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Times article criticising prosecutor over Ben Stokes case was defamatory, High Court rules

A Times article claiming a senior prosecutor was facing criticism after England cricketer Ben Stokes was acquitted of affray last year was defamatory, a High Court judge has ruled.

The front page and online article, headlined “Senior Prosecutor under fire after Stokes is cleared of affray”, claimed the initial decision on what charges to bring against Stokes was made by then-first Junior Treasury Counsel Alison Morgan.

It also wrongly claimed she was responsible for the decision not to charge Stokes’ (pictured) fellow England cricketer Alex Hales for his involvement in the incident outside a Bristol nightclub in September 2017.

The Mail has already apologised and paid libel damages and legal costs to Morgan for making the same claims.

The Times article, published on 15 August last year, said: “A senior government lawyer faces scrutiny over her decisions in the prosecution of Ben Stokes, the England cricketer who was cleared yesterday of affray.”

It went on: “The initial decision on charges was taken by one of the country’s most senior prosecutors.

“Alison Morgan, who was promoted to first junior treasury counsel in February, decided that Mr Stokes, Mr Ali and Mr Hale should all be charged with affray, which carries a maximum sentence of three years in jail.

“Nicholas Corsellis, the prosecutor in the trial, applied on Monday last week for Mr Stokes to be charged also with two counts of assault.”

The judge in the case indicated that “assault charges would have been allowed if requested at a pretrial hearing”, noting that this would have meant Stokes faced up to 13 years in jail.

Times front page on 15 August 2018

In fact, the Crown Prosecution Service and not Morgan was responsible for deciding what charges to pursue, the High Court heard.

In a trial of the issues in her libel action against the Times, Morgan successfully argued the article meant she was “reasonably suspected of having been professionally negligent in regard to her decisions as to who should be prosecuted and for what offences in the trial of Ben Stokes”.

The article also meant those decisions “had meant that Mr Stokes had not been charged with the correct offences, that Alex Hales had not been charged at all despite film of him kicking one of the victims in the head and that the prosecution had thereby not been properly mounted”.

William Bennett QC, representing Morgan, argued at the High Court that the reasonable reader would read the words “under fire” in the headline as “severe criticism” of Morgan, especially as it goes on to link her with Stokes’ acquittal.

In a judgment published last week, Mr Justice Soole said: “In my judgment the clear overall effect of the article is that there is reasonable cause to suspect that the claimant was professionally negligent in respect of her alleged decisions as to who should be prosecuted in respect of this incident and as to the charges which should be preferred in the case of Mr Stokes.

“I do not accept that the hypothetical reasonable reader would understand the article to have a more limited meaning, eg that the claimant may have made an excusable mistake or error of judgment, let alone that these were merely decisions on which different prosecutors could reasonably come to different conclusions.”

He added that the defamatory meaning was obvious even to a Times reader with no specialist legal knowledge.

The judge also rejected David Price’s submission on behalf of the Times that a statement requires an imputation of “habitual or chronic” incompetence in order to be defamatory.

The Times amended its online story the day after publication with a correction at the bottom which reads: “The initial decision to charge Ben Stokes, Ryan Ali and Ryan Hale with affray was taken by CPS lawyers and not, as we wrongly said, by Alison Morgan, first junior treasury counsel.

“Ms Morgan, named in court as the prosecution lawyer who reviewed the case and who was satisfied that the affray charge was suitable, has asked us to make clear that she has not personally come ‘under fire’ over the prosecution case.”

Read the full judgment here.

Picture: Action Images via Reuters/Peter Cziborra

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