#TattooMeToo: a new dawn for the public interest defence?

In Hay v Cresswell [2023] EWHC 882 (KB) (here), handed down on 26 April, Mrs Justice Williams held that a sexual abuse victim, Nina Cresswell, had successfully defended a libel claim brought by the perpetrator, William Hay. The judgment is significant for being the first reported case in which a sexual abuse survivor naming their perpetrator has successfully relied on the public interest defence under section 4 of the Defamation Act 2013.

The Facts

On 27-28 May 2010 Ms Cresswell (then a student) met Mr Hay (a tattoo artist) in a nightclub through a mutual contact. After leaving the club together, Mr Hay sexually assaulted Ms Cresswell.

Within hours she reported the assault to Northumbria Police, but was met with a lacklustre response. By 3pm on 28 May 2010, the police had decided that Ms Cresswell’s complaint would not be treated as a crime.  As a result, Mr Hay was never arrested – let alone charged or convicted – in relation to her complaint.

A decade later, that night and what Mr Hay did was “still raw” in her memory, as was the “guilt of letting him get away with it”.  She decided to name him publicly in a blog, an email and in social media posts. Two of the publications were directly to Mr Hay’s girlfriend, and the remainder were to the public at large.

Mr Hay sued in libel, stating that the publications had caused serious damage to his reputation and that he had lost bookings as a self-employed tattooist as a result. In response, Ms Cresswell primarily relied upon the defences of truth and public interest, under ss.2 and 4 of the Defamation Act 2013.

The Judgment

The Court held that the single meaning of the five publications, taken together, was that Mr Hay had violently sexually assaulted Ms Cresswell.

The central question for the court was whether Ms Cresswell had proved the substantial truth or “sting” of the allegation – that is, that Mr Hay had violently sexually assaulted her in 2010. There was limited evidence before the Court: no forensic evidence, no CCTV footage, no police witness statements, no direct witnesses to the incident (aside from the two parties). Both the parties were cross-examined and the Judge carefully considered the police incident log.

The Judge found Ms Cresswell’s evidence was more persuasive than that of Mr Hay and that she had proved he had violently sexually assaulted her:

• Mr Hay’s evidence was marred by “significantly unsatisfactory aspects”. Most notably, he had changed his account over the course of the litigation. He had initially maintained he only danced and talked with Ms Cresswell in the nighclub, but in his witness statement he admitted leaving the venue with her and attempting to kiss her. When questioned in court, he was “evasive” about his intentions leaving the nightclub with Ms Cresswell.
• By contrast, Ms Cresswell’s evidence was not undermined by the police incident log finding her complaint was “not to be crimed”. The Judge accepted that the officers appeared unsympathetic to Ms Cresswell, and that their approach had been influenced by an early perception that the incident would not lead to a charge or successful prosecution.
• The credibility of Ms Cresswell’s evidence was not undermined by “minor inconsistencies” in her account between 2010 and 2020, or the fact she had not made her allegation publicly at the time of the assault.
• In this connection, the judge rejected Mr Hay’s attempt to apply the “presumption of regularity” to the police decision not to treat the incident as a crime: the principle that on proof that a public or official act has been performed, it is presumed that the act has been regularly and properly performed. The court held that the principle did not have the reach suggested by Mr Hay and, in any event, such a presumption was rebuttable by evidence.

The finding on truth was dispositive of the claim. However, the court nevertheless continued to consider the public interest defence – finding that Ms Cresswell had made out all three elements of that defence:

• Ms Cresswell’s “Tattoo MeToo” publications were on a matter of public interest,  
• She believed that her publications were in the public interest (her motivation not being challenged in cross-examination);
• In all the circumstances she reasonably held that belief. The Judge considered the fact that Ms Cresswell had not contacted Mr Hay for his comment before publishing or included his denial of the assault.  The court held that it would have been “unreasonable” to expect her to do so when she was “writing from her own knowledge of the sexual assault on her”. That Ms Cresswell did not refer to the conclusion reached by Northumbria Police in 2010 was understandable, given she reasonably disagreed with and held legitimate concerns about the approach taken by them. The “less than measured” tone of Ms Cresswell’s publications was also considered and found to be “hardly surprising” given she was writing about her experience of a frightening and violent assault. 

Comment

Encouragement for sexual assault survivors 

There is plenty of support and encouragement to be taken from this judgement for sexual assault survivors. A welcome move away from the reasoning in Stocker v Stocker, in which the High Court and Court of Appeal held (before being overturned by the Supreme Court) that a woman had defamed her ex-husband in saying he tried to strangle her when it “was beyond dispute” that he had grasped her by the throat so tightly as to leave red marks on her neck visible to police officers two hours later.

There are at least three points of encouragement for survivors who want to publish:

1. The judgment shows that courts will not shy away from findings of truth, notwithstanding the absence of a criminal investigation, caution or conviction - including when the allegations are made by the victim, not by a journalist and newspaper (as in Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB), [2021] EWCA Civ 423). In determining the truth defence, the Judge exhibited a nuanced understanding of the impact of trauma on memory and on the victim’s responses to sexual assault (e.g. see §158, §162, and §§180-181).
2. It is the first case in which a victim has successfully relied upon a section 4 defence. Coming five years after the Court of Appeal held that the section 4 defence was not confined to media organisations in Economou v De Frietas [2018] EWCA Civ 2591, [2019] EMLR 7 (a claim in which the defendant, the father of a deceased rape complainant, had given comments to media organisations).
3. It reiterates that courts will take steps to ensure that vulnerable witnesses can fully participate in the litigation. Ms Cresswell was permitted to give evidence from behind a screen, to otherwise attend remotely, and arrangements were made for the parties to leave court at staggered times and by different routes to avoid them coming into contact (§93). Mr Hay’s legal team was required to give advance notice of questions on certain topics, and at trial the Judge refused “irrelevant” questions that had the potential for causing Ms Cresswell “unnecessary distress and discomfort” (§§94-95). 

Accordingly, this is an authority that needs to be considered pre-publication by survivors who seek to name a perpetrator to protect others, and that can be relied upon post-publication in response to pre-action protocol letters threatening legal action in libel.

The limits of the judgment

There are, however, limits to the precedent that this judgment sets. It does not provide a carte blanche for survivors to name perpetrators. The primary question considered by the Judge was one of truth versus falsity: Ms Cresswell still needed to be able to prove the truth of the allegation to the civil standard (balance of probabilities). Indeed, the judge warned that had Ms Cresswell’s allegation been found to be a deliberately false one, then her public interest defence would have failed (§200).

Proving the truth of an imputation should be straightforward in cases involving a caution or conviction for act(s) perpetrated by a would-be claimant, that is, where the allegation has been accepted or proved to the criminal standard (see section 13, Civil Evidence Act 1968). However, it remains a difficult task in other circumstances. Often in historic sexual assault libel cases, the only evidence is the parties’ two opposing accounts. If unsuccessful, pleading and running a truth defence risks aggravating damages. 

Indeed, Ms Cresswell only advanced a truth defence after witness statements had been exchanged in which Mr Hay significantly changed his account of what happened that night. For a successful defence of public interest “all the circumstances” are relevant – here, crucially, the fact that Ms Cresswell’s allegations were found to be neither deliberately false nor maliciously made (contrary to Mr Hay’s submissions). It is in this context, that the Judge held that Ms Cresswell’s failure to contact Mr Hay for his comment, to include reference to police deciding that her complaint in 2010 would not “be crimed” and to express herself in a “less than measured” tone, did not detract from her belief in the public interest being reasonably held.

Ultimately, the case leaves unanswered the question of whether a survivor sued for libel could successfully defend a case on the basis of a public interest defence alone.

The problem of costs 

Defending a claim requires enormous bravery and emotional fortitude. Ms Cresswell has described the legal case as “almost as traumatising as the actual assault” (here). It also requires deep pockets.

When a defendant cannot privately afford the costs of specialist legal representatives, they have few options. Cases where the weight of the evidence is ‘he said / she said’ witness testimony often entail too much risk for after the event insurers and lawyers working conditional fee agreements.  

Ms Cresswell lacked legal representation for a year (§72), before finding a legal team. She  was supported in meeting her costs by The Good Law Project and its crowd fundraiser (here and here). However, only a minority of survivors manage to fundraise significant sums. As Robinson and Yoshida powerfully articulate in How Many More Women? (2023: Octopus Publishing Group), the inability to meet the costs of a libel claim has a silencing effect on survivors – either temporarily before winning their case or permanently, as they cannot afford to defend the case (here).

Ms Cresswell’s determination to overcome the exorbitant emotional and financial costs of defending the defamation claim underscores both the rarity and importance of this judgment.

Jonathan Price represented Nina Cresswell, instructed by Tamsin Allen of Bindmans. The views expressed in this blog post are solely the author’s own.