Hay v Cresswell – Public Interest Defence Succeeds in Libel Claim
On the 26 April 2023, Mrs Justice Heather Williams handed down a judgment in the High Court in the case of Hay v Cresswell. This case concerned the #TattooMeToo movement in a libel claim brought by the perpetrator of a sexual assault (Hay) against the victim (Cresswell).
Notably, the allegations of sexual assault were not brought under criminal proceedings by the victim but through civil proceedings by the Claimant, William Hay, in a libel claim against Nina Cresswell. This case is of great significance because it is the first time an abuser has sued his victim for libel and the public interest defence has been successfully invoked under s. 4 of the Defamation Act 2013.
Consequently, this judgment acts as a positive development and sets an important precedent for sexual assault survivors, who will now feel encouraged to name a sexual assault perpetrator in order to protect others.
Facts of the Case:
Ms Cresswell (then a student) met Mr Hay (a tattoo artist) in a nightclub on 27-28 May, 2010. After leaving the venue together, Ms Cresswell alleges that Mr Hay sexually assaulted her. She immediately reported what had occurred to the police, who decided not to pursue the case due to a lack of evidence. As a result, Mr Hay was never charged or arrested in connection with Ms Cresswell’s complaint.
The Libel Claim:
Nealy a decade later, Ms Cresswell then published a series of social media and blogposts reporting what had happened 10 years prior to the alleged assault. She detailed the facts as a part of the #TattooMeToo movement (a campaign against sexual abuse and harassment in the tattoo industry, following from the 2017 MeToo movement campaigning against the same). Ms Cresswell also sent a series of messages to Mr Hay’s girlfriend detailing her allegations, which My Hay subsequently denied. He then brought a libel claim against Ms Cresswell for defamation of character. His claim met the serious harm to reputation threshold (s.1.1 of the Defamation Act), arguing that Ms Hay’s allegations had caused serious harm to his reputation, which affected his career as he saw fewer bookings and reduced business as a result.
The case ultimately rested on Ms Cresswell’s defence against Mr Hay’s claim. Mr Cresswell relied upon the defences of truth and public interest (s.2 and s.4 of the Defamation Act 2013, respectively). This means that to defeat the libel claim brought by Mr Hay against Ms Cresswell, it must be shown that her account of the events was substantially true and/or whether the publication was of public interest.
How the case was to be determined:
In criminal proceedings the standard of proof is beyond a reasonable doubt. Whereas, in civil proceedings the standard of proof is the balance of probabilities i.e., is it probable that, on the evidence, the occurrence of the event was more likely than not. Subsequently, Mrs Justice Heather Williams had to decide whether it was more likely than not that the Claimant did what Ms Cresswell had alleged in her articles about the perpetrator, Mr Hay, or that, even if the allegations were false, whether it was in the public interest for Ms Cresswell to make such allegations.
The judge set out the relevant question for the Court in relation to the truth defence.
“The parties agree that the central question for the court is whether or not the defendant has proved the sting of her allegation that she was violently sexually assaulted by the claimant in 2010. In this regard the court is faced with the parties’ starkly opposing accounts, which, on the way they put their respective cases, leaves little room for the possibility of mistake or misunderstanding as the explanation for this divergence” (para 12).
There was limited evidence for the judge to consider from the night of the incident in 2010. However, the judge was satisfied that on the balance of probabilities Ms Cresswell’s evidence was more persuasive than Mr Hay’s, ruling that she had sufficiently demonstrated that he had violently sexually assaulted her.
Mrs Justice Heather Williams found aspects of Mr Hay’s claim that undermined his credibility and evidence, including an unconvincing explanation for why he left the nightclub with Ms Cresswell. The judge ultimately dismissed the “minor inconsistencies” of Ms Cresswell’s account. She determined that such inconsistencies did not undermine her evidence, given that she was drunk at the time and had been a victim of a violent sexual assault.
Mr Hay’s barrister, Mr B Coulter, attempted to rely on a “presumption of regularity” to argue that the police records from the 2010 report were trustworthy and accurate. This was the same police report which initially dismissed Ms Cresswell’s complaint against Mr Hay in 2017 due to a lack of evidence. Mr Hay’s argument received very little consideration from the judge (paras 48- 57), who was sceptical of the police’s approach at the time when Ms Cresswell reported the assault and took note of the inconsistent police records. Overall, she found the approach of the police at the time of the assault to be unsympathetic to Ms Cresswell.
Mr Hay’s barrister also attached significance to the fact that Ms Cresswell had not made her allegations against Mr Hay public at an earlier stage. He argued that if her allegations were true, then at the time there was “no good reason why she would not have wanted to tell the world about it.” The judge dismissed this proposition, setting out numerous reasons why Ms Cresswell, as a victim of a sexual assault, would not want to publicise this information at the time (para 162).
Such reasons included an internalised shame as a victim fighting thoughts of self-blame, a fear of being disbelieved, not wanting to re-visit the trauma of the event and a concern of a negative public backlash.
After such considerations and arguments, the judge determined that “on the balance of probabilities the defendant has proved that she was subjected to a violent sexual assault by the claimant in the early hours of 28 May 2010” (para 197).
Public Interest Defence
After the judge’s finding of truth on the balance of probabilities, she then began to consider the public interest defence under s.4 of the Defamation Act 2013.
She considered three questions when establishing this defence (para 23):
- Was the statement complained of, or did it form part of, a statement on a matter of public interest?
- If so, did the defendant believe that publishing the statement complained of was in the public interest?
- Was that belief reasonable?
In relation to this defence, the judge found that Ms Cresswell’s #TattooMeToo publications were a matter of public interest (1) and that Ms Cresswell believed this herself (2). Therefore, it was determined by the judge that in all circumstances Ms Cresswell reasonably held that belief (3).
Consequently, the Defendant defeated the Claimant’s libel claim, relying on the defence of public interest. The judge’s decision has established a crucial precedent for survivors of sexual assault by demonstrating that the courts will not hesitate to make factual findings even in the absence of a criminal investigation, caution or conviction.
For more information:
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