A top judge’s opinion that a newspaper article on alleged police corruption was a piece of responsible journalism in the public interest has been overturned by the Court of Appeal.

The ruling is a setback for the media, who hoped the courts would give them more leeway over editorial decisions and not pick flaws in reports with hindsight.

Far from providing the legal certainty that all litigants crave, it means the so-called Reynolds public interest defence – a type of qualified privilege – now looks even more like a judicial lottery.

The Court of Appeal reversed a High Court ruling by Mr Justice Tugendhat, who had ruled that an article published by The Times about Det Sgt Gary Flood, of the Metropolitan Police’s Extradition Unit, was covered by Reynolds qualified privilege.

The article reported allegations by a former insider at a security firm with wealthy Russian clients that a member of the police Extradition Unit had received illicit payments for divulging Home Office and police intelligence on moves by Moscow to extradite some of Russia’s “most wanted men living in Britain”.

It named Flood as the officer being investigated, even though the police had not named him, and set out details of the allegations.

Allowing Flood’s appeal, the Court of Appeal said it would have been fine to report the basic fact that an investigation into alleged police corruption was under way and, like Flood’s counsel, the Court did not particularly object to Flood’s name being added to the piece.

But it said the problem was that the article included detailed allegations made by a third party to the police of criminal behaviour which had still to be investigated.

The Court of Appeal decided that the article was effectively merely the repetition of an un-investigated criminal allegation, which was very damaging to Det Sgt Flood’s reputation, and the paper had not taken sufficient steps to verify the truth of the allegations.

The Court felt inclusion of the details of the corruption allegations unfairly gave the impression there was “something in them”, whereas they were actually “no more than unsubstantiated unchecked accusations, from an unknown source, coupled with speculation”.

“The greater the detail, the greater for potential harm,” said Lord Justice Moses.

The details should only have been included if they made a real contribution to the public interest element of the article, but there was no public interest in publishing details of such unsubstantiated allegations.

The Court of Appeal said Tugendhat J., a very experienced High Court judge who handles many media law cases, had struck the wrong balance between the media’s right to freedom of expression under Article 10 of the European Convention on Human Rights and the officer’s right to reputation under Article 8.

Lord Neuberger said: “The fair balancing of Article 8 and Article 10 would normally require that such allegations should only be freely publishable if to do so is in the public interest and the journalist has taken reasonable steps to check their accuracy.”

So the focus of the Reynolds defence has now shifted to the editorial content of a particular article. In preparing a piece of investigative journalism, have you included the level of detail that a court will agree is just the right amount, or have you gone too far?

The appeal judges said they did not want to “step into the area of editorial judgment”, but it is hard to agree that they have not done so.

In 2006, in a case called Jameel v Wall Street Journal (not to be confused with Jameel v. Dow Jones), the House of Lords encapsulated Reynolds qualified privilege in three questions.

Is the article’s subject matter of public interest? Was inclusion of the defamatory details justifiable? And, were the steps taken to gather and publish the information responsible and fair?

The Times fell at hurdles two and three. But so did Mr Justice Tugendhat.

If different judges can arrive at different opinions on such questions, what hope do the media have of knowing where they stand, pre-publication?

In Jameel, Lord Hoffmann remarked: “The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.”

The Court of Appeal apparently did not feel constrained by that, but the public interest in encouraging serious journalism is surely not helped by cases in which different ranks of expert judges cannot themselves agree on what editorial content should have been included in a particular news report.

Lord Neuberger himself said The Times would probably not have been willing to publish just a filleted report of the corruption allegations without more tasty details. In that event, the story would not have seen the light of day.

The reputation of Det Sgt Flood – who was subsequently fully exonerated by the police investigation – would have been protected, but the important fact of the corruption investigation would probably have remained unpublished, and the public would have been the poorer for the lack of information and knowledge imparted. And would the matter have been investigated so rigorously?

The successful appeal in Flood v Times Newspapers adds to the uncertainty in this area of the law, which is certainly not in the public interest.

There is talk of The Times appealing to the Supreme Court. A clarification of the law from the highest Court in the land is now desperately needed to enable journalists (and those who advise them!) to know exactly where they stand.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.