Justifying public rebuke of an internal report

For the defence of justification to succeed in a libel claim, the defendant has to prove on the balance of probabilities the substantial truth of what was published.

Therefore, in defending a defamatory press release implying that a report has been compiled negligently, the defendant needs show only that a sufficient proportion of the allegations contained in the report are factually wrong or unworthy of belief. It is not necessary for the defendant to show that reasonable grounds did not exist for communicating any of the concerns in the report.

This was held in Oliver v Chief Constable of Northumbria Police. Norman Oliver, a former senior police officer in the Northumbria Police, was involved in an investigation of suspicious deaths at a hospital.

Concerned that other investigating officers were improperly strengthening the case against the nurse who was charged in connection with the deaths, he prepared a report and submitted it to a senior officer.

An internal inquiry recommended that no further action be taken.

In the meantime, the criminal proceedings against the nurse had been dropped but, as a result of civil proceedings subsequently brought by the nurse, a copy of the report was leaked to the press. The Northumbria Police reacted by issuing a press release which, without naming Oliver, described the allegations in his report as “unfounded” and referred to it as “discredited”. This was republished in two local newspapers and on local television.

Oliver sought damages for libel, arguing that the press release implied he had been guilty of negligence in compiling his report. Justification was argued in defence.

The ultimate question that had to be determined in relation to the justification defence was whether the police could satisfy the court that a reasonably careful officer in Oliver’s position, and possessing his knowledge, experience and standing, would not have included in his report – for communication to senior officers – the allegations about those involved in the initial investigation.

In his judgment, Mr Justice Gray accepted without hesitation that Oliver was a man of the highest integrity and did not doubt that he sincerely held the views expressed in his report. However, he went on to say that Oliver appeared to be someone “who is prone on occasion to attach disproportionate significance to matters which, judged objectively, are relatively unimportant. He risks concentrating on the trees to such an extent that he loses sight of the wood”.

On the evidence, Oliver had made many allegations which were without foundation and which a reasonably careful officer in his position would not have communicated to his senior officers. The defendant was able to show that the proportion of such allegations was sufficient to justify the wording of the press release and, in the absence of any malice, which may have undone an earlier ruling that the publication was protected by qualified privilege, Oliver’s claim failed.

Jennifer McDermott is a partner in the technology, telecommunications and media department at Lovells

Jennifer McDermott

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