Legal Update 19.05.06

Reporting an arrest: no smoke without fire?

The libel action brought by jockey Kieren Fallon against the Racing Post in connection with race-fixing allegations demonstrates the difficulties in reporting such circumstances. Libel law offers many traps and few protections for reporting arrests.

The difficulty is that although it may be true that an individual has been arrested, the person detained may say that any report of the arrest will carry the implication that he committed the offence, which may not be true.

The Fallon case concerned an article over three pages of the Racing Post that linked the jockey to an alleged race-fixing conspiracy involving allegations that he and other jockeys deliberately lost races. The article named Fallon as one of 16 people arrested as part of an investigation by the City of London Police into a conspiracy to defraud, making clear that they had all been bailed and had denied the allegations.

No charge has since been made against Fallon and he brought a libel action against the newspaper, contending that the article would have been understood to mean that he had conspired with a wellknown racing punter to lose races. In other words, the article alleged that he was guilty without even being charged.

The Racing Post argued that the meaning of the article was true — not on the basis that Fallon was actually guilty of racefixing, but on the basis that the article meant only that there were "reasonable grounds to suspect"

that he had conspired to lose races, or alternatively that there were "sufficient grounds to investigate"

whether he had done so.

Mr Justice Eady held that as two investigations had already taken place into the race-fixing allegations (by the police and the Racing Post), it would have been perverse to conclude that the article meant no more than that it was time an investigation took place. He also rejected the "reasonable grounds to suspect" meaning on the basis that the newspaper had failed to plead sufficient facts to justify such a meaning. It was not enough to point towards a punter's highly successful betting record and the fact that Fallon had once shared a car with that punter.

So this leaves newspapers in a bind when reporting an arrest. If there has been an official announcement by the police or charges have been made, any report of the arrest is likely to be covered by qualified privilege, giving the newspaper a defence. But where there is no such announcement, the newspaper may have to adduce its own evidence to show that there are at least reasonable grounds to suspect the arrested person is guilty. If charges have been made, of course, journalists must also be careful not to commit a contempt of court by causing prejudice to the legal proceedings.

The Fallon case illustrates that although strong circumstantial evidence can be pleaded to support a plea of "reasonable grounds to suspect", it must be backed up by evidence concerning the claimant's conduct. As Mr Justice Eady said: "Nudges and winks will not suffice."

Ashley Hurst is a solicitor in the Media Litigation Group at Olswang

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