Law Report: Libel defence unaffected by factual doubts: Tsikata v Newspaper Publishing plc - Queen's Bench Division (Jonathan Sumption QC), 28 October 1994.

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The Independent Online
The qualified privilege which attached to newspaper reports of statements from certain public bodies was unaffected by public debate about the correctness of the statements.

Jonathan Sumption QC, sitting as a deputy judge, declared that the words complained of in libel action were published on an occasion of qualified privilege.

In 1981 the civilian government in Ghana was overthrown and a military government set up, in which the plaintiff, Capt Kojo Tsikata, was a special adviser. In 1982, three serving High Court judges were murdered. The report of the special investigation board which conducted an inquiry into the murders found that the murders had been masterminded by Capt Tsikata. The main, but not sole, basis for the board's finding was the evidence of Joachim Amatey Kwei. It recommended that Capt Tsikata, Kwei, and others should be prosecuted.

The report was published by the attorney-general in 1983, who took a different view of the evidence against Capt Tsikata and decided not to prosecute him. Kwei was prosecuted for murder. At his trial the public tribunal said that Capt Tsikata's role in the murders was a figment of Kwei's imagination. There was evidence that before Kwei's execution in 1983, he confessed that he had invented the allegations.

On 18 June 1992 The Independent published an article about the forthcoming elections in Ghana in which Flight-Lieutenant Gerry Rawlings, the leader of the military government, seemed likely to be a presidential candidate. The article referred to the human rights record of Ghana under the military government. It continued: 'In June 1982, three High Court judges were kidnapped and executed at an army shooting range. A special enquiry into the killings recommended the prosecution of 10 people, including Flight-Lieutenant Rawlings' close aide, Capt (retired) Kojo Tsikata, who was named as the 'mastermind' of the plot. Five people were prosecuted and executed, but not Capt Tsikata.'

Capt Tsikata brought libel proceedings against The Independent. The question arose of whether the words complained of were published on an occasion of qualified privilege.

Michael Tugendhat QC and Adrienne Page (Bindman & Partners) for Capt Tsikata; Sydney Kentridge QC and Andrew Caldecott QC (Oswald Hickson Collier) for The Independent.

JONATHAN SUMPTION QC said that section 7 of the Defamation Act 1952 created a statutory qualified privilege for newspapers in respect of reports of proceedings of certain public bodies. The report of the special investigation board was part of its proceeding in public, even though it was the attorney-general who published it. The statement complained of was a 'report' of the board's report, even though the article was published as part of broader historical survey. The question whether the words were fair and accurate involved comparing the board's report with what The Independent said. The question was not whether the board's findings were fair and accurate, nor whether it was fair to refer to them. The sentences which reported the board's proceedings did so fairly and accurately.

In 1983 the conclusions in the board's report were matters of public concern in the United Kingdom. The fact that the government of Ghana included a person whose prosecution for murder was recommended was as much a matter of public concern in 1992, when that government's head was s likely presidential candidate.

There was the same public interest in either case in a newspaper being able to report the fact in good faith without fear of incurring liability for defamation because it could not independently prove it.

The privilege existed because the defamatory statement emanated from a particular source and there was a public interest in the publication of statements derived from that source, even if they turned out to be untrue - that the correctness of the statements was debatable was irrelevant.

In extreme cases an allegation which might have been contemporaneously reported with the benefit of qualified privilege might be so conclusively and publicly discredited thereafter that its further publication was no longer in the public interest. If the matter remained open to legitimate debate, the privilege attaching to the report of a public body's conclusions about it were unaffected. The views of the attorney-general and public tribunal were not a conclusive refutation of the board's findings.

The third sentence in the paragraph complained of was published on an occasion of qualified privilege at common law. The public interest in the publication of the findings that a member of the government should be prosecuted for a political murder justified the reporting of the response of that same government. If an injustice had been done to Cpt Tsikata, that arose from the possibility that in fact the attorney general might have been right and the board wrong.

The words were published on an occasion of qualified privilege. That did not prejudge the question whether the words were published with express malice, a matter for the jury in due course.

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