Imaginary readers and real victims

On 3 April 2019, the Supreme Court handed down judgment in Stocker v Stocker [2019] UKSC 17. The court found in favour of Mrs Stocker, holding that the trial judge, Mitting J, had fallen into legal error in determining the meaning of the phrase “tried to strangle.”

A number of facts in the case were undisputed: Mr and Mrs Stocker’s marriage had been, towards the end of its life, disharmonious. Mr Stocker had breached a non-molestation order, threatened Mrs Stocker and, on one, occasion, grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack. (§§ 4, 61)

In the context of this discordant marital relationship involving clear instances of domestic abuse, Mr Stocker sued Mrs Stocker in defamation for what she had said about him in a Facebook post (that he had “tried to strangle her”, that he had been removed from the house following a number of threats he had made, that there were some “gun issues” and that the police felt he had broken the terms of a non-molestation order).

The Supreme Court’s judgment methodically analyses the flaw in Mitting J’s misconceived determination of meaning. Mitting J had concluded, despite Mr Stocker’s police admissions that clearly pointed to a different understanding of the facts before him, that 

I do not, however, believe that he threatened to kill her or did anything with his hands with that intention. I do not believe that he was capable even in temper of attempted murder. The most likely explanation about what happened is that he did in temper attempt to silence her (§ 8)

During the hearing of the case, counsel for Mr Stocker unsuccessfully tried to persuade the Court, by performing a mock act of strangulation before their Lordships, of the correctness of Mitting J’s understanding of the circumstances. Yet, at §§ 7 – 12, Lord Kerr starkly criticises Mitting J’s characterisation of the strangulation accident, in view of Mr Stocker’s police admissions, rehearsed at §§ 10 – 11. Lord Kerr concludes that

it is of course open to a trial judge, after considering all the evidence, to reach his or her own conclusions or to draw inferences which neither party has advanced or espoused. But there must be a sound basis for doing so. (§ 10)

Lord Kerr analysed Mitting J’s determining of meaning for legal error at §§ 13 – 21. He held that Mitting J had started his analysis of the phrase “tried to strangle” by referring to the Oxford English Dictionary’s definition of “strangle”. He considered that Mitting J’s reliance on the dictionary could not be seen as a mere “cross-check” but was instead determinative of his finding on meaning, leading him to conclude that “tried to strangle” could admit of no other meaning than “tried to kill.” Lord Kerr highlights the “obviously anomalous result” produced by Mitting J’s approach:

This approach produces an obviously anomalous result. If Mrs Stocker had said, “he strangled me”, she should be understood to have meant that her husband had constricted her neck or throat painfully, on account of her having survived to tell the tale. But, because she said that he had “tried” to strangle her (in the normal order of things and in common experience a less serious accusation), she was fixed with the momentous allegation that her husband had tried to kill her. On this analysis, the use of the verb, “to try” assumes a critical significance. (§ 16)

Lord Kerr returns to the problematic definition of “tried to strangle” at § 26, explaining the error underpinning Mitting J’s interpretation:

Underpinning his reasoning is the unarticulated premise that “to try” is necessarily “to try and fail”. Since Mr Stocker had not failed to constrict his wife’s throat, the judge concluded that the only feasible meaning of the words was that he had tried (and failed) to kill her. But that is not how the words are used in common language. If I say, “I tried to regain my breath”, I would not be understood to have tried but failed to recover respiratory function.

This passage is central to the Supreme Court’s judgment. By characterizing the trial judge’s error as an error of law – an unlawfully inflexible reliance on a Dictionary to determine what the “hypothetical reasonable reader” would have taken “tried to strangle” to mean – allowed the Supreme Court to substitute its own determination of meaning of the phrase “tried to strangle.” (§§ 47 – 51)

The concept of legal error also underpins the Court’s articulation, at §§ 52 – 60, of the role of an appellate court. Where a lower court makes an error of law, the appeal court is entitled to substitute its view, and intervene decisively:

I emphasise again that it is a legal error on the part of the judge that has opened the door to a redetermination of the meaning of Mrs Stocker’s words. This is not a case of the appellate court giving precedence to its view of meaning over that legitimately reached by the judge. To the contrary, it is the court’s recognition that the meaning determined by the judge was reached via a route which was impermissible and having then to confront the question what meaning should properly be attributed to the relevant words. (§ 51)

Certainly, the trial judge’s conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as “plainly” or “quite” satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere. (§ 59)

The Court’s observations about the Court of Appeal’s significant deference to Mitting J’s determination of meaning culminate in Lord Kerr’s statement that “the finding of Mitting J about the meaning to be given to the words, ‘he tried to strangle me’ was pivotal to the conclusion that section 5 could not be prayed in aid by Mrs Stocker.” (§ 31)

Indeed, Mitting J had relied on his understanding that “tried to strangle” meant “tried to kill”, to imbue with gravity the other elements of Mrs Stocker’s Facebook post, bringing him to find that the overall impression she gave of him was that he was a “dangerous and disreputable character”. For this reason, proving that Mr Stocker had in truth threatened and assaulted her and breached a molestation order did not suffice to prove the impression that Mr Stocker was a “dangerous and disreputable character,” and so Mrs Stocker’s justification defence had failed before the lower courts.

Lord Kerr outlines the single meaning rule at §§ 32 – 38. Interestingly, at § 34 he picks up a point that was raised by Lady Black during the hearing of the case:

it is clear that the single meaning approach is well entrenched in the law of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution.

Whether the single meaning rule is fit for purpose was only mentioned by the bench in passing, when Lady Black noted its potential Article 10 implications, but calls for further reflection. This is so particularly in a domestic abuse context where, as this case proves, there is a realistic chance that judges determining meaning adopt a misogynistic interpretation capable of silencing victims (see Mitting J’s characterisation of the facts and of meaning, cited above). Defamation law is being increasingly used oppressively against victims of abuse (see, e.g., Amber Heard or Louise Reay’s experiences), and is a live issue in discussions on the gender biases implicit in legal procedures and analytical tools (such as defamation’s “hypothetical reasonable reader”).

Relying on an understanding of the relevance of context more fit for the 21st century, where the nature of communication has been profoundly transformed by the dominance of social media, Lord Kerr provides a welcome conclusion on how “tried to strangle” was to have been interpreted:

I return to the ordinary reader of the Facebook post. Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her. (§ 50)

Finally, this determination inevitably led to the well due success of Mrs Stocker’s justification defence. Relying centrally on section 5 of the Defamation Act 1952, Lord Kerr concluded without hesitation that there was “more than enough to satisfy the provision of section 5 of the 1952 Act.” (§ 62)

The Supreme Court’s judgment brings clarity to the rules governing determinations of meaning in defamation law. It highlights, first and foremost, the centrality of logic in determining meaning. Isolating words from their context, blindly relying on dictionary definitions and failing to be alive to the evident social dimension of factual circumstances – here the domestic abuse backdrop and the functioning of social media – cannot but lead into legal error. 

Helpfully, the Court also clarified the uncertainty left by Bukovsky’s nebulous understanding of the role of an appellate court. Grounding the role of an appellate court in the distinction between errors of fact and law relies on a well-established principle of interpretation that allowed the Court to draw a clear line founded on reason: the trial judge is an expert on facts (§ 58), but, while exercising “disciplined restraint” (§ 59), an appellate court should not be loath to interfere with clear errors of law.

It will be interesting to see if the single meaning rule itself, and the fiction of the “hypothetical reasonable reader,” will ever come before the Court for consideration, potentially involving an Article 10 discussion, or whether the practical, workable solution the fiction provides is the best method available to inform determinations of meaning. Despite the Supreme Court’s helpful judgment, one wonders why the hypothetical reader cannot be conceptualised as sensing, in a context such as the present, the clear domestic abuse backdrop that motivated Mrs Stocker’s posts as a victim of abuse. Will defamation law come to recognise and adapt to the difficulties faced by victims in speaking up against abuse?