QB-2022-001397 - [2025] EWHC 2193 (KB)

The first aspect of the “Contamination Issue” is targeted at the reporters who are said to have used improper journalistic techniques, by asking their sources leading questions and disregarding journalistic neutrality. The Claimant’s closing submissions claim the documentary evidence is “replete with examples of the reporters asking leading questions in order to influence the complainants’ answers, as well as essentially instigating and pushing the complainants into making their complaints”.

Following receipt of Simkins’ letter, Ms Osborne audio recorded a phone call with Ms Powell. She accidentally left the tape recording after that conversation ended with the consequence that a casual, private conversation she had with her housemate was recorded. Ms Osborne had been working long hours. It was the day prior to publication. She was in the process of having to go back to her sources and put to them counter-allegations made by the Claimant, which she told her friend she found “horrible”, and she was giving vent to her anxiety about the prospect of being sued, and having “everything scrutinised”. In that context, Ms Osborne said:

“I’ve got just so many conversations with women. There are 24 women we’ve spoken to now. And I’m not, you know, I probably, I’m sure I said something that was a leading question at some point, you know.”

This is no more than an understandable expression of anxiety, at a particularly stressful moment, that if the many hours of conversations she had had with sources were subjected to minute examination, the way in which she phrased some questions might be found wanting. In fact, the Claimant only identified two purportedly leading questions put by Ms Osborne in any of the disclosed audio recordings or transcripts.

The first concerns the venue of the pub meeting. It was put to Ms Osborne that in one of her conversations with Ms Whyte, on 19 April 2021, she “just went straight in” and asked the leading question, “Was it the Prince Regent?” That is an unfair criticism. At the outset of this conversation, Ms Whyte said they met in a pub in Herne Hill, where two of her former housemates were then living. She could not recall the name but said “it’s by the park”. Later in the conversation, Ms Osborne asked the open question “do you remember anything else about the pub?” Ms Whyte responded:

“Yeah, so it's lovely--it's a gorgeous. I forget the name of it. I think it's something called the Prince Albert. It’s in Herne Hill. Or the Princess? No, Prince. I think it has something to do with Prince. It’s a lovely like bougee pub.”

It was only following those descriptions that Ms Osborne asked, “Is it the Prince Regent?” and Ms Whyte exclaimed, “That’d be it! It’s on the corner of the park, literally faces Herne Hill”. The way in which the conversation flowed cannot sensibly be said to undermine the usefulness of the answer which was given.

During a conversation on 17 April 2021, Ms Seltveit had recounted that on the Glasgow trip Mr Clarke “smacked my arse”. Ms Osborne asked her whether she would describe it as “inappropriate behaviour” or “consensual flirting behaviour”. Ms Seltveit responded, “I remember thinking at the Glasgow party when he smacked my arse that ‘hmm I did not ask for that’. … I remember thinking I didn’t like that even though I might be a flirty person doesn’t mean you can smack my arse right out of the blue”. Ms Osborne then asked the second of the questions that the Claimant criticises as leading: “Would you describe that as a sexual assault?” Ms Seltveit responded that, at the time, she “probably wouldn’t” because it was pre-#MeToo, “but definitely it is. I didn’t ask for that. It’s my arse. If you want to grab it, please ask me first. So yes, I would.”

In cross-examination, Ms Osborne said, self-critically, that she “probably could have put that in a better way”. However, it does not seem to me that the question is objectionable given that she had already ascertained from Ms Seltveit that Mr Clarke had touched her in a way that was sexual, and that he had done so without her consent. By definition, what Ms Seltveit had already described is a sexual assault. Ms Osborne was merely checking whether that was a label that Ms Seltveit herself would apply to the conduct she had described. Her question did not assume any matters that were not already ascertained. In any event, the question and answer were inconsequential as the Guardian reported the conduct which Ms Seltveit had recounted earlier in the conversation without labelling it a sexual assault.

The Claimant contends that the “most outrageous example can be found in Ms Kale’s Witness Statement, in which she essentially admitted that she attempted to lead CJS7 into making a rape allegation”. Ms Kale’s statement contains no such admission. Ms Kale explained that CJS7 was a woman who had met Mr Clarke in a professional capacity. During their first call, CJS7 was “extremely upset”, crying on the call. She told Ms Kale she felt “disturbed by her encounter with Mr Clarke, that she was very young at the time and there was power imbalance between them and an age difference between them as well … she said he was very forceful and she felt it was hard to say no to him when he wanted to have sex with her and she went to the hotel room with him”. Ms Kale said in cross-examination:

“I remember these conversations with this source very well. I absolutely was not leading her; in fact, quite the opposite. I made it very clear that an allegation of non-consensual sex is extremely serious and it was something she needed to think very carefully about before making.”

I accept Ms Kale’s evidence. Ultimately, although the source felt Mr Clarke’s conduct towards her was “exploitative” and “she did not feel like she could say no”, she felt they had had sex consensually. Consequently, her account formed no part of the Articles.

The Claimant sought to rely on an article in GQ magazine, by Hanna Flint, entitled “Sirin Kale and Lucy Osborne: ‘Some women genuinely believed their career would be destroyed’”, to establish that Ms Kale was guilty of deception. The article includes the following passage:

“Clarke was born in Notting Hill to Trinidadian parents and had often used his influence to support diversity and people of colour in the industry. It’s why some accusers, a lot of whom were black or mixed race, were conflicted about speaking up. With that knowledge, Kale, who is of Turkish-Cypriot and Iranian heritage, believes it’s one of the reasons she was asked to colead the investigation. ‘One thing that did come up quite a lot was [the accusers’] fears around race and the idea of speaking out publicly about a black man from a working-class background,’ she says. ‘Those are really valid concerns and me being a woman of colour meant I was able to sort of empathise with that on a level.’”

The Claimant contends that the second sentence is inaccurate. Ms Kale said:

“Some of [the] confidential journalistic sources were women of colour, black women, mixed race women. Women we spoke to subsequently for our reporting as well were black women, mixed race women.”

She did not put it so high as to say “a lot” of his accusers were “black or mixed race”. Ms Kale thought the author “might have slightly misunderstood us when we were talking”.

It seems to me that the passage was probably meant to convey that “some accusers … were conflicted about speaking up”, and of that smaller subset “a lot” were black, mixed race or women of colour. On that understanding, it would be accurate. In any event, the line which the Claimant contends is inaccurate, is not directly quoting Ms Kale and I reject the contention that she lied in the interview.

The Claimant goes further and claims that Ms Kale’s evidence that “some” of the Guardian’s sources were “women of colour, black women, mixed race women” is a lie. That contention is baseless. It is apparent, even on the limited information before the Court, that three women of colour (Ms Lusi, ‘Sophia’ and ‘Maya’) and one black man (Mr Small) gave evidence for the Guardian, and one black woman (Ms Akindude) was a source. While Mr Clarke has been able to work out the identity of some of the Guardian’s CJSs, there are many more in relation to whom no identifying details have been given, whose identity neither he nor the Court knows. No basis for the contention that it is “impossible” for any CJS to be a black woman has been put forward. Given that the Claimant did not remember several of the women who gave evidence, there is no reason to believe that he is fully aware of the entire cohort of women who would have cause to complain of his behaviour.

Ms Kale was also accused of showing a “complete disregard for journalistic neutrality” in her conversation with Ms Crabb on 22 April 2021, when she is said to have “egged her on to make her allegations, saying that it was ‘fucking empowering and cool’”, and – when asked about the nature of others’ allegations – disclosing Ms Sabaliauskaite’s account. However, it is clear that Ms Kale did not encourage Ms Crabb to make allegations against Mr Clarke. Ms Crabb had already done so. What Ms Kale was seeking to do, in ways tailored to appeal to each of her sources, was to encourage her sources, including Ms Crabb, to go on the record with the allegations they had already made.

The second aspect of the “Contamination Issue” concerns the alleged collusion and connections between sources. The Claimant contends that the journalists were “wilfully blind to the fact that Imogen, Ms Lusi and Kevin Proctor were inextricably connected”. However, they knew that Mr Proctor and ‘Imogen’ were in a relationship, and that they were in touch with Ms Lusi. Mr Lewis, Ms Osborne and Ms Kale were well aware that, as Ms Osborne put it “some of the individuals were in touch because they had come together naturally prior to the investigation”. Those individuals included Ms Lusi, ‘Imogen’ and Mr Proctor who were part of the group of seven that coalesced following BAFTA’s announcement.

More broadly, the Claimant sought to draw connections where there were none. Ms Osborne explained:

“the vast majority of these women were expressing, using similar language, similar patterns, very similar patterns, strikingly similar patterns of behaviour despite not knowing each other or not being in touch at the time. That is why we individually corroborated each of these women’s allegations, but part of our corroboration efforts was comparing the conversations that Sirin was having independently of me with women who had not met each other, there were the same things coming up repeatedly.”

Ms Kale gave an example of a source who worked with Mr Clarke in the USA who told her that Mr Clarke said to her he would “like to climb her like a tree and finish her like a Happy Meal”, while one of Ms Osborne’s sources, who worked with Mr Clarke in the UK, told Ms Osborne that he said to her he would “like to climb her like a tree”. The reporters reasonably believed that it was highly implausible that two women who lived on opposite sides of the Atlantic Ocean, and did not know each other, fabricated such a specific phrase.

Contrary to the Claimant’s submission, many of the Guardian’s sources did not know each other, but even among those who had known each other, in some cases through working on the same production, it is clear that many of the sources were not in touch at the time.

There is no evidence to support the Claimant’s contention that there was collusion through “authoring of allegations”. In an effort to assist, given her legal background, Ms Lusi took down Ms Kaiser’s account. There is nothing to indicate that in doing so she influenced her account. There is no evidence that any other accounts were written for others, and in any event, the Guardian’s reporting was based on direct questioning and re-questioning of their sources.

Heavy reliance is placed by the Claimant on the fact that the journalists brought some of their sources together, so that they communicated with each other in a WhatsApp group called “NC support”. However, Mr Lewis and the reporters were clearly conscious of the danger of their sources coming together. They were keen to avoid facilitating any communication between their sources until they had obtained their accounts. The process of putting some sources in touch with each other only began after the Guardian had obtained their accounts. It was a reasonable step to take, at that stage, for the purpose of encouraging their sources to go on the record with the allegations they had already made.