial
proceedings. There is a certain amount of authority in that context. One has
only to consider it briefly, however, to realise how inapt it is to cover this
situation.
- It is a relatively straightforward exercise for a
jury to compare a court transcript with a newspaper report or summary and to
decide, overall, whether it was "fair and accurate". It is a more complex and
subtle process to try and determine whether the Defendants' articles here
could be said to record the content of (a) Iraq documents or (b) Mr Galloway's
telephone responses "fairly and accurately". It would involve an assessment to
some extent of the circumstances in which the Defendants came to publish. That
would be the context of their determination. Once this is appreciated, it
becomes apparent how the exercise might lead to the jury encroaching upon and
inhibiting the judge's role in assessing "responsible journalism". It is to be
noted that, whereas "fair and accurate" is for the jury to decide in the
traditional reporting privilege cases, it is for the judge in a Reynolds
context to consider inter alia tone and gravity, whether the
subject of the defamatory article has been given a fair opportunity to comment
on the proposed publication and, where appropriate, whether his side of the
story has been adequately summarised.
- This gives rise to an undesirable tension. No
doubt for sound policy reasons, in the context of statutory privilege "public
concern" and "benefit" are issues for the jury: Kingshott v
Associated Newspapers [1991] 1 QB 88. By contrast, in the Reynolds
context, "public interest" is for the judge: see e.g. McCartan
Turkington Breen at p.302. One cannot readily transfer established
practice from one context to the other. Mr Price summed up the position in one
of his skeleton arguments as follows:
"In the context of the statutory privilege, the decision
will turn simply on the answer to the question, was it a fair and accurate
report? (There may also be a question about public concern and benefit - but
both have to be answered in the defendant's favour for the privilege to be
established.) In the Reynolds context, by contrast, fairness/accuracy
is only one factor, and moreover mistakes by the newspaper in reporting are
allowed for, as they are not if the protection of the statute is claimed.
The question may well become one of the degree of unfairness or
inaccuracy, and the reason why unfairness and inaccuracy has crept
in. For example, urgency, strength of public interest, and appropriateness
of tone, may excuse lack of full verification of the fairness and accuracy
of the report. These questions can only be answered by the judge as part of
the overall value judgment. A bald jury answer to the question:
"Was it a fair and accurate report?" is likely to be of no
assistance, or, worse, so inscrutable as actually to exacerbate the judge's
task".
- There is here plenty of scope for pressing the
jury with questions in order, for example, to understand the degree or nature
of unfairness or inaccuracy; in other words, how far did the journalists get
it wrong, and in what particular respects? Apart from the difficulties of
asking supplementaries, and causing embarrassment or confusion to the jurors,
there is a real danger of tying the judge's hands in carrying out his
Reynolds evaluation tasks, which are difficult enough at the best of
times. The judge has to assess, in broad terms, the "responsibility" of the
journalism having regard to the ethics and professional standards of
journalists, but in the light of specific answers from the jury - which may
not meld with his own assessment of the journalists' role, or may be difficult
to interpret, or even internally inconsistent. I cannot believe that their
Lordships contemplated this degree of micro-management either by judges or
indeed by jurors.
- Mr Price prayed in aid two recent cases to
illustrate what sort of findings their Lordships would have had in mind as
appropriate for a jury in a Reynolds context. It was pointed out that
in Loutchansky v Times Newspapers Limited Gray J left twelve
questions of primary fact and in Jameel v The Wall Street Journal
SPRL (No.2) I left seven. They were all clear and readily comprehensible
questions of fact, free of ambiguity and not confused with the exercise of
making value judgments. Did a particular conversation take place? Or was there
a particular source for the information, as the journalist claims? They can by
categorised readily as questions of primary fact, and they depended on
resolving conflicts of oral evidence, rather than the interpretation of events
or the evaluation of documents.
- Another question which was addressed briefly in
the course of the pre-trial hearings was that of the role of fair comment in
this particular case. I shall need to return to it towards the end of the
judgment, but it was also then necessary to consider the problems to which it
would give rise in a jury trial. It is, in one sense, something of a
distraction. If the publications turn out to attract qualified privilege, then
the Defendants would not need a fair comment defence; alternatively, they
would be entitled to make comment on the ex hypothesi privileged
material. If, however, it turns out not to be privileged, the Defendants would
need to demonstrate that whatever qualified as "comment" had been based on
"facts truly stated". That is a basic principle in the law of fair comment.
There is an analogy here with the repetition rule. It is not possible to
defend defamatory comments about a person purely on the basis of what someone
else has said about him. Just as with justification, it is necessary to
establish the underlying facts. In fair comment, it is a necessary
pre-condition for the defence to succeed that there was something solid on
which to comment: see e.g. Hamilton v Clifford [2004] EWHC 1542 QB at [60]-[62].
- The defence of fair comment is directed towards
defamatory allegations, in the form of comment, about the claimant. It is
necessary to establish relevant underlying facts. Here, on the other hand, it
is not enough to place reliance upon the emergence of the Baghdad documents.
They are not capable of constituting facts for the purpose of comment about
Mr Galloway any more than they would be capable of supporting a plea of
justification (because of the repetition rule). As I put it in Hamilton
v Clifford at [60]:
"For reasons of policy ... one is not permitted to seek shelter
behind the defence of fair comment when the defamatory sting is one of
verifiable fact. Depending on the meaning of the words complained of, a
defendant has either to justify a primary factual allegation, e.g. of rape,
or comply with the necessary disciplines to establish reasonable grounds to
suspect. Fair comment does not provide an escape route in such
circumstances" .
- There was no significant role for the jury to
fulfil on fair comment, since there were no contested issues of fact to be
resolved, and this was no doubt another factor which led the parties to agree
to a change in the mode of trial.
The meaning of the words
- Even though the single meaning doctrine has no
application in the context of qualified privilege, my first task is
nonetheless to rule on the issue of the natural and ordinary meanings which
the articles would have conveyed to reasonable and fair-minded readers. The
test to be applied is well established. Evidence is not admissible on the
issue of natural and ordinary meaning. It is essentially a matter of
impression. The Court should give the articles the natural and ordinary
meaning(s) which they would have conveyed to the ordinary reasonable reader,
reading them once. Hypothetical reasonable readers should not be treated as
either naIve or unduly suspicious. They should be treated as being capable of
reading between the lines and engaging in some loose thinking, but not as
being avid for scandal. The Court should avoid an over elaborate analysis of
the article, because an ordinary reader would not analyse the article as a
lawyer or accountant would analyse documents or accounts. I should have regard
to the impression the relevant words have made upon me, in considering what
impact it would have made on the hypothetical reasonable reader. The Court
should certainly not take too literal an approach to its task.
- Context is always important. In order to determine
the natural meaning of the words of which a claimant complains, it is
necessary to take into account the context in which they were used and the
mode of publication. Thus a claimant cannot seek to isolate a passage in an
article, and complain of that alone, if other parts tends to throw a different
light on that passage: see e.g. per Lord Bridge in Charleston v
News Group Newspapers [1995] 2 AC 65, 70.
- Context is perhaps especially important in this
case, where the Claimant is complaining of parts of newspaper articles spread
over two days and consisting of a total of thirteen pages. The context would
thus include other parts of the coverage of which no complaint is made. In
particular, it is necessary to take account of the content of the Baghdad
documents (set out above) which were reproduced in the newspaper for readers
to consider.
- Furthermore, when judging the meaning of the
23rd April articles, it is necessary to bear in mind that many
readers will have had a general impression of their reading from the day
before. It is legitimate to take that into account when assessing the meaning
of the second day's coverage. The reverse is not the case, since it is not
permitted when attributing a meaning or meanings to a published article to
refer to subsequent material.
- Mr Rampton invited me to consider the overall
effect, or "dominant message," of the words complained of:
"Whether the text of a newspaper article will, in any particular
case, be sufficient to neutralise the defamatory implication of a prominent
headline will sometimes be a nicely balanced question ... and will depend
not only on the nature of the libel which the headline conveys and language
of the text which is relied on to neutralise it, but also on the manner in
which the whole of the relevant material is set out and presented":
Charleston v News Group Newspapers [1995] 2 AC 65,
72H 73A.
- He further relied upon the words of Lord Nicholls
in the same case at 74D-E:
"This is not to say that words in the text of an article will
always be efficacious to cure a defamatory headline. It all depends on the
context, one element in which is the layout of the article. Those who print
defamatory headlines are playing with fire. The ordinary reader might not be
expected to notice curative words tucked away further down in the article.
This more so, if the words are on a continuation page to which a reader is
directed. The standard of the ordinary reader gives [the Court] adequate
scope to return a verdict meeting the justice of the case".
- Given the "saturation" coverage of this topic in
The Daily Telegraph, Mr Rampton submits, some parts of the material
will make a greater contribution than others. Headlines, in particular, may
succeed in conveying a dominant overall message, even though it may be the
case that less prominent parts of the coverage would convey a less serious or
more equivocal impression if considered in isolation.
- The Claimant's case is, primarily, that the
articles convey the impression that he took large sums of money from Saddam
Hussein's regime for his own personal benefit, and indeed requested more.
Closely linked with this impression, it is submitted, is the proposition that
the Mariam Appeal was used by the Claimant as a front for his own financial
advantage.
- Perhaps unusually, the Defendants in this case
have put forward a suggested meaning of their own. They contend that the
effect of the words complained of is that the Baghdad documents consisted of
strong prima facie evidence that Mr Galloway arranged for his Mariam
political campaign, and/or other political activities, to be financed by the
Iraqi government. That is said to be the meaning which fair-minded readers
would draw from the coverage as a whole. It is also said to be a meaning which
a reasonable journalist, involved in the publication process, might reasonably
have thought the words to bear.
- The relevance of this latter point has to be
explained in the context of the recent decision of the Privy Council in
Bannick v Morris [2003] 1 AC 300,
to which I have referred above. For this purpose, it is perhaps important to
set out the principles which the Defendants must be taken to have had in mind:
"23 Stated shortly, the Reynolds privilege is concerned
to provide a proper degree of protection for responsible journalism when
reporting matters of public concern. Responsible journalism is the point at
which a fair balance is held between freedom of expression on matters of
public concern and the reputation of individuals. Maintenance of this
standard is in the public interest and in the interest of those whose
reputations are involved. It can be regarded as the price journalists pay in
return for the privilege. If they are to have the benefit of the privilege
journalists must exercise due professional skill and care.
25 ... Where questions of defamation may arise ambiguity is best
avoided as much as possible. It should not be a screen behind which a
journalist is "willing to wound, and yet afraid to strike" In the normal
course a responsible journalist can be expected to perceive the meaning an
ordinary, reasonable reader is likely to give his article. Moreover, even if
the words are highly susceptible of another meaning, a responsible
journalist will not disregard a defamatory meaning which is obviously one
possible meaning of the article in question. Questions of degree arise here.
The more obvious the defamatory meaning, and the more serious the
defamation, the less weight will a court attach to other possible meanings
when considering the conduct to be expected of a responsible journalist in
the circumstances."
- In view of the way the Defendants put their case
on meaning, it is appropriate to ask the question whether it can be said, as
was the case in Bannick, that the defamatory meaning of the words used
here was not so glaringly obvious that any responsible journalist would be
bound to realise this was how the words would be understood by ordinary,
reasonable readers: see e.g. the discussion at [27]. Mr Rampton would submit
that this is a very different situation from that considered by their
Lordships, and that the meanings are both serious and obvious, whereas Mr
Price considers the analogy to be very much in point.
- It thus appears that a major distinction between
the parties' respective cases is that the Defendants wish to persuade the
Court that the "sting" of the coverage was the source of the funds; that it is
to say, the allegation that the Claimant was obtaining money from Saddam's
regime. They do not attach any particular significance, for the purposes of
this argument, to whether the money was going towards Mr Galloway's political
campaigning or whether it was going into his pocket. The submissions of Mr
Rampton, on the other hand, focus very much upon the proposition that the
coverage imputed venality and personal greed.
- There are various passages which the Claimant
relies upon as showing that the overall message of the two-day coverage was
that it was Mr Galloway himself who was benefiting from Iraqi funds. It is
conveniently reflected in a paragraph from the leading article of
22nd April:
"There is a word for making money from enemy regimes: treason.
What makes this allegation especially worrying, however, is that the
documents suggest that the money has been coming out of Iraq's oil-for-food
programme. In other words, the alleged payments did not come from some
personal bank account of Saddam's but out of the revenue intended to pay for
food and medicines for Iraqi civilians; the very people whom Mr Galloway has
been so fond of invoking".
- I shall consider first the issue of the newspaper
for 22nd April. The headlines are very important in setting the
tone of the articles and are, in any event, generally understood by readers as
intended to convey, in summary form, the meaning of what follows. Particularly
significant are those on page 1, to which I have earlier referred. Mr Galloway
is described as being "in Saddam's pay" and as having "received at least
£375,000 a year". The cash is said to have come from the "oil-for-food
programme" (i.e. monies intended for food and medicines for the benefit of the
Iraqi people).
- There is room for argument as to whether the
articles in context conveyed the impression (to reasonable readers) that Mr
Galloway was indeed in Saddam's pay, and thus receiving personal benefits from
the oil-for-food programme, or whether The Daily Telegraph was pitching
it no higher than that there was strong evidence that he was doing so.
- Either meaning is seriously defamatory, the impact
being no doubt the more serious for the reason that the article was published
shortly after the invasion of Iraq, and at a time when British forces were
still engaged. The Defendants' argument that the words do not impute personal
greed at all, however, seems to me to be quite unsustainable. "In Saddam's
pay" means what it says. Also, one should not lose sight of the leading
article "Saddam's little helper", which begins with the words "It doesn't get
much worse than this". It expresses a conclusion about Mr Galloway. So too
does the use of the word "treason" in the context of a full length and
solitary leader. The ordinary reader would assume that the strength of the
language and the prominence given to the "story" indicated the newspaper's
conclusions about its significance.
- There were particular passages in the leader on
which Mr Rampton laid emphasis (in addition to those already cited):
"Yesterday, The Daily Telegraph's correspondent in
Baghdad, David Blair, unearthed papers detailing alleged payments from
Saddam's intelligence service to Mr Galloway through a Jordanian
intermediary.
…
Speaking from abroad yesterday, Mr Galloway was reduced to
suggesting that the whole thing was a Daily Telegraph forgery, but
the files could hardly be more specific. One memo comments: 'His projects
and future plans for the benefit of the country need financial support to
become a motive for him to do more work, and because of the sensitivity of
getting money directly from Iraq it is necessary to grant him oil contracts
and special commercial opportunities to provide him with a financial income
under commercial cover without being connected to him directly' .
It is hard to think of a graver setback to the British anti-war
movement. How would you feel if you were one of the many well-meaning peace
protesters which had followed Mr Galloway's lead? What would your emotions
be if you had given money to his Mariam Appeal, thinking that you were
paying to treat a young Iraqi girl for leukaemia and wondering now how your
money had been used? For months, anti-war campaigners have been imputing the
basest of motives to their adversaries. The whole campaign, they argued, was
really about money and oil..
What if it turned out that they, rather than their opponents,
had hidden pecuniary motives? What if it was actually the supporters of the
campaign who were acting on behalf of Iraqi civilians, while anti-war
activists - or at least their leaders were acting for profit?
If it is a bad day for the 'not in my name' brigade it is also a
bad day for British Intelligence. If Baghdad was paying one of our MPs, did
our security services know about it? If so, what action did they take? If
not, what does it say about their competence? Is it possible that they were
using Mr Galloway as an unwitting intermediary, probing to see whether
Saddam might settle without a war?
Both the Labour Party and the Stop the War Coalition will, no
doubt, be following the revelations nervously …
Many, from all wings of the Labour Party, have nursed their
doubts about the Glasgow MP, peering suspiciously at his natty suits and
winter sun-tan. Yet they have never been able to pin their doubts on
anything concrete.
If the allegations in the documents are borne out, however,
expulsion from Labour is the least Mr Galloway should expect ... In order to
comply with the European Convention on Human Rights, Tony Blair has
abolished the death penalty in treason cases; but collaborating with a
hostile regime remains the most serious of offences ...
By the same token, although they would be quick to put the boot
into Mr Galloway - as much for the crime of profiting from oil as anything
else - hardcore peace campaigners would not be disheartened by the evidence
that he was paid by one of the vilest regimes on earth .
…The next time Britain and the US deploy force, they will march
as though nothing had changed, for their convictions are beyond argument.
But some of those who demonstrated for peace did so open-mindedly, from
decent motives, believing that the war was, on balance, the greater evil.
Such people may be prepared to extrapolate from today's revelations .
…Certainly it was Saddam's view that the anti-war movement was
an ally of the Ba'athist regime - so much so, it seems, that he was prepared
to divert money away from hungry children in order to finance it.
It is just possible that, like the British Communists who tore
up their membership cards following the Soviet invasions of Hungary and
Czechoslovakia, some of these people may recant their support. They may
even, as they see how much more the occupying forces are doing for Iraqi
civilians than the old regime ever did, feel guilty. Above all, they may be
reluctant to march in support of this kingdom's enemies in future".
- These allegations (as Mr Darbyshire almost
conceded in the witness box) refer at least in part to personal gains for Mr
Galloway - not to funds going merely to the Mariam Appeal or to anti-sanctions
campaigning associated with it. So the charge is personal avarice at the
expense of the "very people Mr Galloway has been so fond of invoking". After
all, if the funds went into the Mariam Appeal (whatever their source) they
would be spent, according to Mr Galloway's belief, to the advantage of the
Iraqi people. Whether one agrees with Mr Galloway or not, he was according to
his evidence always open about the dual purpose of the Appeal - medical
treatment and anti-sanctions campaigning. Of course, he denies that the
Mariam Appeal received such monies any way, but the thrust of such an
allegation is rather different from saying that he diverted oil-for-food money
into his own pocket.
- Does it make any difference to the overall impact
that some of the passages are framed in the form of rhetorical questions (What
if ... ?), or that sometimes the word "allegations" is used rather than
"revelations"? Not in this context, because whatever the firmness or otherwise
of the assertions, they all go to personal greed on Mr Galloway's part, and
hypocrisy over his professed concern for the suffering of Iraqi people. Mr
Rampton is correct, in my judgment, in submitting that the words convey at
least the proposition that there is very strong evidence of these charges. For
my part, I would go further. I construe the coverage in the 22nd
April issue, taken as a whole, as conveying the clear message that, despite
his protestations, and despite the lack of any inquiry into the authenticity
or veracity of the documents, The Daily Telegraph has concluded that
the evidence is overwhelming.
- The coverage of Mr Galloway's denials is relevant
to qualified privilege, to which I shall turn in due course, but also to
meaning. One has always, in such cases, to focus on the bane alongside the
antidote. Crucial is the dismissive treatment given to Mr Galloway's responses
in his interview with Mr Sparrow on 21 st April. Whether or not the content of
that interview was fairly and accurately reported is a matter which is
relevant to Reynolds privilege. It is reflected in Lord Nicholls'
non-exhaustive tests. Here, however, I am concerned with the treatment of the
denials as attributed to Mr Galloway in the articles. Mr Sparrow on
page 3 describes how he asked him during his telephone conversation to
"explain away the documents found in Baghdad" (emphasis added). Mr
Sparrow, in the witness box, described the introduction of the word "away" as
a "figure of speech" or "colloquialism". Indeed it is. The question is what
significance it would convey to the reader. It is most commonly used in the
context of those placed in the predicament of having to explain evidence
pointing to their guilt. It means, as everyone knows, that damning evidence
has been produced, for which there is no plausible explanation consistent with
innocence. Mr Rampton put it to Mr Sparrow that it simply meant that his
client had been "caught red handed" .
- That approach was followed through in the next
day's coverage. The very first words on the front page of the 23rd
April issue were "Telegraph reveals damning new evidence on Labour MP".
The word "damning" means that the "evidence" condemns him; that it is
conclusive of guilt. In the context, the publication of denials does not
achieve balance or neutralise the charges. What it does is to show that the
newspaper has decided that the denials were dishonest or unreliable, and thus
to be discounted by the readers. The next bullet point heading, alongside the
first, is "Bluster, two homes and the unanswered questions". Again the denials
are portrayed as "bluster". What that means is that they are just hot air and
lacking substance. The evidence is strong and, what is more, there is nothing
but "bluster" to put on the scales on the side of the defence. Therefore, the
strong evidence prevails. It cannot be characterised as merely a prima
facie case. Guilt has been established.
- The same impression is confirmed by the coverage
on pages 2 and 3, across the top of which appears the headline "MP in Saddam's
pay defends himself from £250,000 villa in the Algarve". Underneath appears a
very large colour photograph of the villa (or "cottage" as Mr Galloway
described it in evidence) with its swimming pool and another one of his house
in Streatham. The Telegraph witnesses recognised that it would have
been preferable to put the words "in Saddam's pay" in inverted commas in the
headline. But that shows how little significance they really attached to the
distinction between direct assertions in this context and those merely
reported as allegations. What matters, of course, is not what they intended
but how the readers would understand the words and photographs. Yet they too
would surely realise that The Daily Telegraph was not drawing any such
fine distinction. The inference to be drawn from that headline and the
photographs is inescapable. The huge colour photograph was not there to show
readers the fortuitous and incidental fact of where Mr Galloway was
expressing his denials, but rather to demonstrate the link between being "in
Saddam's pay" and the material rewards of those undeclared "profits". Readers
can hardly have failed to get the message. Nor (in the context of Bannick
v Morris) can the journalists. To suggest otherwise is disingenuous
or, at best, wishful thinking.
- The references to two homes and expensive cars
will only have relevance to the story as confirming the receipt of significant
rewards over and above Mr Galloway's Parliamentary salary. The introductory
paragraph said that Mr Galloway began his defence "from the comfort of
his holiday home in Portugal" (emphasis added). These pointed references were
not merely background "lifestyle" colour, as was suggested at one stage in
argument. It was not a lifestyle piece, such as one might find in (say)
Hello magazine. It was a gravely serious expose of wrongdoing by a
member of Parliament.
- Then there are "the questions Galloway must
answer" underneath his photograph on page 2, formulated so as to undermine
each one ofMr Galloway's telephone answers to Mr Sparrow on 21 st April. The
object of that exercise would surely be construed by the reader, not as
"putting the other side", but as demolishing Mr Galloway's "blustering"
answers one by one.
The evidence of the witnesses
- As I have already made clear when discussing the
change in mode of trial, the scope of the evidence was essentially limited to
establishing the basis upon which to make the evaluative judgments for the
purposes of qualified privilege and, to an extent, of damage to reputation.
There was very little, if any, conflict on the primary facts.
- The first witness was Mr Galloway. He made it
clear that the allegations in The Daily Telegraph were false. He said
that he had never received or solicited a single penny from Saddam Hussein;
that he had never knowingly met a representative of Saddam's security service;
that he had never received or traded in oil; that he had never diverted monies
from the oil-for-food programme; and that he had never used the Mariam Appeal
as a front for his own personal gain or secret commercial dealing with the
Iraqi regime.
- The truth of these allegations was not directly an
issue in the proceedings, since the Defendants had not chosen to plead
justification. For that reason also the conduct of his personal finances, and
those of the Mariam Appeal, were not issues in the trial. Nevertheless, Mr
Galloway stated in the witness box that anyone was welcome to inspect his
personal financial affairs, and that those of the Mariam Appeal had been
investigated by the Charity Commission (whose report he put in evidence) and
there was no finding of any wrongdoing.
- He eXElained that the Charity Commission had begun
its investigation into the Appeal on 24 April 2003, immediately following the
publication of the articles complained of in this libel action. There is no
doubt that he, rightly or wrongly, believes that he was being attacked on
several fronts because of his vociferous opposition to the Iraq war and strong
criticisms of the government. The suggestion he faced was that he had used
charitable funds to finance political activities in breach of the law
governing charities and, in particular, that he had used the funds to pay for
trips to Iraq. He cited the conclusion of the Commission's Director of
Operations to the effect that "The Commission's thorough Inquiry found no
evidence to suggest that the large amounts of money given to the Mariam Appeal
were not properly used".
- He went on to explain that he never intended the
Mariam Appeal to be a charity, since it always had a dual purpose:
"Bringing Mariam to the UK for treatment signalled the founding
of the Mariam Appeal, a political campaign that would work all over the
world to highlight the situation in Iraq under sanctions and campaign for
the lifting of the embargo while at the same time helping to treat Mariam.
In this sense the Appeal had a dual purpose. If sanctions were to be lifted
all the Mariams left behind could be treated properly and maybe saved. This
was my aim and I never made any bones about the dual purpose of the Appeal.
I knew instinctively that this child personified the suffering of the Iraqi
people under the embargo. In 2002 the organisation ceased to exist. However,
during its lifetime, in addition to bringing Mariam to Glasgow for
treatment, it took a red London bus on a campaigning tour from Big Ben to
Baghdad, where three million Iraqis turned out to receive us. It also took
medicines to Iraq, and broke the air embargo by flying from London to the
besieged Iraqi capital. It also funded various visits to Iraq and elsewhere
to continue the campaign against the use of sanctions in Iraq".
- As the Charity Commission report confirmed, the
major funders of the appeal were the United Arab Emirates, Abdullah Bin Abdul
Assiz aI-Saudi, the Crown Prince of Saudi Arabia, and Mr Fawaz Zureikat (who
was, of course, referred to in The Daily Telegraph articles).
- It was not part of Mr Galloway's case that the
proceedings against him which led to his ultimate expulsion from the Labour
Party were directly connected to The Daily Telegraph articles, but he
did point out that on 24th October 2003 Mr Andrew Sparrow had
commented, " ... it was not until 6th May 2003, after The
Telegraph story, that Labour decided to suspend Mr Galloway".
Nevertheless, he does not seek compensation from the Defendants in connection
with that expulsion.
- It is appropriate to give a little further detail
as to Mr Galloway's evidence on the Mariam Appeal. He had visited Iraq on a
number of occasions from 1993 onwards and, on 14th and
15th March 1998, he visited Iraq to see the effect of sanctions
and, in particular, on the health of children and others who he understood to
be suffering a cancer epidemic caused by uranium tipped weapons used in the
first Gulf war. He described how he found the health service "on the verge of
collapse" and spoke to doctors who had the knowledge and expertise to treat
dying children, but they were unable to do so because of the sanctions regime.
It was on this visit that he met Mariam Harnza who came from Southern Iraq and
was suffering from cancer. He understood, although he had no way of confirming
it, that there had been a six-fold increase in childhood cancers in Iraq since
the Gulf war and Mariam came from an area which had been bombarded with shells
and bullets tipped with depleted uranium.
- The following month he brought Mariam to Britain
for medical treatment for leukaemia so as to save her life, if possible, and
to highlight the plight of many similar children in Iraq. Shortly afterwards
the Mariam Appeal was launched as a political campaign to draw attention to
the situation in Iraq and press for the lifting of the embargo. It was partly
to help Mariam's plight and partly to campaign for the lifting of sanctions
and, as he saw it, the relief of the suffering population. The organisation
ceased to exist in 2002.
- The London bus trip took 60 days and covered
15,000 kilometres. Throughout he attacked the effect of sanctions as
equivalent to "mass murder". He believes that hundreds of thousands of Iraqis,
mostly children, died as a result of the sanctions imposed. He pointed out
that it was advertised on the front of the bus that the visit was financed by
the ruler of the United Arab Emirates, Sheikh Zayed.
- In his observations on the Defendants' pleading in
this case, he sought to rebut the suggestion that he had refused to disclose
any accounts or the source of funding of the Mariam Appeal. Indeed, during his
conversation with Mr Sparrow on 21 st April 2003 he referred to the wealthy
benefactors, such as the royal families of the United Arab Emirates and Saudi
Arabia, as well as to the support of Fawaz Zureikat. This was by no means the
first time that he had disclosed the funding, since on 29th June
1999 in the House of Commons he had identified the governments of Saudi Arabia
and the United Arab Emirates as financial supporters.
- He also referred to the Defendants' suggestion
that he had changed the objects of the Mariam Appeal once the child had
received her treatment. He claims that he had always been open about its dual
purpose. He had referred in the Register of Members' Interests to the fact
that he had received expenses from the Appeal towards overseas visits he had
made in his campaign against sanctions. The Charity Commission report followed
an inquiry under section 8 of the Charities Act 1993 and was published on 28th
June 2003. It stated that it had been unable to obtain all the books and
records of the Appeal, Mr Galloway having stated that the documentation had
been sent to Amman and Baghdad in 2001, when Mr Zureikat became chairman of
the Appeal. He confirmed in evidence, however, that all bank accounts had been
produced, so that the Commission was able to see what monies had come into the
Appeal and how they had been spent. The relevant fmancial records were
available. It was other categories of document that had gone, and he cited
the example of minutes of meetings.
- It is right to say that the Commission established
that two of the original trustees, Dr Amineh Abu-Zayyad and Stuart Halford,
received unauthorised benefits in the form of salary payments from the
Appeal's funds. The Commission added:
"The information provided to the Commission suggests that the
Executive Committee considered these payments were necessary and were
unaware that they were unauthorised. The Commission accepts that none of the
Executive Committee acted in bad faith and that the services provided were
of value to the Appeal".
Although some of the activities of the Appeal were political in nature, the
information provided to the Commission suggested that the activities were
ancillary in terms of expenditure to the purposes of the Mariam Appeal. "The
trustees could reasonably have formed the view that this would have the impact
of enabling treatment for sick children". This highlights the significance of
the distinction between the Claimant's and the Defendants' meanings: see para
58 above.
- The Commission concluded that the Appeal should
have been registered with the Commission, because its objects were charitable,
but nevertheless there was no evidence of bad faith on the part of any member
of the executive committee. None of them was aware that the payments were
unauthorised and, since they believed them to be necessary, the Commission
would not be pursuing recovery of those sums. It was accepted that the
founders of the Appeal were unaware that they had created a charity. Indeed,
they had received legal advice to the effect that it did not constitute a
charity (which the Commission considered was wrong in law).
- Another important area of evidence for me to
consider is that relating to the telephone conversation with Andrew Sparrow on
21 st April when, as the Defendants contend, they had been scrupulous to
ensure that "the discovery of the Iraqi documents and their contents were put,
in detail" to Mr Galloway. There is little room for dispute over what passed
between them during the telephone conversation because Mr Sparrow had taped
it. There is disagreement between the parties, however, as to the significance
to be attached to the conversation and whether or not the allegations were
"adequately put" to Mr Galloway for the purposes of Reynolds privilege.
- Mr Galloway takes the view that the newspaper
unequivocally suggested that he personally had "received at least £375,000"
and that he was "in Saddam's pay". That allegation, he says, was certainly
not put to him. He had no opportunity to see the documents from
Baghdad; nor were they read to him. Mr Sparrow gave him a summary of the
contents and obtained his comment in the light of that summary. What was
suggested to him was that the Mariam Appeal had received sums of money from
the Iraqi regime. It was in that context that Mr Galloway assured him that its
backers did not include Saddam Hussein or the Iraqi government.
- Mr Galloway was not told that the newspaper
intended to publish its story the next day or given any inkling of the tone or
extent of coverage. Critical to Mr Galloway's case is the fact that he had no
warning of the suggestion that he was "in Saddam's pay," which he regarded as
qualitatively different from the suggestion that Iraqi funds had been sought
or received for the Mariam Appeal (although that too, so far as he knows, was
untrue).
- He was given no details in the conversation with
Mr Sparrow of the circumstances in which the documents had been discovered in
the foreign ministry in Baghdad by Mr Blair or of the Defendants' grounds for
believing, in the light of those circumstances, that the documents were
probably genuine. He was taken by surprise when the allegations were put to
him and, since he knew that they were false, he suggested that they might be
forgeries. Off the cuff, that was the only explanation he could think of.
There is no doubt that the newspaper subsequently poured scorn on that
suggestion, in the light of the detailed account the readers were given by Mr
Blair as to how they had been discovered, but it is important to recognise
that Mr Galloway was not given that information at any time prior to
publication. Specifically, he denied that he was told of the following facts
relied upon by The Daily Telegraph, and which Mr Blair's documents were
said to show:
(a) that the Mariam Appeal needed "continuous financial support
from Iraq" because "the backing of an Arab Sheikh was limited and volatile";
(b) that the name of Mr Galloway and his wife were not supposed
to be referred to in relation to "oil contracts and special commercial
opportunities";
(c) that he was intending to arrange visits for Iraqi sports and
arts delegations to Britain and "mobilise British personalities to support
the Iraqi position";
(d) that he had entered into partnership with Burhan Mahmoud
Chalabi in relation to oil contracts.
- It would clearly be inappropriate, in what is
already a very long judgment, to set out the full contents of the transcript
of the telephone conversation, which lasted 35 minutes. There are,
nevertheless, some aspects of it to which I need to refer.
- It was introduced by Mr Sparrow by saying that
documents had come to light in Baghdad "about the Mariam Appeal and yourself'
which showed that there had been a meeting with Iraqi intelligence and that
"You asked them for money for the Mariam Appeal which they subsequently
approved". It then went on to refer to a meeting between the head of Iraqi
intelligence services and Mr Zureikat, at which he was supposed to be saying
that the campaigning activities on behalf of Iraq needed money and that Mr
Zureikat (on Mr Galloway's behalf) was "asking for an increase in the oil
contracts that the campaign had". He then referred to other documents which
came to light, including a memo from Tariq Aziz which "raises all sorts of
questions about the Mariam campaign, its relationship worth the Iraqi regime
and ... Fawaz Zureikat". Those were described by Mr Sparrow as "the gist of
the allegations".
- Obviously, therefore, so far there was nothing to
give Mr Galloway any indication that he was supposed personally to be
dealing in oil or receiving Iraqi funds for his own benefit (i.e. "in Saddam's
pay").
- Mr Galloway responded by saying in no uncertain
terms "This story that you are putting to me is preposterous. I have never
met, to the best of my knowledge, any member of the Iraqi intelligence, let
alone the head of Iraqi intelligence". He went on to say that" the only thing
that's true in that entire concoction that you've just put to me" was that
Fawaz Zureikat represented the Mariam Appeal in Iraq and had at some stage
been chairman of the Appeal. He then added:
"The truth is I never met, to the best of my know ledge, any
member of Iraqi intelligence. I have never in my life seen a barrel of oil,
let alone bought or sold one. I have never asked Iraq for money to help our
campaign. Our campaign was funded throughout by private donations and
governmental donations from Arab countries, friendly to Britain and the
United States".
Mr Sparrow persisted and asked whether it was ever funded by
Iraq, to which Mr Galloway replied "Never. Never funded by Iraq. And I would
never have asked Iraq to fund the campaign".
- Mr Sparrow asked, "Did you sort of know that at
any point he [Mr Zureikat] was soliciting funds from the regime on your
behalf?" Mr Galloway replied:
"I don't believe he was soliciting funds from the regime on my
behalf. I don't believe he was soliciting funds from the regime at all. He
was an extremely generous benefactor of the Mariam Appeal. He's a very
successful businessman. I have no reason to believe whatsoever that he
solicited funds from the regime".
When asked whether the Mariam Appeal ever got involved in oil trading, he
said he was absolutely sure that it had not.
- As to the documents which Mr Sparrow had attempted
to summarise for him, Mr Galloway observed:
"Because obviously I don't have this in front of me, so I can't
even begin to work out what you're talking about. But the key parts of what
you are saying, which have miraculously turned up in Baghdad, are false".
- In view of the references in the newspaper to Mr
Galloway's supposedly receiving £375,000 a year from the Iraqi regime, it is
perhaps important to note what exactly was said in the conversation. Mr
Sparrow told him:
"This memo that's come to light talks about concessions for
trading, I think, it's three million barrels of oil for six months which
must be worth quite a lot of money and someone in my head office is doing
the maths but I think they came up with a figure of something in the region
of £200,000. I mean, did the Mariam Appeal have income on that basis?"
Thus, although the "maths" apparently yielded a much higher figure shortly
afterwards (i.e. £375,000), the matter was clearly put to Mr Galloway on the
basis that it might have been an income of the Mariam Appeal. This led him to
respond by saying that the total funding of the Appeal over its whole life
might have been of the order of one million pounds, of which more than half
came from the government of the United Arab Emirates. From this context, it is
clear that both he and Mr Sparrow regarded the queries as directed towards the
funding of the campaign.
- Later Mr Sparrow said:
"Just to recap. You've sort of made this clear before, but I
just want to be sort of crystal clear on this, because I mean it's quite
serious. You say the Mariam Campaign sort of never to your knowledge sort of
received money or solicited money from the Iraqi regime?"
Mr Galloway said "No" and Mr Sparrow persisted:
"Did they ever - did they ever sort of try to give you money? It
must have been very tempting for them".
Mr Galloway (clearly from the context understanding "you" as referring to
the campaign) replied:
"No. We had no need for support from Iraq as I told you. We had
important and wealthy benefactors, like the royal family of the UAE, the
royal family of Saudi Arabia and we had the very generous support of Fawaz
Zureikat".
- Mr Sparrow pressed Mr Galloway, having regard to
what he called "the sensitivity of the funding of the campaign" as to why he
had not published something in detail. This is one of the points in the tape
where the recording goes awry, but one assumes that he was asking why accounts
of the Mariam campaign had not been published. To this Mr Galloway responded:
"Well why would I? Look, first of all, there's no sensitivity as
far as I'm concerned. There is no sensitivity. I was involved for many years
in fighting the full might of the British and American state and their big
media friends, like yourselves. That was a very difficult battle. We had to
find support where we could get it and we operated as a political
organisation, as political organisations do. They don't open themselves up
to the attentions of their enemies and I include you and the people like you
as being my enemies. So from my point of view it's not sensitive at all. And
I myself was not any kind of signatory or trustee or beneficiary of any of
the money raised in the campaign. I've never been a signatory on any of the
chequebooks. I've never been responsible for the expenditure of any money.
I've never myself received any money, any benefits from these campaigns. On
the contrary. I have given my political life's blood to them. So, from my
point of view, it isn't sensitive".
There was never any hint to Mr Galloway that his sweeping denials of
personal involvement were to be challenged the following day. He concluded the
conversation by confirming that he would be available on his mobile number to
deal with any further queries that Mr Sparrow or The Daily Telegraph
lawyers might wish to put to him.
- Finally, before I leave Mr Galloway's evidence, I
should make it clear that he left me in no doubt as to how seriously he takes
this matter. He regarded the allegations of taking money from Saddam's regime,
and especially from the oil-for-food programme, as fundamentally undermining
his integrity and credibility as a politician.
- I turn now to the evidence called on behalf of the
Defendants. They relied upon a number of written statements, in respect of
which Mr Rampton had no wish to cross examine, but the evidence of those
witnesses is nevertheless part of the Defendants' case. Perhaps the most
important witness, in the context of setting out the circumstances of
publication for the purposes of Reynolds privilege, was Mr David Blair.
He is a staff foreign correspondent who returned to Iraq on 11th
April 2003, some two days after the statue of Saddam Hussein was toppled. He
went into a good deal of detail as to his movements, but the crux of his
evidence relates to the circumstances in which he found the documents and
arranged for their translation. On Saturday 19th April, he went to
the foreign ministry building in Baghdad and on the first floor found a room
which was full of orange filing-boxes. He found three that were of particular
interest to him, since two were labelled "Britain" and the other "Britain and
France". Most of the documents were in Arabic but he spotted two in English,
one from Sir Edward Heath and one from Mr Galloway (nominating Mr Zureikat as
his representative in Baghdad for the purposes of the Mariam Appeal). He was
in the company of a translator and, because they feared interference from
looters in the building, they took these files away for later investigation in
his hotel room.
- Mr Blair was at pains to describe how the
documents were found and where they were placed within the files. Although the
possibility of hoax or forgery crossed his mind, he was quite satisfied in his
own mind that this could be ruled out. He could not envisage why anyone should
take such elaborate steps merely on the off chance that a journalist would
come to that particular room and investigate those particular files. Like the
other witnesses in the case, Mr Blair seemed to me to be impressive and
straightforward in his evidence. I have no doubt that he believed the
documents he found were genuine and that they gave rise to legitimate
questions - at least requiring the attention of serious investigative
journalists.
- On Sunday 20th April Mr Blair working
with his translator came across a letter from Tariq Aziz, apparently to four
government ministers, circulating something called Mr Galloway's "work
programme" for the year 2000. He did not find anything corresponding to the
"work programme" itself. Mr Galloway was asked about this the next day in his
telephone conversation with Mr Sparrow, but did not know what it meant. He
thought it was possible, although he would not have used the phrase "work
programme" as such, that it might refer to plans he had for arranging
campsites for the rehabilitation of young people in Iraq. That was a plan
which never came to fruition and, without checking the dates, he told Mr
Sparrow that he could not be sure if this was so or not.
- At all events, at about 4 p.m. (London time) on
the Sunday afternoon Mr Blair informed Mr Francis Harris (the Deputy Foreign
Editor of The Daily Telegraph, based in London) that he had found the
Tariq Aziz letter and the letter of introduction from Mr Galloway, and said
that he hoped to do a story based on those documents. Mr Harris encouraged him
to make translating the documents his priority and, if necessary, to obtain
the services of a second translator for that purpose.
- Later that evening, he came across the
memorandum dated 3rd January 2000, which was apparently from the
head of Iraqi intelligence. Its subject was expressed to be the "Mariam
Campaign". As soon as it had been read out to him in English, he realised that
it had" the makings of a major story about Mr Galloway's links with Saddam
Hussein's regime". He wanted to have absolutely accurate written translations
in order to assess its importance and reliability.
- At about 9.30 a.m. (London time) on Monday 21 st
April, Mr Blair called Mr Harris in London. He then gave him an account of the
contents of the memorandum. Mr Harris enquired whether it might be a forgery,
and Mr Blair said that it seemed inconceivable given the circumstances in
which he came across it. During the course of the morning Mr Blair transmitted
to the foreign desk his own "summary of central facts" for the benefit of
those in London, who wished to make an assessment of the importance of the
story and decide what to do next.
- During the afternoon the photographer, Mr
O'Malley, arrived at the hotel in order to take photographs of the three
documents. The translations of the 3rd January 2000 memorandum and
of Tariq Aziz's "work programme" letter were sent by Mr Blair to the foreign
desk in London electronically. Thereafter he filed four stories, all of which
were published on 22nd April having been sub-edited in London.
There was the principal news story appearing on the front page of that issue
under the heading "Galloway was in Saddam's pay say secret Iraqi documents".
Secondly, there was his account of how he found the documents, which was
published under the heading "How I found the papers in looted ministry".
Thirdly, there was the piece about Mr Zureikat ("The go-between"). Fourthly,
there was an article about letters from other prominent Britons. This too
appeared under headline "The letters they might wish to forget" .
- Mr Blair was asked why there was any urgency
about the publication of these stories and he expressed concern at the
possibility that looters might obtain the documents from his hotel room. Mr
Rampton pressed him, on the basis that all Mr O'Malley's pictures of the
documents had been sent electronically to London, and that the editorial
people in London had received translations of the main documents. There was,
in that sense, no risk that The Daily Telegraph would lose the
opportunity of publishing. It was Mr Rampton's case that the true reason for
the haste in publication was merely a desire to obtain a scoop over rival
publications. That was not, however, a question for Mr Blair, but rather for
those who took the editorial decisions in London.
- Mr Harris gave evidence and began by referring
to his background knowledge of Mr Galloway, who he regarded as a fierce
opponent of the war and indeed as a friend of the regime. That is, of course,
something which Mr Galloway has forcefully denied, but there is no doubt that
some people, rightly or wrongly, did perceive him as a supporter of the regime
to some extent - not least because of his unfortunate address to Saddam in
1994, which achieved a great deal of publicity, and which Mr Galloway has been
confronted with on a regular basis ever since. He was filmed addressing Saddam
Hussein and various other members of his government. He appeared to say, "I
salute your courage", as though this were directed to Saddam Hussein, but he
insists that he was referring to the Iraqi people as a whole. There is no
doubt, on the other hand, that for the purposes of Reynolds privilege
the Defendants' witnesses are fully entitled to speak as to their own
perceptions of Mr Galloway, since these playa part in the pleaded case
supporting a duty to publish in the public interest.
- Mr Harris described how he read the translation
of the intelligence memorandum on screen shortly after 2.30 p.m. on
21st April. He added:
"About half way through the translation I saw that a paragraph
(numbered 2) recorded a meeting between an Iraqi intelligence officer and Mr
Galloway in person. During this meeting Mr Galloway himself had apparently
requested further financial support from Iraq. From my reading of the short
summary filed earlier by Mr Blair, I had supposed that Mr Zureikat had been
the central figure in dealings with the Iraqi regime. Now for the first time
Mr Galloway was implicated directly and in detail. The revelation changed
the potential story, by removing the suggestion that Mr Galloway had
operated solely through an intermediary" .
It is perhaps worth noting that when Mr Sparrow rang Mr Galloway, shortly
after this, he was being guided by the "short summary" or "central facts"
filed earlier by Mr Blair. I therefore set out the three first paragraphs:
(a) On 3rd January 2000, the head of the Iraqi
intelligence service sent a memorandum to Saddam Hussein's office concerning
George Galloway's "Mariam Campaign". This campaign, which brought an Iraqi
child called Mariam to Britain for cancer treatment, was the focus of
Galloway's efforts at the time.
(b) The memorandum reported on a meeting between Iraqi
intelligence and Fawaz Zureikat, Galloway's representative in Iraq.
(c) In this meeting, Zureikat "conveyed a message from
Galloway." Zureikat said that Galloway needed "financial support" from the
Iraqi government so that he could continue "helping Iraq". Direct payments
were too "sensitive", so the support should be given under "commercial
cover".
This may account for why he did not put to Mr Galloway the "revelation"
perceived by Mr Harris. In other words, he did not put to Mr Galloway that he
had directly approached an Iraqi intelligence officer for money. Nevertheless,
Mr Sparrow had read through the memorandum on screen.
- Mr Harris went on to explain his reasons for
believing that the documents were genume:
(i) He trusted Mr Blair from his experience of him as "a highly
professional and savvy correspondent who cared about getting his stories
right".
(ii) It seemed to him wholly unrealistic to suppose that someone
had forged the documents and left them to be found as Mr Blair described.
(iii) He had clear evidence that Mr Galloway was used to mixing
with the most influential figures in Saddam Hussein's government, including
Tariq Aziz.
(iv) He had corroborated Mr Galloway's whereabouts in December
1999, when the intelligence memorandum appeared to suggest that he had met
an intelligence officer in Iraq.
- He went on to explain that there was a real risk
that Mr Blair might have the documents taken from him if he were caught trying
to take them out of Iraq, or "if he were found in possession of them by any of
a number of agencies operating there". In these circumstances, Mr Harris
decided that "It would have been indefensible to delay further work on the
story". He then instructed Andrew Sparrow to speak to Mr Galloway.
- He was cross-examined by Mr Rampton on the
matter of urgency, and said that the possibility that the documents in Iraq
might have gone missing was "a factor". He said it was important to publish
while The Daily Telegraph still had the documents under their control.
As Mr Rampton pointed out, the "key document" was itself a photocopy in any
event. He suggested that the true reason was that The Daily Telegraph
could not bear the risk of being beaten to a "scoop". That certainly seems
to me the most likely explanation. There is no convincing alternative.
- The self-imposed haste was probably also the
reason why no one in London took the opportunity to listen to Mr Sparrow's
thirty-five minute tape of the conversation with Mr Galloway. Mr Rampton
suggested that anyone who has listened to the tape would recognise how
inappropriate it was to describe Mr Galloway as either "blustering" or being
"on the defensive". I would agree with that assessment, although the tape
recording is not of very good quality. Whatever the reason, however, no one
did listen.
- There can be no doubt that The Daily
Telegraph recognised the gravity of the allegations that they were about
to make, because the "morning foreign list" of 21 st April contained a number
of provisional or potential headings for the articles in contemplation. These
included "George Galloway was Iraqi spy", "The proof of one man's treachery",
"The life and times of galloping George" and "The charges he could face in
Court and in Parliament".
- There was also the "afternoon foreign list" for
the same day, which included "George Galloway solicited Iraqi bribe", "How
oil-for-food funded George" and "the Labour Party's options now".
- So far as Mr Harris was concerned, there was no
need for anyone to attempt to contact Mr Zureikat before publication, since Mr
Sparrow had spoken to Mr Galloway. I shall have to return to this topic when I
come to consider the defence of Reynolds privilege, but it is clear
from the transcript ofMr Galloway's conversation with Mr Sparrow that (a) it
was not put to him that he was directly involved in soliciting or receiving
money from the oil-for-food programme and (b) that a number of questions were
put to him about Mr Zureikat which he was not in a position to answer.
- The next witness was Mr Paul Eccleston who was
at the material time the Home News Editor of the newspaper. He too began by
speaking of his personal knowledge ofMr Galloway at the time. He knew of his
anti-war stance and had also seen the film from 1994 in which he appeared to
be paying tribute to Saddam Hussein. It was he who suggested to Mr Sparrow
that he should speak to George Galloway and, as it were, de-briefed him after
the conversation had taken place. There was not much he could add to the
evidence of the other witnesses, although he too was cross-examined on the
question of the need, or otherwise, to publish the articles on 22nd April. He
did not discuss with anyone the possibility of pursuing Mr Zureikat for a
comment or checking the plausibility of the story with any intelligence
contacts The Daily Telegraph might have.
- Then Mr Sparrow himself gave evidence. Mr
Rampton made it clear that he was not criticising Mr Sparrow, in any
significant way, for his conduct of his interview with Mr Galloway. Mr Rampton
acknowledged that Mr Sparrow only had limited information at the time.
- It was clear, however, that around 3 p.m. on 21
st April he took a call from somebody who told him that the full translation
of the "key document" was now available on the computer system. He accessed
the memo and read it on screen carefully. He said that it was quite long and
he read it twice to make sure he understood it thoroughly. He noted that it
was dated January 2000, within a matter of days of the supposed meeting
between Mr Galloway and the intelligence officer. He concentrated on this
document because it contained what he described as "the incriminating evidence
against Mr Galloway". It is interesting that he put it that way, because there
was nothing in the interview with Mr Galloway half an hour later which
suggested that the documents contained anything "incriminating" so far as he
was concerned. Mr Sparrow commented that during his conversation he formed the
impression that Mr Galloway was very confident and sure of himself, which he
found surprising, because he would have expected him to have been "gob
smacked". He was not taken aback or thrown off guard, and "he did not appear
to hesitate or wobble in the least during the interview" .
- Mr Rampton drew to his attention the passage in
the interview where Mr Sparrow appeared to be emphasising to Mr Galloway that
he was not talking about any personal gain on his part:
"Mr Galloway: I have never seen a barrel of oil, never owned
one, never bought one, never sold one
Mr Sparrow: But I'm asking about the Mariam Appeal, the Mariam
Campaign".
Mr Rampton also suggested to Mr Sparrow fairly and squarely that he at no
time put to Mr Galloway, so that he could have an opportunity to deal with it,
the allegation that he took money from the Iraqi regime or from the
oil-for-food programme. He clearly did not put it. Despite the apparent
intention to convey to readers that Mr Galloway had benefited personally or
"solicited Iraqi bribes", they at no time rang him back from London on his
mobile number to give him an opportunity to deal with that. There was thus,
for whatever reason, a mismatch between the allegations put to him and those
published within a matter of hours thereafter.
- Mr Darbyshire was the deputy editor at the time
in Mr Charles Moore's absence. He said that in the past The Daily Telegraph
had published stories about Mr Galloway that were "benign". He said "We do
not have people we hate" and he did not regard Mr Galloway as a bëte noir
(although in his evidence Mr Sparrow appeared to acknowledge that this was
a fair description). He said that it was for the readers to decide for
themselves what the documents meant. He seemed to think that The Daily
Telegraph was covering the story neutrally. Although it may seem strange,
I decided that he genuinely believes that now. He is not the only Daily
Telegraph witness to be deluding himself in this respect.
- He rejected Mr Rampton's proposition that he
thought the documents provided the newspaper "with a heaven sent opportunity
to terminate Mr Galloway as a public figure once and for all". He said it was
"claptrap". He did, however, appear to accept that the leading article
"Saddam's little helper" of 22nd April was all about Mr Galloway
"having got the money for himself'. He responded, "It does raise that, yes".
There is no doubt that Mr Darbyshire was an engaging and frank witness, and he
was clearly right to acknowledge the significance of the leading article, but
"having got the money for himself' is certainly not something that Mr Sparrow
raised in his telephone conversation.
Qualified Privilege
- An important element of the Defendants' argument
in relation to their Reynolds defence is that their coverage amounted
to reportage. It thus becomes necessary to consider the general
background context of domestic authorities and the European human rights
jurisprudence. One cannot address the relevant cases in isolation, because
there is a possible tension between that relatively recent strand of authority
on reportage and another well established principle, namely the
"repetition rule", to which I have already referred.
- I need to identify the characteristics of a
reportage situation which are thought to justify, as a matter of public
policy, the apparent departure from the repetition rule. The latter doctrine
essentially provides that one cannot resort, by way of justification, to the
fact that some third party has made defamatory accusations about the claimant;
one can only justify by proving that the underlying defamatory allegation was
itself true. That may, of course, depending upon the meaning of the particular
words, include proving that there were "reasonable grounds to suspect" the
claimant of the particular disreputable conduct. Here, the Defendants do not
seek to rely upon the defence of justification in respect of any
defamatory meaning. They contend that they had a duty to report the fact
of the allegations contained in the Baghdad documents because the public had a
right to know their contents - irrespective of their truth or falsity. It was
re-emphasised in closing that "it is not and never has been any part of the
Telegraph's intention to suggest guilt, or to suggest that guilt could
be established other than by a most detailed investigation using powers which
a newspaper lacks".
- The repetition rule is based upon considerations
of public policy (which are concerned with the protection of reputation and
with the need to prevent the public being misinformed). It is thus always
important to ensure, on the facts of any particular case, that the arguments
underlying the reportage line of authorities are truly engaged and,
correspondingly, that the defendant is not simply seeking to flout the
disciplines underlying the repetition rule.
- I turn to consider the Court of Appeal decision
in Al-Fagih v H H Saudi Research and Marketing (UK) Limited [2002] EMLR 13, where the majority upheld an appeal against a trial judge's ruling
that the publication in question was not within the protection of
Reynolds privilege. At [6] Simon Brown LJ described "reportage"
as "a convenient word to describe the neutral reporting of attributed
allegations rather than their adoption by the newspaper". He went on to give
guidance more generally as to how political reportage ought to be
approached in the light of Reynolds:
"51 I am not, of course, saying that verification (or at least
an attempt at verification) of a third party's allegations will not
ordinarily be appropriate and perhaps even essential. In rejecting the
general claim for qualified privilege for political discussion Lord Nicholls
said in Reynolds at 203B:
'One difficulty with this suggestion is that it would seem to
leave a newspaper open to publish a serious allegation which it had been
wholly unable to verify. Depending on the circumstances, that might be
most unsatisfactory.'
52 I am saying, however, that there will be circumstances where,
as here, that may not be 'most unsatisfactory' - where, in short, both sides
to a political dispute are being fully, fairly and disinterestedly reported
in their respective allegations and responses. In this situation it seems to
me that the public is entitled to be informed of such a dispute without
having to wait for the publisher, following an attempt at verification, to
commit himself to one side or the other".
- It is always important when applying the
Reynolds principles to concentrate on the particular facts in hand and,
specifically in the context of Al-Fagih, it is necessary to bear in
mind what Simon Brown LJ was referring to when he used the phrase "a political
dispute". The Claimant and "AM" were both prominent members of a Saudi Arabian
dissident organisation called the "Committee", which was opposed to the Saudi
Arabian government. The Defendant published a newspaper which supported the
government and was in part owned by the Saudi Arabian royal family. Over two
weeks, the newspaper reported an unfolding dispute between the Claimant and
AM. The particular report complained of had stated that AM told a journalist
that the claimant had spread malicious rumours about him, saying that AM's
mother had procured women to have sexual intercourse with him at his home. It
was accepted that AM had made the allegation to the journalist and that it was
untrue.
- The majority in the Court of Appeal held that
the news of the split within the Committee was a matter, in itself, of real
interest and concern to the newspaper's readership. Furthermore, the newspaper
had not adopted the allegation or implied that it was true. In those
circumstances, even without an attempt to verify the allegation, the
publication could be regarded as being in the public interest. This was one of
those cases where the mere fact that such allegations were being made was of
public interest and importance, even though the reader was not in a position
to determine whether the allegations were true or false. It was at least clear
from the mutual allegations that one or other, if not both, of those leading
Committee members was being shown to be disreputable. That basic fact was
something that the newspaper's readership was entitled to be informed about.
- It thus seems that, where both sides to this
political dispute were being "fully, fairly and disinterestedly" reported in
their respective allegations and responses, the public was entitled to be
informed of the dispute - without having to wait for the publisher to commit
himself to one side or the other.
- Here, just as in Al-Fagih, there is
undoubtedly a political dimension to the subject matter of the Defendants'
articles. I remind myself, however, that the House of Lords in Reynolds
rejected the proposition that there should be a new category of qualified
privilege to cover the publication of all political information.
- It is now clear that there are significant
potential distinctions between the present circumstances and those before the
Court of Appeal in Al-Fagih. First, it is necessary for me to consider
whether The Daily Telegraph did, or did not, adopt any defamatory
imputation or imply that it was true. Secondly, this was not a case of
politicians or other public figures making allegations and cross-allegations
about one another, so as to give rise to a dispute which would itself be of
inherent public interest. Thirdly, this is not a case where one or other, or
both, of two persons could be shown to be disreputable by the very nature of
the allegations being made (whether true or false).
Fourthly, I shall need to consider whether The Daily Telegraph was
"fully, fairly and disinterestedly" reporting the content of the Baghdad
documents and Mr Galloway's response to those allegations. Fifthly, it would
clearly be significant if they went beyond reporting them and made independent
allegations or inferences.
- At this stage, I should refer to some of the
European jurisprudence which throws light on the circumstances, at least in
general terms, when it would be regarded as unreasonable or impossible for
journalists to be required by law to verify what they publish. As it happens,
the only European case referred to in the judgments in Al Fagih was the
well known Lingens v Austria (1986) 8 EHRR 407, which was
concerned with the right of politicians to protect their reputations and with
the countervailing need to weigh the public interest in open discussion of
political issues. All Simon Brown LJ had to say on the subject, however, was
to be found at [31]:
"Most of the ECHR's jurisprudence, however, save for one or two
recent cases, was discussed in Reynolds and to my mind it adds little
of value to the English case law, at any rate in the context of the present
appeal".
- As Mr Rampton pointed out, the reasoning and
guidance given in the appellate courts in England over recent years, including
that in Reynolds itself, is supposed to be Convention compliant. This
may be obvious, but it is fundamentally important. It is not, therefore, for
individual judges in every case that comes along to apply and interpret the
Convention afresh. If one applies the English law of defamation properly,
there should be no reason to think that the principles underlying the
Convention are infringed: Branson v Bower [2001] EMLR 800 at [8]. This is more particularly so with regard to appellate
decisions which expressly advert to the Convention and its compatibility with
English law.
- I should address, however, some of the other
cases to which Mr Price has drawn my attention in the present context. In
Thorgeirson v Iceland (1992) 14 EHRR 843, the Court noted that
the factual elements in the relevant articles consisted essentially of
references to "stories" or "rumours", emanating from persons other than the
applicant, or "public opinion" involving allegations of police brutality. In
the light of these particular circumstances, the opinion was expressed by the
Court that the applicant would have been faced with an unreasonable, if not
impossible, task if required to establish the truth of the statements
reported. The principal purpose of the journalist in that case was apparently
to call for an investigation by an independent and impartial body of the
allegations of police brutality. Obviously, that is quite a different matter
from the case of a journalist who endorses or adopts the allegations he
chooses to repeat. Mr Price submits that the instant case falls within the
former category, whereas Mr Rampton submits it is the latter.
- In Thoma v Luxembourg (2003) 36 EHRR 21 the Court was concerned with a radio report on corruption, in the
context of a re-afforestation, and reference was made to an "authoritative
source" which said that there was only one person who was incorruptible.
Actions for libel were brought by persons claiming to be identifiable as the
subject of corruption accusations. The Court, on those facts, took the view
that the journalist had in fact adopted, at any rate partly, the content of
the quotation in question. Despite this, it was held that the award of nominal
damages against the journalist had constituted a breach of Article 10. It was
not appropriate for the law to insist that he should formally distance himself
from the content of the quotation, at least in circumstances where it was
clear to the reader that the offending passage was a quotation from someone
else.
- Thus, in assessing the relevance of these cases
to the present facts, one of the first questions to be decided would be
whether the Defendants here were adopting allegations contained in the Baghdad
documents, or merely repeating them in circumstances which made it plain to
readers that there was no adoption by The Daily Telegraph of the
contents. A closely related issue is whether they went beyond the content of
the documents and embellished them, by adding allegations of their own, or
drawing inferences from them which they could not sustain.
- On the second day of the trial the European
Court of Human Rights delivered its judgment in Selistö v Finland
and counsel thus had the opportunity of making submissions upon it in
closing. It is, as a matter of first impression, a striking decision. The
applicant had written articles in January and February 1996 for a regional
daily newspaper which described allegedly unprofessional behaviour on the part
of a surgeon, whose identity was not revealed. It was supposed to have led to
the death of a patient in hospital just over three years earlier. In 1994 the
county prosecutor had concluded that there was no evidence of negligence or
involuntary manslaughter. Although the pre-trial record contained a number of
statements about X's possible alcohol consumption, the information was
contradictory and there was thus insufficient evidence that he operated while
under the influence of alcohol. Nor was it possible to determine whether
shaking hands impacted on the conduct of his surgery. The deceased patient's
widower commented in the first of the articles "How is it possible that a
surgeon is allowed to conduct surgery with alcohol in his blood?" The
introductory text on the front page attributed the patient's loss of life to
the surgeon's "wet Independence Day" (although not idiomatic English, this
phrase presumably conveys the information that the surgeon had been drinking
on the relevant day).
- There was a second article a few days later
containing interviews on the general desirability of surgeons (and pilots)
remaining sober when performing their professional tasks. No mention was made
of the individuals concerned. Several weeks later a third article, referring
back to the first, asked how the "relatively young woman in good shape died
from routine surgery" and quoted four extracts from statements given by
hospital staff for the purposes of the pre-trial investigation. These referred
to X's regular hangovers and shaking hands. The journalist was charged with
intentional defamation and the editor-in-chief with negligent abuse of the
freedom of the press. Although the fines were modest, there was held (by the
majority) to have been a violation of Article 10. Sir Nicolas Bratza, the
President, dissented on the basis that neither the conviction of the
journalist, nor the fine imposed on her, was disproportionate to the
legitimate aim of protecting the rights of others.
- The factors which led me to describing the
majority decision as "striking" are that:
(i) the allegations were recognised to be factual in character
rather than value judgments;
(ii) there had been no defence put forward of truth;
(iii) the surgeon was not named but would have been identifiable
to some readers;
(iv) he had not been given an opportunity to comment prior to
publication, but was only given a chance to respond afterwards;
(v) what seems to have been crucial to the majority decision was
the public interest in the subject matter under discussion in the newspaper
articles. The impugned articles recounted matters of patient safety and
concerned an important aspect of health care.
- It was also said at [54]:
"By reason of the 'duties and responsibilities' inherent in the
exercise of freedom of expression, the safeguard afforded by Article 10 to
journalists in relation to reporting on issues of general interest is
subject to the proviso that they are acting in good faith in order to
provide accurate and reliable information in accordance with the ethics of
journalism.".
- Because the case concerned factual allegations
and, unlike value judgments, they were susceptible of proof, the Court
attached importance to the point that these duties and responsibilities had
been respected. It was against that background that an assessment had to be
made whether the journalist's conviction under Finnish law struck a fair
balance between the public interests involved and those of X.
- Another factor to which the court attached
significance was that the national courts had not actually found that the
facts presented were erroneous as such, but had rather based the conviction on
her omissions of balancing information (such as reference to statements of
witnesses who had not perceived signs of drunkenness, the prosecutor's
decision not to charge the surgeon and the finding of the National
Medico-Legal Board that no causal link could be established between the
patient's injury and the conduct of either of the two surgeons involved). It
was stated at [60] that:
"It is also of importance that the depicted events and
quotations in the [third] article ... were derived from the police's
pre-trial record, which was a public document. In the court's opinion no
general duty to verify ... statements contained in such documents can be
imposed on reporters and other members of the media, who must be free to
report on events based on information gathered from official sources. If
this were not the case the efficacy of Article 10 of the Convention would to
a large degree be lost".
- It is also necessary to remember that Article 10
requires that journalists be permitted a good deal of latitude in how they
present their material and that a degree of exaggeration must also be
accepted: see e.g. Prager and Oberschlick v Austria (1996) 21 EHRR 1 and BZadet TromsfJ and Stensaas v Norway (1997) 23 EHRR
CD40.
- Mr Price submitted that if I were to uphold this
claim such a decision would simply prove unsustainable in the European Court
in the light of the jurisprudence. He suggested that Selisto had
probably gone further than any other case before it in protecting journalistic
freedom and, while also emphasising the need for "responsibility" in doing so,
the right to impart ideas and information.
- It is thus of some importance to see what
Selisto does say and what it does not.
- It does not, for example, require that English
law be changed so that direct allegations be treated in the same way as
genuine reportage. English law makes due allowance for reportage
in the way that Simon Brown LJ explained in Al-Fagih. Although at
first Mr Price acknowledged that his definition of reportage in that
case ("the neutral reporting of attributed allegations rather than their
adoption by the newspaper") was appropriate, he came to accept in the course
of argument that perhaps it was (in the light of Selisto) not
sufficiently generous to journalists. I am quite satisfied, however, that I
should follow the approach of Simon Brown LJ and treat it as Convention
compliant. Just as the European Court in that case was focussing upon the
specific facts, as it always does, so too I must address the particular facts
of this case when I attempt to apply the law of privilege generally, and that
governing reportage in particular.
- An important constituent of the present case is
its political context. Although their Lordships in Reynolds rejected
the argument that there should be a blanket protection for "political speech",
the recognition of the right of the public to receive information and ideas
has a particular resonance in the context of political activity and the
behaviour of politicians. As was said in Branson v Bower (No.2)
[2002] QB 737 at [25]:
"In a modem democracy all those who venture into public life, in
whatever capacity, must expect to have their motives subjected to scrutiny
and discussed. Nor is it realistic today to demand that such debate should
be hobbled by the constraints of conventional good manners - still less of
deference."
- Any consideration of Article 10 jurisprudence
needs to take account of the importance of reputation, to which specific
reference is made in Article 10(2), and that has been reaffirmed in the recent
decision of Radio France v France (Application No. 53984/00) on
30th March 2004. That is one reason why the right to free speech is
counterbalanced by the requirements of "responsibility" in accordance with the
recognised ethical standards of journalism. Another reason, of course, is that
it is desirable generally that the public should not be misinformed on matters
of public interest, whether about politicians or anything else. None of these
important principles is undermined by the Selisto decision. Indeed, the
court twice, at [54] and [67], referred to the need for journalists "to
provide accurate and reliable information in accordance with the ethics of
journalism".
- The decision was on its own facts. Mr Rampton
pointed to distinctions between those facts and those in the instant case. The
articles in Selisto were discussing general matters of patient safety;
the operation on the particular unfortunate patient was "selected as an
example illustrating the problems involved". It is often the case that
discussion of individual cases is used to highlight a more general problem. In
that context, the court did not find that the factual statements contained in
the articles were excessive or misleading, and the interference with the
journalist's Article 10 rights could not be justified as "necessary in a
democratic society".
- Here Mr Galloway, of course, was central to
these many pages of Daily Telegraph coverage. He was not introduced
incidentally to illustrate some more general theme. The allegations, if they
were allegations of being secretly in the pay of Saddam Hussein, and thus of
"treason", were so serious as to finish him politically. No one would want to
vote for him or employ him, or, as Mr Rampton put it, "give him the time of
day".
- That is a significant distinction on the facts.
It seems to me that it is so significant that it is hard to see how the
generous approach of the court in Selistö can throw very much light on
the approach I should adopt in this case. It certainly would not be right for
me, when assessing the standards of journalistic "ethics" as recognised in
this jurisdiction, to conclude from Selistö that pre-publication
opportunities to comment on gravely defamatory allegations can now be
dispensed with. Indeed, Mr Price did not suggest that I should. It is a
question of balancing the competing interests having regard to the particular
facts. On those in the Selistö case, the court was not persuaded that
the lack of opportunity to comment beforehand, as opposed to afterwards,
amounted to an infringement of ethical standards (especially since the surgeon
was not going to be identified except as "X").
- Here there was an approach to Mr Galloway first
and the question is whether it accorded with "responsible journalism", having
regard to what was actually published.
- A further distinction relied upon by Mr Rampton
related to the nature of the documents which were apparently the source of the
factual allegations. The court in Selistö referred to the police
pre-trial record as a public document, which it was unreasonable to require
the journalists independently to verify. One finds an echo of this approach in
the fifth of Lord Nicholls' non-exhaustive criteria ("The status of the
information. The allegation may have already been the subject of an
investigation which commands respect").
- Mr Rampton would not be willing to acknowledge
the "status" of these Iraqi documents emanating, as they apparently did, from
within the tyrannical and corrupt government machine of Saddam Hussein. They
certainly could not be said to evidence an investigation of any kind - let
alone one "which commands respect". He pointed out that the "key document" (as
it was referred to during the trial) consisted of hearsay statements from an
unidentified Iraqi intelligence officer. One could hardly claim that the
status of this document was such that it would be unreasonable to call upon a
journalist to attempt any independent verification. Indeed, it is perhaps
ironic that The Daily Telegraph should pray in aid the documents'
status at the same time as decrying Saddam's intelligence service as being one
of the most sinister and feared organisations in the world.
- I naturally bear in mind the European cases;
nonetheless it seems to me that I can do no better than apply the principles
in Reynolds to the (very special) facts of the present case. Was it in
the public interest that the readers should know what the Defendants chose to
publish in the articles complained of? Also, applying an objective test, could
The Daily Telegraph properly consider that it was under a duty to tell
the public? In answering those questions, as always, one should have regard to
Lord Nicholls' ten non-exhaustive tests as set out at p. 205:
(i) 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.
(ii) The nature of the information, "and the extent to which the
subject matter is a matter of public concern".
(iii) 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.
(iv) The steps taken to verify the information.
(v) The status of the information. The allegation may have
already been the subject of an investigation which commands respect.
(vi) The urgency of the matter. News is often a perishable
commodity.
(vii) Whether comment was sought from the [claimant]. He may
have information others do not possess or have not disclosed. An approach to
[the claimant] will not always be necessary.
(viii) Whether the article contained the gist of the
[claimant's] side of the story.
(ix) The tone of the article. A newspaper can raise queries or
call for an investigation. It need not adopt allegations as statements of
fact.
(x) The circumstances of the publication, including the timing.
I also need to bear in mind the general exhortation on the same page:
"Above all, the court should have particular regard to the
importance of freedom of expression. The press discharges vital functions as
a bloodhound as well as a watchdog. The court should be slow to conclude
that a publication was not in the public interest and, therefore, the public
had no right to know, especially when the information is in the field of
political discussion. Any lingering doubts should be resolved in favour of
publication".
- Central to Mr Rampton's submissions on the
Claimant's behalf, in the context of privilege, is the proposition that the
Baghdad documents do not allege that the Claimant took money for himself
whereas, by contrast, the articles complained of (taken in their proper
context, and read as a whole) do make that allegation unequivocally.
Moreover, whether the thrust of the articles is that he took money for his own
benefit, or merely that the Baghdad documents provide powerful prima facie
evidence that he did, the allegation is so serious that it makes little
difference.
- In the light of those submissions, he invites
the Court to conclude that:
(a) No reasonable journalist could reasonably have believed that
the proposed articles would not convey that imputation against Mr
Galloway; the relevant journalists must have known that they would.
(b) The Defendants were under a duty to put the allegations to
Mr Galloway before publication, so as to obtain his response and to publish
the gist of that response fairly.
(c) The Defendants were under a duty to supply the Claimant with
copies and translations of the Baghdad documents and then to afford him time
to consider them in the light of the allegations they were proposing to make
(assuming that an accurate summary had been given to him of what it was
intended to publish).
(d) The Defendants fundamentally misrepresented the true meaning
and effect of the documents in their news articles and editorials.
(e) This must have been a deliberate decision, given that the
documents do not allege (and could not reasonably have been understood by
any of the journalists involved to allege) that the Claimant took money for
himself.
- It is thus the Claimant's case that the recently
developing jurisprudence about reportage has little to do with this
case. Not only, he argues, were these articles not "fairly and
disinterestedly" reporting the context of the Baghdad documents neutrally.
They actually went beyond assuming them to be true and drew their own
inferences as to the personal receipt of funds diverted from Iraq's oil for
food programme something not alleged in the documents themselves.
- Mr Price does not accept that the articles
conveyed any imputations (as opposed to comments) going beyond the thrust of
the documents. On the other hand, if they did, and are thus not wholly
protected by privilege in their coverage, he suggests it is important to bear
in mind that Mr Galloway's claim should be confined to the unprotected margin.
That is to say, he submits that it was the publication of the documents that
did Mr Galloway's reputation harm and he should only recover compensation (if
at all) to the extent that The Daily Telegraph embellished the
documents. Mr Galloway rejected that approach on several occasions in
cross examination. He referred to The Daily Telegraph as having
obscured the documents' limited significance by a "blitz" or "blizzard" of
their own material which went right to the heart of his personal and political
reputation.
- I have already ruled that the words do convey
the serious meanings for which Mr Rampton contends. The Defendants, if they
were "fairly and disinterestedly" reporting the allegations, and the reader
could understand that they were not adopting or endorsing them, would
not necessarily need formally to distance themselves from them: see e.g.
Thoma v Luxembourg. But here the Defendants were not neutral.
They did not merely adopt the allegations. They embraced them with relish and
fervour. They then went on to embellish them in the ways I have described.
- I will consider Lord Nicholls' criteria one by
one, but without regarding them as confined within separate compartments.
First, as to seriousness, there can be no doubt. Secondly, the subject matter
would undoubtedly be of "public concern"; a different question from whether it
was in the public interest to publish the specific allegations complained of
about the Claimant at the particular time in question.
- Thirdly, the sources of the information were, if
the Defendants are correct, operatives within Saddam Hussein's regime. Whether
they had "axes to grind", in Lord Nicholls' phrase, is an open question but
they can hardly be classified as inherently reliable. Fourthly, I need to
consider what steps were taken to verify the information. None were taken
because the Defendants did not think they needed to do so, or that they were
capable of carrying out any meaningful verification. They say that guilt could
be established only by " a more detailed investigation using powers which a
newspaper lacks".
- Fifthly, there is the "status" of the
information. That is, on the facts of this case, obviously very closely linked
to the third point. The documents clearly cannot be regarded as having the
same status as some official report published, after full enquiry, in this
jurisdiction. It could hardly be suggested that the allegations that the
Claimant had received money from Saddam Hussein, or from the oil-for-food
programme, had been "the subject of an investigation that commands respect".
Nor were they "public documents" such as (say) the pre-trial records in
Selisto.
- The next three of Lord Nicholls' criteria are
intimately connected. Sixthly, there is the "urgency" of the matter. It is
necessary to distinguish between an urgent need for the public to be told of
untested allegations and the need of the Defendants to maintain security for
what they later called the "scoop that led the news". Of course, in one sense,
"scoops" are "the lifeblood of the newspaper industry": see e.g. Greene
v Associated Newspapers Ltd [2004] EWCA Civ 1462 at [75]. But I need to bear in mind Lord Nicholls' observations in
Reynolds at p. 201 G- H:
" ... in the absence of any additional safeguard for reputation,
a newspaper, anxious to be first with a 'scoop', would in practice be free
to publish seriously defamatory misstatements of fact based on the
slenderest of materials. Unless the paper chose later to withdraw the
allegations, the politician thus defamed would have no means of clearing his
name, and the public could have no means of knowing where the truth lay.
Some further protection for reputation is needed if this can be achieved
without a disproportionate incursion into freedom of expression. "
I naturally also appreciate that news can be a "perishable commodity" but
this story, if it could be stood up, would be of interest at any time. It
would not become stale.
- Here, the urgency from the public point of
view cannot be said to be so great as to justify either not giving the
Claimant a proper opportunity to comment on the Baghdad documents or omitting
to carry out any attempt at all at verification. Somebody at least needed to
take the opportunity to speak to Mr Zureikat (either Mr Galloway or The
Daily Telegraph). Channel 4 were able to interview him at mid-day on
22nd April. It was therefore by no means an unreasonable step to
take.
- Seventh, it was hotly debated as to whether the
approach to Mr Galloway was adequate for the purpose. It all depends on
whether the telephone conversation of 21 st April gave him a reasonable
opportunity, in all the circumstances, to comment on what The Daily
Telegraph had in mind to publish and a sufficient time to give a
meaningful response.
- Eighth, there is the intimately related question
of whether the article contained "the gist of his side of the story". The
interview between Mr Sparrow and Mr Galloway was recorded and, subject to
minor glitches, is available for scrutiny. I have described it in some detail
already, when summarisin} the evidence before me. I am quite satisfied that
(a) the articles published on 22n April conveyed the impression
that Mr Galloway was in receipt of hundreds of thousands of pounds from Saddam
Hussein, (b) it is clear from the morning and afternoon "foreign lists" of 21
st April that this was fully intended by the editorial team, and (c) that no
such allegation was put to him in advance of publication by Mr Sparrow or
anyone else. It should have been.
- It also emerges from the "foreign lists" that
they had it in mind, as a real possibility, to allege that he solicited an
"Iraqi bribe" and/or that he was an "Iraqi spy". Following through that theme,
the leader next day accused him of "treason" to all intents and purposes and,
even though it is not customary to put leaders to people in advance, the
underlying factual basis for such a charge clearly should have been put to him
with complete frankness. Since it was not, the gist of what Mr Galloway had
said to Mr Sparrow related to a different "story" from that published.
- Ninth, the tone of the coverage was dramatic and
condemnatory. In Lord Nicholls' terminology, this newspaper did not "raise
queries or call for an investigation"; it chose to "adopt allegations as
statements of fact". Even more significantly, however, it went beyond the
documents and drew its own conclusions.
- Tenth, there is Lord Nicholls' sweeping up
category of "the circumstances". There is nothing additional that requires to
be addressed under that heading.
- In the last analysis, after all these factors
have been individually addressed, the question to be answered is "whether in
all the circumstances the 'duty-interest test or the right to know test' has
been satisfied so that qualified privilege attaches": per Lord Phillips
MR in Loutchansky at [23]. It is to be answered according to an
objective test: ibid. at [40]. It is the classic test long established
at common law. The decision in Reynolds served as a reminder of the
width of those common law principles and of how adaptable they are to a great
variety of circumstances. It was also more encouraging of their invocation
than previous English decisions, according to Lord Cooke, who was one of the
majority of three. He made this clear in the later case of McCartan
Turkington Breen cited above, at pp. 300-301.
- The question is not simply whether the
allegations in the Iraqi documents were of public interest, but whether The
Daily Telegraph was under a social or moral duty to communicate the
totality of what it chose to publish to the world at large on 22nd
and 23rd April 2003 and, specifically, the words complained of in
these proceedings.
- As is obvious, those communications went well
beyond reporting the content of the documents and calling for an inquiry. Did
the public have a right to be given The Daily Telegraph "blizzard" of
interpretation (in Mr Galloway's phrase) as well as the basic facts? To put it
another way, did The Daily Telegraph have a duty to publish the
material to the effect that Mr Galloway was an "MP in Saddam's pay" at all?
Did they have a duty to do so without putting that allegation to him? To my
mind the answer must clearly be in the negative. Unfortunately, as emerged
from a consideration of the transcript, the discussion between Mr Sparrow and
Mr Galloway was confined to the Mariam Campaign and whether Iraqi money had
been solicited or received for that. That was denied in unequivocal terms, but
nothing was said about using it as a front, or siphoning offmonies from the
oil-for-food programme, for personal enrichment.
- Thus, I am afraid that making all due allowance
for the encouragement towards the wider and more flexible use of common law
principles, in Reynolds, I am quite unable to uphold the privilege
defence.
Fair comment
- There is a plea of fair comment which is limited
to the two leader articles and, curiously, also two of the headlines published
on 23rd April; namely, "Telegraph reveals damning new evidence on
Labour MP" and "Bluster, two homes and the unanswered questions". These
various words are said to contain honest comment "on the articles detailing
the discovery of the Iraqi documents, their contents and the Claimant's
response to them". It is pleaded that the Defendants were able to comment on
their own articles, irrespective of their truth or otherwise, because the
articles themselves were protected by privilege. Alternatively, even if the
articles were not privileged, they would be entitled to comment on the
contents at least of the Iraqi documents themselves - whether or not they
were true.
- There is a line of authority which does indeed
support the proposition that one may comment upon reports which are themselves
the subject of privilege: see e.g. Cook v Alexander [1974] QB
279 and Brent Walker Group plc v Time Out Limited [1991] 2 QB
33. It emerges that a defendant in such circumstances does not need to prove
that the underlying facts were true but must prove (i) that the statements in
question were made on a privileged occasion and (ii) that the report of those
statements was fair and accurate. These rules were not geared to the form of
privilege defence relied upon in this case, and the learned editors of Gatley
on Libel & Slander (10th edn.) at para. 12.20 point out certain
difficulties of application in that context. In principle, however, the same
rule must apply.
- If A was commenting on a publication by B, which
was said to be protected by Reynolds privilege, no doubt there could be
problems for A in establishing B's privilege. But that does not arise here.
The Defendants rely on their own publication of the Iraqi documents and say
that they are entitled to comment on the allegations contained therein.
Moreover, there is no question of inaccuracy or unfairness, at least in the
direct sense that the Iraqi documents were reported in a misleading way, since
they published the documents in their entirety. Thus, this limb of the fair
comment argument depends upon the outcome of the defence of privilege.
- I turn to consider the alternative plea of fair
comment, which is based upon the right to comment on the Iraqi documents
themselves. Mr Rampton's primary point on fair comment was that the relevant
words sought to be so protected were allegations of fact rather than comment.
In view of the structure of the pleading, however, there is another
fundamental problem with the Defendants' case on the leader articles. It is
expressed on a hypothetical or conditional basis. They pray in aid the
conditional formula adopted in parts of "Saddam's little helper".
The conceptual problem is this. If one says, "If Mr Justice X took a bribe,
he is not fit to hold office", that is not of itself defamatory of Mr Justice
X. It would be true as a moral proposition whichever name appeared. It would
equally be true of Mr Justice Y and Mr Justice Z. The function of a plea of
fair comment is to defend a defamatory comment about the relevant claimant. I
have never encountered a plea of fair comment in this conditional form
previously and the reason is not far to seek. A statement in that form is not
defamatory. Of course it may be, depending upon a particular context, that the
words do give the impression that the claimant actually did the reprehensible
act in question. If so, the appropriate defence would be one of justification,
either on the basis of "guilt" or perhaps "reasonable grounds to suspect".
That is a strategy which has been spurned by these defendants.
- As to "Saddam's little helper", what is said is
that ifwhat the Baghdad documents purport to show turns out to be the truth,
Mr Galloway's conduct would amount to treason. That is an observation
of a moral nature about hypothetical conduct. Outside the scope of comments
made upon privileged material, as Mr Price accepted, it is necessary for a
defendant who relies on fair comment to prove the facts about the claimant
upon which the comment was based. Here the Defendants positively eschewed
that task: they seek to prove nothing by way of reprehensible conduct on Mr
Galloway's part.
- As I noted earlier, when discussing the possible
roles for a jury in this case, one cannot comment upon allegations
about the Claimant and then avail oneself of the fair comment defence (any
more than one can justify by reference to the fact that allegations have been
made). One has to comment upon the claimant's conduct and, if it is not
admitted, prove that conduct. The defence in relation to the 22nd
April leader would fail for that reason alone.
- In any event, there is Mr Rampton's submission
that, taken as a whole and read in context, the leader in question is factual
in character. It alleges or assumes conduct on the part of Mr Galloway that is
deserving of such prominent and strongly worded condemnation. It is not
headed, "If Mr Galloway were Saddam's little helper, this would be a very
serious matter and should therefore be fully investigated". Of course,
headlines cannot be lengthy and they should be eye-catching. In accordance
with those imperatives, Mr Galloway is asserted to be "Saddam's little
helper". Moreover, the first sentence accords with this approach. I accept
that it expresses a value judgment - "It doesn't get much worse than this".
But it is a value judgment about Mr Galloway's unproven conduct. The leader
writer has come to his own conclusion about that and taken the risk of
commenting upon it. It was thus a classic case of publishing and being damned.
- The article is directed as much towards the poor
benighted anti-war campaigners as against Mr Galloway. It is acknowledged that
"If it is unfair to blame Labour for Mr Galloway, the anti-war movement is far
more culpable". In the light of "today's revelations", it is they who are
encouraged to mend their ways and to recant their support:
"They may feel misled. They may even, as they see how much more
the occupying forces are doing for Iraqi civilians than the old regime ever
did, feel guilty. Above all, they may be reluctant to march in support of
this kingdom's enemies in future" .
The effect of the leader is to point out that Saddam regarded the anti war
movement as an ally of his regime - "so much so, it seems, that he was
prepared to divert money away from hungry children in order to finance it".
The message is clear. That is why "it doesn't get much worse". He was
diverting it to Mr Galloway, who had misled the anti war protesters.
- Mr Rampton selected other passages to illustrate
the same point. There was the suggestion in the leader that Mr Galloway was
"reduced to suggesting that the whole thing was a Daily Telegraph
forgery" (emphasis added). There is also the passage where Mr Galloway is
likened to Jeffrey Archer and it is said that "his energy, combined with the
readiness to litigate, saw him through many incidents that might have done for
other politicians". The leader writer then adds "Many, from all wings of the
Labour Party, have nursed their doubts about the Glasgow MP ... Yet they have
never been able to pin their doubts on anything concrete". The implication is
clear; now they can.
- The 23rd April leader was entitled
"Galloway's gall", which hardly suggests that judgment is being suspended. The
Iraqi documents are described as "damning". It was said that "nobody led [Mr
Blair] to the secret files that contained the correspondence between the head
of Iraqi intelligence and Saddam's secretariat, in which the remuneration of
Mr Galloway was discussed. It was superlative detective work by Mr Blair to
rescue these documents ... The methods by which Mr Galloway's activities came
to light were those of a classic scoop". Mr Rampton points out that these
passages take as read the propositions that Mr Galloway was indeed receiving
remuneration and that he had been participating in activities which had
hitherto not come to light.
- The third paragraph contains the sentence that
"David Blair uncovered strong prima facie evidence that a British MP
had been in the pay of a foreign dictator with whom this country had just been
at war". That is not comment. It is a classic example of a defamatory
assertion that is susceptible to a defence of justification (along the lines
of "strong grounds to suspect").
- Lower down the question is asked, "Where did the
money go?" As Mr Rampton submits, that necessarily asserts that there was
money paid to Mr Galloway and that it has "gone" somewhere. Suggestions are
then made by the leader writer that the money might in fact have been
channelled through "such shadowy entities as the Great Britain Iraq Society,
of which he is chairman; but these phantoms have no address and nothing is
known about them". The possibility is addressed that these are "front
organisations, financed by the Saddam regime partly for the benefit of Mr
Galloway and his causes".
- Later, it is stated that "Mr Galloway's own
motives are obscure". That clearly suggests that he has done something
reprehensible, even though his motives remain obscure. The leader then goes on
to suggest that he would not be the first public figure to have been suborned
by a foreign intelligence agency (and an analogy is drawn with the KGB).
- The leader concluded:
"Once Mr Galloway had been drawn into the web, he could not have
escaped without risking the destruction of his career. His exposure suggests
that others may follow. Though he is a colourful and eloquent figure, Mr
Galloway does not wield much power or influence. He would not be the only
Western European politician to have yielded to the temptations of Saddam.
Others who acted as his apologists over many years must now be wondering
what further documents will emerge from the ruins of the regime".
The notion of "exposure" plainly connotes, as Mr Rampton has submitted,
that wrongdoing has taken place. I accept that the leaders are defamatory of
Mr Galloway and that their "sting" is factual rather than comment. It is the
difference between tentative comment and a rush to judgment.
- The headlines to which I have referred are
defended on a different basis; that "damning" and "bluster" are expressions of
opinion (presumably on "facts truly stated"). I have already expressed the
view that "damning" has a plain meaning; that is to say, that the evidence
goes beyond a prima facie case and points to guilt. "Bluster" is hot
air and therefore weighs nothing in the opposing scales.
- In the result, I have come to the conclusion
that there is no basis upon which the defence of fair comment can succeed.
Damages
- Mr Price made a number of submissions on the
issue of damages. First, he argues that the newspaper would have been entitled
to publish the content of the Iraqi documents (in accordance with Reynolds
privilege) and that if other parts of the coverage should be held
unprotected, either by privilege or fair comment, then compensation should be
awarded in those respects (if at all) on a very limited basis. It should only
take account of any marginal damage to his reputation over and above that
occasioned by the Iraqi documents themselves of which he does not complain. He
submits that it is those which have caused the damage and, in so far as Mr
Galloway takes issue with the newspaper's own coverage, he is merely "nit
picking" over something relatively unimportant.
- Secondly, he submits that it would be wrong to
compensate Mr Galloway for any damage, and more specifically any damage
flowing from the publication from the Iraqi documents, at a time when the
Parliamentary Commissioner for Standards has yet to investigate inter alia
the truth of the underlying allegations.
- I wish to make it clear that I have carefully
avoided saying anything about the suspended inquiry of the Commissioner for
Standards and, for reasons of relevance as well as Parliamentary privilege, I
propose to say nothing about the conduct or motives of the members of the
relevant select committee, as to which Mr Galloway expressed his own views in
his evidence. It is not for me to encroach in any way upon those matters.
Nevertheless, since Mr Price has raised the matter in this particular context,
I cannot remain wholly silent.
- My duty is clear. I must reach conclusions upon
the issues before me and, if I hold that Mr Galloway has been defamed, I must
award appropriate damages in respect of the relevant allegations. I cannot
withhold a remedy because an inquiry before a different body will or may take
place in the future. There has been no plea of justification in this case, and
accordingly it has not been part of my function to rule directly upon the
truth or otherwise of the underlying allegations. It is well established that
a court in such circumstances must proceed on the basis that any defamatory
allegations of fact are presumed false in the claimant's favour.
- Moreover, even where a defendant is pleading
justification on the basis of "reasonable grounds to suspect", it has recently
been re-affirmed by the Court of Appeal in Chase v News Group
Newspapers [2003] EMLR 218 at [65] that such a plea should not be framed in such a way as to have
the effect of shifting the burden of proof on to the claimant: see also
McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774. A
fortiori where there is no plea of justification at all.
- Nevertheless, as in virtually all libel actions
which come to trial, this Claimant has gone into the witness box and denied in
the clearest possible terms the truth of the allegations made against him. He
also said that he would have relished a fight on a plea of justification, and
that he has nothing to fear from a full investigation of his finances. I found
Mr Galloway a convincing witness in general terms, and I have no reason to
doubt his evidence in these respects either.
- Mr Price had the option of applying to the Court
at some stage in the past, if he wished to do so, for these proceedings to be
postponed until such time as either the Parliamentary Commissioner or the
members of the Select Committee themselves had come to their own conclusions.
No such application was made. Accordingly, I must come to a determination on
the evidence before me and I cannot resolve these proceedings on the basis of
a half-way house solution. I need to address Mr Price's submission, however,
in a little more detail:
"In these circumstances what is the Court to do, if the Claimant
succeeds on liability? The situation engineered by the Claimant threatens to
bring the judicial proceeding into disrepute: if the Claimant is vindicated
by the judicial proceeding, and Parliament ignores it, the judicial
proceeding is set at naught and brought into disrepute or even (if the
Parliamentary investigation finds the Claimant guilty) contempt. On the
other hand, if Parliament accepts that the Claimant has been vindicated by
the judicial proceeding, and closes down its investigation of the truth of
the matter, the situation will be right for a public outcry, and both
Parliament and the judicial proceeding will have been brought into
disrepute".
As I have already emphasised, I intend to be very cautious in my approach,
and to honour the conventions of Parliamentary privilege and the provisions of
Article 9 of the Bill of Rights. I certainly do not intend to take any step
which will bring these judicial proceedings into contempt, and I see no reason
to suppose that they will in any way infringe Parliamentary privilege or give
any appearance of inhibiting Parliament's wide-ranging powers of investigation
into the conduct of one of its members.
- These arguments are raised by Mr Price because
he submits that " ... the damages should be nominal, and it should be made
crystal clear that vindication, in the sense asked for in the letter before
action must be achieved, if at all, in the Parliamentary inquiry. In the
present case, strict application of the presumption of falsity (which, of
course, is dependent on the defamatory meaning which the Court attaches to the
publication) should yield to the overriding objective, and to recognition that
the Claimant has brought this situation on himself. If the Court is critical
of the way in which the Claimant has brought about the situation, or
particularly if the Court considers that it arose because the Parliamentary
Commissioner for Standards was misled, we submit that any compensation should
be contemptuous".
- I have no reason to believe that Mr Galloway or
his solicitors in any way misled the Parliamentary Commissioner. Because it is
so important, however, I emphasise yet again that such a question would be for
Parliament to determine rather than this Court. I do not propose to allow such
considerations to impinge upon the outcome of this case - save in one respect.
One of Mr Rampton's brief submissions on the issue of damages was that certain
conduct of the Defendants had the effect of aggravating the damages; in other
words, of "adding insult to injury". One aspect of the Defendants' conduct
upon which he relies is this very assertion that Mr Galloway has "engineered"
matters to his own advantage and may have "misled" the Parliamentary
Commissioner. I do not, of course, need to infringe Parliamentary privilege in
order to recognise that such allegations are in themselves insulting. I
believe it is unfortunate that these matters have been raised but, for what it
is worth, it should be recognised that the allegations form a part of the
conduct of the Defendants' case with which Mr Galloway has had to contend in
court.
- I do not see how the "overriding objective" of
doing justice between the parties requires me to ignore the well established
presumption of falsity operating in a claimant's favour. Needless to say, as
with any other claimant, if it emerged that Mr Galloway had perjured himself
in the witness box and had, after all, been "in Saddam's pay", then no doubt
the Defendants would have remedies open to them. They might wish to pursue a
similar course of action to that adopted quite recently by the defendants in
the 1987 libel action brought by Jeffrey Archer. I hasten to add that I have
no reason whatever to believe that such an eventuality will come about. As I
have made clear, I found Mr Galloway a truthful and compelling witness. I need
to explain why, nonetheless, any fears that these proceedings will bring the
administration of justice into disrepute, or fail to serve the overriding
objective, are misplaced. I intend, therefore, to approach the question of
damages as I would in any other case in the light of the evidence before me
and the findings I have made.
- It is well known that the objectives of general
damages in defamation proceedings are threefold. First, there is a need to
compensate the relevant claimant in respect of any distress or hurt feelings.
Secondly, it is appropriate to compensate for any injury to reputation.
Thirdly, as Lord Hailsham explained in Broome v Cassell [1972] AC 1027, there is a need to vindicate the claimant. Compensatory damages serve
as an outward and visible sign of vindication with a view to the restoration
of the claimant's reputation. If interested observers were aware of the
original allegations, as plainly they have become aware of these, the claimant
should be able to point to a sum of damages awarded by a judge or jury so as
to be able to convince them, in Lord Hailsham's words, of the "baselessness"
of the original charges. These are all elements in the exercise of awarding
damages, and I do not intend to exclude any of them from consideration in the
present case. There is no need to do so and it would not be right in
principle.
- Unlike many libel claimants, Mr Galloway is not
a shy or retiring character to whom the attentions of the media are in
themselves shocking. He is a tough political operator who is used to
hard-hitting criticism. That is not to say, on the other hand, that he would
be any the more unlikely to suffer distress or hurt feelings when the
allegations go to the heart of his integrity and political reputation.
Allegations of "treason" are not part and parcel of the knocks one expects to
take in the course of everyday political debate. Mr Rampton did not make a
meal of the issue of damages. He submitted simply that the gravity of these
allegations was such as to bring them near the top of the bracket. That is
hardly capable of dispute.
- It is always necessary to bear in mind the
extent to which there has been aggravation or mitigation of the effect of the
original allegations. At least it can be said that this is not one of those
cases where there has been a plea of justification, which the claimant has had
to answer in court before it was ultimately rejected. The Defendants have made
it clear throughout that it was no part of their case to suggest that the
allegations of being on Saddam's pocket were true, or even that there were
"reasonable grounds to suspect" Mr Galloway of that charge. Having said that,
the Defendants have sought to tread a somewhat ambiguous line. It was
part of their case that there were very serious questions to answer and to
which the Claimant had, even now, given no satisfactory answers. Apart from
failing to recognise where the burden of proof lies, that somewhat undermines
the deflationary effect upon damages which the absence of a plea of
justification would ordinarily entail. It inevitably clouds the issues and has
the effect of smearing him.
- Mr Rampton relied upon the fact that Mr Galloway
had been treated to high-handed and insulting behaviour in court. There is no
doubt, as he recognises himself, that he is to some extent the author of his
own misfortune. Although he has made clear in court that he has always
regarded Saddam as a brutal dictator, even in the past when he was receiving
support from western governments, he has been perceived by some as giving him
succour either wittingly or unwittingly. A contributing factor to this general
impression was the speech in 1994, to which I have already referred, and which
was replayed in the course of the trial. That accounts partly for the scorn
which was poured upon his case, but not entirely.
- One aspect of aggravation was the unfortunate
attribution in cross-examination of anti-semitism. I am quite prepared to
accept that it was a slip, in the heat of the moment, and that it was not
intended to be put forward as part of the Defendants' case. It is necessary
for me to consider exactly how it came about. Mr Price wished to refer to a
fund-raising letter written by Mr Galloway for the purposes of obtaining
support in these proceedings. In it he suggested that he had been attacked by
The Daily Telegraph because of his views on the Middle East in general
and the Palestinian cause in particular. Wisely or unwisely, he referred to
Lord Black (formerly proprietor of The Daily Telegraph) and his wife
Barbara Amiel as being among Mr Sharon's most vociferous supporters. Mr Price
wished to put this document to him in the course of cross-examination. Before
he did so, and I believe when it was not actually in front of him, he somewhat
unguardedly said that Mr Galloway had referred to Barbara Amiel's hostility
towards him being due to the fact that she was Jewish. The document, of
course, said no such thing.
- There is no doubt that Mr Galloway was insulted
and stung by this remark. He said that he was not anti-semitic and had never
made an anti-semitic remark in his life. He thought it part of a Daily
Telegraph strategy to smear him in these proceedings. I think he was
probably wrong about that, but nonetheless he found it insulting. It was an
unfortunate episode and one which, to some extent at least, must have an
aggravating effect.
- For the sake of accuracy I should set out the
exchange in full:
"Mr Galloway: ... 1 freely concede to you that throughout,
especially throughout the period of ownership of Lord Conrad Black and
Barbara Amiel, The Daily Telegraph hated everything that I believed about
the Middle East.
Mr Price: And you are on record as saying that [is] because
Barbara Amiel is Jewish.
Mr Galloway: I beg your pardon. That is an - if you can libel
someone in a courtroom, that is a very serious libel.
Mr Price: I had better show you the letter then.
Mr Galloway: Yes, you'd better.
Mr Price: It will be found in a minute.
Mr Galloway: Yes, I hope so. That's a clear accusation of
anti semitism against me and I demand that you withdraw it.
Mr Price: I am not accusing-
Mr Galloway: I demand that you withdraw it.
Mr Price: I am not accusing you of anti-semitism.
Mr Galloway: I have never made an anti-semitic comment in my
entire life and I demand that you withdraw it.
Mr Price: This is the letter, I can hand you a copy of it so you
can see it, and I will hand one to my Lord and to my learned friend .. .look
at the fifth paragraph there: 'The Telegraph group is controlled by Lord and
Lady Black, Barbara Amiel, two of Israel's most vociferous supporters'
Mr Galloway: And in what sense IS that a reference to somebody's
religion?
Mr Price: It is a reference to Black's nationality. I will tell
you what it is.
Mr Galloway: My Lord, this is an outrage. This letter which has
been produced does not mention the word 'Jewish', does not mention that
anyone involved in the letter is Jewish. It says 'Sharon's Israel most vocal
supporters'.
Mr Price: ... In this letter you are saying that The Telegraph
reports that you are suing on were in some way inspired by the fact that
Lord and Lady Black are supporters of Israel.
Mr Galloway: I don't know if I'm in order here but I demand that
you withdraw.
Mr Price: Just answer the question.
Mr Galloway: I demand that you withdraw the allegation of
anti-semitism against me.
Mr Price: I have not accused you of anti-semitism.
Mr Galloway: The court record shows very clearly that you said
that in this letter I referred to Lady Black as being Jewish. It was a lie,
a lie, a lie.
Mr Price: All right, I withdraw the suggestion that you referred
to her as being Jewish. You referred to her as being one of Israel's most
vociferous supporters.
Mr Galloway: I don't think that even she would dispute that".
- Another unfortunate aspect of cross-examination
was that at one point Mr Galloway was asked whether he was seeking to defend
Saddam Hussein over the atrocity at Halabjah, when chemical weapons were used
in March 1988, resulting in a large number of deaths. Mr Galloway had just
given evidence to the effect that he condemned Halabjah at the time "unlike
the British and American governments, who went on supplying Saddam Hussein
with weapons". He then suggested that the death toll had in fact been
exaggerated for propaganda reasons, and he would not necessarily accept that
the total number of deaths was as high as twelve thousand. It was this which
led Mr Price to ask "Are you defending Saddam Hussein now over Halabjah Mr
Galloway?" Again, this clearly stung Mr Galloway, who responded simply "How
dare you?" The remarks to which I have referred were gratuitous and would
appear to have served no legitimate purpose in the litigation. This is why Mr
Rampton was led to make reference to them in this context.
- Since the decisions of the Court of Appeal in
John v MGN Ltd [1997] QB 586 and Heil v Rankin [2001] QB 272
the courts have been working to a rough and ready guide, to the effect that
the maximum for general compensatory libel damages is of the order of
£200,000. Whether this practice will continue remains to be seen in the light
of the observations of Lord Hoffmann in The Gleaner v Abrahams
[2004] 1 AC 628, PC. He expressed no view on the current practice in England but
observed that the matter "is clearly one on which different opinions may be
held". He emphasised that different considerations of policy apply to awards
in defamation cases from those in personal injury cases. In defamation, the
damages often serve not only as compensation but also as an effective and
necessary deterrent. As was made clear by Lord Reid in Broome v
Cassell, cited above, aggravated damages may sometimes be awarded on
the basis of the court's disapproval of the defendant's conduct. On this
basis, it may indeed be thought that deterrence is a function not confined to
punitive damages.
- Moreover, Lord Hoffmann drew attention to the
fact that damages in defamation proceedings must be sufficient to demonstrate
to the public that the claimant's reputation has been vindicated.
"Particularly if the defendant has not apologised and withdrawn the defamatory
allegations, the award must show that they have been publicly proclaimed to
have inflicted a serious injury": see [55].
- A further difference is that in an action for
personal injury it is not usually difficult for the claimant to prove that his
injury caused inability to work and consequent financial loss. Loss of
earnings is thus recoverable as special damage and ordinarily, in cases of
grievous injury, constitutes by far the greater part of the award. In
defamation cases, on the other hand, it is usually difficult to prove a direct
causal link between the libel and loss of any particular earnings or any
particular expenses. Nevertheless, it is clear law that a jury is entitled to
take those factors into account in the award of general damages. The strict
requirements of proving causation are relaxed in return for moderation in the
overall figure awarded: see [56].
- I note these matters in passing and I do not
consider that the somewhat uncertain state of the law in this area is going to
have any direct impact on the compensation exercise in the present case. By
contrast with the claimants in Lillie & Reed v Newcastle
City Council [2002] EWHC 1600 (QB), where it was important for me to identify the maximum permitted,
since I intended to award compensation on that scale, here I feel that I can
compensate Mr Galloway without needing to isolate that cut-off point (if
indeed there still is one) with any degree of precision.
- Mr Price invited me, if I were come to the stage
of awarding damages, to have well in mind that, once discovered, the contents
of the Baghdad documents were almost certainly going to come into the public
domain sooner or later. As a matter of causation, therefore, I should not
compensate Mr Galloway in respect of either hurt feelings or injured
reputation to the extent that such damage would have been brought about in any
event. The suggestion appears to be that it was not the fault of The Daily
Telegraph that Mr Galloway suffered damage; this was attributable to the
publication of the documents (which are not, as such, complained of).
- There is something faulty about this logic. The
documents did not publish themselves and the mode of their presentation was
wholly under the control of The Daily Telegraph. The argument may have
some superficial attraction. On the other hand, it is a little ironic that
while the newspaper was, understandably, praising Mr Blair's "superlative"
detective work, and claiming that its scoop had led the news, it should also
be seeking to distance itself from the consequences of the publication to the
world at large.
- It is difficult to see how I could decide (a)
what would have happened if the documents had found their way into the public
domain by another route, or (b) how they would have been treated if another
newspaper had published them after Mr Galloway had seen them, and had an
opportunity to speak to Mr Zureikat, or (c) whether The Daily Telegraph
allegations would have had so much impact if the information was already
before the public as to how Mr Galloway funded his villa in the Algarve and
his house in Streatham, or (d) how they would have been received if (say) the
documents had been revealed in the House of Commons. There are so many
hypotheses that the exercise becomes too speculative. I must focus on the
defamatory allegations, as they were published, in their context.
- It has sometimes been said in the past, where
someone has been criticised on the floor of the House of Commons, that a
particular politician would not have dared to make such a defamatory charge
outside the protection of Parliamentary privilege. It is an all or nothing
distinction. Either he says it outside the House of Commons and is subject to
the full rigours of the law of defamation (including the disciplines attaching
to the various defences available), or he says it within the scope of absolute
privilege. If he chooses to take the bold step of publishing outside and it
turns out to have been wrong, he cannot subsequently say "Well, I could have
published it in the House of Commons anyway. So the Claimant should only be
compensated on the (fictitious) basis that I was only reporting something
after the harm was done".
- It seems to me that Mr Galloway is entitled to
be compensated for the manner in which the newspaper chose to put the Iraqi
documents into the public domain and the spin which the Defendants chose to
put upon them. As he said, The Daily Telegraph chose not to confine
itself to reporting the documents. He complains of the effect upon his
reputation and hurt feelings brought about by the "blizzard" of comment and
inference with which the publication of the documents was surrounded.
Moreover, the "blizzard" came out of the blue without any opportunity to
refute their inferences. This again illustrates how unrealistic it would be
for me to try to compensate Mr Galloway for the "blizzard" but not for the
content of the underlying documents.
- The allegations are plainly very serious. There
has been no apology. Nor has there been any plea of justification. Yet there
were undoubtedly aggravating features about the conduct of the trial to which
I have referred above. The figure I must award by way of general damages for
compensation must be no greater than is necessary to achieve the legitimate
objectives which I have identified, and must be proportionate to those
objectives and the harm done. In all the circumstances, it seems to me that
the right figure is £150,000. A short summary of my conclusions
(Not part of the judgment)
- The allegations published in The Daily Telegraph
articles on 22nd and 23rd April 2003 were seriously
defamatory of Mr Galloway.
- They conveyed, among others, the following meanings
to reasonable and fair-minded readers, namely that:
(a) Mr Galloway had been in the pay of Saddam Hussein, secretly
receiving sums of the order of £375,000 a year;
(b) He diverted monies from the oil-for-food programme, thus
depriving the Iraqi people, whose interests he had claimed to represent, of
food and medicines;
(c) He probably used the Mariam Appeal as a front for personal
enrichment;
(d) What he had done was tantamount to treason.
- It was no part of the Defendants' case to suggest
that any of these allegations were true, or even that there were reasonable
grounds to suspect that they were true.
- It was the Defendants' primary case that their
coverage was no more than "neutral reportage" of documents discovered
by a reporter in the badly damaged Foreign Ministry in Baghdad, but the
nature, content and tone of their coverage cannot be so described.
- Although Mr Galloway was interviewed by telephone
on the afternoon of 21 st April, he was not given an opportunity of reading
the Iraqi documents beforehand; nor were they read to him. He did not
therefore have a fair or reasonable opportunity to make inquiries or
meaningful comment upon them before they were published. All he had was Mr
Sparrow's attempt to summarise their effect, albeit rather garbled, which
concerned the funding of the Mariam Appeal.
- It was not put to Mr Galloway during the interview
that The Daily Telegraph was proposing to publish any of the
allegations to the effect of personal enrichment listed at 2 above. Again, he
did not have a proper opportunity to respond in advance to allegations of such
gravity.
- In all the circumstances, it cannot be said that
the Defendants were under a social or moral duty to make the allegations about
Mr Galloway at that time, and without any attempt at verification. Accordingly
they were not protected by privilege at common law (whether under Reynolds
v Times Newspapers, or otherwise).
- None of the allegations was protected by the
defence of fair comment.
- I am, therefore, obliged to compensate Mr Galloway
in respect of the publications and the aggravating features of the Defendants'
subsequent conduct, and to make an award for the purposes of restoring his
reputation. I do not think those purposes would be achieved by any award less
than £150,000.
- That sum is almost certainly less than he would
have been awarded before the downturn in the level of libel damages over the
last few years, which takes account of the decision of the European Court of
Human Rights in Tolstoy v United Kingdom (1995) 20 EHRR 442 and
the guidance given by the Court of Appeal in Elton John v MGN[1997]
QB 586.
