BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Β£1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Charman v Orion Group Publishing Group Ltd & Ors [2007] EWCA Civ 972 (10 October 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/972.html Cite as: [2008] 1 All ER 750, [2007] EWCA Civ 972 |
||
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE GRAY
Hq04X01682
Strand, London, WC2A 2LL |
||
B e f o r e :
THE RT HON. LORD JUSTICE SEDLEY
and
THE RT HON. LORD JUSTICE HOOPER
____________________
| Michael Charman |
Respondent |
|
| - and - |
||
| (1) Orion Group Publishing Group Ltd (2) Orion Books Ltd (3) Graeme McLagan |
Appellants |
____________________
Hugh Tomlinson QC and Lucy Moorman (instructed by Simons Muirhead & Burton) for the respondent
Hearing date: 19th, 20th, 28th and 29th March 2007
____________________
Crown Copyright ©
Lord Justice Ward:
Introduction
"that there are cogent grounds to suspect that Mr Charman abused his position as a police officer by colluding with Brennan in the commission of substantial fraud by Geoffrey Brennan from whom he and Mr Redgrave received corrupt payments totalling £50,000" (emphasis added).
"The case, and the grounds of appeal, raise important issues about the steps required of an author and publisher in order to qualify for a defence of the "Reynolds" type of qualified privilege, when the publication in question is a book and not a newspaper article, where the topic is one of public interest but is also complex, and where the author has made attempts to obtain the claimant's side of the story."
(1) what is the extent of the privilege claimed for "reportage" and how does this fit into the Reynolds type of qualified privilege developed by and since Reynolds v Times Newspapers Ltd [2001] A.C. 127 ?
(2) What is the proper approach for the Court to take in judging whether the author and the publishers have acted responsibly in communicating the information to the public?
Once the relevant principles of law are identified, then a great deal of factual material will need to be investigated in order to establish, putting it very broadly for the moment, whether the books were published in a fair, balanced and neutral way, without adoption by the appellants and whether the defamatory information was responsibly reported.
Setting the scene: a prιcis
"This is the inside story of the 'Ghost Squad' and how it broke into the secret world of police corruption. Graeme McLagan's gripping account reveals the ugly underside of London's police force and why teams from America and Australia have now come to Britain to find out how the Met is winning the battle against bent coppers."
The defamatory material
"Although Gaspar believed him, what Brennan had said amounted to no more than simple allegations of police wrongdoing. Such allegations had no chance of standing up in court without corroboration, even if Brennan agreed to appear as a witness and he was refusing to do that. It would simply be Brennan's word, that of the criminal, against the word of two honest detectives with distinguished records."
A little later there is a brief reference to the fact that Redgrave and Charman "strenuously denied all allegations of wrong-doing".
" Redgrave and Charman were suspended, their homes having been raided three days before. From the outset the pair have denied receiving money from Brennan, or indeed any corruption at all."
Coles was given advice from Treasury Counsel who
"eventually concluded that without Brennan's co-operation the chances were that a prosecution of Redgrave and Charman would fail."
"Deeply aggrieved at what had happened to them, the three (i.e. Charman, Redgrave and Ms Cahill) then counter-attacked, making official complaints against CIB officers. Redgrave's MP, Andrew McKinlay, raised the case in a 15 minute speech in the House of Commons."
Charman claimed that his arrest, detention and prosecution were unlawful, malicious, unwarranted and amounted to a conspiracy to pervert the course of justice. Charman claimed that his arresting officer had adopted unwarranted and unnecessary tactics causing him humiliation and distress.
"CIB officers hoped that Redgrave and Charman would give evidence for Geoffrey Brennan at his trial in 2001. The pair could have used the proceedings as an opportunity to set the record straight, to deny Brennan's original allegations that he had bunged them £50,000 to cover up his theft of £400,000 from the Chinese-American businessman, Sam Wang. They could also have backed Brennan's later claims that the police operation mounted by the pair into gun-running and money-laundering had been entirely legitimate and not a smokescreen, as was being suggested by the CIB. If the pair had appeared in the witness box, they would have been open to cross-examination by the CIB prosecution team, determined to get at the truth of Brennan's allegations. But it was not to be. Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey."
Gaspar is said to have "revealed" at the pre-trial hearing that Redgrave had received unexplained income over and above his Metropolitan Police salary and that in Charman's case an unusual spending pattern has started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe.
"Latham chose his words with care. They were damning: 'I am not going to bring in criminals to give evidence'."
Then comes this paragraph:
"Although Redgrave and Charman were not on trial, for much of the time it was as if they were in the dock with Brennan. In Latham's closing speech to the jury much play was made of their alleged corruption. He repeated that the prosecution case was that a total of £50,000 had been paid to the two detectives to provide a smokescreen for the theft of Wang's money "
"It was unquestionably the case that Redgrave and Charman were in contact with him at the time of the offence and were aware of what was taking place."
The headline findings of the judgment
The law as determined by the judge
"Nor need the report be accurate in every detail. If the report be as a whole a substantially fair and accurate account of the proceedings, a few slight inaccuracies will not deprive it of protection, but where the inaccuracies are of a substantial kind, there is no immunity."
The challenge in the appeal is to the manner in which the judge applied that law to the facts.
"107. It is common ground that the matters set out by Lord Nicholls in Reynolds at 205 represent important criteria for deciding the availability of privilege. But, as Lord Nicholls made clear, they are non-exhaustive and so not of themselves necessarily determinative in every case. Moreover, as counsel agreed, those tests require modification in the present case because the publication sued on is a book rather than a newspaper containing the perishable commodity which is news. Also allowance needs to be made for the fact that the author of a book has more time for checking than a journalist who has to meet a deadline. Furthermore there have been a number of authorities since Reynolds which need to be taken into account.
108. I will attempt to summarise what seem to me to be the principles which can be derived from the cases which were cited in argument:
i) qualified privilege is designed to strike an appropriate balance between the ECHR Article 10 right to freedom of expression and the right of an individual to protect his reputation which is an aspect of private life which is protected by Article 8: Bonnick v. Morris [2003] 1 AC 300 per Lord Nicholls at [23] and Compana and Mazare v Romania [2005] 41 EHRR 200, [BAILII: [2004] ECHR 692 ] at [91];
ii) neither of those rights is pre-eminent or has "presumptive priority": there is a clear public interest in the promotion of free and vigorous press to keep the public informed and journalists should be permitted a good deal of latitude in how they present the material; but reputation is an integral and important part of the dignity of the individual, the protection of which is conducive to the public good. In some cases the reputations of other individuals than the claimant may be engaged: Reynolds at 210, 230 and 238; Loutchansky v Times Newspapers (No's 2-5) at [36]; In re S (a child) [2005] 1 AC 593 per Lord Steyn at [17]; Bonnick v Morris at [23]; Galloway v. Telegraph Group [2006] EWCA Civ 17 at [80, 83] and Bladet Tromso and Stensaas v Norway [1997] 23 EHRR CD40; [BAILII [1999] ECHR 29 ]
iii) in order to determine whether publication was in the public interest, it is first necessary carefully to analyse the information which has been provided to the public and to pose and answer the question whether the public had a right to know or a legitimate interest in knowing the facts alleged, even if they cannot be shown to be true: Loutchansky v Times Newspapers (No's 2- 5) at [39]; Jameel v Wall Street Journal [2005] EMLR 17 at [86-7] and Galloway v Telegraph Group at [37];
iv) the question identified at (iii) above should be answered by reference to the information which was known to the publisher at the time of publication: Loutchansky v Times Newspapers (No's 2-5).
v) the touchstone being that of the public interest and responsible journalism, it is then necessary to ask whether in the particular circumstances of the case the publisher has demonstrated that he was acting responsibly in communicating the information to the public. For that exercise the starting point is to consider such of the factors set out by Lord Nicholls in Reynolds at [208] as are applicable: see also Galloway v Telegraph Group at [37];
vi) the requirements of responsible journalism will vary according to the particular circumstances. Depending on the circumstances, factors other than those identified by Lord Nicholls may come into play. It is necessary to always to bear in mind that the publication is defamatory and cannot be shown to be true. The standard of conduct by which the responsibility of the journalism is judged must be applied in a practical, fact-sensitive and elastic manner: Loutchansky v Times Newspapers (No's 2-5) at [38]; Jameel v Wall Street Journal at [87] and Bonnick v Morris at [24];
vii) one such circumstance is where the publication consists of what has been described as "reportage", that is, where the publisher has neutrally and disinterestedly reported in an even-handed way unattributed [sic this is accepted to be a typographical error as the judge clearly meant 'attributed'] allegations which are of legitimate and topical interest to the readers of the publication but has not adopted those allegations as being true or otherwise embellished them: Al-Fagih v HH Saudi Research & Publishing [2002] EMLR 215 at [6], [29]; Galloway v Telegraph Group [2005] EMLR 7 at [130] and in the CA at [28] and Roberts v Gable [2006] EWHC 1025 (QB); and
viii) in the case of reportage there may well be no duty on the publisher to verify the information, provided that the publication did not include background information which was defamatory of the claimant and provided further that any comment by the publisher about the information was confined to honest comment about the information made without malice: Al-Fagih v HH Saudi Research and Marketing at [50] and [39-43] and Galloway v Telegraph Group at [50-51].
Common law privilege
109. Before I endeavour to apply the principles set out above to the facts of the present case, there are a number of general observations which need to be made. The first is that I readily accept that the problem of corruption within a police force is a matter of grave public concern. Particular case histories, of which Brennan is one, are equally of legitimate public interest. This was common ground between the parties.
110. Part of the underlying purpose of the House of Lords in Reynolds in effecting a change to the common law defence of qualified privilege was to reflect the concern felt in some quarters that a greater degree of freedom of publication was required in regard to the reporting of matters of public interest in circumstances where the defendant publisher was unable to prove the truth of what he intended to publish. The House of Lords adopted as a new criterion of privilege the test of responsible journalism. It is well known that hitherto the defence of privilege based on responsible journalism has failed more often than it has succeeded. I accept that the Court must be on its guard not to set an unrealistically high standard of journalism or authorship. I bear in mind what Lord Nicholls said in Reynolds at p202:
"The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse".
111. An unusual feature of the present case is that McLagan laid great stress both in his witness statement and in his oral evidence upon the fact that Bent Coppers is, as he put it, a balanced and non-partisan account of the public dispute between CIB on the one hand and Charman and Redgrave on the other, based on material in the public domain. I will shortly have to decide if those claims are made out. It seems to me, however, that before I address those issues I should first consider whether, as McLagan claims, the passages of which Charman complains constitute "reportage" in the sense in which that term is used in Al-Fagih and later cases. If those passages do constitute reportage, the requirements of responsible journalism are or may be significantly relaxed.
112. In Al-Fagih Simon Brown LJ described reportage as "a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper". The Court held that in such a situation the public was entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other."
"In the light of Bonnick, I accept that the issue of responsible journalism falls to be determined by reference to the meaning subjectively intended by the defendant. However, in the present case I had to decide whether the book was "reportage". That question turned largely on whether the defendant adopted the allegations against the claimant: see paras 112-118 of the judgment. I do not think that there is a real prospect of success for an argument that I misdirected myself."
Reportage
The judge's findings in paragraphs 112 to 118
"115. an imputation that there were cogent grounds to suspect a police officer of corruption comes somewhere between a Chase level one and two meaning. Such an imputation may not amount to an unequivocal adoption of the charge of corruption but it does not to my mind constitute neutral reportage. It is partial adoption of a serious charge."
"117. I think that the reader would take away from the passages of the book which deal with the Brennan affair that it was more probable than not that Charman was guilty of corruption."
For those reasons the judge was unable to accept that the passages in the books constituted reportage. He added in 118, "for what it is worth, the prospective reader is not led to believe that the account in Bent Coppers is going to be neutral reportage" because "in the sub-title of the book and its flyleaf the reader is told he is going to get "the inside story"." Later in the judgment he summarised his conclusions as follows:
"131. The reasons why I have rejected the suggestion that the passages in question were reportage are firstly, that to an extent it appears to me that McLagan adopted the allegation of corruption against Charman and, secondly, that the relevant facts are not presented in the full, fair and disinterested fashion which is required of reportage. Very similar reasons led me to reject McLagan's claim to have written a "balanced" account of the Brennan allegations directed at Charman and Redgrave."
My commentary on reportage
"Repeating someone else's libellous statement is just as bad as making the statement directly."
Adopting the analogy of rules for admitting hearsay evidence, the effect of repeating the allegation is to make the article a report of the truth of the defamatory material as opposed to its being a report only of the fact that it was said. It will depend on the context whether the material is published to report the fact that it was said or to report what was said as a fact. That point of characterisation of the material is enough to doom this part of the appeal. Whether or not it could ever give rise to Reynolds privilege is, of course, a different question altogether and I deal with that later.
"58. It seems to us that the judge was right to hold that the headlines and articles complained of went further than simply stating that Mr Galloway was taking money from the oil-for- food programme for his political and charitable purposes but meant that he was taking money for personal gain and that that allegation was seriously defamatory of Mr Galloway.
59. It appears to us that the newspaper was not merely reporting what the Baghdad documents said but that, as the judge held, it both adopted and embellished them. It was alleging that Mr Galloway took money from the Iraqi oil-for-food programme for personal gain. That was not a mere repeat of the documents, which in our view did not, or did not clearly, make such an allegation. We agree with the judge that, although there were some references to allegations, the thrust of the coverage was that The Daily Telegraph was saying that Mr Galloway took money to line his own pockets. In all the circumstances we answer the question whether the newspaper adopted and embellished the statements in the Baghdad documents in the affirmative."
This translates into a finding that the Daily Telegraph was not simply repeating and reporting the information recovered from Baghdad but adding further information which did not appear in those documents. The essential comparison was between the information contained in the source documents and the information contained in the newspaper report. Of course it is correct that one can only decide a question of adoption by comparing the source material with the way in which it was imparted but meaning the technical sense of the single objective meaning of the publication is hardly at the heart of that comparison.
"20. Language is inherently imprecise. Words and phrases and sentences take their colour from their context. The context often permits a range of meanings, varying from the obvious to the implausible. Different readers may well form different views on the meaning to be given to the language under consideration. Should the law take this into account when applying the objective standard of responsible journalism? Or should the law simply apply the objective standard of responsible journalism to the single meaning the law attributes to the offending words, regardless of how reasonable it would be for a journalist or editor to read the words in a different, non-defamatory sense?
21. At first sight there might seem to be some legal logic in applying the latter approach. The "single meaning" rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptional.
22. At first sight it might seem appropriate to apply the same principle when considering whether Reynolds privilege affords a defence. This might appear to have the merit of consistency. But that would be to apply the "single meaning" principle for a purpose for which it was not designed and for which it is not suitable. It is one matter to apply this principle when deciding whether an article should be regarded as defamatory. Then the question being considered is one of meaning. It would be an altogether different matter to apply the principle when deciding whether a journalist or newspaper acted responsibly. Then the question being considered is one of conduct."
Responsible journalism
The judge's findings in outline
"119. A publication does not have to be balanced in order to qualify as responsible journalism."
He directed himself that:
"120. "Balanced" in this context must mean balanced in relation to Charman and the allegations levelled against him."
He felt that McLagan's own view that Charman was "probably guilty of the alleged corruption "subliminally" affected the way in which he presented his account to the reader. McLagan was endeavouring to "steer a middle course". He failed because he did not mention "certain noteworthy aspects of the Brennan story". So the judge concluded:
"125. Finally, in connection with the question of balance, I am bound to say that McLagan is in my view open to criticism for the manner in which he reported in Bent Coppers the pre-trial hearings in Brennan's criminal case and the trial which followed. it is my conclusion that McLagan did not achieve the balanced approach which he set himself."
"130. a responsible journalist should evaluate with some care the material on which that imputation [that there were cogent grounds for suspecting a police officer to be guilty of corruption] is based. Such a journalist should in my view subject the material to a degree of critical analysis.
Although there were passages where the reader was told that Redgrave and Charman strenuously denied all allegations of wrongdoing, there were no references in the book to the discrediting of officer Smith.
"137. In my opinion McLagan is open to criticism for failing to inform his readers that, far from being "reliable", Smith was profoundly tainted by his answers during cross-examination in the Phillips trial [when he refused to answer questions about his relationship with and his 'moonlighting' for Brennan]."
"142. I bear in mind that, whilst he is a highly experienced journalist with considerable experience of court reporting, McLagan is not a lawyer and is therefore not to be taken to be familiar with the practices and procedures of criminal trials."
Nevertheless the judge found that he was in error in saying that it was an unusual move for the enquiry into Wang's allegations of theft to have been taken over by SERCS.
"145. The criticism which I make of this passage is that it treats matters which McLagan ought to have realised were of marginal relevance and which he knew had taken up no more than a few minutes of court time as if they formed a major part of the hearing. The references to "unexplained income" and "an unusual spending pattern" are damning. No balancing reference is made to other evidence given at the pre-trial hearing which tended to exonerate Charman."
"Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey",
the judge said:
"147. As McLagan ought to have appreciated, there was in fact no possibility of Charman or Redgrave giving evidence at Brennan's trial. The issue for the jury was whether Brennan had stolen money from the Wangs. It was no part of the prosecution case to say that Brennan's allegations of corruption against Charman and Redgrave were true. Besides, those allegations had been withdrawn. I do not think it is accurate to say that the names of Redgrave and Charman were "continually mentioned throughout the trial". They were referred to on two days after the trial had been running (with interruptions) for a month."
"150. McLagan's quotations are accurate. There nevertheless appears to me to be considerable force in the criticism made by Mr Tomlinson that McLagan should have made clear that the alleged criminality of Charman and Redgrave had no bearing on the issues which the jury had to decide. I accept that at the end of the passage which I have quoted McLagan informs readers that in his closing speech Trollope told the jury that there was no evidence the officers had been paid money. McLagan does not mention the fact that Latham accepted that there was no direct evidence that corrupt payments were made to the officers. A more serious omission is the failure to refer to the judge's advice to the jury in his summing up to ignore suggestions made that any money was taken by Charman or Redgrave to assist Brennan. He told the jury that they ought to put that out of their minds. In the context of the trial as a whole it is difficult to understand how, as McLagan claims, for much of the time it was as if Charman and Redgrave were in the dock with Brennan."
"151. I have taken some time with the account in Bent Coppers of the Brennan trial because it marks the culmination of McLagan's account of one of the major characters in the book. One of the questions which I have to decide is whether this is a fair account of what took place at Brennan's trial. For the reasons which I have given, I have concluded that it is not."
My commentary on responsible journalism
An analysis of recent developments in the law
(1) Whether or not the matter was properly in the public interest and whether or not the standard of responsible journalism has been met has to be considered in the context of the article as whole. I see this from these passages. Lord Hoffmann said:
"48. I think that one should consider the article as a whole and not isolate the defamatory statement.
51. If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article."
Lord Hope said:
"107. Context is important too when the standard [of responsible journalism] is applied to each piece of information that the journalist wishes to publish. The question whether it has been satisfied will be assessed by looking to the story as a whole, not to each piece of information separated from its context.
108. I do not believe that [Lord Nicholls] was intending to indicate that the public's right to know each piece of information in any given article should be assessed, piece by piece, without regard to the whole context. On the contrary, each piece of information will take its colour and its informative value from the context in which it is placed. A piece of information that, taken on its own, would be gratuitous can change its character entirely when its place in the article read as a whole is evaluated. The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public."
(2) Taking steps to verify the information is given added emphasis. Lord Bingham said:
"32. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency (238), "[n]o public interest is served by publishing or communicating misinformation". But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication."
Baroness Hale said:
"149. the publisher must have taken the care that a responsible publisher would take to verify the information published. The actual steps taken will vary with the nature and sources of the information. But one would normally expect that the source or sources were ones which the publisher had good reason to think reliable, that the publisher himself believed the information to be true, and that he had done what he could to check it. We are frequently told that "fact checking" has gone out of fashion with the media. But a publisher who is to avoid the risk of liability if the information cannot later be proved to be true would be well-advised to do it. Part of this is, of course, taking reasonable steps to contact the people named for their comments."
(3) If the public interest is engaged, the report is privileged if it satisfies the test of responsible journalism. The House had, in Reynolds, refused to follow the Australian and South African approach in considering the reasonableness of the conduct in publishing the information: see page 199. The House preferred the "elasticity" of a test of responsible journalism. Lord Hoffmann expressed himself in these terms:
"53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair" [emphasis added by me]. "As Lord Nicholls said in Bonnick v Morris [2003] 1 AC 300 at 309:
"Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance" [again the emphasis is added] "is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege."
54. Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as "responsible journalism"."
This may seem to add the element of fairness to the test. It can, however, be said that fairness is clearly implicit in what Lord Nicholls has always been saying. Lord Steyn in Reynolds at p. 213 was content to accept as the governing principle that "the occasion must be one in respect of which it can fairly" [my emphasis] "be said that it is in the public interest that information should be published."
(4) As for Lord Nicholl's ten factors to be taken into account, Lord Bingham said:
"33. Lord Nicholls (at 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege."
Lord Hoffmann viewed them in this way:
"56. In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten matters which should in suitable cases be taken into account. They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. That is how [the judge] treated them. The defence, he said, can be sustained only after "the closest and most rigorous scrutiny" by the application of what he called "Lord Nicholls' ten tests". But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner. It must have regard to practical realities."
(5) In assessing the responsibility of the article, weight must be given to the professional judgment of the journalist. This is a very important point to emphasise in our appeal. Lord Bingham said:
"33. Lord Nicholls recognised (at 202-203), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner."
Lord Hoffmann expressed it thus:
"51. But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. 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."
In the opinion of Lord Hope:
"108. The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public. Weight will be given to the judgment of the editor in making the assessment, as it is the article as a whole that provides the context within which he performs his function as editor.
109. The cardinal principle that must be observed is that any incursion into press freedom that the law lays down should go no further than is necessary to hold the balance between the right to freedom of expression and the need to protect the reputation of the individual. It must not be excessive or disproportionate. Mr Robertson's test which introduces the criterion of "high quality journalism", especially if it is applied to each particular piece of information that is published, would contravene that principle."
In Lord Scott's opinion:
"140. In deciding whether or not the criterion of responsible journalism had been met, the court should apply the standard of conduct expected of the journalist "in a practical and flexible manner" (emphasis added)."
(6) The test is not intended to present an onerous obstacle to the media in the discharge of their function. This is another important point to note. As Lord Hope said:
"105. common law does not seek to set a higher standard than that of responsible journalism.
107. Any test which seeks to set a general standard which must be achieved by all journalists is bound to involve a degree of uncertainty, as Lord Nicholls recognised in Reynolds at 202D-E. But, like him, I think that the extent of this uncertainty ought not to be exaggerated. "Responsible journalism" is a standard which everyone in the media and elsewhere can recognise. The duty-interest test based on the public's right to know, which lies at the heart of the matter, maintains the essential element of objectivity. Was there an interest or duty to publish the information and a corresponding interest or duty to receive it, having regard to its particular subject matter? This provides the context within which, in any given case, the issue will be assessed."
(7) Reynolds must been seen as the House's attempt "to redress the balance [between Article 8 and Article 10 of the ECHR] in favour of greater freedom for the Press to publish stories of genuine public interest", per Lord Hoffmann, (38). Lord Bingham's criticism of the Court of Appeal was that its "ruling subverts the liberalising intention of the Reynolds decision", (35), concluding that, "It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect." Baroness Hale of Richmond was of the view that, "We need more such serious journalism in this country and our defamation law should encourage rather than discourage it", (150). Lord Hoffmann, (38), was concerned "that Reynolds has had little impact upon the way the law is applied at first instance." These are sombre words of warning. I sense at once which way the wind from the House of Lords is blowing and I must trim my sails accordingly.
"24. To be meaningful this standard of conduct must be applied in a practical and flexible manner. The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard, of responsible journalism, had to be applied in all cases exclusively by reference to the "single meaning" of the words. Rather, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views. Their Lordships note that in the present case the selfsame question has resulted in a division of view between members of the Court of Appeal. If the words are ambiguous to such an extent that they may readily convey a different meaning to an ordinary reasonable reader, a court may properly take this other meaning into account when considering whether Reynolds privilege is available as a defence. In doing so the court will attribute to this feature of the case whatever weight it considers appropriate in all the circumstances.
25. This should not be pressed too far. Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is "willing to wound, and yet afraid to strike". In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question. Questions of degree arise here. The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances.
27. The defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers. The failure to make further enquiry, and the omission of Mr Bonnick's explanation of his dismissal, although unfortunate, have to be evaluated, and their compatibility with responsible journalism considered, against this background."
"33. a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma v Luxembourg ). The court finds that in the present case the article remained within the limits of acceptable comment on court proceedings."
I remind myself of the oft-cited passage in Thoma v Luxembourg (2003) 36 EHRR 21 at [45]:
"The press plays an essential part in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog". Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed [emphasis added]."
To give added emphasis to that point, which is point (6) in my analysis of Jameel, I can also refer to Selisto v Finland (2006) 42 EHRR 8 where the court said:
"59. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the court, any more than it is for the national courts, to substitute its views for those of the press as to what techniques of reporting should be reported by a journalist Reading the articles as a whole, the court cannot find that this statement was excessive or misleading."
Commentary on responsible journalism
"130. It seems to me that where, as I have found, the imputation conveyed to readers in relation to Charman was that cogent grounds exist for suspecting that in his capacity as a police officer he had been guilty of corruption, a responsible journalist should evaluate with some care the material on which that imputation is based. Such a journalist should in my view subject the material to a degree of critical analysis."
I agree he should take proper care: that is the essence of responsible journalism. The Bonnick point is, however, that:
"the journalist should not be penalised for making a wrong decision on meaning on which reasonable people might take different views." [24].
It was conceded in paragraph 12.2 of Charman's skeleton argument that:
"Readers would have understood the words to bear a range of meanings from "grounds to investigate" to "guilt" all of which are defamatory."
This was, therefore, not a case where:
"The defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers," [27].
Consequently McLagan's assertion that he did not intend to convey the imputation the words were held to bear was a relevant fact to take into account. Since it is a question of degree [25], it seems to me that his belief must be of some weight in assessing the responsibility of his conduct overall even if it cannot exculpate him given the seriousness of the imputation and the fact that:
"a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question," [25].
"Readers would in my view hesitate before accepting the truth of an allegation of corruption on the part of a police officer emanating from such a man."
"Weight will be given to the judgment of the editor in making the assessment, as it is the article as a whole that provides the context within which he performs his function as editor," per Lord Hope (108),
and Gray J. erred in not taking that into account or sufficiently into account.
Conclusions
(1) "The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true."
Even though the passages bear the meaning of cogent grounds for suspicion rather than guilt of corruption, the charges are nonetheless, as the judge held, very serious for senior serving officers of the Met.
(2) "The nature of the information, and the extent to which the subject-matter is a matter of public concern."
The public interest in this story has always been common ground, and rightly so. The police are here to protect us and we demand and expect that they will carry out their duties without corruption and so, where there is corruption, it must be exposed and where there is a justified suspicion of corruption it deserves to be discussed.
(3) "The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories."
Much of the story comes, of course, from Brennan as revealed in the Gaspar tapes. Brennan was a flawed character as was made obvious. McLagan did not, however, rest on his account alone, he made great efforts to tap his police sources for all the light they could shed on the problem. This was, after all, the story of the Ghost Squad.
(4) "The steps taken to verify the information."
In his judgment the judge said that McLagan did not claim to have verified the information about Charman and that there were no means whereby he could have done so. He held,
"In my view McLagan ought to have carried out an evaluation and analysis of the material available to him."
Indeed he ought to have done. But in my judgment it is plain that he did so. True it is he could not verify the truth of Brennan's allegations because only three people were involved in the corruption and the payment of £50,000 by Brennan to the officers. It was one man's word against another's. What McLagan did do, and what the judge gives him no or too little credit for doing was the further research he carried out, the interviews he held with the investigating officers and the judgment he made as to their credibility and the inferences which could properly be drawn from the material as a whole. It is not easy to see what more he could have done.
(5) "The status of the information. The allegation may have already been the subject of an investigation which commands respect."
"The status of the information" was no doubt introduced in Reynolds because of the importance that it had in the Court of Appeal in that case. At p. 167, the Court of Appeal said:
"We make reference to "status" bearing in mind the use of that expression in some of the more recent authorities to denote the degree to which information on a matter of public concern may (because of its character and known provenance) command respect."
To the extent that matters were investigated at the Central Criminal Court, as they were, they must command respect. The judge held it was "unwise on McLagan's part to have placed reliance on the opinions expressed privately to him by individual officers such as Coles", but these were the investigating officers and their opinions cannot be discounted even making allowance for the counter-attack launched against them by Charman. The status of their information is certainly high enough to warrant writing a story which gives rise to no more serious an allegation than that there were cogent grounds to suspect Charman.
(6) "The urgency of the matter. News is often a perishable commodity."
This factor does not arise in this case as the judge correctly held. I see no reason at all for confining responsible journalism to newspapers and magazines. It must be extended to the authors and publishers of books. Mr Tomlinson did not attempt to suggest otherwise. As Lord Hoffmann said in Jameel, [54], the Reynolds defence is available "to anyone who publishes material of public interest in any medium", the emphasis being added by me. I agree, however, with Mr Tomlinson's submission that because the authors and publishers are not under the same pressure of time before the presses begin to roll, greater care will be expected of them to ensure they act properly.
(7) "Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary."
The judge accepted that approaches to obtain Charman's side of the story were rebuffed. The judge concluded that McLagan was entitled to assume that Charman would have remained uncooperative if allegations to be published in the book had been put directly to him, rather than through his brother-in-law, Millar who was co-ordinating the Charman campaign to publicise their side of the story.
(8) "Whether the article contained the gist of the claimant's side of the story."
The judge accepted that the book did contain Charman and Redgrave's side of the story. Curiously the judge appears to criticise McLagan for not having sought comment as to the "positive case" which was going to be made against him in the book. This seems inconsistent with his earlier correct finding that Charman would have remained uncooperative if he had been approached.
(9) "The tone of the [book] and [author] can raise queries or call for an investigation. It need not adopt allegations as statements of fact."
The judge relied on his earlier finding of partial adoption of the Brennan allegations as true but that does not really deal with the tone of the book. In my judgment the tone of this book is exactly what one would expect of an objective investigative journalist. The "inside story" of Charman and Redgrave was essentially factual in context and unsensational in tone. Even the "damning" words of prosecuting counsel Richard Latham Q.C. chosen "with care" do not more than add permissible colour to the book. Reading it as a whole the author expresses no personal judgment but leaves it to the reader to form his or her own impression of the two officers concerned. That seems to me to be a hallmark of responsible journalism.
(10) "The circumstances of the publication, including its timing."
There is nothing in this point.
"The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know Any lingering doubts should be resolved in favour of publication."
This theme was emphasised in Jameel as I pointed out in paragraphs 66(6) and (7). Gray J. would not have been aware of their Lordships' rebuke of the lower courts for their failure to appreciate how "liberalising" an opinion Reynolds was intended to be. Given that Charman and Redgrave had themselves put the attack on their character in the public domain by their press announcements and by the statement made on their behalf in Parliament, the balance of fairness falls in my judgment heavily in favour of the case against them being put to the public.
"It might be thought that this was the sort of neutral investigative journalism which Reynolds privilege exists to protect."
Statutory privilege
The result
Lord Justice Sedley:
Lord Justice Hooper:
Charman made no complaint about the hardback and continued to abstain from complaint about it after he knew that a paperback was in production until the very eve of its publication when he instructed his solicitors to write a letter before action dated 22 March 2004, over 9 months after publication of the hardback and after the paperback had been printed and distributed.
"there are cogent grounds to suspect that Mr Charman abused his position as a police officer by colluding with Brennan in the commission of substantial fraud by Geoffrey Brennan from whom he and Mr Redgrave received corrupt payments totalling £50,000".
3. The issue which I now have to decide is whether the Defendants, who are respectively the publishers and author of a book entitled Bent Coppers, are correct in their contention that the publication of the passages from that book of which the Claimant makes complaint is protected by qualified privilege. The Defendants rely on an amalgam of various species of privilege: the privilege accorded to responsible journalism (the so-called Reynolds privilege); the statutory privilege which protects fair and accurate reports of parliamentary and judicial proceedings, and the ancillary common law privilege which can attach to matters closely connected with reports of proceedings which enjoy statutory privilege. Unquestionably the most important of these various species of privilege for the purposes of the present case is that which is accorded to the products of responsible journalism.
He was a big, excitable man given to lies, boast and bluster ... as well as being a fairly small-time criminal he has been an informant for years, especially since the early 1990s, when he had got to know high-calibre criminals and various police officers.
The Reply, both in its original and amended versions, failed to plead or forewarn of many of the detailed points of criticism that were canvassed in a very prolonged cross-examination of McLagan that went on for three days.
6. The Claimant ("Charman"), is a former Detective Constable in the Metropolitan Police Force ("the Met"). He was a serving officer from 1971 until 6 May 2004. In June 1993 he was in the Flying Squad, based at Tower Bridge. He became the joint handler of an informant called Geoffrey Brennan ("Brennan"). Another officer in the Met was John Redgrave ("Redgrave") who attained the rank of Detective Inspector. Unlike Charman, Redgrave was a member of the South Eastern Regional Crime Squad ("SERCS") but he and Charman had worked together on the Brink's Mat enquiry and investigation from about 1983. Later, however, they were on different teams.
7. Charman and Redgrave were required to resign from the Met on 6 May 2004, following the finding of an internal disciplinary panel that they had acted in a manner likely to bring discredit on the reputation of the force.
8. ...
9. McLagan is a journalist of many years standing. After starting as a reporter on the Newcastle Journal, he moved to London and worked for the Daily Mail in the 1960s. In 1971 he joined BBC Radio News as a reporter, becoming Deputy Home Affairs correspondent a few years later and thereafter Home Affairs correspondent for both radio and television. Over the years he covered many major home affairs stories. In 1993 he was appointed head of a new investigations team which covered both television and radio news. He was heavily involved in reporting the Matrix Churchill trial and the subsequent Scott Inquiry.
10. From the late 1970s onwards McLagan took a special interest in the issue of police corruption. In the early 1980s he reported on the first major inquiry by an outside force into police corruption within the Metropolitan Police. He covered the progress of that inquiry and several trials which arose out of it. A particular problem within the Metropolitan Police at that time was the abuse of the system of informants. McLagan reported on this area of police corruption in a Panorama programme transmitted in 1982. He came to be recognised as the BBC's expert on police corruption. He reported on the criminal trials of several allegedly corrupt police officers. In January 1998 McLagan was the presenter for another Panorama programme about police corruption.
24. In or about June [1993] an operation called "Nightshade" was set up. Ostensibly it had three strands: (i) drug trafficking in Venezuela; (ii) production of amphetamines in Portugal and (iii) money-laundering and/or gun-running. Brennan provided information to the police in connection with Operation Nightshade. The Defendants' case, hotly contested by Charman, is that the third element of Operation Nightshade was a fabrication by Brennan, Charman and Redgrave devised in order to conceal their own involvement in criminal activity.
The Commissioner of Police of the Metropolis tells me that no such details were revealed as a result of Operation Nightshade. - [Official Report, 16 March 2000; Vol. 346, c. 268W.]
On 14 June 1994, DCS Roger Gaspar received a dramatic phone call requiring immediate action. It led to armed police protecting a man [Brennan], moving him and his family from their home for their own safety. The caller was the head of the Flying Squad, Bill Griffiths. He said that a reliable Flying Squad officer, Detective Sergeant Chris Smith, had told him that an important police informant had been compromised. Confidential police documents detailing his activities had leaked to the major criminals on whom he was informing. His life was in danger.
Brennan recounted how he had been a police informant while running a mobile-phone shop. During the previous summer, with the business in increasing financial difficulties, he had become an informant for Detective Constable Mick Charman, a Flying Squad officer based at the squad's Tower Bridge offices. He was giving him information about a robber who had moved into the drugs trade, importing cocaine from Venezuela [strand (i) of Nightshade]. Brennan said that at the same time he had been contacted by a Texan wanting to buy mobile phones for use on offshore oil rigs. The Texan then introduced him to a Chinese-American, Sam Wang. Thousands of a particular type of Motorola mobile were wanted by Wang for resale in Hong Kong and mainland China, where they were unobtainable because of international licensing agreements. Brennan agreed to provide the phones, although he knew he would never be able to supply more than a handful. Wang flew to London to clinch the deal and met Brennan at an expensive London hotel. Wang was impressed by the presence of Brennan's good friend DC Mark Norton.
On tape, to Gaspar, Brennan related what he said the Texan had told him: 'He said, "You know, you are going to earn a lot of money out of this. We are all going to earn a lot of money out of this." And I thought, no, all I'm going to do is fucking relieve you of the money It's as simple as that.
Brennan was describing a simple straightforward theft. The jury at the end of Brennan's trial found him guilty of that theft and disbelieved the account which he was to give in evidence and which (as I shall show later) was foreshadowed both by the media and by Mr Redgrave's MP, Mr McKinlay, in the House of Commons.
Brennan went on to describe how he had then met his police handler, DC Charman: 'I said to Mick, if this shapes up, I can relieve these people. It's an opportunity, and these things come up once in your life-time, without anyone getting hurt, if it can be done proper I said: "Look Mick, I want to relieve them of all of it."
Meanwhile money starting arriving from Wang and his brother in the USA for the mobile phones that Brennan had no intention of supplying. The crooked businessman [Brennan] was to receive more than £400,000 in the coming weeks. He claimed that a plan was hatched with Charman so that police would provide him with cover as he pocketed the money. The police would pretend that Brennan was giving them information about a money-laundering operation being run from the US, and in return for the protection Brennan would pay over cash. (Underlining added)
Brennan alleged he gave a first payment of £10,000 to Charman, who told him he would introduce him to his old friend DI John Redgrave, who was now with SERCS, the South East Regional Crime Squad. The two detectives had worked together on the Brink's-Mat robbery.
"I give Mick £10,000 and at that time I was led to believe that five grand was going to Redgrave to start all this off," said Brennan. "We met John in the car park of the restaurant at South Mimms [a large service station at the junction of the A1 and M25] He drove up in a metallic Cavalier. He come over and said, "Let's get back in the car." Then we took off like fucking you don't know who you thought you had up your arse. He was going left, right, left, right, all round them roundabouts. Next thing, we're into the back of a hotel.
According to Brennan's account, the three of them went to a room at the hotel which had been pre-booked by Redgrave. The DI then searched Brennan thoroughly, looking for a microphone or some kind of recording device. He had to take off his shoes and belt for examination, and said that Redgrave even went through his hair. As the search continued, Brennan said he remonstrated with Charman: 'I looked at Mick and Mick went, "Don't worry." I went: "No Mick. What is all this?" Then Redgrave said, "I've got a pension to worry about, and I ain't being fucked. I ain't being fucked by you or anybody." I said: "Well, if you're worried about a set-up, you're a friend of Mick's and Mick's given me that you're OK." He said there was no problem. He's trying to defuse the situation, 'cos I'm now up in the air about it. Mick's going, "Calm down, calm down."'
Eventually the situation did calm down, said Brennan, with Redgrave apologising and then giving more details about the money-laundering cover story. Brennan would say he had been approached by some Americans who wanted him to launder money in the UK, and Redgrave would say he had authority for Brennan to act as a participating informant. After agreeing to the scam, Brennan said Redgrave asked him for £10,000, which Brennan got for him from Charman's car. (Underlining added)
Brennan told Gaspar he had agreed to pay the pair a total of £50,000. With two amounts of £10,000 already handed over, he claimed the final payment of £30,000 was made a few days later in south-east London. Redgrave warned him that provided he stayed within Scotland Yard's informant-handling guidelines, telling the officers what he was doing, they could cover anything he wanted. Brennan told them the £30,000 was in his car. Charman went to get it. 'I said, "It's in there,"' said Brennan. "And it was in a green Marks and Spencer Bag, and he opened it up and he went "Lovely". "All right," he said, "I'll be in touch with yer." And that's how I parted with the thirty grand So they've been paid for their work to cover the job everything was being covered as long as I stayed in with them guidelines, which I intended to do. I couldn't foresee a problem and nor could they.'
DI Redgrave had told Brennan that he had contacted the FBI, who said it was believed the Texans were into gunrunning and other crimes, including money laundering. Brennan's earlier information to DC Charman about British criminals involved in importing drugs was being acted on in an investigation code-named Operation Nightshade, and Redgrave now expanded this to include the Texans.
With permission, Redgrave activated a special Scotland Yard account in the name of a fake company, Switch On Enterprises. This account had been set up in 1989 with the then Midland Bank for use in covert police operations. Whoever decided on its name must have been enjoying themselves. SO, the first two initial letters, stand for the Scotland Yard unit running the account, Specialist Operations. When the third letter, E, is added, it represents a throwback to the wartime Special Operations Executive. A fake contract was faxed to the US confirming that Switch On Enterprises were Motorola distributors and registered in the British Virgin Islands. The contract referred to SOE supplying six thousand of the special mobiles, and appeared to be aimed at calming any concerns Sam Wang may have had about the deal.
Brennan summed up the position at that stage for Gaspar:
It was a case that we were going to earn a lot of money. At that time the Americans were talking about a further million or a million and a half. They were talking colossal amounts of money, and it was looking like money laundering. This is why the Switch On account was set up It wasn't that we're going to relieve them of 470 odd grand [the cost of the mobile phone deal] and that's where it's going to stop. It was going to go on and on, and the payments were just going to go on and on You must understand that I was doing it with the support of these two officers. I couldn't do nothing wrong It was their aim to have what we've had, and to cover for me for what I was having, or my part of it We definitely believed that the FBI had proved that these were crooks and this money was a money-laundering operation from America to turn bad money into good It was a total utter scam from start to finish.
Gaspar pointed out to Brennan that there would inevitably have come a time when Wang would have realised he had been defrauded. Brennan replied: 'It was a case of how long you could play it out for The fanny would go on till eventually Wang would go to Hong Kong and wait for the shipment to arrive and it was never going to fucking arrive. It was as simple as that.'
Once the £400,000 had arrived, Brennan took precautionary steps to avoid being found by the Chinese-American businessman. He quit his mobile-phone shop and moved house, turning up at his solicitor's with a suitcase containing £137,000 in cash to buy a new home. His plans seemed to be working. Wang did go to HHHong Kong, but when the phones did not arrive he became increasingly concerned and flew to England to find out what had happened. Eventually, in October 1993, unable to trace Brennan, he reported what had happened to Kent police, in whose county Brennan's mobile-phone shop had been located.
Brennan told Gaspar that he expected help from Redgrave and Charman if he was ever questioned or arrested over the theft of Wang's money:
I done everything what they told me to do. They knew what the game was and what the plan was. You know, you can't relieve someone of four hundred odd thousand pounds and just walk away from it. I knew there was going to be problems and John [Redgrave] always said to me, 'Don't worry about it.' I said, 'Look, John, what happens when the curtain does come down? What's going to happen?' He said, 'Don't worry about it if the time comes that you are nicked or pulled in, or it's put to yer, just mention my name. I will get this docket [police file] and I will sit down with these people. If I've got to sit down with the CPS, don't worry. You've done everything by the guidelines. You've not got to worry about this.'
Brennan said he had continued to assist Redgrave in the police money-laundering investigation but he was arrested in November 1993. He told Gaspar that he had asked for Redgrave, but he had been locked up overnight. 'I'm in the fucking shit here I quite expected the door to open up and just be told, "OK, fair enough, you go." It never worked like that. It just turned into an absolute fucking nightmare.
To what extent Brennan knew of the efforts Redgrave had made behind the scenes when talking to Gaspar is unclear. In fact, police records show that, when arrested, Brennan had asked for help from DS Chris Smith, his original handler and the officer who later introduced him to Gaspar. The records go on to reveal that the arresting Kent officers were later told by Redgrave that Brennan was an informant and that their enquiries were putting him and others at risk. Despite this intervention, the Kent police investigation into the alleged mobile fraud continued, however, and a report was sent to the CPS. Still working on the money-laundering investigation, Redgrave again stepped in, telling a CPS official of Brennan's informant status and of a bank account established by the police. The move appeared to have halted the CPS action, but a high-ranking SERCS officer, suspicious about events, instituted another investigation by a police financial specialist. This was still continuing when Gaspar first met Brennan in June 1994.
Gaspar also revealed the results of a secret investigation he had ordered into possible irregularities in the two officers' financial affairs. He said this showed that Redgrave had received unexplained income, over and above his Met police salary. In Charman's case, an unusual spending pattern had started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe.
Put to Inglis that Charman was there and he says he 'believe(s) so'.
McKenzie does not mention Charman being there.
McLagan was not present on this day and no evidence that he was aware of this at the time of publication.
According to the transcript (App 4/A/12/341-342) Redgrave told Det Sgt McKenzie of Bexleyheath police station (the senior officer to DC Inglis) that "Tom and Sam Wang were criminals and the missing cash was from a police account" but the documentation he produced to support this did not "remotely" corroborate what he was saying. According to DC Inglis, Redgrave said that the monies involved in these theft allegations made by the Wangs "had been obtained as a result of criminal activity" (App4/A/12/327).
Redgrave's explanation set out in [Russell, Jones and Walker's] letter to BBC dated 19.3.02 (R2/11).
Maul explains that Redgrave told him that he wanted to avoid prosecution because of the work Brennan was doing (App4/B/8/211B). Maul does not suggest that Redgrave was acting improperly.
Even before Brennan was interviewed at Bexleyheath, his dealings with the Texans had been fully reported on by our client with a view to investigation. But Brennan was still needed as a contact and source of information for Operation Nightshade and the arms investigation. (Underlining added)
For vital operational reasons, when Mr Redgrave learned of the local police investigation he made representations to his senior management that the investigation into the mobile telephone fraud should be made the responsibility of an experienced independent financial investigator from within SERCS with access to full information about Operation Nightshade. The result was the ensuing investigation by Detective Constable Maul, supervised by Detective Superintendent McCullough.
At the pre-trial hearing, Gaspar made two new important disclosures of evidence coming from his investigation. He said he had learned that the separate inquiry into Wang's allegations of theft had been taken over by SERCS, which was an unusual move as that elite group of detectives was not normally involved in such investigations.
The judge decided:
144. ... Whilst it is factually correct that the inquiry into Wang's allegations of theft had been taken over by SERCS, there was nothing unusual or sinister about it.
Maul travelled to the US (preceded by a request from Redgrave to delay the trip because of an operation of which he was in charge that Maul should not compromise by any inquiries [App 4/B/8/210 - 211]. He interviewed Wang Hu (the principal loser) and a man called Hong (who was also involved) and obtained statements from them on 23 June and saw also the banks involved in the money transfer and others involved as alleged criminal associates of Wangs [Trial D1/8/180G-181E]
My name is John Wood. I am an authorised representative of Graham Dobson & Co solicitors. I am required to explain my role here; it is to protect my client's basic and legal rights. I can continue to advise him throughout the interview. He has received legal advice. I have reminded him of his right to silence. .He further instructs me that he has already been interviewed at some length on tape by CS Gaspar of CID in May 1994 and given a full account of these events. In these circumstances my client has decided, on my advice, that he has nothing more to say .
It culminated in his arrest in November 1996. Although he had admitted on tape to stealing the £400,000, when charged he replied: 'I am not guilty of this offence. At all times I acted with the knowledge of the Metropolitan Police as part of a police operation Prior to attending here [a police station] I had protection status. That's now changed. My family are in jeopardy.'
Shortly after this declaration, [Brennan] said he approached Charman for help, and told the officer that he and Redgrave had been under CIB investigation for more than two years.
... the clever Brennan, worried after being charged, counter-attacked on two fronts, muddying the situation even further.
First, he contacted the Police Complaints Authority to withdraw his allegations against Redgrave and Charman. He claimed he had been put up to blackening the pair by his old handler, the Flying Squad detective sergeant Chris Smith. He said that Smith had 'had it in' for Redgrave and Charman since the 1980s, when all three had worked on the huge Brink's-Mat robbery inquiry. Smith strongly denied both claims, but Brennan also alleged that Smith and other officers had been moon-lighting for a private security company he was running, and he issued a complaint against Gaspar too. His claims meant there would have to be a fresh inquiry into the whole affair, and that his prosecution for the theft would have to be postponed.
Brennan refused to pursue, or co-operate with the investigation by Operation Cornwall of his allegations against Smith whilst using the press in 1997 and 1998 publicly to discredit Smith. [App 4/E/12/292 - 298E]
... Brennan also set out to cause Scotland Yard maximum embarrassment, aiming to have the case against him dropped altogether. Just days after contacting the Police Complaints Authority he approached the Mirror, which ran a story under the headline 'Bent Coppers Shopped Me To Gangsters'. It said: 'Brennan joined a huge undercover operation to trap American mobsters who wanted to sell Ulster Protestant terrorists an arsenal of machine guns and explosives. Plans were made to switch cash to a secret police bank account while Brennan introduced an undercover cop into the crooked American cartel.' Brennan was quoted as saying: 'I risked my life to help the police with some of the most important cases of recent years. Now I am being thrown to the wolves.'
An article was published in The Mirror on 7 February 1997 entitled "Bent Coppers shopped me to gangsters" (Defence §5.19). It reported claims to the newspaper by Brennan that he was a police informer who had been betrayed and left to the mercy of villains, including Kenneth Noye, with his Scotland Yard files being leaked to some of London's most dangerous gangsters. It was claimed that the betrayal had taken place during the course of an undercover operation against organised crime involving a plot by Texas-based crooks to launder huge sums of money through Brennan's bank accounts in London and the Channel Islands. The American "mobsters" were said to want to sell Ulster Protestant terrorists an arsenal of machine guns and explosives, the purpose of the operation being to trap the criminals involved. It was reported that the activities of a number of detectives, three of high rank, were being investigated, some of whom dealt with informants. It was said that Brennan had complained to the PCA that officers abandoned him after the leak of his informant file.
The day the Mirror published the story, Redgrave and Charman were suspended, their homes having been raided three days before. From the outset the pair have denied receiving money from Brennan, or indeed, any corruption at all. The two also denied involvement with newspapers at that time.
At the time of writing the relevant section of the book I thought the article's publication so soon after the suspensions of Redgrave and Charman was unlikely to be mere coincidence and more likely the product of some collusion between Redgrave, Charman and Brennan.
I have subsequently been told by Jeff Edwards, the author of the Mirror article, that Redgrave approached him about a week after the article wanting to explain his side of the story.
But Brennan himself approached the Sunday Times, claiming that detectives had pressurised him into incriminating innocent police officers. The resulting story, splashed on 2 March across the newspaper's front page, with a further whole page inside, confused the picture even more. Under the headline 'Yard Loses £½m in Mafia Arms Sting', it related how two Scotland Yard detectives had been suspended over the disappearance of nearly £500,000 from a secret police bank account, set up to stop the American Mafia selling weapons to an Irish terrorist gang. The newspaper said it had seen hundreds of pages of intelligence documents 'at the heart of one of the most sensitive policing operations in recent history'. Although the newspaper did not name Redgrave and Charman, it said they were claiming to have been the victims of the Met's zealous anti-corruption campaign. 'They say that everything they did including placing money, which they believed to have been stolen or earned from drugs sales, into the secret police account in London was approved by senior officers.
51. In addition to the statements attributed to the suspended officers, the Sunday Times claimed to have seen hundreds of pages of intelligence documents outlining "the scandal at the heart of one of the most sensitive policing operations in recent history". The newspaper purported to be in possession of detailed operational information about Nightshade, including information about meetings involving police officers working undercover. It appeared from the face of the article that the newspaper had a source or sources from within the police who had been closely connected with Nightshade and I thought it very likely that the suspended officers had been involved, directly or indirectly, in this information, along with their side of the story being provided to the Sunday Times, in addition to the involvement of Brennan.
52. The coverage continued on the inside with the headline "Deadly Nightshade" and with the trailer:
"Scotland Yard mounted one of its most daring undercover investigations to stop the mafia from supplying arms to Irish terrorists. But Operation Nightshade had ended in a corruption inquiry that is shaking the Metropolitan police."
Detailed operational information was given and it was again repeated that the two suspended officers:
"say they reported every detail of the way the money was handed to their superiors at the time."
[Brennan] was the main source for a second Sunday Times story in August which said that Scotland Yard detectives were earning tens of thousands of pounds moonlighting as private eyes, illegally bugging members of the public, and selling highly sensitive police secrets. Brennan was pleased that the newspaper singled out Chris Smith in its front-page story; 'Chris Smith worked for Brennan while a detective sergeant on the Flying Squad. According to Brennan, Smith was paid £100 a day for his help during a three-month spying operation on a private house in Sussex They placed miniature bugs in holes drilled through a downstairs window and connected them to voice-activated tape recorders.' Brennan told the newspaper that Smith had used police equipment during his moonlighting, which had earned him £20,000-30,000. In a later story, Brennan was quoted as having decided to speak out about corruption because he was being unfairly targeted by police officers; 'It's a vendetta. They are trying to silence me by making trumped-up charges. I'm being persecuted because of the information I have '
57. The Sunday Times article, containing this highly damaging story involving Smith, was published just days before Smith, by then retired, was called as a witness at the Old Bailey trial of David James Phillips. Phillips faced charges of armed robbery and Smith had played a part in the surveillance that led to Phillips' arrest. It emerged on cross-examination of Smith by Phillips' defence lawyers, that they had been put in possession of detailed information about Smith moonlighting for Brennan and allegedly accepting money corruptly from him. There was a prolonged attack upon Smith in cross-examination for which I was present in Court (Defence §5.23). It appeared that the Defence had been provided with information that could only have been provided, directly or indirectly, by Brennan, presumably with a motive to discredit Smith, for his own benefit or that of others.
More recently Short has told me that he had four meetings with both Redgrave and Charman around this time.
Sunday Times "Yard officers sold secrets to criminals". Second major attack on Smith, on the eve of a trial, unrelated to Brennan or Nightshade, where he was to be a prosecution witness.
In the words of Gray J. (paragraph 36):
On 1 February 1998 an article appeared in the Sunday Times accusing him of having taken thousands of pounds in bribes from Brennan.
Guardian, "Corruption squad under fire", "Officers tell of lives destroyed", "Internal inquiries that would haunt police" and "Stings Flaws undermine CIB's covert operations against officers" [App 3/ 15-17]
65. Gillard and Flynn's front page story in The Guardian of 4 March 2000 contained a major critical review of the Met's achievements (or lack thereof) and methods in tackling corruption, reporting that the CIB was itself the subject of three inquiries because of allegations over the way it operated, allegedly using discredited methods to pursue serving and former police officers. Elsewhere in the coverage of that edition, it appeared that at least two of the three inquiries that were being referred to in the article arose out of CIB's handling of Redgrave and Charman. The article gave a range of statistics for officers suspended, charged and convicted.
66. The coverage continued on the inside with a big story, occupying most of page 8, headlined "Corruption in the Met Officers tell of lives destroyed". This was a detailed case history of Redgrave and Charman, as two officers who had been targeted by CIB and had their lives destroyed. Redgrave was quoted telling the Guardian:
"I have been suspended in relation to a complaint that is six years old. This has caused the complete destruction of every aspect of my personal and professional life, friends, financial security, family, marriage, career and reputation . The building blocks of life have all gone with no hope of recovery."
Redgrave and Charman were pictured at the top of the page apparently posing together for a photograph to accompany the Guardian's coverage of their story.
67. Gillard and Flynn reported, as if it were fact, that Brennan, in his capacity as a police informant handled by Charman, had been involved by Texan-based criminals in a money-laundering scam and asked if he could find a buyer for arms worth millions of dollars. He was then authorised to introduce to the Texans two British undercover officers posing as representatives of Protestant terrorists from Northern Ireland. They said that at a delicate stage in the arms negotiations the operation began to fall apart when Brennan in August 1993 was charged with the theft of £400,000, money that had been deposited in his business account by the Texan gang as part of their money-laundering scam. The operation, which had cost millions of pounds, collapsed with no arrests.
68. They went on to relate that Brennan confessed to the theft in interviews with Gaspar and also claimed to have "bunged" Redgrave and Charman £50,000 to turn a blind eye. There was background information about the careers in the Met of Redgrave and Charman. There were quotes from testimonials to the two officers by other police officers, speaking of their dedication and honesty. The article reported that the Guardian had spoken at length to Brennan. The events that followed Brennan telling Charman, that he and Redgrave were under investigation for corruption were described as having "[rocked] CIB to its core".
69. Gillard and Flynn also referred to reports seen by the Guardian that Charman and Redgrave had written to senior officers on learning that they were under investigation for corruptly receiving money from Brennan. Charman and Redgrave were reported telling the Guardian that they had received no response to those reports. Gillard and Flynn also said the Guardian had been provided with correspondence written by lawyers acting for Charman and Redgrave to CIB and the PCA.
70. The connection between Smith (the subject of the cross-examination at the Phillips trial as being in a corrupt financial relationship with Brennan) and the Redgrave and Charman affair, was also revealed in the Guardian article. The implication of the account was that Smith had procured Brennan to make false corruption allegations against Redgrave and Charman. Gillard and Flynn reported Brennan saying that Smith, who had been his handler for 20 years, had been "moonlighting" for Brennan and that Brennan had been "rehearsed" by Smith before making the allegations to Gaspar in June 1994 of a £50,000 payment to them. In a passage for which I deduced Charman was the source, it was said that in 1985 Charman and his Inspector at the time had formally reported Smith for being in a corrupt relationship with Brennan. It was suggested that Smith might even have been a covert CIB officer at the relevant time (in the mid-1990's). The implication was that Smith had procured Brennan to make false allegations against Redgrave and Charman to exact revenge against Charman for reporting him in 1985, or as part of an unlawful plot by CIB falsely to implicate Redgrave and Charman in a corruption scandal. (Underlining added)
71. It seemed obvious at the time that much of the information in this article, not just the incident in which Charman is said to have reported Smith in 1985, must have come from and/or been confirmed by Redgrave and Charman; or that it had come from others, authorised by Redgrave and Charman to speak to the Guardian journalists on their behalf or in promotion of their cause. There were references to documents, in particular the reports and correspondence that I have referred to above, that a reader would naturally infer, as did I, had been made available to the journalists by Redgrave and Charman or by others with their authority.
72. This represented another very prominent item of press coverage of their cause to which both they and Brennan appeared to have contributed. This impression was strongly reinforced by the photograph of Redgrave and Charman that appeared to have been taken of them posing for the purpose of the article.
73. My impression at the time has since been confirmed by Charman who has conceded this much, in paragraph 11.1(3) of his Reply, that "he was approached by Gillard and gave his version of events."
...
76. Not only had Redgrave and Charman obviously, on the face of the article, participated in its preparation, along with Brennan ... (Underlining added)
One of Operation Nightshade's most promising lines of enquiry concerned an illegal arms deal via Sierra Leone. It was on-going when Brennan claimed to have given Mr Redgrave and Mr Charman 50,000 to turn a blind eye to a theft. He later withdrew the allegation.
...
Both detectives now hope that a judicial enquiry will uncover whether they were the victims of a plot by the intelligence services to undermine Operation Nightshade and protect its targets, in particular a US-based gang of arms dealers who were never arrested.
...
Confidential Met and US customs documents seen by the Guardian ... contradict claims by CIB and sections of the Met that the arms deal was not genuine but designed to cover the two officers' corruption" (Underlining added)
82. In the passage above I have emphasised the word "Both" because, in his Reply at paragraph 16.1(3), Charman has disassociated himself from the claims made publicly through McKinlay and the Guardian that he and Redgrave believed themselves to be the victims of a plot by the intelligence services. A reader of the Guardian article would not have detected any disassociation of Charman from that claim, and neither did I.
83. It was my impression at the time, and would have been that of anyone following the case, that Gillard, Flynn and Mckinlay were speaking out publicly about Redgrave and Charman with their authority and, indeed, at their request or with their approval. McKinlay, in particular, would not have taken up the case in the House of Commons unless his constituent wanted him to so do. He would not have acted adversely to or to the embarrassment of his constituent. There was no apparent distancing of Charman from McKinlay's Parliamentary activity. On the contrary, the dossier released to me by McKinlay showed that Millar was in communication with McKinlay and that McKinlay had been provided with copies of letters written by and on behalf of Charman, as well as Redgrave, containing their complaints about the investigations against them.
84. ...Millar emphatically denied that either Redgrave or Charman had any part in any press article published during the period of their suspension until they were advised that no further action was to be taken against them in relation to the Brennan allegations, that is to say, from February 1997 until early December 1999. I read this at the time with some disbelief because of what had been published in the Sunday Times (see paragraphs 49 to 57 above) and the information I had received from Short about his meetings with them around that time (see paragraph 59 above).
The destruction of the lives and careers of honest detectives John Redgrave and Michael Charman is described as "sickening" by their colleagues.
Redgrave and Charman and the other complainants wanted what they called a full, independent investigation into their allegations, conducted by a senior officer from an outside force. Frustrated with the Met's refusal to call in another force and its insistence on carrying out its own investigation, they sought help from MPs, among them Andrew McKinlay, Redgrave's own MP. In the early part of 2000, he tabled a series of parliamentary questions about the cases and the cost of CIB investigations. In July he and other MPs who had expressed interest in anti-corruption work received letters from the Met Commissioner, Sir John Stevens, inviting them to intelligence briefings which would last about two hours and include question-and-answer sessions. McKinlay declined what he said was a wholly improper offer, one which, if he had taken it up, he believed would have precluded him from pursuing his constituent's case.
Certainly, in his account of the affair to Parliament in October 2000, McKinlay spent the fifteen minutes allowed him under the adjournment debate slot to attack the Met and, in particular, CIB. Using parliamentary privilege, which meant he could not be sued for defamation, McKinlay said he wanted the debate because he was seeking 'an end to the agony and unfairness of the inordinate suspension of my constituent'.
He continued: 'there has been widespread misfeasance at the highest level in the Metropolitan Police. I again demand a full judicial inquiry into Operation Nightshade [the gunrunning and money-laundering investigation mounted by Redgrave and Charman] and the consequent malevolence and corrupt practice of those who served, and serve, in the CIB against my constituent and other officers. Referring to Redgrave's claim that CIB were not interested in following up his allegations of a police cover-up over the Stephen Lawrence murder investigation, McKinlay said: 'The CIB is riddled with people who want to stop further light being shed on those relationships.' He described the disciplinary charges against Redgrave as 'a nonsense' and claimed that the CIB commander, Andy Hayman, was 'refusing to take the counter-complaint seriously'.
Replying to the onslaught, the Home Office minister, Charles Clarke, declared he supported the way the Met was dealing with corrupt officers. He said he was unable to comment on Redgrave and Charman's particular case, but on the question of delays in the disciplinary procedures he pointed out that when the pair were suspended they immediately reported sick. A disciplinary board had been arranged for early 2001, but because their lawyers were not available then, the hearing had to be put back to 2002.
61. Following the dismissal of the charges against Charman, Redgrave and Cahill (Defence §5.26), both officers made complaints against the Met in which very strong criticisms were made of Coles (Defence §5.27 §5.30). I became aware of this later, following the trial of Brennan, when McKinlay released to me a dossier of documents setting out their complaints against and criticisms of the CIB investigation of them (see paragraphs 148 to 159 below). The documents in the dossier included those listed in the Defence at §5.27.1 §5.27.5, namely:
Letter from Charman dated 24 May 1999 to the Chief Constable (Complaints Dept), Essex Police;
Letter from Redgrave of 24 May 1000 to Commander Personnel, 1 Area Headquarters, Westminster Police Station;
Letter from Charman's brother-in-law, Millar, of 16 November 1999 to McKinlay, enclosing the above letters together with a letter from Cahill to Essex Constabulary, dated 28 May 1999;
Letter from Millar to Deputy Assistant Commissioner Andrew Trotter, dated 30 December 1999; and
Letter from Millar to McKinlay of 8 June 2000 enclosing the above, as well as other correspondence involving Trotter, Commander Hayman and Commander James.
62. McKinlay was evidently authorised by Redgrave and Charman to release these documents to journalists in order to promote their cause and bring to the attention of the press and media their very strong criticisms and complaints against Met CIB officers. I gave considerable coverage to these criticisms and complaints in the book. In the absence of Redgrave and Charman's preparedness to communicate with me themselves, McKinlay's dossier was a valuable resource of balancing material (see paragraphs 148 to 159 below).
I am pleased to introduce the debate, which relates primarily to my constituent, Detective Inspector John Redgrave, ...
...
My constituent has given 30 of his 46 years to the Metropolitan police. He has received numerous commendations for his diligent policing.
...
Obviously my constituent would have been heading for further promotion, but on 3 February 1997 his world crashed. The CIB broke into his house in the most traumatic circumstances, causing maximum embarrassment to his children and family. ... I could produce much evidence of the tremendous trauma that my constituent has suffered. ...
In December last year my constituent was cleared, after more than six years of CIB investigation, yet he remains suspended and is still fighting to clear his name. I join him in doing so. I have referred to the depression that he endured. Also suspended was his subordinate Michael Charman, a detective constable. They have had to endure the suspension together. On 17 July 1998, to try to cheer up my constituent, who was suffering considerable psychiatric problems, Michael Charman and his girlfriend invited him to their house in Pitsea for dinner. We now know, because it has been documented, that their house had been bugged by the Complaints Investigation Bureau.
[There then follows an account of what happened that day and of the aftermath]
...
My purpose in securing this debate is to seek an end to the agony and unfairness of the inordinate suspension of my constituent. ...
There has been widespread misfeasance at the highest level in the Metropolitan police. I again demand a full judicial inquiry into Operation Nightshade, with which my constituent was involved, and the consequent malevolence and corrupt practice of those who served and serve in the CIB against my constituent and other officers.
I want to halt Commander Hayman's dilatory and partial handling of my constituent's serious complaints of wrongdoing by John Coles and others in the CIB. I want responsibility for the investigation to be removed from the Police Complaints Authority. Commander Hayman should have investigated my constituent's complaints, but is now demonstrably disqualified from doing so.
...
As I said, my constituent, Redgrave, was suspended on the basis of an allegation by a police informant [Brennan] that he had corruptly bunged my constituent stolen money from Operation Nightshade. My constituent was not advised that the allegation, made in June 1994, had been withdrawn. In fact, the informant withdrew it on 27 January 1997. ...
We now know that there are no grounds for the continued suspension of my constituent or for the bugging probe at Michael Charman's dinner. I believe that the warrants obtained for access during the raids were probably unlawful. Police procedures were certainly not followed. I hope that the Minister will investigate further. Despite all that, Detective Chief Superintendent John Coles, unprofessionally and with maximum spite and deceit, continues to traduce my constituent by making baseless accusations that he shared a £50,000 bung with another officer. When will it stop?
There is a serious political dimension to Operation Nightshade - an Anglo-American police sting across three continents, costing millions of pounds. It started in June 1993 and a central figure was a registered police informant [Brennan] to whom I have already referred. He was handled by Detective Constable Michael Charman and my constituent was the senior investigating officer.
Operation Nightshade incorporated three elements--a planned cocaine shipment from Venezuela to the UK; a money laundering scam; and, most importantly, an illegal arms deal using Sierra Leone as a trans-shipment point. The British side included Customs and Excise; the south-east regional crime squad; SO10, the undercover outfit in Scotland Yard; and SO13, the anti-terrorism branch. The British worked closely with the Houston branch of United States Customs, the Federal Bureau of Investigation and the Alcohol, Tobacco and Firearms Branch of the US Treasury Department. All were in the loop.
The informant [Brennan] had been approached in 1993 by a Texan-based gang with an offer to sell arms. The Americans were in the car business and boasted high political connections in Texas, where they lived in opulent homes. Roger Crooks was one of the group and it transpires from my questions to the Foreign and Commonwealth Office that he met Peter Penfold, our high commissioner in Sierra Leone in recent times. It was Crooks who supplied the helicopter in the Sandline affair and he also runs the Mama Yoko hotel, the headquarters of the United Nations in Freetown.
The informant [Brennan] was asked whether he could find a buyer for a large quantity of arms worth millions of dollars. The weapons on offer included M16 assault rifles, grenade and rocket launchers, plastic explosives, mines and ammunition. Redgrave was notified and obtained further authorisation from several senior Scotland Yard commanders and their US counterparts to mount a well planned sting operation. The informant [Brennan] then helped to introduce the Texans to a British undercover officer from SO10, posing as a buyer for Northern Ireland Protestant terrorists. The weapons were to be stolen in part from an army base in the United States and shipped to Britain via Sierra Leone. Officers were particularly interested in finding out how Barratt sniper rifles were getting into Northern Ireland - at the cost of many British soldiers' lives.
The sting operation was going well and undercover officers were gathering evidence against the American gang. After successfully bugging meetings in London and Houston, Redgrave's team and US customs were poised to make arrests. Then something strange happened during the arms negotiations, which ultimately scuppered the operation. The informant was charged with theft of £400,000, which had been deposited in his account by the Texan gang as part of the laundering scam.
To keep Operation Nightshade on track, a financial investigator was appointed by the Metropolitan police to examine the informant's business accounts.
Meanwhile my constituent redoubled his and his colleagues' efforts to complete the sting and make the arrest. By autumn 1994, the American gang had backed off. Operation Nightshade, which cost millions of pounds, faded with no arrests on either side of the Atlantic. I would really like to know exactly how much it cost.
The informant [Brennan] disappeared and the theft charges against him were mysteriously dropped. Three years later, in February 1997, as anti-corruption officers raided my constituent's home, it became clear that he and Charman had not escaped the shadow of Operation Nightshade. Subsequently, the CIB told Redgrave and Charman that the informant had been re-arrested for the alleged theft of money during Operation Nightshade. The anti-corruption squad also accused both detectives of turning a blind eye to the theft in return for £50,000. My constituents were not told that that allegation was subsequently withdrawn, which is disgraceful.
The CIB further claimed that in order to disguise the corrupt payment, Redgrave had duped his senior commanders and simply invented the arms deal. That is clearly untrue, as I have ascertained through parliamentary questions and other parliamentary activities. The protection or non-prosecution of people whom Redgrave and Charman tried to investigate through Operation Nightshade is important to understanding what happened to those two officers. That is especially the case when examining the targets connected with the plan to sell arms to two Met undercover officers posing as buyers for Northern Ireland terrorists. I greatly regret that the SO10 officers were not brought before the Select Committee on Foreign Affairs, but Members are well aware of our uphill struggle for transparency in that matter.
Confidential Met and United States police documents on the progress of their joint operation against the United States-based gang clearly showed that all the law enforcement officers involved believed that they were dealing with real gangsters offering an arms deal in return for millions of pounds.
In Redgrave's report to his superior on 26 May 1994, he said that the current position was that Crooks had placed an order for arms, faxed exportation documents and received the undercover officers' dummy end-user certificate. The report stated that the targets had also seen proof of purchase funds and Crooks had said on tape that the shipment was ready in a container for export within 30 days. Redgrave noted that the next stage would be to return to Houston to arrest the principals. In a memo from United States Customs dated 9 May 1994, special agent Leon Guinn said that the targets in Houston had repeatedly made incriminating statements over the arms deal in numerous telecommunications and in three meetings with undercover officers in London. Guinn continued:
"Investigation by the SAC - special customs - in Houston has determined that the targets have made specific inquiries with US arms dealers... further, the co-conspirators have been recorded alluding to the undercover officers that some of the material requested by them will be taken from US military installations. Guinn ended by saying that the Government attorney handling the case had expressed a desire to pursue prosecution of suspects and believed conviction to be "very likely". In another south-east regional crime squad police report, Crooks is described as the head of the organisation, a high-profile fraudsman, diamond smuggler and arms dealer known to the American authorities and fully researched by the US Customs."
In a summary of meetings between one undercover officer and Crooks at the Britannia hotel in London on 20 December 1993, the undercover officer said:
"Roger again said he had no problem in selling weapons to our organisation but he could only get it out of the United States to, say, Nigeria or Sierra Leone. However, he could put us in contact with the right people who would facilitate its onward shipment to the United Kingdom...Roger again said that we would not have a problem getting it from Sierra Leone as he had all the right contacts, in fact he even had a diplomatic passport for that country - and indeed he has. There are sensitive diplomatic reasons why that aspect of Operation Nightshade has been fudged, which I may make available to the House on another occasion. Crooks and his outfit had high-level contacts in the United States and I believe that political leverage was used. The Operation Nightshade papers show that both the United States and British officers wanted to arrest Crooks and his gang by the middle of 1994 and that opportunity was botched. It is not clear whether MI5 was involved. It is of course unanswerable and unaccountable to Parliament."
Crooks later claimed that throughout the arms deal he was acting as an informant. Crooks appeared later in history at the heart of the United States navy's plan to rescue American and British citizens stranded in Sierra Leone, and he is still involved in the Mama Yoko hotel.
My constituent has been cleared of corruption, but he remains suspended. He believes that his plight is connected to the targeting of Roger Crooks and British policy, official and deniable, on Sierra Leone. He hoped that a judicial inquiry would uncover whether he and others were the victims of a plot by the intelligence services to undermine Operation Nightshade and to protect its targets.
I remind the House that I received some interesting answers from Home Office and Foreign and Commonwealth Office Ministers and from the Ministry of Defence. Despite extensive evidence of arms deals involving Crooks in Sierra Leone, the Minister of State, Home Office, the hon. Member for Norwich, South (Mr. Clarke), said:
"The Commissioner of Police of the Metropolis tells me that no such details were revealed as a result of Operation Nightshade. - [Official Report, 16 March 2000; Vol. 346, c. 268W.] In other words, no details were revealed of arms deals via west Africa. However, in answer to another question, the Minister conceded that Crooks was interviewed by the anti-terrorist branch in London on 24 June 1993 about matters that involved the supply of firearms. - [Official Report, 3 April 2000; Vol. 347, c. 379W.]
Answers from the Foreign Office were equally revealing. I was told that Crooks had been known to various members of the High Commission for some time. - [Official Report, 16 March 2000; Vol. 346, c. 287W.]
"He had provided assistance in the evacuation of the United States hotel in Freetown in May 1997. The Foreign Office also confirmed that Crooks had had contact with unnamed Foreign and Commonwealth Office and Ministry of Defence personnel during the past few years - but not about arms or military matters. The Foreign and Commonwealth Office confirmed that Crooks was expelled from Sierra Leone; but he has now been reinstated. The website of the Sierra Leone news agency said that he had been expelled for trying to arrange the trafficking of arms between Northern Ireland and Sierra Leone. As we know, he also had discussions with Peter Penfold, our controversial high commissioner in Sierra Leone, who was aware of the Sandline plan to arm a counter-coup to restore Kabbah to power."
... I apologise for having detained the House, but I think that you will realise that, prima facie, the case stinks. (Underlining added)
95. McKinlay's speech in the House of Commons was a very strongly-worded and critical attack upon CIB, and Coles in particular. It was made on a privileged occasion in Parliament on behalf of Redgrave in a context that required the Home Secretary or his Minister to respond. From the information that he gave in his speech, McKinlay was clearly in close liaison with Gillard and Flynn. I am told that they were at the House of Commons for McKinlay's speech in the company of Redgrave and Charman. As I found out from the dossier that was later provided to me by McKinlay, Millar too was in contact with McKinlay on behalf of Redgrave and Charman.
110. I followed the Brennan trial very closely. I attended some, but not all, of the pre-trial hearings, making notes of Gaspar's evidence. I also received reports from the Old Bailey news agency, Central News, for days when I was not in attendance. I was given by Andrew Trollope QC, Brennan's Counsel, a copy of his skeleton argument, which was very useful. I was also able to obtain copies of the transcripts of Gaspar's tape recordings with Brennan, which had been referred to in court. These went into great detail about how and where Brennan said he had handed over money to Redgrave and Charman. I also had access to the report on the private finances of Redgrave and Charman by DC Jamie Chaplin, that was mentioned during the pre-trial hearings.
110. Information was also given to me about allegedly false entries said to have been made by Charman in Brennan's informant logs.
...
115. My account in the book of the Brennan trial was based upon my attendances at the Old Bailey and the notes I made; agency reports of the trial, where necessary; the documents referred to in the trial of which I was able to obtain copies or have sight; and my own impressions as an observer from the press bench.
...
118. There was no dispute that the money had passed through his bank account nor that the telephones had never materialised nor that he was having regular meetings with Redgrave and Charman at this time. It was Brennan's defence that he received the money from the Wangs in his capacity as informant working under the direction of honest police officers, Redgrave and Charman, in the course of a bona fide police operation to ensnare serious criminals. ... Richard Latham QC for the Crown was able, on the basis of the Gaspar Tapes, to cross-examine Brennan to the effect that his relationship with Redgrave and Charman was a corrupt relationship, not an honest one. He was able to put to Brennan the two different versions of events: the one on the Gaspar Tapes where he said Redgrave and Charman took money from him and the one in Court where he said they were honest. The names of Redgrave and Charman came up repeatedly during the proceedings and officers I spoke to were waiting with interest to see whether they would be called by Brennan to support his account of an honest and legitimate relationship, but they did not make appearances as witnesses.
119. In his cross-examination of Brennan, Latham put to him the following matters on behalf of the Crown, all of which Brennan denied (Defence §5.48.1 5.48.4):
that a cash withdrawal of £10,000 by Brennan from his bank account on 3 September 1993 was paid over by him to Charman at the Oval, Sidcup, by way of a corrupt payment;
that, on 17 September 1993, by prior arrangement, Brennan met Charman and Redgrave at The Travel Lodge, South Mimms, where Brennan handed over another £10,000 and was told by the officers that they wanted £50,000 to mind Brennan's back with the story that the £400,000 from the Wangs was all suspected money-laundering;
that two or three days after the South Mimms meeting, Brennan gave Charman and Redgrave a third tranche of money, cash in the sum of £30,000; and
that after Sam Wang made his complaint of theft by Brennan to CID at Bexleyheath police station, the investigation was transferred out of that station to SERCS after representations were made by Redgrave.
...
123. In the book, I have made extensive references to the Brennan trial. For these, I relied upon the notes I made while sitting in Court and, for when I was not present, the Old Bailey news agency reports or information given to me by interviewees. I had no access to transcripts, although these have now been obtained for a great deal, but not all, of the trial. ...
CIB officers hoped that Redgrave and Charman would give evidence for Geoffrey Brennan at his trial in 2001. The pair could have used the proceedings as an opportunity to set the record straight, to deny Brennan's original allegations that he had bunged them £50,000 to cover up his theft of the £400,000 from the Chinese-American businessman, Sam Wang. They could also have backed Brennan's later claims that the police operation mounted by the pair into gunrunning and money laundering had been entirely legitimate, and not a smokescreen, as was being suggested by CIB. If the pair had appeared in the witness box, they would have been open to cross-examination by the CIB prosecution team, determined to get at the truth of Brennan's allegations. But it was not to be. Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey.
However, information about their finances emerged at a pre-trial hearing. This was held because Brennan's lawyers wanted to have the case against him thrown out, and if that move failed, to have some of the evidence against him excluded at the full jury trial. A single judge heard the issues, with the main witness being Roger Gaspar, the ghost squad's original head. He went through all the meetings he had with Brennan. He started with the early ones in which the crooked businessman had described in great detail how he had paid £50,000 to Redgrave and Charman, allegations which he repeated at later meetings with Gaspar, but later withdrew. Even more than a year after their first meeting in June 1994, Gaspar was still sometimes providing expensive armed police protection to Brennan, believing that his life was in danger. One such occasion occurred when Brennan said he wanted to visit his father, who was in hospital after suffering a heart attack. Gaspar contacted the hospital and subsequently went there himself, making arrangements for Brennan to enter and leave by a side entrance. He was given armed protection on the journey to and from the hospital.
At the pre-trial hearing, Gaspar made two new important disclosure of evidence coming from his investigation. He said he had learned that the separate inquiry into Wang's allegations of theft had been taken over by SERCS, which was an unusual move as that ιlite group of detectives was not normally involved in such investigations. Gaspar also revealed the results of a secret investigation he had ordered into possible irregularities in the two officers' financial affairs. He said this showed that Redgrave had received unexplained income, over and above his Met police salary. In Charman's case, an unusual spending pattern had started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe.
But Gaspar had to admit that he had not cautioned Brennan that any of his confessions could be used against him. That fact alone, according to the defendant's QC, Andrew Trollope, meant that the officer's notes and tape recordings of meetings should not be allowed as evidence at the main trial. But he advanced further arguments which he said made Brennan's accounts to Gaspar unreliable. He said that Brennan had approached the chief superintendent because he was in fear for his life, someone in the Met having leaked information about him to a violent robber. In order to get police protection, Brennan would have been strongly motivated to say anything. He thought it possible, said Trollope, that either Redgrave or Charman, or both of them, had placed him in danger, so he had a motive for implicating them and seeking protection from them. But while there was no hard evidence that they were corrupt, there was strong evidence that Brennan himself had been a participating informant at the time of the theft, and had been acting for the officers as they investigated drugs dealing, money laundering and gunrunning. The QC also argued that the trial should be abandoned because of the length of time since the original offence, and because of irregularities in the investigation.
For the prosecution, Richard Latham, QC, said that Gaspar had been presented with a unique situation when dealing with Brennan. The businessman had been compromised by the leak of documents that should have remained in police hands, and he was potentially a valuable informant on police corruption. On the other hand he was admitting to the Wang fraud. Gaspar had opposing duties. He was protecting a compromised informant involved with fraud, but he was also investigating corruption, trying to stamp it out.
The officer in overall charge of the ghost squad and CIB, Deputy Assistant Commission Roy Clark, amplified on the problems to the court. He said the anti-corruption detectives did not know whom they could trust, particularly in the early days. Excessive secrecy had also hindered their effectiveness.
Having heard both sides, the judge, Brian Barker, ruled that the trial should go ahead in front of a jury, but Gaspar's notes and recordings of Brennan's confessions to stealing the £400,000 should not be allowed in evidence.
Brennan ... went into the witness box, answering questions from his own QC, Andrew Trollope. He stuck to his story that he had been a police informant, giving information first to Charman on drugs dealing and then, as the police inquiry expanded, to Redgrave. He claimed that he believed all the money sent from the United States was part of a money-laundering and gunrunning operation being monitored by Scotland Yard, and that he had done nothing without the prior approval of the two detectives. Redgrave was running the operation. He agreed that later he had met Chief Superintendent Gaspar to obtain protection, but the jury heard no mention from him of his confessions to stealing Wang's money or of giving £50,000 to Redgrave and Charman (an allegation later withdrawn).
From the start of his cross-examination, Richard Latham tore into Brennan, exposing a series of lies on the part of the businessman, who counter-attacked, protesting that the prosecution was going down the same vindictive road as the police had done, having waged a vendetta against him for the previous seven years. Worked into a fury, Brennan asked for a break so he could calm down, but his request was refused. It was classic knockabout stuff, and Latham's chronological questioning had not even reached the mobile-phone deal. Brennan could take no more at that stage, anyway. He said he was ill and the court was adjourned for a day. When it reconvened, Latham did not let up. He was on top of every aspect of the case, having been prosecuting counsel in the CIB sting operation that had netted Redgrave and Charman. He knew how far he could go legally over the two detectives, and he knew how far he could go in goading Brennan.
One exchange was particularly fascinating. It came after Brennan had described giving information to Charman. "That officer was going to come into your pay?" asked Latham. "No, he was not," replied Brenna, who then admitted that he had met Charman and Redgrave at South Mimms, the service station where, unknown to the jury, he had originally claimed to have paid money to the two detectives. "They wanted money," said Latham, "and you gave them money." Brennan denied the charge and threw the gauntlet back, demanding to know why the prosecution was not calling the pair to give evidence. In replying, Latham chose his words with care. They were damning: "I am not going to bring in criminals to give evidence." Brennan retorted that they were honest officers who had been doing their job: Don't accuse people when they are not here to defend themselves. Why not charge them with corruption?"
"There are few people around when officers are involved in corruption," replied Latham, going on to warn Brennan: "Be very careful what you say about these two officers."
In later exchanges, Latham described the two as "dishonest" and "corrupt", claiming they wanted £50,000 from Brennan out of the £400,000 and in exchange they would "mind his back" with a cover story about money laundering and arms dealing. Brennan denied it, but his back was to the wall and he knew it. Under pressure, his facial twitch became more pronounced. At times he was twitching virtually non-stop. The cross examination was relentless, until by the end Brennan was on the ropes, red faced and blustering. Some members of the jury were even laughing at a number of his responses.
Although Redgrave and Charman were not on trial, for much of the time it was as if they were in the dock with Brennan. In Latham's closing speech to the jury, much play was made of their alleged corruption. He repeated that the prosecution case was that a total of £50,000 had been paid to the two detectives to provide a smokescreen for the theft of Wang's money, and he attacked the defence team for not producing a single document to support their contention that the £400,000 had been handed back in an operation monitored by the police. If honest officers were mounting an official operation with Brennan playing an important part, he said there should have been no difficulty in putting the record straight when the businessman was arrested. Instead, Brennan had refused to answer police questions. For the defence, Andrew Trollope said that although the prosecution was calling Redgrave and Charman criminals, there was no evidence that they were paid a penny piece or were party to any plan to steal the money.
Speaking in mitigation for him, Trollope said that the defendant might not have been alone in carrying out the theft and the events that followed. Although the jury had rejected Brennan's defence, Trollope continued that it was unquestionably the case that Redgrave and Charman were in contact with him at the time of the offence and were aware of what was taking place. While acknowledging that they were not before the court, and that there was no evidence as to their role, he went on to make an apparent reference to the pre-trial hearing evidence that Brennan had originally alleged paying the pair £50,000. Cryptically, he said the judge knew "what the prosecution is about". If it was right that the officers were compliant in what took place, then they bore a heavy responsibility, particularly as Brennan was an informant passing on genuine information. (Underlining added)
He claimed that he believed all the money sent from the United States was part of a money-laundering and gunrunning operation being monitored by Scotland Yard, and that he had done nothing without the prior approval of the two detectives. Redgrave was running the operation.
The informant was charged with theft of £400,000, which had been deposited in his account by the Texan gang as part of the laundering scam?
It would be impractical for me in this judgment to undertake a line by line examination of the substantial passages complained of by Charman. I will therefore confine myself to those which seem to me to matter.
135. There is, however, no reference to be found in the book to the discrediting of the officer Smith. He had been described in Chapter 3 as "a reliable Flying Squad officer" [in June 1994 by the head of the Flying Squad]. The reader of Bent Coppers is told that he had formerly acted as Brennan's handler and that it was he (Smith) who referred Brennan to Gaspar. At page 42 McLagan writes that Gaspar had no reason to disbelieve Brennan's story "especially as it was corroborated by DS Smith".
At page 180 of the hardback edition the reader is told that when Brennan withdrew his allegations against Charman and Redgrave some two-and-a-half years after he was interviewed by Gaspar, he claimed to the Police Complaints Authority that Smith had put Brennan up to blackening the two officers because he had "had it in" for Charman and Redgrave since the 1980s. The reader is told that Smith strongly denied that claim. There follows a reference to Smith and other officers "moonlighting" for a private security company which Brennan was running. Smith is said to have received payments from Brennan for his help during a spying operation on a private house in the course of which police equipment was used. At page 182 Smith is recorded as having admitted working for Brennan whilst still employed by the Met.
136. What the reader is not told about Smith is that (as I have recorded at paragraph 36 above) he had been accused in the columns of the Sunday Times of having taken thousands of pounds in bribes from Brennan.
It appeared that the Defence had been provided with information that could only have been provided, directly or indirectly, by Brennan, presumably with a motive to discredit Smith, for his own benefit or that of others.
Shortly afterwards Smith was cross-examined by counsel on behalf of the defendant Phillips about his relationship with Brennan. Smith repeatedly refused to answer these questions on the basis that it might incriminate him if he told the truth. He also refused to answer questions about payments made to him by Brennan. As a result Smith became the subject of an investigation by the CIB. McLagan was present in court during that cross-examination and had a transcript of it when he wrote the book. The flavour of the cross-examination can be gauged from the transcript of the present hearing at Day 2 pages 146-158. In his evidence McLagan accepted that it had been a mistake on his part to have written that Smith had admitted "moonlighting" in his evidence. In the witness box he denied having moonlighted but later he admitted having done so. McLagan did not mention this contradiction.
137. It seems to me that the role of Smith in relation to the Brennan allegations was important. He had been Brennan's handler. The claim was made by Brennan that it was Smith who put him up to making allegations of corruption against Charman and Redgrave. It was to Smith that Brennan turned when he decided to alleged corruption on the part of Charman and Redgrave. In my opinion McLagan is open to criticism for failing to inform his readers that, far from being "reliable", Smith was profoundly tainted by his answers during cross-examination in the Phillips trial.
It was common ground that DS Smith played a very important role in the whole "Brennan affair". In particular:
(i) He had been Mr Brennan's "handler" and introduced him to DCS Gaspar, an introduction which led directly to the "Brennan Allegations" being made. He was present during most of the "Gaspar Tape" interviews (Hardback, p.42; Paperback, p.53).
(ii) When Mr Brennan was arrested in November 1993, he immediately asked for DS Smith.
(iii) When Mr Brennan withdrew the Brennan Allegations in January 1997 he said that he had been put up to making them by DS Smith who "had it in" for Redgrave and Charman.
As a result, DS Smith's credibility and the nature of his relationship with Mr Brennan and with Mr Charman were matters to which a responsible author had to give serious consideration when writing the story of the Brennan allegations.
At the pre-trial hearing, Gaspar made two new important disclosures of evidence coming from his investigation. He said he had learned that the separate inquiry into Wang's allegations of theft had been taken over by SERCS, which was an unusual move as that elite group of detectives was not normally involved in such investigations. Gaspar also revealed the results of a secret investigation he had ordered into possible irregularities in the two officers' financial affairs. He said this showed that Redgrave had received unexplained income, over and above his Met police salary. In Charman's case, an unusual spending pattern had started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe.
That passage appears to me to be open to a number of criticisms. Whilst it is factually correct that the inquiry into Wang's allegations of theft had been taken over by SERCS, there was nothing unusual or sinister [not a word used by McLagan] about it. DC Maul, the SERCS officer who conducted the inquiry, gave evidence at the pre-trial hearing about it. It was not suggested to him that it was in any way unusual for SERCS to have become involved. It is hard to understand why this aspect ranked as an "important new disclosure" by Gaspar.
145. The other "important new disclosure" identified by McLagan was the revealing by Gaspar of the results of a secret investigation he had ordered into possible irregularities in the two officers' financial affairs. Gaspar is reported to have said that this showed that Redgrave had received unexplained income, over and above his Met police salary, and that in Charman's case an unusual spending pattern had started in October 1993, coinciding with the time Brennan had claimed to have paid over the £50,000 bribe. In point of fact it was not Gaspar but Clark and [Detective Chief Superintendent] Coles who had mentioned these matters in the course of their cross-examination. The criticism which I make of this passage is that it treats matters which McLagan ought to have realised were of marginal relevance and which he knew had taken up no more than a few minutes of court time as if they formed a major part of the hearing. The references to "unexplained income" and "an unusual spending pattern" are damning. ... (Underlining added)
The evidence given was by Clark, not Gaspar - the wrong name was put into their report by the Central News Agency, from which McLagan took this and repeated the error. Clark's evidence is at App 4/D/11/164D - G; Coles also referred to the financial evidence and said it "jig sawed exactly" with the Brennan allegation: App A/D/11/246D-H
The Judge refers to the references to "unexplained income" and "an unusual spending pattern" as "damning". Why therefore should they have been omitted? This was information given in a public courtroom and reported accurately by McLagan. It was not of "marginal relevance" to the book. On the contrary it was highly relevant because it was corroboration independent of Brennan of his corruption allegations. McLagan not only reported accurately what was said in court, but he asked for and was allowed to read the financial report, it having been referred to and summarised in evidence. He therefore took steps to verify that this "damning" evidence had been accurately described in court.
The Judge was right to criticise the highlighting of this evidence (which was mentioned briefly in passing and was of marginal relevance to the Brennan trial). The references were indeed damning and, if McLagan was going to report them as "important new disclosures" then he should have made it clear that these "revelations" were not the subject of first hand evidence and were never examined at the pre-trial hearing. The reader is being told that independent corroborative evidence of the Brennan Allegations was presented to the Court when, in fact, what took place is that passing references were made to the financial investigations without further discussion or consideration
No balancing reference is made to other evidence given at the pre-trial hearing which tended to exonerate Charman.
146. McLagan at the foot of page 232 writes that CIB officers hoped that Redgrave and Charman would give evidence for Brennan at his trial. It is said that the pair could have used the proceedings as an opportunity to set the record straight but that, if the pair had appeared in the witness box, they would have been open to cross-examination by the CIB prosecution team, determined to get at the truth of Brennan's allegations. The paragraph ends with these words:
"Although Redgrave and Charman's names were continually mentioned throughout the trial, the two suspended officers did not appear at the Old Bailey".
147. As McLagan ought to have appreciated, there was in fact no possibility of Charman or Redgrave giving evidence at Brennan's trial. The issue for the jury was whether Brennan had stolen money from the Wangs. It was no part of the prosecution case to say that Brennan's allegations of corruption against Charman and Redgrave were true. Besides, those allegations had been withdrawn. I do not think it is accurate to say that the names of Redgrave and Charman were "continually mentioned throughout the trial". They were referred to on two days after the trial had been running (with interruptions) for a month.
It was no part of the prosecution case to say that Brennan's allegations of corruption against Charman and Redgrave were true.
It would have been apparent to McLagan that the reason for that was that, true or false, the giving of £50,000 to the two officers was irrelevant.
There nevertheless appears to me to be considerable force in the criticism made by Mr Tomlinson that McLagan should have made clear that the alleged criminality of Charman and Redgrave had no bearing on the issues which the jury had to decide. ...
In the context of the trial as a whole it is difficult to understand how, as McLagan claims, for much of the time it was as if Charman and Redgrave were in the dock with Brennan.
I accept that at the end of the passage which I have quoted McLagan informs readers that in his closing speech Trollope told the jury that there was no evidence the officers had been paid money. McLagan does not mention the fact that Latham accepted that there was no direct evidence that corrupt payments were made to the officers. A more serious omission is the failure to refer to the Judge's advice to the jury in his summing up to ignore suggestions made that any money was taken by Charman or Redgrave to assist Brennan. He told the jury that they ought to put that out of their minds.
He does not claim to have verified the information about Charman and it is his case that there were in fact no means whereby he could have verified the truth or otherwise of the Brennan allegations. In my view McLagan ought to have carried out an evaluation and analysis of the material available to him.
I think, however, that McLagan was entitled to assume that Charman would have remained uncooperative if the allegations to be published in the book had been put directly to him.
Whilst I do not accept that the truth or otherwise of the Brennan allegations were investigated at his criminal trial, nor in my opinion did the Crown's case at that trial evidence the truth of Brennan's allegations, I do accept that there had been an investigation by police officers under the leadership of Coles in the form of Operation Cornwall. However, that investigation concluded that there was insufficient evidence to charge Charman with any offence arising out of his dealings with Brennan. That being so, it seems to me to have been unwise on McLagan's part to have placed reliance on the opinions expressed privately to him by individual officers such as Coles.
