Byron and Williams v Daily News Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: V. Kokaram
• Judgment Date: 10 April 2017
• Neutral Citation: TT 2017 HC 47
• Docket Number: Claim No: CV2016-02132
• Court: High Court (Trinidad and Tobago)
• Date: 10 April 2017

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Mr. Justice V. Kokaram

Claim No: CV2016-02132

Between

Darren Byron

Safiya Williams

Claimants

and

Daily News Limited

Defendant

Appearances:

Mr. Sunil Gopaul-Gosine for the Claimants

Mr. Kirk Bengochea instructed by Ms. Jewel-Ann Jasmine Troja for the Defendant

Defamation - Publication — Meaning — Imputation of guilt — Whether published words bore meaning that claimants were guilty of committing robbery — Whether words imputed guilt — Whether defendant could rely on plea of justification.

JUDGMENT

PRELIMINARY RULING ON MEANING

1. The Defendant published a headline in their newspaper in loose terms: “Robbery Couple held” in reference to the Claimants. What falls for determination on this preliminary ruling on the meaning of the words used by the Defendant in its article, is whether the “loose language” of the headline and the words of the accompanying article convey the impression to the hypothetical reasonable reader that the Claimants were guilty of having committed a robbery or as the Defendant contends that they were mere suspects in the crime. In my view the words used are not capable of conveying the grave imputation of guilt.

2. Lord Devlin observed in Lewis and Another v Daily Telegraph Limited [1963] 2 All ER 151 that “loose talk” about suspicion can easily convey the impression that it is a suspicion well founded. “A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is a fire. But it can be done”.1 In my view having examined the entire publication and the words in their context, although the Defendant's headline has been very loose, a reasonable reader would be alert to detect that the Claimants were merely suspected and not guilty of the crime. Although there were details provided by the Defendant in the article about the commission of the crime as reported by the police, to paraphrase Lord Devlin, the reasonable reader would be able to glean that there is “only smoke there is not a fire”.

The published words

3. In an article published in the Defendant's “Trinidad and Tobago Newsday” on 23^rd June 2012, there appeared the composite pictures of Darren Byron,2 bareback, being escorted by a police officer and Safiya Williams3 holding a cell phone. Under these images was the bold caption “Robbery Couple held at guest house”. Under the images themselves in fine print were the following tag lines for the pictures:

“UNDER ARREST: In this composite photo, a male, bare-backed suspect (left) and a female suspect (right) leave guesthouse in Debe on Thursday night after being held by police following a botched robbery at an establishment located near the guest house”.

4. The article that followed the pictures appeared on a page in the Newsday which also contained several crime reports and other pictures of the accused being escorted by police officers. The article itself under the sensational headline “Robbery Couple Held at guest house” contained the following story:

“A couple who checked into a Debe guest house following a botched robbery at a wholesale store in the area, on Thursday night, was apprehended by police officers who acted on a tip-off.

Police said, the 30 year old man and his girlfriend, 28, who were both suspects in another robbery at a tailoring establishment in Debe in Wednesday, are expected to

be placed on identification parades this weekend in connection with several armed robberies in the Debe area.

Police reported at about 10 am on Wednesday, a 38 year old woman of Seuradge Trace, Debe was at her work place—Lall's Tailoring—located at SS Erin Road, Debe when a man armed with a gun entered the establishment and announced a hold up.

The woman was tied up and hit in the head with the gun butt. She was robbed of $10,000.00 cash and a pair of earrings valued at $2,500. The criminal couple made their escape on foot.

On Thursday at 7pm, police reported that a man and woman attempted to hold up Pawan's Wholesale Store at SS Erin Road in Debe but alert customers raised an alarm and the suspects fled on foot.

Several persons who observed what was taking place, followed the couple and saw them enter popular guest house Club 2011 at Wellington Road, Debe which is located a short distance away from the store where the botched robbery took place. They contacted the police.

Heavily armed officers surrounded the guesthouse and later stormed the establishment.

The male suspect was clad only in a pair of three quarter pants and his female companion were arrested and placed inside a police vehicle. Investigations are continuing.”

5. The Claimants contended in their Statement of Case that those words bore the following natural and ordinary meaning which are defamatory:

• a) “That the Claimants were referred to as a “Robbery Couple” that was “held” by the Police giving the imputation of guilt in the said words printed and/or published of the Claimants.

• b) The Claimants who were only detainees were not entitled to have their photographs published in relation to the article which was highly defamatory of the Claimants.

• c) The Claimants were linked to a “botched robbery” attempt a short distance away from the store where the botched robbery took place.

• d) The Claimants were stated as being linked in connection with several armed robberies in the Debe area.

• e) The Claimants were linked to armed robberies and assaults on persons.

• f) The Claimants were in the words printed and/or published linked with guilt of the allegations when it was stated in the article that the Claimants were followed to the Guest House and the police were contacted.

• g) The Claimants were considered dangerous since several armed police officers were required to surround the Guest House and storm the establishment.”

The preliminary issue

6. At the first Case Management Conference, parties agreed that the main issue was whether these words were capable of bearing the defamatory meaning as alleged by the Claimants in particular that the Claimants were guilty of committing robbery. The issue on meaning was set down for determination as a preliminary issue. Ultimately this will resolve the entire issue on liability as the only real defence of the Defendant is the plea of justification. The Defendant has pleaded that the words bore “only the meaning that the Claimants were suspects which is true”. The Defendant also relied on the defence of qualified privilege but, as I have already pointed out to the Defendant at the CMC, that defence has not been adequately pleaded to bring it under “Reynolds privilege” and it is doubtful whether the defence on the common law defence of qualified privilege simply on the reciprocity of interests can be sustained. It was further agreed at the hearing of this preliminary issue by the parties that “it is a fact that the Claimants were arrested and that they were arrested on suspicion of having committed robbery”. This agreement further narrows the issue on meaning. It therefore follows that if the words are capable of bearing only the meaning that the Claimants were suspects in a crime then the Claim would fail as either the words bore no defamatory meaning or the plea of justification is made out. However if the words are capable of bearing the higher level of meaning of guilt then the Defendant's plea of justification would be unsustainable and barring any submission on the plea of qualified privilege there will be judgment for the Claimants.

7. At the heart of this dispute on the meaning of these words is the various degrees of involvement that the words may convey in relation to the commission of a crime. On one end of the spectrum the Claimants contend, that they are guilty of the crime. At the opposite end of the spectrum the Defendant contends that the Claimants are mere suspects. The levels of imputations of criminal conduct were discussed in Chase v News Group Newspapers [2003] EMLR 11. From the gravest to the less serious meaning Brooke LJ ascribed three levels of imputations from words used to describe a person's involvement in criminal activity or wrongdoing: Level 1 imputation of guilt. Level 2 imputation that there are reasonable grounds to suspect that the Claimant is involved. Level 3 that there are grounds to investigate what the Claimant has done.4 The difficulty is drawing the line between Levels 2 and 3. This is material only in so far as the Defendant, as they do here in this case, seeks to justify the meaning that the Claimants were suspected of having committed a crime. Indeed a defendant will not be allowed to advance a case of justification of a lesser meaning when the words are capable of bearing a more serious imputation. See Chase and Lewis.

8. Suspicion of guilt is not a separate or distinct charge when guilt has been directly imputed. See Gatley on Libel and Slander 12^th Ed paragraph 3.28. In Fallon v MGN Ltd [2006] EWHC 783 (QB) it was noted that there was a tendency of media defendants to plead justification for a lesser meaning and “It is desirable as a matter of public policy to avoid a situation where journalists, unable to plead justification at the highest level, approach the defence as though it will suffice simply to throw mud at the Claimant in the hope that some of it will stick.”5

The approach to the meaning of the words

9. The Claimants contend that the article's headline and the description of events in the article gives the imputation that they were guilty of having committed several robberies. The Defendant contends that the words when read carefully only impute that they were suspected of robbery and were arrested based on that suspicion which is true. It is a question of law

whether the words in the article convey to the ordinary person a meaning which is defamatory of the Claimants. No issue of a legal innuendo has been raised by the...