Why MacIntyre's win matters

Donal MacIntyre's recent success against Kent Police in the libel courts is not only a first, but also a warning to those in authority, writes Nicholas Armstrong, who acted for the broadcaster

Much of the extensive press coverage of Donal MacIntyre's success in his libel action against Kent County Constabulary concentrated on the fact that it seems to be the first time that the police have been successfully sued for libel.

It is impossible to know how often in the past people have needed, or indeed tried, to sue the police for libel and either been unsuccessful or unable to do so – such instances are likely to go unrecorded. (We can find only one reported case, in 1995, where an individual brought a libel action against the police – indeed, he sued three chief constables over information supplied to a local authority when he applied for a teaching post – but he failed to pursue it quickly enough and the Court of Appeal confirmed in 1999 that the case should be struck out for want of prosecution.)

The facts underlying MacIntyre's action were extraordinary, and the result delivers an important message about the approach of the police and their increasingly complex relationship with the media. In a nutshell, the litigation arose out of a programme in the MacIntyre Undercover series broadcast in November 1999, which highlighted areas of serious concern in the way in which adults with learning difficulties were treated at a residential care home in Gillingham, Kent. One problem related to the habitual and unnecessary use of a potentially dangerous restraining technique called "pin down". Donal and two colleagues also observed and recorded instances of cruel or threatening behaviour by certain members of staff towards residents, plus a general culture of neglect and lack of stimulus.

After the programme, the local authority took the decision to close down the home and to report the matter to the police. The police investigated by reference to all the video and audio material compiled by Donal and his colleagues – the BBC production team co-operated fully in this process. In parallel, an independent specialist consultancy was commissioned to prepare a study into conditions at the home – this study confirmed Donal's findings. The police themselves prepared a report. On the basis of their investigation, two workers at the home were cautioned for a total of five offences of criminal assault.

However, the police's report went beyond an investigation of possible criminal offences by staff. It suggested that sections of the programme were distorted and false. This was the start of the process that was described by one of the judges (in a comment during a Court of Appeal hearing during Donal's case) as "the police acting like the Broadcasting Standards Commission".

The real problems began when the police then gave a journalist on The Sunday Telegraph access to their report. An article appeared in June 2000 (approved by the police) that seized on the allegations of distortion and falsity. This was also the thrust of a series of briefings given to other media organisations by Kent Constabulary's media-services manager, which led to increasingly exaggerated press coverage. One article, which claimed to rely on what the police had told its writer, went as far as to say that "nothing in the BBC programme was borne out". Many articles reflected the fact that the police were apparently about to seek reimbursement from the BBC of the £50,000 their investigation had cost.

It was bizarre and inexplicable. First, because footage gathered by MacIntyre and a colleague during just 15 shifts at the home had led to cautions in respect of five offences – ie, an average of one criminal assault every three days.

Second, because having looked at all the unbroadcast footage (as the police did, and as I did during my conduct of the case on Donal's behalf), it is impossible to see how anyone could think that the programme as broadcast represented anything other than a true picture of what was going on in the home, a picture that it was important to bring to public attention. Indeed, some of the unbroadcast footage went beyond what was included in the programme – it was too distressing to put out on air.

In these circumstances, we saw nothing that could prevent Donal (as the individual most closely associated with the programme) seeking redress in the usual way from individuals who had made incorrect and unjustified allegations causing damage to his reputation. The fact that those individuals were police officers should not (and, in the result, did not) matter. There is no reason, either in principle or law, why policemen who make allegations or comments outside the arena of the investigation of crime, should not be held to account if what they say is wrong. On the contrary, there are a number of reasons why it is important that they should be held to account.

First, many media organisations have repeatedly over the years been on the receiving end of energetic libel litigation by police officers supported by the Police Federation. Media lawyers who habitually act for defendant companies are familiar with these "police actions", in which every legal device in the book has been used to obtain libel remedies for police officers. What is sauce for the goose should, of course, be sauce for the gander.

Second, for the great majority of people in this country, statements by representatives of the police force carry a badge of authority and weight. Rather as allegations in a serious newspaper of record may be given more credit (and hence, if incorrect, be more damaging) than statements in tabloid newspapers, the presumption by most members of the public is that comments and allegations made by police officers following a detailed and expensive investigation can be believed.

Even more seriously, that is the presumption of the law as well. If a newspaper prints something in reliance on information from the police, the paper may well have an extra defence (of qualified privilege) to any libel claim – irrespective of whether the statements turn out to be true or false – because the law regards it as reasonable and responsible for a newspaper to trust what it is told by the police. So, if the information turns out to be incorrect, anyone damaged by what is published may not have an effective remedy against the media. The only redress will come from action against the source – the police themselves.

Donal MacIntyre has written extensively elsewhere about the positive effect that he hopes his victory will have on standards of care by highlighting (on behalf of those who themselves have no clear voice) instances where those standards are not met.

For my part, I sincerely hope that, in addition, Donal's success will serve as a cautionary reminder to those in positions of authority, such as the police. Their very authority brings with it additional responsibility when it comes to making public statements, especially through the media, that go beyond the strict limits of their function to investigate crime, and that may destroy reputations.

Nicholas Armstrong is a partner in the media group of Goodman Derrick solicitors