Limits to the prvilege defence

The Media enjoys lampooning judges as old fashioned and out of touch and many of the legal profession's top names have had cause to fume over the exaggerated reporting of cases they presided over.

This is especially true of Winchester Crown Court's Judge Griffiths. However, unlike some of his colleagues, Griffiths struck back.

He launched a libel claim against a south coast news agency which released a distorted report of his handling of a sex assault trial. He also targeted national papers which carried and sometimes elaborated the agency's report.

In the case reported, Griffiths ordered a sex offender to pay £500 to his victim and £950 costs. His comments to the defendant were widely reported throughout the national and local media and led to calls from a women's pressure group that he immediately resign. The agency report included the headline-grabbing passage: "A sex attacker was told by a judge today he would not be in the dock if he had sent his victim a bunch of flowers."

However, the report omitted to say that the assault victim had made it clear to the judge that she would probably have forgiven her attacker if he had apologised, that she had resumed an earlier sexual relationship with the man, had sought to have her complaint withdrawn and had emphasised she did not want the man jailed.

The reports of the judge's handling of the case, in the words of the statement read at the High Court last week before Mr Justice French, gave "an entirely false characterisation of Judge Griffiths as a judge who was wholly unfit to sit on the bench".

Chris Hutchings, of Peter Carter-Ruck & Partners, master-minded the libel action on behalf of the judge. While it is rare for judges to take libel action, although not unheard of, Hutchings said this action was unique.

When judges sue over libel the claim usually involves comments about their out-of-court activities. This case involved proceedings in court which for normal reporting would be covered by privilege, provided the report was accurate, contemporaneous and fair.

The reports were contemporaneous and what was reported was accurate. But Hutchings said that by only reporting selected details of the case, the news agency ignored the element of fairness and committed a "sin of omission" and out-of-court elaboration which destroyed normal privilege.

He said the media must see the Griffiths case as a warning over unbalanced reporting. And because judges' conduct can attract as much media attention as the case subject it is an action which other judges may view as paving the way for them to round on the media if they think they have been unfairly victimised.

Few remember the last time ancient contempt laws over "scandalous attacks on the judiciary" were brought into play in the courts. But this action by Griffiths may have put a new sword in the judicial scabbard.