IN THE SUPREME COURT OF JUDICATURE QBENF 94/1544/C
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(Mr. J. Sumption QC)
Royal Courts of Justice
Monday, 30th September 1996
B e f o r e :
LORD JUSTICE NEILL
LORD JUSTICE WARD
LORD JUSTICE THORPE
KOJO TSIKATA Plaintiff/
NEWSPAPER PUBLISHING PLC Defendant/
Handed Down Judgment prepared by
Smith Bernal Reporting Limited
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MR. M. TUGENDHAT QC and MR. R. PARKES (instructed by Messrs. Bindman & Partners, London NW1) appeared on behalf of the Appellant Plaintiff.
MR. S. KENTRIDGE QC and MR. A. CALDECOTT QC (instructed by Messrs. Oswald Hickson, Collier, London EC4) appeared on behalf of the Respondent Defendant.
J U D G M E N T
(As Approved by the Court)
Monday, 30th September 1996
LORD JUSTICE NEILL:
For about eleven years between 1981 and 1992 the government in Ghana was a military regime under the control of Flight Lieutenant Rawlings and the Provisional National Defence Council (the PNDC). In 1992, however, it was announced in Ghana that there was to be a referendum and that the referendum would be followed by an election and a return to civilian rule. The election was due to take place in November 1992.
In the months leading up to the election there was speculation as to whether Mr. Rawlings would be a candidate for the office of President in the new civilian government.
On 18 June 1992 the Independent newspaper published, among a number of articles on foreign affairs, an article about the forthcoming election under the heading “Can populist Rawlings win the peoples’ votes?” The article had the further heading “Supporters of the Ghanaian military leader are preparing the ground for a return to democracy, writes Karl Maier in Accra.” In the latter part of the article reference was made to the fact that many people wanted a change from the military rule which Mr. Rawlings personified. The article continued:
“Ghanaians, whose nation symbolised the hopes and dreams of African nationalism and independence from Britain 35 years ago, are embarrassed at being ruled by the military, especially one which, in Ghanaian terms, has been a fairly bloody affair.
While ordinary Ghanaians giggle at Flt. Lt. Rawlings’ renowned populist touch, such as working alongside farmers to bring in the harvest, his many opponents are sure to evoke the memories of the scores of people, including three heads of state, executed by his regime. After taking power for the second time Flt. Lt. Rawlings and his PNDC set up Committees for defence of the revolution and a system of public tribunals which the New York – based human rights group, Africa Watch, has described as ´a mockery of justice’.”
It is the next paragraph in the article which forms the subject matter of the present proceedings:
“In June 1982, three High Court judges were kidnapped and executed at an army shooting range. A special inquiry into the killings recommended the prosecution of ten people, including Flt. Lt. Rawlings’ close aide, Captain (Retired) Kojo Tsikata, who was named as ´the master mind’ of the plot. Five people were prosecuted and executed, but not Captain Tsikata.”
At the time of the publication of the article Mr. Tsikata had responsibility within the PNDC for foreign affairs and national security.
The article and in particular the paragraph to which I have drawn attention came to the notice of Mr. Tsikata. He instructed solicitors and on 26 March 1993 a writ was issued against Newspaper Publishing Plc, the publishers of the Independent. In paragraph 4 of the statement of claim, which was served on 8 April 1993, it was alleged that the words in the paragraph in which Mr. Tsikata was named meant and were understood to mean in their natural and ordinary meaning “that [Mr. Tsikata] had in June 1982 masterminded the kidnap and murder of three High Court judges and that he had escaped being prosecuted and executed for his crime”.
On 11 June 1993 the publishers served their Defence. In paragraph 4 of the Defence it was pleaded by way of admission that the words meant and were understood to mean that a special inquiry to be set up by the government of Ghana had named [Mr. Tsikata] as the mastermind behind a conspiracy to murder three High Court judges and that the inquiry had accordingly recommended that [Mr. Tsikata] be prosecuted. In paragraph 5, however, it was pleaded that the words were published on an occasion of qualified privilege.
On 20 December 1993 it was ordered by Master Hodgson that, pursuant to RSC Order 33 rule 3, the following question or issue should be tried by a judge alone as a preliminary issue:
“Whether the words complained of herein were published on an occasion of qualified privilege whether by virtue of the provisions of paragraph 5 of Part I of the Schedule to the Defamation Act 1952 or at common law.”
The Events of 1982 and 1983
Before coming to the decision of the judge on the trial of the preliminary issue it will be convenient to say something about the events of 1982 and 1983.
On 30 June 1982 three Ghanaian High Court judges and a retired army officer were abducted and murdered. At that time Mr. Tsikata was the head of national security of the PNDC.
Following these murders a law was passed (Law 15) establishing a Board to be known as the Special Investigation Board (Kidnapping and Killing of Specified Persons) (the S.I.B) in order to investigate the kidnapping and killing of the three High Court judges and of Major Acquah, the retired army officer. Section 3 of Law 15 set out the functions of the S.I.B. Section 3(1) provided:
“It shall be the duty of the Board –
(a) to investigate the kidnapping and killing of [the three judges and the army officer who were named];
(b) to investigate any other matter which appears to the Board to be reasonably related to the foregoing; and
(c) to submit its findings to the Attorney General for necessary action to be taken thereon.”
By section 5(1) of Law 15 it was provided that the proceedings of the Board should be in public but where the Board deemed it necessary in the national interests it might sit in camera. The Law was signed by Mr. Rawlings as chairman of the PNDC.
In due course five members were appointed to the S.I.B. under the chairmanship of Mr. Justice Crabbe. During the next few months the S.I.B. heard sixty witnesses including Mr. Tsikata and Mr. Amartey Kwei, a former member of the PNDC. On 5 November 1982 the Board presented an Interim Report to the Attorney General, and on 30 March 1983 the Final Report was submitted.
The Final Report included a summary of the Board’s findings and recommendations. I should refer to some of the paragraphs in the summary which contained cross references to the paragraphs in the Report itself.
“21. Having regard to the whole evidence, it is clear that the plan to kidnap and to kill the four specified persons was masterminded by Captain Tsikata. (paragraph 292).
22. Accordingly, it is recommended that Captain Tsikata should be arrested immediately and placed in custody to await trial. (paragraph 293).
29. On the evidence as a whole, it is clear that Captain Tsikata … , Sgt. Alolga Akata-Pore and Joachim Amartey Kwei … were all implicated in the conspiracy to kidnap the three judges and the retired army major. Indeed Amartey Kwei described Captain Tsikata … as ´the architect of the plot’. (paragraph 340).”
In May 1983, after studying the report Mr. G.E.K. Aikins, the Attorney General and the PNDC Secretary for Justice, prepared a document setting out his comments on the S.I.B. report. In paragraph 3 of these comments the Attorney General referred to the final report of the S.I.B.:
“In that report the Board confirmed its adverse findings against [four named individuals] and recommended that they should be prosecuted for conspiracy to commit murder and the murder of the three High Court judges and the retired army officer. The Board also recommended that J. Amartey Kwei should be prosecuted for conspiring with the four suspects mentioned above to commit murder. In addition the Board recommended that five other persons should also be prosecuted for their part in joining the conspiracy with the criminal purpose of killing the four victims. The five suspects are [four named individuals] and Captain Kojo Tsikata (Rtd.).”
In the following paragraphs of the comments the Attorney General stated his view that there was evidence to support the charge of conspiracy to commit murder against some of the individuals named in the Board’s Report and the charge of murder against others. In paragraph 7 he rejected the opinion that had been expressed by the Bar Association that the Attorney General was obliged to prosecute the whole of the findings of the Board and leave it to the court to judge on the sufficiency or otherwise of the evidence against the accused. He stated in paragraph 11 that the SIB was primarily an investigation board and that, even if Law 15 had stated (which it did not) that the findings of the SIB should be prima facie evidence of the facts found, the Attorney General still had a discretion as to whether or not a person named should be put before the court.
In paragraph 19 of his comments the Attorney General dealt specifically with the case of Mr. Tsikata. He said:
“In connection with Captain Kojo Tsikata, to whom the Board devotes a substantial part of its report, the finding of the Board that he was the ´mastermind’ of the whole affair is extremely difficult to reconcile with the detailed evidence before the Board, which the Board accepted, of preparations undertaken by Amartey Kwei independently of Captain Tsikata, and long before Amartey Kwei claims that he was briefed by Captain Tsikata on 30 June 1982. Even leaving aside Captain Tsikata’s vehement denials and the evidence of two witnesses … which tended to indicate that Captain Tsikata was at the Castle at the critical time when he was supposed to have been with Amartey Kwei, it is clear that Amartey Kwei, whom the Board described as ´the hub of the conspiracy’, gave a number of inconsistent statements and that his story was not confirmed by L/Cpl. Amedeka or indeed any other persons involved in the events of 30 June 1982. If Captain Tsikata were to be prosecuted, the State would have to rely wholly on the evidence of Amartey Kwei, who is himself regarded as a key participant in the offence charged. A part of Amartey Kwei’s evidence, which the Board considered critical, namely the part concerning a note allegedly sent by Captain Tsikata through Amartey Kwei to Amedeka where Amartey Kwei claims that he was told by Amedeka that the contents of the note contained a coded message instructing the killings, would even be inadmissible third-hand hearsay.”
The Attorney General then examined what he described as the inconsistencies in Mr. Amartey Kwei’s statements. He concluded:
“71. With all these inconsistencies in his statements it will be difficult to use Amartey Kwei as a credible witness against Captain Tsikata. Moreover the only material witness L/Cpl. Amedeka who could connect Captain Tsikata to the crime of conspiracy to commit murder has denied ever obtaining any note from Amartey Kwei and most of the allegations made by Amartey Kwei against Captain Tsikata have been denied by L/Cpl. Amedeka.
72. What is more the evidence of Amartey Kwei taken in its entirety cannot even implicate Captain Tsikata in the crime of conspiracy to kidnap much more to commit murder.
73. I am unable to find on record any other strong corroborative evidence which will enable the prosecution to sustain a case to answer against Captain Tsikata at the close of the case for the prosecution when they are charged together. Even if Captain Tsikata is charged separately the evidence of Lance Corporal Amedeka will neutralise the little effect Amartey Kwei’s evidence may have on the case against Captain Kojo Tsikata.”
On or about 31 May 1983 the Attorney General held a press conference at which he released to the public the S.I.B.’s final report as well as his own written comments on the report. Both the S.I.B’s report and the Attorney General’s comments were reported in the Ghanaian press during the course of the next few days.
Mr. Amartey Kwei, L/Cpl. Amadeka and three other persons were subsequently prosecuted for conspiracy to murder the three High Court judges and the retired army officer. The accused, other than Mr. Kwei, were also charged with murder. The trial took place before a Public Tribunal. At the conclusion of the trial all five accused were found guilty of the charges alleged against them and were sentenced to death. Lance Corporal Amadeka was not present at the trial as he had evaded arrest.
The trial was held in public. Mr. Tsikata gave evidence for the prosecution. In the course of his evidence Mr. Tsikata denied having ordered Mr. Kwei to commit the murders. Mr. Kwei was invited by the Tribunal to cross examine Mr. Tsikata to challenge this evidence, but he declined to do so. Later, however, he made an unsworn statement from the dock, in the course of which he repeated what he had said about Mr. Tsikata’s role in the crime. The Tribunal concluded that Mr. Kwei’s failure to cross examine was to be treated as an admission of Mr. Tsikata’s evidence.
On 18 August 1983 Mr. Kwei was executed by firing squad. Immediately before his execution he made statements confessing that he had invented his allegations against Mr. Tsikata. It seems that this confession was made first to a clergyman who attended Mr. Kwei just before his death and later to Flight Lieutenant Rawlings himself, who attended at the execution ground. The conversation with Mr. Rawlings was tape recorded and the tape was subsequently played back at a press conference. Mr. Kwei’s confession was reported in the issue of the People’s Daily Graphic dated 22 August 1983.
It is to be noted that Mr. Tsikata himself was not prosecuted, though the allegations against him were considered by the Tribunal.
The Trial of the Preliminary Issue.
The preliminary issue was tried by Mr. Jonathan Sumption QC sitting as a Deputy Judge of the High Court. In his judgment dated 28 October 1994 the judge referred to the events of 1982 and 1983. At page 4 of his judgment he said:
“I make no findings, because I do not need to, about whether the diverse conclusions of the Special Investigation Board, the Attorney General and the Public Tribunal about Captain Tsikata’s role were right or wrong. For present purposes all that matters is that those were the views which they expressed.”
The judge then turned to consider the law. For this purpose he had to examine both the common law of qualified privilege and the impact of the relevant provisions of the Defamation Act 1952. He referred to the background to the statutory privilege as follows:
“Historically, qualified privilege meant a state of affairs which negatived legal malice and meant that the plaintiff had to prove malice in fact. The classic form of qualified privilege, which depends on a social or moral duty to communicate information and a reciprocal duty or interest in receiving it, was never easy for a newspaper to invoke, because a newspaper necessarily publishes its contents indiscriminately. The courts, however, have always recognised that the reporting of certain matters to the public at large is in the public interest because those matters relate to some aspect of the community’s public affairs which it is right should be in the public domain, even if they are defamatory and may be untrue.”
He drew attention to the fact that at an early stage qualified privilege at common law became attached to judicial and parliamentary proceedings, but that it was uncertain how much further it extended. He referred to the opinion of Lord Uthwatt in Perera v. Peiris  AC1 where he said at 20:
“Reports of judicial and parliamentary proceedings and, maybe, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that a particular report should be published, privilege will attach.”
The judge had already set out the relevant provisions of the Defamation Act 1952. Section 7, so far as is material, is in these terms:
“(1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless the publication is proved to be made with malice.
(3) Nothing in this section shall be construed as protecting the publication … of any matter which is not of public concern and the publication of which is not for the public benefit.”
In this case we are concerned with a report of the class identified in paragraph 5 of Part I of the Schedule to the Act of 1952. Paragraph 5 provides:
“A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the government or legislature of any part of Her Majesty’s dominions outside the United Kingdom.”
It is common ground that the definition of Her Majesty’s dominions in paragraph 14 of the Schedule includes Ghana.
It is clear from the judgment that the arguments which were addressed to the judge were similar to those which were advanced before this court. It is therefore sufficient if I state the judge’s conclusions quite shortly, though by taking this course I mean no disrespect to his helpful and illuminating judgment. I hope I can fairly summarise his conclusions as follows:
(1) There is no general defence in the law of defamation of fair information on a matter of public interest. One has to look at the facts of the individual case.
(2) Nor does English law recognise a general qualified privilege in respect of the criticism of public men, as now exists in the United States since the decision of the Supreme Court in New York Times Co. v. Sullivan (1964) 376 U.S. 254.
(3) A balance has to be struck between the free flow of information on public affairs and the protection of private reputations. The matters which come within the scope of public interest for this purpose may vary from one generation to another.
(4) The court must bear in mind Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was to be noted that in The Attorney General v. Guardian Newspapers Ltd. (N0.2)  1 AC 109 Lord Goff observed at 283 that there is no difference of principle between English law and Article 10 of the Convention as to where the point of balance is to be found. The judge also reminded himself of the dictum of the European Court of Human Rights in Thorgeir Thorgeirson v. Iceland (1992) 14 EHRR 843 at 865: “freedom of expression constitutes one of the essential foundations of a democratic society”.
(5) On the issues raised by section 7 of the Act of 1952 and by paragraph 5 of the Schedule he concluded:
(a) That once the final report of the S.I.B. had been published it became a “proceeding in public” of the board.
(b) That the first two sentences in the paragraph complained of by Mr. Tsikata constituted a “fair and accurate report” of the proceedings of the S.I.B.
(c) That the matters set out in the first two sentences were of public concern and the publication of those two sentences were for the public benefit.
The judge said that he considered that the impact of section 7(3) of the Act of 1952 was the real question at issue in the case. He rejected the argument on behalf of Mr. Tsikata that the mere passage of time had made it impossible any longer to satisfy the conditions set out in section 7(3). He also rejected the submission that the recommendation of the S.I.B. had been so discredited since its original publication in May 1983 that the privilege could no longer be invoked. In the course of dealing with this argument the judge said:
“I would for my part be prepared to accept that in extreme cases an allegation which might have been contemporaneously reported with the benefit of qualified privilege may be so conclusively and publicly discredited thereafter that its further publication is no longer in the public interest. But the common feature of all these examples is that the defamatory statement has been authoritatively or conclusively refuted. The mere accumulation of evidence for the contrary proposition is irrelevant. If the matter remains open to legitimate debate, the privilege attaching to the report of a public body’s conclusions about it are unaffected.”
He rejected the contention that the views of the Attorney General or the decision of the Public Tribunal put the question of Mr. Tsikata’s involvement in the events of 30 June 1982 beyond controversy.
(6) In the result the statutory privilege extended to the first two sentences only, but the third sentence in the paragraph was privileged at common law. In the penultimate paragraph of his judgment he said:
“If (as I have already held) there is a sufficient public interest in the publication of the findings of a statutory inquiry that a member of the government should be prosecuted for a political murder, then it seems to me that the same public interest justifies the reporting of the response of that same government.”
Accordingly the judge granted a declaration that the words complained of by Mr. Tsikata were published on an occasion of qualified privilege.
Mr. Tsikata has now appealed.
Before turning to the arguments advanced in support of the appeal it will be convenient to set out again the paragraph complained of:
“In June 1982, three High Court judges were kidnapped and executed at an army shooting range. A special inquiry into the killings recommended the prosecution of ten people, including Flt. Lt. Rawlings’ close aide, Captain (Retired) Kojo Tsikata, who was named as ´the master mind’ of the plot. Five people were prosecuted and executed, but not Captain Tsikata.”
It was argued on behalf of Mr. Tsikata that no part of this paragraph was capable of being protected by the defence of qualified privilege. The publishers purported to rely on qualified privilege at common law and on the statutory privilege provided for in paragraph 5 of Part I of the Schedule to the Act of 1952, but, it was submitted, neither the first nor the third sentences of the paragraph constituted a report “of any proceedings” and the second sentence did not meet the conditions required for a defence of statutory privilege. Nor was any part of the paragraph protected by common law privilege.
In addressing the issue of statutory privilege counsel for Mr. Tsikata accepted that the judge had correctly identified the four questions to be answered:
(a) Was the final report of the S.I.B. a “proceeding in public” of the S.I.B.?
(b) Were the words complained of a “report” of it in the sense in which that word appears in paragraph 5 of the Schedule?
(c) If it was a “report” of proceedings of the S.I.B., was it a fair and accurate one?
(d) Were the matters contained in the relevant part of the article matters of “public concern” the publication of which was “for the public’s benefit”, within the meaning of section 7(3) of the Act of 1952?
On the first question counsel drew attention to the fact that, though the oral evidence (save in respect of a few witnesses) was heard in public, the report was submitted to the Attorney General. It was the Attorney General who made the report public. The task of the S.I.B. was comparable to that of a prosecuting authority charged with the duty of investigating an alleged crime. The S.I.B. had no power to make its findings public. Moreover, the proceedings on 31 May 1983 when the report was “published” were proceedings conducted by the Attorney General and not by the S.I.B. In his skeleton argument counsel expanded this suggested distinction between the proceedings of the Attorney General and the proceedings of the S.I.B. as follows:
“Had these events taken place in the United Kingdom the publication of the findings on 31 May 1983 might have fallen within paragraph 12 of the Schedule (a fair and accurate report or summary of a notice issued for the information of the public by or on behalf of an officer of state) but not within paragraph 10(c) which is the domestic equivalent of paragraph 5.”
On the second question counsel for Mr. Tsikata submitted that the second sentence of the paragraph was not in any event a “report” within the meaning of the Act. The kind of report contemplated by paragraph 5 of the Schedule was a report published to the public as an item of news. The whole paragraph was merely a commentary on past events which might have been published in a book and was not a report which the public was interested to receive as a piece of news.
On the third question counsel submitted that if (which he did not accept) the report of the S.I.B. was a report of proceedings in public it became public at the moment it was published by the Attorney General on 31 May 1983. In these circumstances a report of the S.I.B.’s findings could not be a fair and accurate report if published to the exclusion of the Attorney General’s comments. The report and the comments were released to the public simultaneously. Furthermore, a fair and accurate report required some reference to the later developments in the case including Mr. Kwei’s retraction of his allegations.
As was pointed out in Cook v. Alexander  QB 279, a report to be fair and accurate must constitute a fair presentation of that which took place on the relevant occasion. The purpose of the statutory defence is to enable the public to be informed, usually by a brief summary, of proceedings of importance and interest which in the nature of things few people could have attended themselves.
The fact that the reference to the findings of the S.I.B. were published without regard to the comments of the Attorney General or the subsequent events including Mr. Kwei’s retraction were also of crucial importance in considering the impact of section 7(3) of the Act of 1952. The publication of this stale allegation was not of public concern nor was the publication for the public benefit, particularly as the allegation had been publicly withdrawn by the person who had made it. Furthermore, though the public might be concerned with the suitability of Flight Lieutenant Rawlings as a candidate for election as President, the reference to Mr. Tsikata was quite unnecessary.
Counsel drew our attention to a passage in the judgment of Stephenson L.J. in Blackshaw v. Lord  QB 1 at 26F, where he said:
“Where damaging facts have been ascertained to be true or being made the subject of report, there may be a duty to report them …, provided the public interest is wide enough … But where damaging allegations or charges have been made and are still under investigation … or have been authoritatively refuted … there can be no duty to report them to the public.”
In the present case, it was said, the Attorney General gave detailed reasons for rejecting the S.I.B.’s recommendation to prosecute Mr. Tsikata and analysed the inconsistencies in Mr. Kwei’s statements. In addition it was important to bear in mind that Mr. Kwei had not cross examined Mr. Tsikata at the trial and indeed, before his execution, had retracted his accusation altogether. In the circumstances there had been an “authoritative refutation” of the allegations against Mr. Tsikata.
In addition counsel referred to section 15(3) of The Defamation Act 1996 which re-enacted the condition that statutory privilege would not attach to the publication of matter which was not of public concern or where the publication was not for the public benefit.
Counsel also dealt with the suggested defence of qualified privilege at common law, which was the only defence relied on in respect of the third sentence in the words complained of. Counsel submitted that there was no room for the application of a common law privilege where Parliament had laid down the scope of the protection to be conferred by statute and indeed had recently considered the matter again at the time when the Defamation Bill was being scrutinised earlier this year. The decision of the Privy Council in Perera v. Peiris (supra) had to be treated with care because it preceded the enactment of The Defamation Act 1952.
These are formidable arguments.
Counsel for the publishers sought to counter them by pointing to the evolution of the defence of qualified privilege, both at common law and later by statute which had been developed to protect the publication of reports of Parliamentary and judicial proceedings. As time went by the protection was extended to proceedings of tribunals and other public bodies. In deciding whether a privilege attached to any particular publication, the court was concerned, it was submitted, to examine both the status of the body whose deliberations had been reported and the subject matter with which it was concerned. One might add that it is also relevant to take account of the extent to which the conclusions of the body concerned can be said to have been reached after detailed examination.
Counsel for the publishers also submitted that except (possibly) in the case of a complete refutation the question of qualified privilege has to be looked at in the first instance by reference to the report itself. In this case the findings of the S.I.B. stood on their own.
If one applied a purposive construction to paragraph 5 of the Schedule, it was said, the first two sentences (which had to be read together) constituted a fair and accurate report of the proceedings in public of the S.I.B. It was not to the point that the final report of the S.I.B. was in fact submitted to the Attorney General and then published by him at the news conference on 31 May 1983.
I propose to deal first with the issue of statutory privilege. It is convenient to consider this issue in two stages:
(a) Whether the words complained of, or any of them, are covered by paragraph 5 of the Schedule to the Act of 1952.
(b) Whether, though prima facie covered by section 7(1) of the Act and paragraph 5, protection is lost because of the provisions of section 7(3).
Paragraph 5 applies to “a fair and accurate report of any proceedings in public of a body or person” appointed to hold a public inquiry by the Government of Ghana.
I agree with the judge that the final sentence of the words complained of did not form part of any report. This sentence is a statement as to subsequent events. Accordingly the sentence is not protected by statutory privilege. It was not argued that paragraph 4 of the Schedule had any relevance.
I turn to the first two sentences of the words complained of which, in my view, have to be read together. The first sentence identifies the subject matter of the report.
It will be remembered that it was argued on behalf of Mr. Tsikata that the recommendation in the final report was not a report at all because it was published as a piece of information long after the event, that the final report was not a proceeding in public because it was sent to the Attorney General and only made public by him on 30 May 1983, and that, because it failed to include the contemporary comments of the Attorney General, it was not fair and accurate.
I am satisfied that section 7(1) and paragraph 5 of the Schedule should be construed so as to give effect to the clear intention of Parliament and not by the adoption of a narrow linguistic approach.
One starts with the status and procedure of the S.I.B. The S.I.B. was charged with investigating a matter of great public concern in Ghana. The chairman was a High Court judge. The proceedings took place in public and, save for a few witnesses whose evidence was held in camera, the oral evidence was heard in public. It is true that the final report was submitted to the Attorney General, but this circumstance did not in my view prevent the final report, as being in effect the judgment of the S.I.B., forming part of the proceeding in public.
Nor do I think that, for the purposes of paragraph 5, the protection which would have covered a report in a newspaper published at the beginning of June 1983 ceased to exist because the report of the proceedings was published nearly ten years later. To be covered by paragraph 5 a report of proceedings does not have to be a contemporary report or an item of recent news. Furthermore, for the purposes of paragraph 5, the fairness and accuracy of a report has to be measured by reference to that to which it purports to relate. Later events, whether a successful appeal or arising in some other way, may raise doubts as to the propriety of publishing a report and may be very relevant to the considerations which arise under section 7(3), but in my view they do not have an impact on the fairness and accuracy of the report itself.
I now come to section 7(3) because, like the judge,
I consider that the questions which arise under section 7(3) constitute the real matters at issue.
It will be remembered that it was argued on behalf of Mr. Tsikata that there was no need in 1992 to mention his name at all. This argument, however, can be disposed of quite easily. Mr. Tsikata continued to be a member of the Government in 1992 and he provided the suggested link with the events of 1982.
The much more difficult question to my mind is whether the publishers can claim that it was for the public benefit to publish a reference to the recommendations of the S.I.B. without at the same time (a) giving the public any information about the Attorney General’s comments and the reasons which he gave for declining to accept the S.I.B.’s recommendations and, (b) referring to Mr. Kwei’s subsequent retraction of his allegations that Mr. Tsikata was involved in the killings.
I confess that I have found this to be a more difficult point than did the judge. In the end I think the solution is to be found by considering the basis on which this privilege exists and the surrounding facts. The law provides that in certain circumstances and in relation to certain types of subject matter a newspaper is entitled to qualified protection if it publishes a fair and accurate report of proceedings in public before a tribunal in a Commonwealth country. A newspaper may not know what happened subsequently nor may the newspaper be in a position to assess the quality or effect of any later denials or refutations.
Each case must depend on its own facts. But in this case it seems to me that a prima facie defence is made out and that the conditions in section 7(3) are satisfied.
I turn now to the third sentence in the words complained of and the question of qualified privilege at common law.
The decision of the Privy Council in Perera v. Peiris (supra) provides guidance as to the scope of the qualified privilege which exists at common law for reports of the proceedings of this nature. Parliament, however, has conferred a statutory privilege in certain circumstances by the provisions enacted in the Act of 1952. In these circumstances the fact that the first two sentences of the words complained of might have been protected by common law privilege is no longer of importance except in so far as it throws light on the possible protection of the third sentence.
I have come to the conclusion, as did the judge, that if the facts stated in the third sentence had any defamatory meaning the publication of them was prima facie protected by qualified privilege as being part of the matters relating to the proceedings which the public were entitled to know. I would therefore hold that the third sentence was protected by qualified privilege at common law.
I should make it quite clear, however, that what I have said is wholly without prejudice to the question whether the defence of qualified privilege can be defeated by proof of malice. The care which was exercised in relation to this publication and the reasons why, as it could be said, only one side of the story was told will no doubt require careful examination.
For the reasons which I have endeavoured to outline I would dismiss the appeal.
LORD JUSTICE WARD:
I agree with Neill L.J.’s judgment. With diffidence, but with deference to the compelling submissions addressed to us on the delicate and important balance between the integrity of personal reputation and the freedom of the press, aspects of the which I did not conceal were troubling me, I shortly state how I came to my conclusions.
These questions seem to me to need answer:
1. What were the “proceedings in public of a body … appointed to hold a public inquiry by the government” of Ghana?
(a) only those sittings of the S.I.B. which were open to members of the public; or,
(b) did the proceedings comprise not only the evidence, submissions, rulings, etc. occurring in the public hearings but also the report of the body’s conclusions even though the Board itself did not make its findings public but only submitted the report to the Attorney General, as it was required to do, “for the necessary action to be taken thereon”; or,
(c) bearing in mind that it was the Attorney General who made the report public, did the “proceedings in public” incorporate his public refutation of the report and his reasons for exonerating the plaintiff and for not prosecuting him?
There is no issue about (a) because the public sittings were at least part of, if not the whole of the proceedings but this does not advance the case because the Defendant’s publication did not relate to that part. To my mind there is no difficulty about (c) and about excluding the Attorney’s comments on the Board’s report. “Proceedings” are defined to be the proceedings of “a body appointed to hold an inquiry.” The Attorney held no such appointment. He could not be part of the appointed body nor could he become part by doing what he had to do, namely, take action on the report.
Question (b) is not so easy to answer.There is force in the submission that the proceedings in public ended with the last open sitting of the Board. Whilst “proceedings in public of an international court” provided for in paragraph 3 of the Schedule might ordinarily include the most important part of the proceedings – the judgment – that would invariably be delivered in open court. A public inquiry by contrast usually submits its conclusions to the government which decides whether to publish or not. Mr Tugendhat Q.C. submits that had these events taken place in the United Kingdom, the publication of the findings may have fallen within paragraph 12 which covers “any notice or other matter issued for the information of the public by or on behalf of any government department, officer of state…or chief officer of police” but does not fall under paragraph 10(c) which deals with the reports of “proceedings at any meeting or sitting”of any “commission, tribunal, committee or person appointed for the purposes of any inquiry by …a Minster of the Crown”. He submits that paragraph 10(c) is the domestic equivalent of paragraph 5. I cannot accept that submission. Paragraph 10(c) must be narrower because it refers to the report of proceedings at any meeting or sitting . Paragraph 5 has no such limitation. If the reports to be protected under paragraph 5 were intended to be confined to reports of the meetings and sittings of the Board, paragraph 5 could have expressly so provided as was done in paragraph 10(c). Something more than the meetings and sittings must be envisaged.
In my judgment a literal construction of the schedule is not appropriate. If it were, paragraph 12 is wide enough to apply but neither party submits that can be right. That literal approach would produce the absurdity that a judgment of the Supreme Court of the U.S.A. might not be covered but a notice issued by the chief officer of police in Ruritania might be. A purposive construction must be given to the schedule. The purpose was to avoid the common law investigation into the origin and status of the inquiring body and to categorise those whose reports would automatically enjoy privilege. Common sense informs us that the proceedings of a public inquiry begin with the evidence but end with the findings. Save exceptionally,the findings are published in the public interest. Those conclusions are what the public want to know and what the newspapers want to report. The purpose of the Act must be to give such reporting protection. “Proceedings” should be widely enough construed to cover the culminating act of the Board if those findings are made public in the ordinary course of events. That may vary from case to case but the facts here are so close to the facts of Perera v Peiris  AC 1 that a statutory privilege must be inferred in place of the common privilege which would previously have been enjoyed.
2. What constitutes a”report” of those proceedings?
On the face of it, to write the first two sentences -(1)” …three High Court Judges were…executed… ” and (2) “A special inquiry …recommended the prosecution of … (the Plaintiff) … as the mastermind of the plot”, is to give some narration of and so give a “report” of the proceedings. The first sentence, whilst not itself alluding to the report, is necessary to introduce the commentary and only the punctuation separates it from the second sentence. They must be read together. On the other hand, the third sentence deals with events that followed and cannot, therefore, be a report of the proceedings which can thereby gain statutory privilege.
In my judgment, it is a report if it is an account of or a resume of the proceedings. There is no limitation of time or editorial purpose as Mr Tugendhat contends. There is no requirement of the kind found in section 3 of the Law of Libel Amendment Act 1888 relating to judicial proceedings that the report must be published contemporaneously with the proceedings. Current reporting was not required by section 4 of that Act (the forerunner of the provisions before us). Nor do I see any justification for a distinction between a report as a news item and a report as a political commentary. The role of the press is to inform the public of fact as well as by comment based on fact.
3. Was the report a “fair and accurate report of (the) proceedings”?
The report correctly summarises the board’s findings and there can be no challenge to its accuracy.
Fairness is essentially a matter of balance. A certain degree of selectivity is given to the reporter who, subject of course to malice, can report a resume only provided that the impression he recounts would approximate with the opinion of the reader of the whole of document thus summarised. The theory is that the reporter represents the public – he is their eyes and ears and he has to do his best, using his professional skill, to give them a fair and accurate picture of what he saw or heard. In Cook v Alexander  Q.B. 279, 288, a case involving a Parliamentary sketch, Lord Denning M.R. gave this test :-
“He need not report it verbatim word for word or letter for letter and it is sufficient if it is a fair presentation of what took place so as to convey to the reader the impression which the debate itself would have made on a hearer of it. Test it this way: if a member of the house were asked: “What happened in the debate ? Tell me about it.” His answer would be a sketch giving in words the impression it left on him, with more emphasis on one thing and less emphasis on another, just as it stuck in his memory.”
The report must be a fair report “of any proceedings”. The proceedings are the Board’s proceedings and do not include the Attorney’s reasons for rejecting their findings. For the purpose under consideration, the required balance has to be struck internally and the Attorney’s view do not come into that equation. Fairness is established.
4. Is this a publication of matter “which is not of public concern and the publication of which is not for the public benefit”?
This is the most troublesome question for me. If the answer is yes, then by virtue of section 7(3) protection is lost. At common law the essence of the privilege,as it is expressed in Perera v Peiris at p.21 is that:-
“If it appears that it is to the public interest that the particular report should be published privilege will attach.”
I venture to think that the public interest may be measured by the degree of public concern and public benefit. I agree that the public are legitimately to be concerned about the extent to which fundamental human rights and freedoms are being upheld in Commonwealth countries. The assassination of the three judges was a gross attack on the freedom of the law. It was an act so reprehensible that the public of the United Kingdom had a concern to know about it and to know that a judicial inquiry had laid the blame squarely on the Plaintiff. But that was not the only view taken of his responsibility. The Attorney analysed the Board’s findings and pointed to inconsistencies he found in it. The Plaintiff gave evidence for the prosecution of the others named in the Inquiry,and his denial of his involvement was not challenged and so was accepted by the Military Tribunal. His accuser apparently recanted in the face of the firing squad. There was, therefore, another side to the story. I am not sure how much of that was known to the journalist. What has caused me great anxiety is whether the public truly gain benefit from this article if they are only told half the truth about the matter in issue. Should reputation suffer such a sacrifice to give freedom to the press? At the end Mr Kentridge persuaded me that there a public benefit in receiving this information. Its source was a judicial inquiry whose status derived from a law passed to empower it. The inquiry was conducted along judicial lines. The Plaintiff had the opportunity to put his case. The subject matter was of the gravest relevance to the conduct of affairs in Ghana and the due administration of its government. The Plaintiff was then a Special adviser to ruling Council and was responsible for the security services. He was a close aide of Flight Lt. Rawlings. Moreover, and crucially, he remained in high office in the government whose part in the forthcoming elections was under critical review. He is not part of history though his actions may be. There is a benefit in knowing what view the Inquiry had taken of him. Their status commands some respect. To require a newspaper so thoroughly to investigate subsequent events and report them in order to place the whole picture before the public in order to exclude damage to individual reputation is to make unacceptable inroads into the press’ role as the public watchdog. It transforms investigative journalism from a virtue to a necessity. A degree of flexibility must be allowed and that will vary from case to case. Here I have been persuaded that the publication of the report is entitled to its qualified privilege.
5. Is the third sentence privileged?
This can only enjoy a common law privilege if publication is in the public interest. The information conveyed by this sentence is so closely related to the first two that the same considerations will apply to protect it.
I agree the appeal should be dismissed.
LORD JUSTICE THORPE:
I have had the advantage of reading in draft the judgment of Lord Justice Neill and I am in complete agreement with it. The unusual facts of this case give rise to a point that I as a newcomer to this field have not found easy. If the first publication of the report of a public enquiry is by a Government minister at press conference and if simultaneously the minister publishes his own report reasoning his rejection of the recommendation contained in the public enquiry report I considered as a matter of strong first impression that subsequent newspaper reports should not be entitled to invoke any special defence to a plea of defamation if they had chosen to report only the criticism contained in the public enquiry report and to omit any reference to the minister’s simultaneous dissenting report. However I was persuaded by Mr Kentridge’s submission that section 7 of the Defamation Act 1952 allows that outcome.
There can be no doubt, in my judgment, that the report of the Special Investigation Board falls within the terms of paragraph 5 of the schedule to the Act. The Board conducted its inquiry in public and its report was subsequently made public by the Attorney General. It would be quite unrealistic to construe paragraph 5 narrowly to distinguish between the public hearings of the Board and the publication of the report not by the Board but by the Attorney General. The report is an essential part of the proceedings of the Board and its proceedings were throughout essentially public.
Strictly analysed only the second of the three sentences complained of reports the outcome of the Special Investigation Board. Although it is no more than the briefest of summaries it could not be said to be unfair or inaccurate in itself. Thus it is entitled to statutory protection under section 7 unless that protection is forfeit under section 7(3). The issue raised under section 7(3) is agreed by both parties to be the nub of this appeal.
Events in Ghana at the date of publication seem to me to show beyond doubt that the article complained of addressed matters of public concern and was of benefit to the public in that it enabled the substantial body of the readership interested in current foreign affairs to form a more balanced judgment on the issues in and outcome of the pending Ghanian election. Of course it is said that benefit to the public was sacrificed by such a selective presentation of the history of events in 1983. To be of true benefit the public should have been informed not only of the condemnation of the Special Investigation Board but also of the Attorney General’s report with its reasoned rejection of the recommendation of the Special Investigation Board. Mr Kentridge’s response is that the Independent was entitled to report the accusatory findings of the Special Investigation Board as a distinct outcome and without reference to subsequent or even contemporaneous qualification. He founds that submission principally on Perera v Peiris  AC 1 and Blackshaw v Lord  QB 1. Only authoritative refutation has the effect of removing the qualified privilege which otherwise attaches to the report. I conclude that that submission is justified by the authorities. Whether or not a report is on a matter of public concern and for the public benefit within the terms of section 7(3) is a question of fact and in this case by agreement that question of fact was to be determined by the judge. There seems little guidance as to what constitutes authoritative refutation. It seems that the phrase was coined by Stephenson LJ in Blackshaw v Lord and I accept Mr Kentridge’s submission that it is most easily illustrated by the case of a criminal charge subsequently conceded to have been mistakenly brought alternatively subsequently dismissed. Mr Tugendhat’s submission that here was an a fortiori situation I did not find convincing. The facts found by the Special Investigation Board led them to the conclusion that the plaintiff was the mastermind of the conspiracy to murder. They reached that conclusion having heard sworn evidence from those seeking to exonerate themselves. The Attorney General rejected their recommendation on the ground that in his judgment he would not secure a conviction against the plaintiff. The subsequent events during the trial before the Public Tribunal and the circumstances surrounding the execution of Joachim Kwei seemed to me to be of doubtful weight. But the judge gave careful consideration to these and other circumstances before reaching the conclusions which he did. Despite Mr Tugendhat’s able submissions no error in those conclusions has been demonstrated to me.
Order: appeal dismissed with costs; leave to appeal to the House of Lords refused.Source: www.bailii.org