By Ashley Young-
The Times newspaper defamed a senior prosecutor over an article detailing her decision to charge cricketer Ben Stokes, the High Court has ruled.
The ruling which held the Times Newspapers Ltd responsible for defaming top prosecutor Alison Morgan, rested on her professional judgement being questioned by an article published in both the paper and the web version of the Times publication.
Mr Justice Soole J said the article from last August, headlined ‘Senior prosecutor under fire after Stokes is cleared of affray’, indicated that Alison Morgan had been professionally negligent, and had a tendency to cause serious harm to her reputation. The judicial conclusion was tantamount to the conclusion that she had not been negligent in her decision, and her reputation had been wrongly harmed by the Times article.
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The trial highlighted three preliminary issues in this libel action brought by the Claimant barrister against the Defendant publisher of The Times newspaper and its associated website in respect of an article published on 15 August 2018. On 15 August 2018 the Times published an article, starting at the top of the front page of The Times, headed ‘Senior Prosecutor under fire after Stokes is cleared of affray’. The ‘Senior Prosecutor’ means was Ms Morgan, the Claimant and ‘Stokes’, the cricketer Mr Ben Stokes. The article followed Mr Stokes’ acquittal the previous day by the jury at Bristol Crown Court on a charge of affray.
Morgan mounted legal action after the newspaper criticised the decisions in the prosecution of Stokes, who had been cleared of affray following an altercation outside a Bristol nightclub. In this trial of preliminary issues, it was stated that the initial decision on charges was taken by Morgan, but that a judge had indicated he would have allowed assault charges to be brought. The Times disputed the claim of defamation against it.
The jury had ruled that 27 year old Mr.Stokes was acting in self-defence when he punched Ryan Ali, 28, and Ryan Hale, 27, at 2.30am outside a Bristol nightclub last September. However, the Times had taken issue with the failure of the prosecution to charge another cricketer with assault, despite CCTV evidence of him attacking the victim, mr.Ali.
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Mr Stokes could be seen in the footage punching a man to the ground and then continuing to punch him whilst he is on the ground, whilst the second man, Mr Alex Hales kicks him. Why mr. Hales wasn’t charged, remains a mystery.
MEANING
The issues considered by the court were the true meaning of the article; whether the article in its true meaning is defamatory of the Claimant at common law; and whether the article in its true meaning has a tendency to cause serious harm to the reputation of the Claimant. The court heard the ‘mischief’ of the article was not merely to point out that different counsel took a different view of the situation, but to ‘point the finger of blame’ at Morgan.
The Times reasonably argued that professionals who advise and act in this environment ‘must expect to have their decisions questioned’, but questioning a decision did not necessarily mean that it was incompetent or professionally negligent. The reasonable reader, the newspaper said, would regard the decision on charges as a matter of judgement, on which different lawyers could reasonably have different views.
However, Soole J assessed the impact of the article from the position of the hypothetical reasonable reader of The Times without any specialist legal knowledge. He disagreed with counsel for the Times, saying that the clear overall effect of the article was reasonable cause to suspect Morgan was professionally negligent. He rejected the idea that the reader would understand the article to have a more limited meaning, namely that Morgan made an excusable mistake or error of judgement.
The judge rejected also the defendant’s submission that defamation required an imputation of ‘habitual’ or ‘chronic’ incompetence, adding that a single allegation of incompetence may have just as adverse an effect on a professional’s reputation. The article in its true meaning ‘had a tendency to cause serious harm to the professional reputation of the claimant’, the judge concluded. The judge added that the Claimant’s pleaded meaning is the same for readers of the print version and both groups of readers of the web version.
The judge said the implication was that the Claimant is ‘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, and that those decisions had meant that Mr Stokes had not been charged with the correct offences, and 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.’
The Times was contacted for comment.
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