(1) The press release was defamatory, and bore the meaning that (a) a jury had already found that C had murdered KG; (b) the evidence as it stood in July 2009 showed that he probably killed her, which was sufficient to justify proceeding with the retrial; and (c) that the CPS decision to offer no evidence was therefore wrong.
(2)(a) Justification- The Judge concluded at that, on the balance of probabilities, KG committed suicide, (as opposed to having been murdered by C). D’s justification defence therefore failed.
(2)(b)(i) Qualified privilege- duty to inform the public. Whilst the Judge accepted that there was a “high public interest in maintaining confidence in the criminal justice system” he did not accept that the “public interest is served by encouraging the police to issue statements indicating their opinion that the decision of the CPS not to pursue a prosecution….is wrong because the individual concerned is or is probably guilty.”
The D could have issued any other statement explaining what happened, but without expressing a view on the CPS’s decision not to continue with the trial to protect its own interests, without defaming C.
(2)(b)(ii) Reply to attack. The Judge did not accept that reply to attack privilege was available in situations where the attack was merely anticipated, as opposed to having actually occured. However, even if that was wrong, he did not accept that D reasonably anticipated a public attack on its conduct, which was a pre-requisite in order to benefit from this defence. The attack on C had been disproportionate in any event; D’s response need only have explained what the police’s actions had been, as opposed to saying that C was probably guilty of murder. Accordingly the qualified privilege defence was rejected.
The Judge made an award of £125,000, taking into account that the justification defence had aggravated the damages to some extent, but accepting there was no evidence of the press release having attracted national coverage.