Neutral Citation Number: [2013] EWHC 1342 (QB) Case No: HQ12D05281 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/05/2013 Before : THE HONOURABLE MR JUSTICE TUGENDHAT - - - - - - - - - - - - - - - - - - - - - Between : The Lord McAlpine of West Green Claimant - and - Sally Bercow Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sir Edward Garnier QC & Kate Wilson (instructed by RMPI) for the Claimant William McCormick QC & David Mitchell (instructed by Carter Ruck) for the Defendant Hearing dates: 16 May 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Tugendhat : 1. This hearing is to determine the meaning of the words complained of in this libel action (“the Tweet”), and whether they are defamatory of the Claimant. The Tweet was published on 4 November 2012. The question of its meaning is being tried separately as a preliminary issue. That is not uncommon in libel actions nowadays, in cases where it is agreed that the trial will be by a judge sitting without a jury. 2. If I find that the Tweet is not defamatory of the Claimant, that will be the end of the action. If I find that it is defamatory, then the case will proceed to the assessment of damages (unless the parties reach an agreement). If I find that the Tweet is defamatory, the Defendant does not seek to defend any defamatory meaning as true, or on any other basis. I am not asked to decide the number of people who read the Tweet and understood it in a defamatory meaning. THE TWEET 3. The Tweet reads: “Why is Lord McAlpine trending? *Innocent face*” 4. People who are not familiar with Twitter may not understand the words “trending” and “innocent face”. But users of Twitter would understand. THE HONOURABLE MR JUSTICE TUGENDHAT McAlpine v. Bercow Approved Judgment 5. The Twitter website has a screen with a box headed “Trends”. It lists names of individuals and other topics. Twitter explains that this list is generated by an algorithm which “identifies topics that are immediately popular, rather than topics that have been popular for a while or on a daily basis, to help you discover the hottest emerging topics of discussion on Twitter that matter most to you. You can choose to see Trends that are tailored for you…” 6. The Defendant accepts that the question in her Tweet impliedly states that the Claimant was trending on 4 November. 7. It is common ground between the parties that the words “innocent face” are to be read like a stage direction, or an emoticon (a type of symbol commonly used in a text message or e-mail). Readers are to imagine that they can see the Defendant’s face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question. 8. Twitter permits users to express themselves in tweets of no more than 140 characters. Tweets are used in a similar way to ordinary conversation. People tweet descriptions of what they are doing or would like to do, jokes and gossip, and comments on people or topics at large, and anything else they want to say. They tweet using conversational words and expressions. The print outs of the Defendant’s tweets illustrate how she uses Twitter in these ways. THE PARTIES TO THE ACTION 9. The parties to this action, and the action itself, are now very well known. Apart from publicity about them on other occasions in the past, the parties have received extensive publicity since the publication of the Tweet. But I have to decide the meaning of the Tweet without the benefit of hindsight. I must decide the meaning as at the date on which it was read. 10. The Defendant is well known to the public for a number of reasons. Amongst these is that she is the wife of the Speaker of the House of Commons. She has appeared on television on a number of occasions in well known broadcasts. For present purposes what is most relevant is that she has a Twitter account on which she has tweeted regularly. On 4 November 2012 she had over 56,000 followers. 11. The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister. As a result of his positions and his work with the Conservative Party, he had a significant political profile during the late 1970s and the 1980s. He was made a life peer in 1984. He retired from working for Conservative Party Central Office in 1990 (that is over twenty years ago) and since 2002 has lived in southern Italy out of the public eye. THE CIRCUMSTANCES IN WHICH THE TWEET WAS PUBLISHED THE HONOURABLE MR JUSTICE TUGENDHAT McAlpine v. Bercow Approved Judgment 12. For reasons which I will explain, it is important that I should distinguish between facts which are agreed, or which I find to be facts, and those facts which were also known to readers of the Tweet. 13. There has been no witness called at the trial of this preliminary issue. That is mainly because, as a matter of law, evidence is not admissible as to what any individual reader claims to have understood a publication to mean. 14. The Claimant has proved a fact in this case if the Defendant has admitted it in her Defence. But he will also have proved a fact if it is an inference which I find ought properly to be drawn, as being more probable than not, arising from those facts which the Defendant has admitted. 15. The relevant circumstances are largely agreed. They include the following. On the evening of Friday 2 November 2012, the BBC’s current affairs programme Newsnight broadcast a report (“the Newsnight report”) which included a serious allegation of child abuse. The allegation was made by a complainant, a Mr Messham, who was undoubtedly abused when he was a boy living at the Bryn Estyn care home in Wales in the 1970s and 1980s. He alleged that one of his abusers was a person who was variously referred to in the Newsnight report by expressions such as “a leading Conservative from the time”, “a leading Conservative politician from the Thatcher years”, “a senior public figure”, “a shadowy figure of high political standing”, “a prominent Tory politician at the time”. But sadly for all concerned, it was a case of mistaken identity. The person who abused Mr Messham was not the politician who he had believed him to be. 16. As lawyers, journalists, and many other people, are all too well aware, some of the worst miscarriages of justice have occurred when a person has been the victim of a serious crime, but makes a mistake in identifying the criminal. It is not relevant to the question I have to decide, but it is important as a matter of fairness to the parties, that I should say that the Claimant has vehemently denied that he was ever engaged in the sexual abuse of anyone. It is accepted by the Defendant, and by the complainant, and by the public at large that the Claimant was entirely innocent of any of the very serious crimes of which the children in Wales were undoubtedly the victims. The Defendant accepted that very soon after 4 November. 17. The Newsnight report did not broadcast the name of the politician Mr Messham had identified. Towards the end of the report the presenter said they did not have enough evidence “to name names”. 18. There then followed a number of publications in the media. The Claimant has alleged in his Statement of Case, and the Defendant has admitted: “The Newsnight report itself and its contents immediately became a prominent news story. Between 2 and 4 November, online and traditional media widely reported upon, and repeated, Newsnight’s allegations. The coverage included, but was not limited to the following articles: The Guardian on 3 November …’ www.telegraph.co.uk on 3 November …The Sunday Telegraph for 4 November and www.telegraph.co.uk … and MailOnline on 4 November…” THE HONOURABLE MR JUSTICE TUGENDHAT McAlpine v. Bercow Approved Judgment 19. The Tweet is not timed. But in a printout of the tweets published by the Defendant, it appears as the third of fourteen which she published on that day. I infer, as Mr McCormick submits I should, that it was probably published early on that Sunday. 20. Sir Edward draws my attention particularly to those newspaper and web reports which give some details of the description of the man alleged to have been the abuser. 21. In the issue of The Guardian dated 3 November 2012 the article includes the following: “Man claims he was sexually abused by Tory politician … A victim of the sexual abuse at north Wales children’s homes in the 1970s has called on the Prime Minister to launch a fresh investigation into the scandal, claiming that he was sexually assaulted at the time by a former senior Conservative figure. … The former political figure, who was not named but was reportedly a senior official during the Thatcher era, has ‘vehemently denied’ the allegations, according to Channel 4 news. …”. 22. In the article in The Telegraph published on its website on 3 November there appeared the following: “BBC’s Newsnight airs claims of child abuse against ‘leading Tory politician’.